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Legal notes > Unit 4 AOS 2a > Flashcards

Unit 4 AOS 2a Flashcards

1
Q

What is the role of parliament?

A

It is to make laws. As parliament is democratically elected the laws passed should represent the views and values of the majority of Australians. This is done through the legislative process.

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2
Q

What is a bill?

A

It is a proposed law. It is a document that outlines what a new potential law should be including the scope of the law, the requirements that the people need to adhere to etc

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3
Q

What are the two types of bills?

A

Government bills
Private member’s bills

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4
Q

What are government bills?

A

They are proposed laws that have been approved by the Cabinet (PM and senior ministers) and they are created and introduced as a result of either government policies, community needs/expectations; general interst groups in the community. They can include money bills

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5
Q

What are private member’s bills?

A

They are proposed laws that do not have the Cabinet’s support. These bills are commonly introduced by a memeber of the opposition, a government backbencher or an independent. They are usually unsuccessful and will be out-voted by the gov

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6
Q

Stages in the legislative process in the Lower House

A

Initiation and first reading
Second reading
Consideration in detail
Third reading

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7
Q

Stages in the legislative process in the Upper House

A

Initiation and first reading
Second reading
Committee of the whole
Third reading

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8
Q

Stages in the legislative process in Royal Assent

A

The Crown will act on the advice of the executive council when giving their approval to a bill that has passed both houses

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9
Q

What is proclamation?

A

It refers to the date for the commencement of the Act which may be announced by the Crown or the gov Gazette

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10
Q

What is the bills compatibility with human rights?

A

In Vic, the bill must comply with the Charter of Rights and Responsibilities during the 2nd reading speech, or explains the extent of the incompatibility

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11
Q

Factors that can impact Parliament’s ability to make laws

A

The roles and Houses of parl
The representative nature of parl
Political pressures
Restrictions on lawmaking powers of parliament

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12
Q

What are the roles and houses of parl?

A

Majority government, majority government in both houses, minority government, hostile Senate and the balance of power

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13
Q

How does a majority gov impact lawmaking?

A

Gov is formed in the LH and if a political party manages to secure the majority of the seats, a majority gov will be formed. Any bills that are proposed by the gov will most likely be accepted

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14
Q

How does a majority gov in both houses impact lawmaking?

A

If a party holds the majority in both houses of parl it has the ability to introduce whatever bill it likes since members of the party will vote along party lines to pass the bill in both houses. This may allow laws to be made more efficiently but there is often a lack of scrutiny and debate as a result of the rubber stamp effect ocurring

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15
Q

How does a minority gov impact lawmaking?

A

When a political party fails to secure the majority of seats in the LH or, when both parties secure the same amount of seats, this is referred to as a hung parliament. if this occurs, majority parties must seek support from members of minority parties to form gov.

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16
Q

Why can a minority gov be problematic?

A

Because gov must constantly negotiate with minor parties and independents to pass bills and this can result in the gov being forced to dilute its original policies

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17
Q

How does a hostile Senate impact lawmaking?

A

It refers to a situation when the Opposition controls the majority of seats in the UH and this means bills passed from the LH may face significant opposition from the Senate and crossbenchers which can vote together to force the gov to amend it’s original bill

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18
Q

How does the balance of powers impact lawmaking?

A

Occurs when no single political party has majority of seats in either one or both houses and this means members of the crossbench can band together and vote against government bills, means the gov will need to win support of the minority parties and independents to get bills passed

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19
Q

What are other concerns regarding the balance of powers?

A

Members from minor parties do not represent the views and values of the the majority of people but they have a disproportianate amount of influence

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20
Q

What is the argument in favour of the balance of power?

A

It is argued that it results in a more effective parliament as the gov may need to take into consideration wider views and perspectives to reflect community interests

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21
Q

What is representative government?

A

MPs are democratically elected to uphold the views and values of their voters and to incorporate them into their law making decisions and if they are seen as not upholding their electorates wants and values they risk not being re-elected

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22
Q

How does a representative majority impact lawmaking?

A

Although MPs should strive to uphold the views and values of their electorates this can lead to supporting and passing bills that are popular rather than passing controversial laws that may be required

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23
Q

How do democratic elections impact lawmaking?

A

Regular elections ensure that Australians can monitor and hold their MPs to account and that they can be replaced if they are not actikng in accordance with the requirements of their people

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24
Q

What are political pressures?

A

They are direct or indirect influences that exist either within a political party or from sources outside of parl and parl needs to respond to political pressures appropriately when making laws or ministers risk being voted out

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25
Q

What are the three types of political pressures?

A

Domestic political pressures
Internal political pressures
International political pressures

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26
Q

What are domestic political pressures?

