unit 4 aos2 the people,plmt and courts Flashcards
role of parliament
to make laws. as parliament is democratically elected the laws plmt make must reflect the views and values of majority of australia. this is called a legislative process
what is a bill
a proposed law. a document that outlines a new potential for a law
types of bills
2x
1- government bills= proposed law that has been approved by the cabinet (pms). created for policies, interests in communities as well as money bills
2- private member bills= proposed law thatdoes not have the cabinets support. introduced by member of the opposition usually unsuccessful as voted out
what is a proclamation
a date for commencement of the act which may be given by the crown
what is compatibility of human rights
in victoria the bill must comply with the charter during the second reading
what are the 4 factors that support/hinder parliaments ability to make laws
1- roles and houses of parliament
2- representative nature of parliament
3- political pressures
4- restrictions on lawmaking powers of parliament
factor 1- roles and houses of parliament
4x
majority govt-
government is formed in the lower house> if a political party forms majority of seats= a majority govt is formed. bills are more likely to be accpeted and passed
majority govt in both houses-
if political party holds govt in both houses has hte power to introduce whatever bill they like> go along party lines to pass the bill. however lack of devate or scrutiny can lead to rubber stamp effect> error in bills
minority govt-
when a politcal party fails to ensure the majority of seats or when both parties secure the same number of seat> hung plmt= passing of bills are delayed
hostile senate-
govt does not hold majority of seats in the upper house therefore when bills passed by lower house it may face significant opposition which can vote together to force govt to amend original bill
factor 2: representative nature of parliament
x2
representative govt-
mps democratically elected by voters in order to incorperate views and values in decisions and laws being made.> if not they risk being not elected
democracy eletions-
regular elections (3 years fed) ensure that citizens of australia can hold and monitor theiur mps to account > if x acting in accordance risk of not being re elected
strengths of parliamentary law making processses
x2
1- parliament can change the law quickly if necessary particularly if the govt has a majority in both houses
2- debate that takes place in law making process. memebers can point out any flaws or any positvies of the bill
weaknesses of parliamentary lawmaking processes
x2
1- the need to pass it through two houses before it can become law can slow the progress of legislative reform
2- a positvie upper house can obstruct the ability of govt to implement it policy agenda.
political pressure (factor 3)
definition
direct or indirect influences that exist either within a political party or from sources outside of plmt.
need to respond appropriately or ministers risk being voted out
political pressure:
domestic pressures- def and examples
influneces/demands that are made from individuals groups or organisations that exist within australia.
examples:
- petitions
- media
-organisations of right to life australia = controverisal as it is an organisation made to illegalise abortions
political pressures:
internal pressures- def
those that occur within parliament
- occur when mps are expected to vote along party lines but may disagree with the bill/ believe policy does not align with who they are representing
- if the individual strongly disagrees with their parties policies they may vote against it= conscience vote where they prioritise ones moral and ethical values
- if the party does not allow a conscience vote the mp choose to support oppositions= “crossing the floor”
political pressures:
international political pressures- def and examples
def= those that arise from outside of australia. can come from countries or international oranisations
examples:
- aust has its obligation to uphold its international treaties such as conventions on a right of a child- raising the minimum age for imprisoning children from 10-14
factor 4: restictions on parliaments law making powers
def
although the parliament is the supreme law making authority, there are number of factors that can restrict the ability to make laws
restrictions on parliaments law making powers
jurisdictional limitations
in order for plmt to make law> must operate within area of law making or their jurisdiction therefore are restricted from legislating out of their jurisdiction
restrictions of parliaments law making powers:
the legislative process
in order to pass a law must go through both houses> multiple stages involved to ensure properly scrutinised debated and amended + royal assent
restrictions of parliament law making powers:
the australian constitution
constitution= restriction on state and cth law making ability that it upholds the division of law making powers. plmt can only make laws within constitution>if seen outside= hc challenge as “ultra vires”
restrictions of parliament law making powers:
specific prohibition
constitution further imposes limitations on plmt by
- banning cth in making laws in areas of express rights
- introducing section 109
restrictions of parliament law making powers:
the high court of aust
hc= guardian of const and can act as a restiction on plmts law making powers through “ultra vires” > law = invalid
ruling of hc cannot be abrogated(overcome by challenging of legislation) >sig limitation
why do courts make laws?
