UNIT 4 AOS2-DOT POINTS 1-5 Flashcards
What are the factors that affect the ability of parliament to make law?
- The roles of the Houses of parliament
- The representative nature of parliament
- Political pressures
- Restrictions of the law making powers of parliament
How does having a majority in the lower house affect the ability of parliament to make law?
-legistlation,programs or policies will be passed easier by the house, as there is less opposition
A-thiss therefor allows government to fulfil election premisses
D-If government hold majority in both housesit holds the power to introduce laws as it pleases, with little debate, therefor may not be appropriate
What may limit a government that hols a majority from implementing laws as it pleases?
-public pressure and risk of not being re-elected
How does having minority government affect the ability of parliament to make law?
D-constant negotiation must occur with minor parties and independents to endure its legislative program is passed, this can result in the government being forced to alter to ‘water down’ policies.
A- ensures that government bills are thoroughly discussed and debated in lower house
How does the effectiveness of the upper house when government holds a majority in both houses affect the ability of the parliament to make law?
-I members vote according to party the bills will be inevitably passed
p- allows government to introduce law reforms and promises made
c-may prevent upper house from adequately fulfilling its role as a house of review and representing state interests
How does having a hostile upper house affect the ability of parliament to make law?
-government may face difficulties implementing its policy agenda the is because the upper house will be able to reject government bills or negotiate significant amendments.
p- lead to more thorough debate and scrutiny of bill
c- can also prevent or obstruct the ability of government to implement law reform
How can the balance of power affect the ability of the parliament to make laws? negative
hostile upper house can lead to independents of minorities holding a disproportionally high level of power compared to their voter base, especially when they can vote wiht opposition to block government(cross bench holding), therefore may not represent majority
How can the balance of power affect the ability of the parliament to make laws? positive
a diverse upper house can equally be seen as an opportunity for a more effective parliament as the government may be forced to take into account a wider range of views that greater reflect community
How does the law making process increase the ability of parliament to make laws?
- requirement of both houses approval gives the second house an opportunity to scrutinise and suggest amendments
- -debate- point our flaws and positives therefore may take on a greater range of views
- able to change law relatively quickly if majority
How does the law making process restrict the ability of parliament to make laws?
- can become a slow processes to implement reform especially if does not hold majority in both houses
- parliament only sits for a limited amount of days and laws must be made during parliament sitting time, therefor limiting number of reforms
Why are the views of the majority vital?
when people see the need for change in the law they may undertake a range of activities such as forming a petition, demonstration or contact local parliament. theses activities may influence law making of parliament
What is a disadvantage that the influence of the majority cause?
- in attempt to be re-elected members of parliament may introduce and support laws that are popular with the majority rather than passing more controversial necessary laws.
- can be difficult for members of parliament to assess the view of the majority of people in areas where there are conflicting societal views on controversial issues
- costly and time consuming
What is the importance of a representative government in making laws?
-as parliament members are elected to represent the publics view and make laws of their behalf, they jeopardise being re-elected if they do not address the needs of the community
What are the main restrictions of law making powers?
- jurisdictional limitations
- specific prohibitions
- law making process
Define jurisdictional powers
one restriction on the law making powers of the parliament is that it can only make law within its constitutional power. Therefor they cannot make laws in residual areas.
Define tied grant
funding given to state government by the commonwealth on the condition that it spends the money in the manner specified therefor allowing them to directly influence residuals power.
Evaluate the ability to challenge the validity of commonwealth powers
A-Can clarify the extent of the law-making powers of the parliament and whether a law is valid. This can clarify. an unclear area that may apply to many people, or challenge a politically contrivers; government policy
D- running a court case is expensive and time consuming. and decisions made by high court can not be overrides by parliament
What are specific prohibitions?
The Australian constitution also restricts the ;aw making powers of the state and commonwealth parliament by expressly banning or prohibiting parliaments from making laws in particular areas. limit through banning
Examples of specific prohibitions
s114- restriction on state, military navel
s115,restriction on state, creating new policy
s116- restriction on commonwealth, freedom of religion
s117-restriction on commonwealth, making laws in residual
What is the main role of the courts?
is to apply exisiting laws made by parliament to resolve disputes. The courts are also able to make law when necessary and are vital in law-making
Why are the courts independent from parliament and government?
to ensure judges determine cases and establish legal principles without pressure or influence from parliament
Why are judges appointed by government and not voted in?
allows judges to make independent and impartial decisions without being subject to political pressures from voters
What is common laws?
law made by judges through decisions made in cases. also known as judge made law
What is the purpose of regular elections?
regular electives help achieve representative government. this is so people can vote for politicians to represent them in parliament
What is a disadvantage of federal elections?
a criticism of the federal electoral system made by a political analysis and members of the community is that federal elections are not held on a fixed date, therefor government can call elections to best suit them
What is an advantage of federal elections?
- compulsory, therefore helps ensure parliaments and government chooses by majority
- earlier elections can be beneficial to continue political agendas and policies
Strength of domestic political pressures?