A

They are influences or demands that are made by individuals, groups or organisations that exist within Aus and they use methods such as petitions, demonstrations, media, social media, not voting etc

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27
Q

What are examples of domestic political pressures?

A

The Rigth To Life Australia (RTLA)

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28
Q

What are internal political pressures?

A

Pressures that occur within parl and they occur when MPs are expected to vote along party lines but may disagree with the bill or they believe that the legislation does not align with the people they are representing

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29
Q

What can internal political pressures cause?

A

If a minister strongly disagrees with their partys policy they may vote against the policy in a conscience vote that prioritses their moral and ethical beliefs or if no conscience vote is available they may choose to support the Opposition and ‘cross the floor’

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30
Q

What are international political pressures

A

They arise from outside of Aus and can come from other countries or international orgnaisations such as the UN

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31
Q

What are examples of international political pressures?

A

Aus has the obligation to uphold its international treaties and pass legislation to uphold these e.g Conventions on the Rights of the Child – raising the minimum age of imprisonment from 10 to 14
Aus can be placed under pressure to ban imports from certain countries if they are deemed to be aggressive towards other countries
Aus was banned from speaking at the UN Climate Summit 2019 because gov was not doing enough

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32
Q

What are the restrictions on Parliaments law making powers?

A

Jurisdictional limitations
The legislative process
Specific prohibitions
The High Court
The Aus Constitution

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33
Q

How do jurisdictional limitations restrict Parliaments lawmaking powers?

A

Parl must operate within its are of lawmaking/jurisdiction and it is restricted from legislating outside of its are of lawmaking

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34
Q

How does the legislative process restrict Parliaments lawmaking powers?

A

A proposed bill must be passed through both houses of Parl and there are multiple stages involved to ensure proper scrutiny, debate and amendment to the bill and Parl is not able to bypass this process, the bill will also need to receive royal assent

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35
Q

How does the Aus Constitution restrict Parliaments lawmaking powers?

A

It restricts both State and Cth Parl ability to make laws as it upholds the division of powers and it outlines the areas Parl are restricted from legislating in and if they are found to be doing so the law may be declared ultra vires

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36
Q

How do specific prohibitions restrict Parliaments lawmaking powers?

A

The Const imposes further limitations on Parl as it expressly bans Parl from making laws in particular areas, banning Cth from making laws that may infringe upon express rights, restricting Cth powers by not providing these within S51 and by including S109

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37
Q

How does the High Court restrict Parliaments lawmaking powers?

A

It can act as a restriction on Parl as it has the ability to declare laws ultra vires if they are considered invalid and this ruling cannot be abrogated, the only way to circumvent the ruling is to change the wording of the Const through a successful referendum

38
Q

Why do courts make laws?

A

When a dispute arises but there is no legislation covering the matter a test case will need to be conducted as no Act exists
When a legal principle is being disputed regarding the interpretation of an Act – Statutory Interpretation
When a trial has occurred but one party believes that the judgement was made in error and would like a more senior court to review the decision – appeal
Courts only make laws when the decision sets precedent

39
Q

What is Common law?

A

A system of law developed as a result of judges making decisions on cases they hear, it ensures consistency and certainty and it can set precedent

40
Q

What is the doctrine of precedent?

A

It is a system used by courts to ensure that similar cases are dealt with in similar ways to ensure consistency and fairness in outcomes and it operates based upon the court hierarchy

41
Q

What is precedent?

A

It is a reported judgement of a court that establishes a point of law

42
Q

What is ratio decidendi?

A

It is the ‘reason for decision’ and it refers to the legal principle that the judge has used to come to their decision and only ratio decidendi is used to determine later cases

43
Q

What is obiter dictum?

A

It is the ‘statements made by the way’ and they are comments made by the judge on question of law or how they were influenced by previous legislation or their opinion, it is not part of ratio decidendi but may be used as a persuasive argument and can be used to influence Parl to amend legislation

44
Q

What is stare decisis?

A

It is ‘standing by what has been decided’ and it underpins the doctrine of precedent as judges in lower courts should stand by decisions of higher courts in ‘like cases’ and it forms the rules for ‘flexibility of precedent’

45
Q

What is binding precedent?

A

It is precedent that has been established by a higher court in a similar ‘like’ case that a judge must follow and they must follow this decision because the precedent was established by a higher court within the same hierarchy and because the case is of similar ‘like’ nature

46
Q

What is persuasive precedent?

A

It is precedent that is not binding on the current judge and they do not have to follow the decision made

47
Q

What causes persuasive precedent?

A

Decision made by a lower court, decision made within a different hierarchy, decision made by a court on the same level, the facts of the case were not similar enough in nature or the obiter dictum statements were used to influence the decision

48
Q

What are the four types of flexibility of precedent?