x3
1- when a dispute arises between parties but there is no legislation covering the matter
2- when a legal principle is being disputed regarding interpretation of an act
3- when a trial has occurred but one party believes the judgement was made in error and would like a more senior court to review the decision
what is common law?
system of laws developed as a result of judges decision on the cases they hear
what is the doctrine of precedent
def= system used by the courts to ensure similar cases are dealt with in similar ways> ensures both consistancy and fairness
- precedence based off hierachy of courts whereby superior courts have ability to set a precedent that lower courts should follow
what is precedent
a reported judgement of a court that establishes point of law
what is ratio decidendi
“reason for the decision”. legsal principle judge has used to come to their decision
what is obiter dictum
statements made by the way = comments made by the judge on questions of law that may be used by a persuasive argument
what is stare decisis
to stand by what has been decided= rule underpins doctrine of precedent whereby judges in lower courts should follow decision of higher courts
what is binding precedent
a legal principle established by a higher court in a smilar ‘like’ case that the judge must follow.
must follow:
- precedent established previously by a highercourt in same hierachy
- the case is similar like in nature
persuasive precedent
def: precedent that is not binding on the judge and therefore they do not have to follow decision made
- decision was made by a lower court
- different court hierachy
- court on same level
flexibility of precedent: reversing
when a higher court hears a case on appeal and decides the lower court which heard the matter was incorrect therefore decision is reversed
flexibility of precedent: overruling
a case may come before a higher court that relies on a previous legal principle which was decided by a lower court. may believe previous case was wrong therefore overrule
flexibility of precedent: disapproving
judges at the same level are not bound by eachothers decisions. as a result if a court chooses not to follow a previous decision made by court at the same level= disapproving
flexibility of precdent: distinguishing
def: courts are bound by decisions in higher court. no two case will be exactly the same in nature however if a judge thinks the facts of the case are different from the earlier one and would be unjust to apply the early precedent then it can be distinguished
what is statutory interpetation
judges decide on the meaning and application of the words or term within an act to resolve a dispute before a court
why are the courts required to interpret statutes?
x3
1- intention of the act is not clear= parliaments intention may not be clear enough. accurate instructions may not have been given
2- difficulty in forseeing possible applications of act = act is rapidly revolving in society to difficult to consider
3- words used may not cover recent changes= legislation may have become outdated and need to be revised. wording of act may not cover recentchanges
how do courts interpret statues
1- intrinsic
2- extrinsic
intrinsic= are found within the act itself. judges will refer to other sections of the act to interpret meaning of laws
extrinsic= found outside of the act. these include dictionaries,legislative
what effect does interpreting statutes does it have:
x3
1- forming a precedent= if decision was made by a higher court, the reason will form a binding decision to be followed by lower courts
2- limit the scope of legislation= if courts give a narrow interpretation may limit the range
3- increasing scope of legislation= if court gives a broad interpretation to words or terms. interpretation may extend to a range of circumstances
studded belt case
facts
methods
decision
impact
facts:
- man charged by police for wearing a studded belt as considered a weapon
- was found guilty in mag court and appealed to supreme court
- studded belt = weapon under control of weapon regulated (1990 vic)
methods:
- used extrinsic of oxford dictionary
- halsbury laws of england
decision:
- studded belt was not considered a weapon
- lawful excuse to posess a weapon as holding up trouses
impact:
- act was narrowed
- studded belt was not a weapon
factors that affect parliaments ability to make laws
factor 1: doctrine of precedent
courts are not free to make laws in the same way as plmt.
