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Legal Studies Unit 3/4 > Unit 4 Outcome 2 > Flashcards

Unit 4 Outcome 2 Flashcards

1
Q

Role of the house of parliament

A

The body that makes laws for the Australian Commonwealth.

It’s the Supreme Law-Making Body.

Legislation made by parliament cannot be overruled by the courts, only interpreted (with the exclusion of the HCA ruling on constitutional matters)

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2
Q

Role of the Victorian Courts

A

To uphold the rule of law by determining disputes between parties.
Judges interpret statue and common law by applying legal principles to the facts of the case

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3
Q

Political Pressures

A

Actions of political parties, organisations and international bodies that influence how laws are changed in Australia

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4
Q

Political Pressures - Internal (Impacts + pros x1 + cons x2)

A

Pressure from inside the overmining political party

Impacts:
- members of different factions of the party may encourage/discourage different legislation from being introduced

Pros:
- Legislation is likely to be debated among members with different viewpoints -> creates a more whole legislation

Cons:
- disagreements can slow down legislation
- prevents controversial legislation from being introduced

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5
Q

Political Pressures - Domestic (Impacts + pros x2 + cons x2)

A

Pressures that come from outside the governing parties but inside the country (the opposition, the community, lobbying groups)

Impacts:
- Organizations will typically donate to political parties with the expectation the government will appease them (pass legislation in their favour)

Pros:
- wide ranging political support can ensure the parliament acts in a way that is representative of democracy
- lobbying groups - that represent the views of the people - can ensure parliament passes legislation that is beneficial to the people

Cons:
- lobbying groups can have more influence than voters
- lobbying groups may only represent a small number of voters, yet have large monetary wealth (and a large influence)

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6
Q

Political Pressures - Domestic - Avoidance of controversial issues (Impacts + pros x1 + cons x2)

A

Government my be reluctant to act on some topics for fear of backlash from sections of society.

Impacts:
- parliament may choose not to introduce legislation for fear of backlash from the community

Pros:
- allows the parties to focus on more important issues and not be bogged down

Cons:
- can cause parties to pander to vocal minorties
- can limit the efficiency of law making -> fear of losing voters can cause political to be reluctant to take actions on controversial issues

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7
Q

Political Pressures - International

A

Aus is part of a global environment and as a result, can be influenced by international events and obligations

Impact:
- international events can dictate legislation that is potentially introduced

Pros:
- Australia can be reactive to international events (biosecurity, disputes) and protect the integrity of the cwth
- intl. obligations can push australia to act responsbiliy (civil rights treaties)

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8
Q

Doctrine of Precedent (x4)

A
  • Established upon the principle of ‘stare decisis’ which means ‘to stand by what has been decided’.
  • To ensure fairness and consistency, lower courts must follow the decisions of higher courts when resolving disputes with the same facts.
  • Precedents are developed through written judgements
  • If there are no binding precedents, lawyers can search for persuasive precedents
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9
Q

Composition of Judges Written Reasons

A
  • Ratio Decidendi - ‘reason for the decision’ - legal choice for the reason and binding. Must be followed by lower courts
  • Obiter Dictum - ‘comments made by the way’ - context to the judgement, or legal suggestions. Doesn’t have to be followed, but can be a guiding principles for judges in future cases
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10
Q

Binding Precedent

A

Precedent that must be followed by lower courts, when the facts of the case are similar to the facts of the precedent case

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11
Q

Persuasive Precedent (+ examples)

A

Precedent that judges are not obligated to follow, but can be used to influence their decision.