A

Reversing
Overruling
Disapproving
Distinguishing

49
Q

What is reversing precedent?

A

It is when a higher court hears a case on appeal and decides that the lower court which heard the matter at trial was incorrect and, in doing so, will reverse the decision

50
Q

What is overruling precedent?

A

It is when a higher court decides not to follow the decision of a lower court in a previous case as they believe that the case was wrongly decided

51
Q

What is disapproving precedent?

A

It is when a judge decides not to use precedent previously set by a court at the same level and it demonstrates that their opinion of the law differs from the judge in the earlier case. It can also occur when an inferior court is bound to follow the decision of a higher court but does not agree with the decision of the court and the judge may make comment about the precedent which can influence change

52
Q

What is distinguishing precedent?

A

It is where the facts of the case are sufficiently different from those in a previous case and the decision in the previous court will not be considered binding

53
Q

What is statutory interpretation?

A

It is when judges decide on the meaning and application of the words or terms within an Act to resolve a dispute

54
Q

How do courts interpret statute?

A

Courts can consider what Parl had in mind when making the Act and what Parl’s intent or purpose was when the bill was drafted and the courts can use a number of sources to help them arrive at the intention of the legislation, these may be intrinsic or extrinsic to the Act

55
Q

What are the two types of sources that courts can use when interpreting statute?

A

Intrinsic and extrinsic sources

56
Q

What are intrinsic sources?

A

They are found within the Act itself. Judges will refer to other sections of the Act to interpret the meaning of words/clauses and they can refer to margin notes, footnotes, the long title, the objective or purposes of clauses

57
Q

What are extrinsic sources?

A

They are found outside of the Act and can include dictionaries, legislative guidelines, second reading speeches of Parl and previous decisions of other courts

58
Q

What effect can statutory interpretation have?

A

It does not change the wording of the Act but it the meaning of the words are determined in order to settle a dispute and create a ruling
What other effects can statutory interpretation have?
Forming a precedent
Limiting the scope of the legislation
Increasing the scope of the legislation

59
Q

What does limiting the scope of the legislation mean?

A

If the courts give a narrow or limited interpretation to words or terms, the interpretation may limit the range of circumstances tat the Act may apply

60
Q

What does increasing the scope of the legislation mean?

A

If the courts give a broad interpretation to words or terms, the interpretation may extend the range of circumstances the Act may apply to

61
Q

What are the factors that may affect the courts ability to make laws?

A

The doctrine of precedent
Judicial conservatism
Judicial activism
Cost and time in bringing a case to court
The requirement for standing

62
Q

How does the doctrine of precedent impact the ability of courts to make laws?

A

The courts are not free to make laws in the same way as Parl and judges cannot make laws as an immediate response to community demands or when a general need is perceived

63
Q

How can the doctrine of precedent assist courts in lawmaking?

A

Stare decisis ensures consistency and predictability, it is flexible, the establishment of precedent has the power to clarify and expand or limit the meaning of legislation and it is able to compliment, clarify or update legislation

64
Q

How can the doctrine of precedent limit courts in lawmaking?

A

If lower courts cannot distinguish their case they are bound to follow precedent from superior courts which may be outdated or potentially unjust, the process of locating, interpreting and applying precedents from previous decisions can be costly and time consuming, judges must wait for a case to come before them before they can establish precedent and judges can only clarify the law ex post facto (after the fact)

65
Q

How does judicial conservatism or activism impact the ability of courts to make laws?

A

Judges must be willing to adopt a lawmaking role and some judges may prefer to leave lawmaking to Parl and will not disrupt the status quo, others will choose to adopt this lawmaking role

66
Q

What is judicial conservatism?

A

It is when a judge adopts a narrow interpretation of the law and avoids creating major/controversial decisions or changes surrounding the law as they prefer to leave lawmaking to Parl and they are not influenced by their political beliefs

67
Q

What is judicial activism?

A

It is when a judge considers a wide range of social and political factors when interpreting Acts and it tends to be more progressive and sometimes controversial and it often reflects the political views held by the judge

68
Q

How can judicial conservatism assist courts in lawmaking?

A

Helps maintain stability in the law, lessens the possibility of appeals and allows Parl to make more significant and controversial changes to the law

69
Q

How can judicial conservatism limit the courts in lawmaking?

A

Restricts the ability of courts to make major and controversial changes in the law, can discourage judges from considering a range of social and political factors when making law and may be seen by some as not being progressive enough

70
Q

How can judicial activism assist courts in lawmaking?

A

Allows judges to broadly interpret statutes in a way that recognises the rights of the people, allows judges to consider a range of social and political factors and it allows judges to be more creative when making decisions and significant legal change

71
Q

How can judicial activism limit courts in lawmaking?