- judges cannot make laws as an immediate response to community
- assisting courts to make laws
precedent assisting courts in lawmaking powers
x2
1- stare decisis ensure consistancy because lower courts must follow precedents of higher courts
2- common law is flexible bc judges in superior courts can overrule and reverse precedents
precedent limiting courts in lawmaking powers
x2
1- process of locating, interpreting and apply precdents from previous decisions can be time consuming and costly
2- if lower courts cannot distinguish their cases they are bound to follow precedents from superior courts that may be outdated
factors that affect parliaments lawmaking ability
factor 3: activism of judges
- judges consider a range of political and social factors when interpreting acts of parliament. decisions made are more progressive
judicial activism assisting court in lawmaking
x2
1- allow judges to broadly interpret statues in a way that recognises rights of people
2- allow judges to be more creative when making significant changes
judicial activism limiting court lawmaking
x2
1- can lead to more appears on question of law
2- can lead to courts making mkre radical decisions in law that do not reflect communities values
factors that affect parliaments ability to make laws
factor 2: judicial conservatism
- judges adopt a narrow interpretation of law when applying meaning of acts
- courts will avoid major or controversial decisions
- conservative judges tend to leave the role of lawmaking to parliament
judicial conservatism assisting court lawmaking
x2
1- helps maintain stability in law bc judges are cautious and show restraint when making decisions that could lead to sig. changes
2- allows plmt to reflect societys values and views to make sig. and cont. changes
judicial conservatism limiting court lawmaking
x2
1- restricts ability of courts to make major and controverisal changes in law
2- discourage judges from considering a range of social and political factors when making a law
factors affect lawmaking ability:
factor 4: cost and time of bringing a case to court
what is a novel/test case
def= court actions especially before superior courts are expensive individuals may herefore be reluctant to take novel cases to court due to uncertainty of outcome
novel case= a case concerned with a particular legal issue that has been decided before in a court of superioir record in the same hierachy
cost and time of bringing a case to court ASSISTING court making
x2
1- courts can make law relatively quickly once a dispute has been brought before them and must continue until a decision is made
2- courts are able to manager disputes so that the issues in dispute are narrowed, possibly saving parties costs
cost and time of bringing a case to court LIMITING court making
x2
1- high costs can deter parties from pursuing the appeal process
2- high cost can deter people from those who cannot afford costs or legal aid
factors affecting ability of courts law making powers
factor 5: the requirement standing
standing ( locus standi) is the right of a party to start a legal action in court. standing party= considered sufficiently, conncected to and interest in court action
legal standing ASSISTING courts in lawmaking
x2
1- ensures cases are brought to court by people who are genuinely affected by an issue or matter rather than wasting valuable court time
2- encourages people not directly affected to seek other avenues
legal standing LIMITING courts in lawmaking
x2
1- people who have a general interest in a case have no right to pursue a legal challenge
2- potential improvements to law that have been made by listening to those with intellectual interest are lost
relationships between parliaments and the courts
factor 1: supremacy of parliament
parliament is the supreme law making authority
- pass laws that override common laws made by court
- members of parliament are democratically elected
- given the primary role of law making making within the constitution
one relationship= courts can declare laws made by plmt ultra vires if plmt has legislated outside jurisdiction
relationship between parliament and the court
factor 2: courts ability to influence plmt
obiter dictum= courts can indirectly influence parliament to manage the law. eg. opinions made
doctrine of precedent= plmt can also be encouraged to change the law if courts are bound by previous precedent
community outrage = a courts decision may cause public dissent or outrage as a result of what the community believes. due to the community parliament may be pressured to respond in order to be re elected
relationship between parliament and the court
factor 3: statutory interpretation
- judges are called upon to apply meaning to words and phrases in acts made by parliament to make a ruling
- judges can clarify legislation
- high court can only interpret words within constitution alter the decision of lawmaking powers between cth and state
relationship between parliament and the court
factor 4: codification and abrogation of common law
codification:
after courts have made a ruling, if parliament agrees it can decide to bring the common law principles into statute law. can be codified and enshrined
abrogation:
after courts made a ruling, if parliament disagrees with the decision it can abrogate the common law> drafting and passing a bill that disregards common law principle > aboloshed
the trigwell case
facts
how did judicial conservatism be applied
why was it aborgated
facts:
- trigwell and family were severely injured as a result of another driver swerving to avoid sheep on the road
- trigwell wanted compensation> r = died and insurance company responsible
judicial conservatism:
- high court decided to be persuaded by a case in the uk= animals x have to be fenced
- bc not important at time = lack of cars, freeways
why was it abrogated:
- plmt didnt agree with decision made of the state law> in order to abolish the decision the decision they introduced the wrongs act> farmers responsible for livestock