Example:
- Lower court
- Different jurisdiction
- Obiter dictum

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12
Q

Avoiding applying precedent (higher/same court)

A

Reversing - when judges change the decision of a lower court when the case is on appeal
Overruling - when the precedent is changed for a different case
(or the HCA changing its own decision)

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13
Q

Avoid applying precedent (lower court)

A
  • Distinguishing - if a judge can distinguish the facts from the precedent case, they dont have to apply it
  • Disapproving - judge puts their disapproval in the obiter dictum component of the decision
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14
Q

Conditions where courts can make law

A
  • A case comes before them
  • Where no law, statute or common law exists (or if it isnt clear how it should be applied)
  • The court is a superior court of record (usually the high court or supreme court)
  • The mode of trial is a judge sitting alone/an appeal and doesn’t include a jury
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15
Q

Statutory Interpretation

A

Parliament makes laws in futuro, meaning they make laws that will apply to future events. However, they will not always foresee the endless circumstances they impact.

In these situations, judges need to interpret statute to apply it to the facts of the case.

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16
Q

Reasons for Statutory Interpretation

A
  • Broad words applied to a specific set of facts
  • Changing nature of words
  • Unforeseen Circumstances
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17
Q

Reasons for Statutory Interpretation - Broad words applied to a specific set of facts - case example

A

Deing v Tarola [1993]

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18
Q

Reasons for Statutory Interpretation - changing nature of words - case examples

A

AG for the Commonwealth v Kevin and Jennifer [2003]

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19
Q

Reasons for Statutory Interpretation - unforeseen circumstances - case example

A

R v Brislan [1935]

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20
Q

Effect of Statutory Interpretation

A

Through Stat Interpretation, judges given meaning to the words in legislation

  • Create Precedent
  • Broadening of the laws application
  • Narrowing the application of a law
  • Parliament amending legislation
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21
Q

Effect of Statutory Interpretation - Create precedent - case example

A

Deing v Tarola [1993]

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22
Q

Effect of Statutory Interpretation - broadening of the laws application - case example

A

Carr v Western Australia [2007]

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23
Q

Effect of Statutory Interpretation - narrowing the application of a law

A

Carr v Western Australia [2007]

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24
Q

Effect of Statutory Interpretation - parliament amending legislation

A

State Government Insurance Commission v Trigwell [1979]

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25
Q

Factors that affect the ability of the courts to make laws

A
  • The Doctrine of Precedent
  • Judges approach to law-making
  • Costs and time in bringing a case to court
  • Requirement for standing
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26
Q

Judicial Conservatism

A

approach to the law where the judge feels reluctant to develop new laws as they feel that is the role of the parliament.

They will normally interpret the legislation narrowly, focusing only on the case in front of them.

They will also be hesitant to change precedent

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27
Q

Judicial Activism

A

approach to law-making where judges believe they have both the role to resolve disputes and also to develop common law

they will normally be progressive in approach, and take into account ethical, political and social factors to interpret law broadly and create new legal principles

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28
Q

Costs and Time in bringing a case to court (+ how it hinders development of the law)

A

It is very expensive & time consuming to bring a case to court.

How it hinders the development of the law:
- Judges in superior courts need to wait for a case to come before them, before they can develop law
- the reluctance of parties to peruse a matter through the courts means there is less opportunity for judges to develop common law

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29
Q

Standing

A

Refers to the ability of a party to appear before and be heard by a court

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30
Q

Requirement for Standing (+ acts)

A

Party must show that they are an aggrieved party and that their provide rights have been directly affected (Administrative Decisions (Judicial Review) Act 1977)

OR

A party with special interest (developed in Australian Conservation Foundation v Commonwealth)

31
Q

Supremacy of Parliiament

A

Parliament is the supreme law-making body
- They can Make, Change, Repeal Laws
- As long as its inside their jurisdiction
Excluding: HCA on Constitutional Matters

32
Q

Courts influence on Parliament

A

Parliament has the ability to provide feedback to parliament through ‘obiter dictum’.

33
Q

Codification (+ example)

A

When parliament passes legislation to incorporate common law into legislation.

Done when Parliament agrees with a principle of common law

Example: Native Title Act

34
Q

Abrogation (+ example)

A

When parliament passes legislation to override a common law principle.