A

Can lead to more questions on law and can lead to courts making more radical changes in the law that may not reflect the communities views and values or are beyond the communities level of comfort

72
Q

How can the cost and time of bringing a case to court impact the ability of courts to make laws?

A

Court action is expensive as a result of court fees and legal costs such as disbursement fees, legal representation, filing a writ etc and this can mean people are reluctant to take test cases to court due to the uncertainty of the outcome
A decision also may not be reached quickly as the court needs to hear all arguments and this can take considerable amounts of time, it can also mean that final determination may not be reached until the matter is heard on appeal

73
Q

How can the cost and time of bringing a case to court impact the

A
74
Q

What is test case?

A

It is a case concerned with a particular issue or legal question which has not been decided before in a superior court in the same hierarchy

75
Q

How can cost and time assist courts in lawmaking?

A

The courts are able to manage disputes which can allow them to save money and time, means that only legitimate cases are brought forward, courts will attempt to make a decision relatively quickly once the case has been nrought before them and courts are not required to follow the lengthy process bodies such as Parl have to

76
Q

How can cost and time limit courts in lawmaking?

A

High costs can deter those with a legitimate case as they may not be able to afford these costs, can deter parties from pursuing the appeals process, some courts can take months to hear and determine more complex cases and parties can be delayed in getting a case ready for trial

77
Q

How can the requirement for standing impact the ability of courts to make laws?

A

Standing (locus standi) is the right of a party to start legal action in court and the party must be considered sufficiently connected to, and have an interest in, the court action

78
Q

What is locus standi?

A

It refers to a person having ‘standing’ in a legal case and this will be the case if the person will be directly affected by an action which would continue unless relief is granted by an order of the court, if a person does not stand to lose something, they do not have standing

79
Q

How can the requirement for standing assist courts in lawmaking?

A

Ensures cases are only brought to court by poeple who are genuinely affected by an issue or matter and encourages people who are not directly affected by an issue or matter to seek other avenues of redress

80
Q

How can the requirement for standing limit courts in lawmaking?

A

It means that people who have a general interest interest in the case have no right to pursue a legal challenge on behalf of public interest and means that potential improvements to the law that could have been made by listening to those with only intellectual standing in the case are lost

81
Q

What is the relationship between Parl and courts?

A

It is an investigation into how Parl and courts influence and affect each other when it comes to lawmaking

82
Q

What are the five factors that influence the relationship between Parl and courts?

A

Parls supremacy in lawmaking
The ability of courts to influence Parl when making legislation
Statutory interpretation
Abrogation
Codification

83
Q

What is the supremacy of Parl?

A

Parl is the supreme lawmaking body because they are given the primary role of lawmaking within the Const, members of Parl are democratically elected, is required to be representative of the people, is required to be answearble to the people, establishes the jurisdiction of the courts other than the HC, can pass laws that can override common law and can make/change laws at any time

84
Q

What is the relationship between the supremacy of Parl and the courts?

A

The High Court can declare laws made by Parl as ultra vires if it deems that Parl has legislated outside of its jurisdiction

85
Q

How can courts influence Parl?

A

Obiter statements and ratio decidendi
Doctrine of precedent
Community outrage

86
Q

How do obiter statements and ratio decidendi of the courts influence Parl?

A

Courts can make comments as part of their obiter statements or ratio decidendi and this can indirect;y influence Parl as it encourages them to initiate changes to the law

87
Q

How does the doctrine of precedent allow courts to influence Parl?

A

Parl can be encourgaed to change the law if courts are bound by previous precedent or if judges have chosen to interpret outdated statutes in a conservative way

88
Q

How does community outrage allow courts to influence Parl?

A

A court decision may cause public dissent or outrage because of a percieved unjust decision and Parl may be pressured to respond due to community dissatisfction and their need to be representative of the community in order to be re-elected

89
Q

How does statutory interpretation allow courts to influence Parl?

A

The application of Acts is left to judges and they can apply meaning to words and phrases in the Act in order to make a ruling. By giving meaning, judges are able to clarify legislation so it can be applied to the case at hand and depending on the position of the court they can create a precedent which allows the Act to be updated to reflect current views. The HC is the only court that can interpret the meaning of words in the Const and can alter the division of lawmaking powers between Cth and States

90
Q

How does codification allow courts to influence Parl?

A

If Parl agrees with a courts ruling, it can decide to bring the common law principles established by the courts into statute law by passing a bill within Parl which strengthens and enshrines the common law principle in legislation

91
Q

How does abrogation allow courts to influence Parl?

A

If Parl disgarees with a courts ruling, it can abrogate the common law principle by passing legislation that disregards or contravenes the principle, meaning it has been abolished
Parl cannot abrogate HC decisions in relation to the Const

Legal notes (5 decks)

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