- the link between people, parliament and government therefore members of parliament must be responsive to views and needs of people
- enables individual members of the community organisations that represent a minority that feels ignored to have a sense that they can influence individual members of parliament
Weakness of domestic political pressures
-small but vocal groups may place excessive pressure on politicians therefore impeding important law reforms that the minority do to feel are right
How can businesses and organisations effect the ability of parliament to make law?
- they can place significant pressure on members of parliament to make laws that benefit the interest of their own businesses or organisation
- large environmental groups have been able to place significant political pressure on government to consider the way in which government policies impact on the environment
How can financial donations affect the ability for parliament to make law?
influential individuals, business groups, organisations may also seek to place direct pressure on political parties including the government to make policies and support law reform and initiatives that are in their best interests by contributing financial donations. these donations may be used by the political party in marketing and promotions during election campaigns
How do independents influence the ability of parliament to make law?
influential individuals, prominent business people an members of the community groups and organisation sometimes run as independent candidates, or form their own political parties in an attempt to win a seat in parliament. this therefor allows them to directly influence law reform
How can internal pressures from within a political party effect the ability of parliament to make law in a negative way?
-members of parliament who belong to a political party are generally expected to vote as one block and support the views of the party .This may compel individuals to vote in accordance with the party even if they disagree
How can internal pressures from within a political party affect the ability of parliament to make laws in a positive way?
-if individual members strongly disagree with their parties policy and does not allow its members a rare conscious vote, they can cross the floor to temporarily support the opposing parties view.
Define conscious vote
s vote in parliament by which its party member vote in accordance to they moral views rather than in accordance with party
How can minority parties effect the ability of parliament to make law?
where minority government does not hold absolute majority in the lower house, the government will be subject to even ore internal pressures. this is because they will need to negotiate with minor parties and independents to gain support. therefore some policies may be compromised to pass legislation
What international political pressures make catalyse law reform by the Australian parliament?
- international treaties
- major international trading partners
- changing international circumstances
Explain how international treaties push the parliament to make laws
being a signatory to , or having ratifies international treaties can subject the Australian government to political pressure if it fails to uphold basic principles of treaty. therefore as a signatory the Australian government must pass legislation to formally recognise the treaty
How may internationally trading partner influence parliaments law making?
the government can also be subjected to political pressure from major international trading partners ad defence allies. therefor they must consider the countries economic partnership and trade agreements when implementing foreign policy and domestic law
How does changing international circumstances affect parliaments law making?
-changing International circumstances and specific global events can also place pressure on local governments to make or change law. these circumstances may include introduction of new medical techniques, displacement after war
List ways of developing or avoiding binding precedent
- reverse
- overrule
- distinguish
- disapprove
Define distinguishing precedent
distinguishing precedent is the process by which a lower court decides that the material facts of a case are sufficiently different to that of the case in which a precedent was established by a superior court. this is because precedent set by a superior court in the same hierarchy is only binding to cases with similar material facts
Define Reversing precedent
is when a superior court changes a previous precedent set by a lower court of the same case that is on appeal. therefor the court creates a new precedent which overrides the earlier precedent
Define overruling a precedent
is when a superior court changes a previous precedent established by a lower court in a different later case. their the court creates a new precedent which overrules previous precedent
Define disapproving precedent
is when a lower court disagrees with an existing binding precedent se by a superior court in the same hierarchy and wished to show dissatisfaction. it does not allow lower court to avoid precedent, but may encourage law reform or party to lodge appeal
Explain consideration that must be taken when applying earlier precedents
when resolving a case the courts will be required to consider applying precedent in previous cases. even if a court does not RODD they may still need to refine the law and make it clear , therefor allowing law to develop and expand.
When can superior courts make law?
- when courts resolve a dispute in which there is no existing law. no law that can be used to resolve case
- when a court resolves a dispute in which there is an existing satiate but it requires interpretation so it can be applied to the case before the court. therefor establishing a new principle of law
What is the doctrine of precedent?
the common law principle by which the reasons for decision of higher courts are binding on courts ranked lower in the same hierarchy. the material facts of the case must be similar
Define precedent
the reasoning behind a courts decision, also known as ratio decedendi. creates consistency and predictability in the courts
What is the principle of stare decisis?
stare decisis is another way of describing the process of lower courts following the reasons for the decisions of higher courts. It is a principle that relies on the courts being organised into a hierarchy where judges stand by previous decisions
What is ratio decidendi ?
is the reason for the decision in a court case and is what makes up precedent. It is the binding part of the judgement.
Define judgement
a statement by the judge at the end of a case that outlines the decision and the legal reasoning behind it.
What can make the process of determining the ratio decidendi complex?
- It could be found in various parts of the judgment, and may not appear conveniently in a single, succinct expression of the law.
- may be heard by several judges therefor if there is not a unanimous vote, the precedent only consist of the judgements made by judges of the majority
- large volume make it a time consuming and costly process to find relevant precedent
Define binding precedent
precedents that have been established by superior courts in the same hierarchy that must be followed by lower courts that are resolving similar disputes.if a judge is bound by existing precedent they must follow it even if they disagree
Define persuasive precedent
are precedent s that are not binding on a court, but may still be considered by judge and used to influence their decision. it may be an important legal principle that is relevant to the case. same obiter dictum
What is obiter dictum?
is a statement made by the judge when handing down a sentence that is not part of the reason for the decision. it is a statement that was not necessary to the decision but is still considered matter if opinion. judges reflection
What is the role of statutory interpretation in law making ?
judges can also make law when called upon to interpret the meaning of a statute in order to resolve a case.when interpreting legislation judges can narrow or broaden its meaning, therefor they establish a legal principle to be followed in the future in similar cases. together with the act it creates law.
What is the reason for statutory interpretation?
the parliamentary council are lawyers who have the task of preparing and writing bills to be presented and considered by parliament. when drafting the parliamentary counsel are generally required to cover a wide range of possibilities or precise terms
Problems that may occur as a result of drafting process and therefor need statutory interpretation
- the act mightn’t have taken future circumstances into account
- the intention of the act might not be clearly expresses
- there might be inconsistent use of same word in act
- act might not cover new types of technology
Problems that may occur when applying the act to the court case and will thus require statutory interpretation
- most legislation is drafted in general terms, therefore words may need to be interpreted to determine whether or not specific material facts are included in act
- the act may become out of date and may need to be revised to keep up with society
- meaning of words can change over time
What is the effect of statuary interpretation?
- words or phrases contained in disputed acts are given meaning
- decision reaches is binding on parties and courts
- the meaning of the legislation can be restricted or expanded
Explain the finality of a courts decision
a decision made by the courts is a final statement of law unless it is reversed or overuse or abrogated by an act of parliament
What is a dissenting judge?
judges who don’t agree with majority
How do binding precedents restrict the law making ability of the courts?
binding precedents can restrict the ability of courts to make law, when a court is bound to follow a earlier precedent established in a higher court that may be outdated or unjust
What is a strength of the doctrine of precedent?
0it is flexible and in certain circumstances allows the court to avoid following, or even change existing precedent.
What are some weaknesses of the doctrine of precedent?
- juges in superior courts may be reluctant to reverse or overrule existing precedent
- judges of the small standing by convention consider their own courts previous decision to be highly persuasive and rarely overrule
- Judges make law ex post facto, therefor they rely on parties being aware of their right to pursue a case
What is judicial conservatism?
an expression used when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases. it also includeds the idea that courts shoud be cautious when making decisions that could lead to significant changes in the law.
How does judicial conservatism limit court law making?
unlike parliamentary committee and law reform bodies, judges are not voted in and therefor should interpret the law not re-write it because they get limited input from the public
-judges should endure that their decisions do not reflect their own views on political ideas or assume the views of he community. should only decide using legal considerations
What is judicial activism?
the willingness of judged to consider a range of social and political factors, such as community values and the right of people when making decisions and interpreting the law.
Positive of judicial activism
some people consider this approach to be progressive, as judges are considering what the community wants and applying the community values to the law. therefore creating law that satisfies the public
negative of judicial activism
other feel it allows judges to change the meaning of laws contrary to the intention of parliament which created those laws.
How does cost affect the ability of the courts to make law?
- very expensive to take case to court
- two main costs are legal representation and court costs
- can deter litigants who cannot afford costs or not eligible for legal aid
- can encourage ADR
How does time affect the ability of courts to make law?
once a dispute is taken to the courts, the dispute will be resolved. the process is normally quicker than passing legislation, though complex cases can take months
How does the requirement of standing effect the ability of courts to make law?
courts can only here cases when they have jurisdiction. for a court to be able to hear a case a party must have standing.
What does standing refer to?
standing means that a party is either directly effected by the issues involved in the case or have a special interest meaning they must be more affected by the issue than the general public
Why does the requirement of standing exist?
-to ensure time is not wasted by people not sufficiently affected by a matter and that cases are only brought by people genuinely affected by the issue.
What does standing encourage?
encourages people not directly affected to seek other options of activism such as demonstrations, writing letters to parliament and meeting with members of parliament. limits public from acting on the behalf of public good
How do courts and parliament work together to make law ?
while parliament is the supreme law making body as it can change or confirm common law, courts play a vital role in by interpreting satiates and developing law in new areas
Explain the parliament as the a supremacy
parliament has the power to make or change any law within its law making powers. there it can pass legislation to codify or abrogate common law created by courts. parliament can also pass legislation to empower the courts or limit their ability to handle some matters.
How is the courts ability to change minimum sentences negative?
because it is seen as restricting judicial constriction and according to some compromises the independent of the judiciary as courts are less free to apply sentencing legislation
How may courts influence parliament to change law?
- judges may make comments regarding the need for law reform
- courts apply precedents that are outdated or create unjust outcomes
- judicial activism
What is codification?
is where parliament confirms precedent created by courts. Parliament does this by passing legislation that reinforces the principles established by the court
What is abrogation?
is where parliament passes legislation to override or cancel a common law principle created by the courts.Although no parliament can abrogate a high court decision on constitutional matters. abrogation may occur when the high courts interpretation may have misinterpreted the intention of act