Done when parliament disagrees with a common law principle

Example: Trigwell Case

35
Q

Petitions

A

Formal Written Request to parliament seeking legislative change and includes a collection of signatures. The petition will then be tabled in parliament (by the appropriate minister - depending on the topic of the minister)

36
Q

Petitions - how they influence law-making power

A
  • Bringing the particular issue to the attention of parliament
  • Whilst a large number of signatures can demonstrate a high degree of support, it’s unlikely to influence law-making if its not on the political agenda.
37
Q

Petitions - Strengths (x4)

A
  • Individual and groups in society can use petitions to make direct contact with parliament and the relevant minister
  • Petitions with a larger number of signatures can demonstrate significant support for the issue
  • As petitions are tabled in parliament, it can raise public awareness of an issue
  • E-petitions have made it much easier to gather a lot of support for an issue
38
Q

Petitions - Weaknesses (x4)

A
  • The minister that tabled the petition may have little influence over the government, and thus be unable to initiate change
  • It can be hard to obtain a large number of signatures
  • Petitions are not as visual as other methods of gaining public attention
  • E-Petitions can only be filed through parliaments websites, and not other pressure groups sites
39
Q

Demonstrations (+ how to gain attention)

A

Rally or protest that is undertaken by a large group of people to bring an issue to the attention of parliament in an attempt to prompt legislative change.

They will usually require a significant number of people and media attention, and will normally be held in the CBD

40
Q

Demonstrations - how they influence law-making

A
  • Bringing the issue to the attention of the community to get further support and persuade more members of the community for the need to reform legislation
  • Bringing the issue to the attention of legislators and demanding law-reform
41
Q

Demonstrations - Strengths (x3)

A
  • Significant number of protestors can be effective at getting the attention of the public, and therefore persuading the public for the need for law reform.
  • If the protests have the support of the media, the issue can be brought to the attention of the nation
  • Demonstrations can arouse public awareness of the issue, in particular to the minister.
42
Q

Demonstrations - Weaknesses (x3)

A
  • Without a large number of supporters demonstrations may be ineffective (suggests that many members of the community want the law to change).
  • If there isn’t media attention, protests are likely to be limited in their effectiveness at raising attention to the issue.
  • Demonstrations can attract groups from opposing sides which can highlight conflicting opinions. If violence occurs, the undermines the key message and may cause members of the public to be opposed to the views expressed in the protest
43
Q

Use of the Courts to influence law-reform

A

Individuals can prompt change in law by initiating litigation, through pursuing a matter through the court system.

They can attempt to have the precedent overturned or overruled

44
Q

Use of the Courts to influence law-reform - outcomes

A
  • Superior courts can develop legal principles when adjudicating a case. The court may find in favour of the individual, and change common law
  • A successful appeal may result in parliament codifying the new common law principle
  • Even if an unfavourable decision is granted, the matter may bring the issue to the attention of the public/parliament, who can abrogate the common law principle
45
Q

Use of the Courts to influence law-reform - Strengths (x3)

A
  • Litigation can bring matters to the attention of the broader community - this may cause them to lobby the government in other ways
  • While a litigator would prefer a decision in their favour, a negative decision can still bring the matter to the attention of parliament and they can still act to abrogate
  • The public nature of the courts and the use of the media may highlight the issue to the relevant minister, who can then influence legislative reforms.
46
Q

Use of the Courts to influence law-reform - Weaknesses (x3)

A
  • Pursuing a matter through the courts is expensive and time consuming. Even if a party is successful, they are still likely to attract costs
  • In order to take a matter through the courts must demonstrate they have standing. Members of the community that are just interested in the legal or social issue cannot use the courts to initiate change in the law
  • Litigation is very time consuming due to not only the backlog of cases within the justice system but the processes and procedures involved. It can take months to resolve a case.
47
Q

The Role of the Media in Law Reform

A

the media is a mechanism through which information and ideas can be brought to the attention of people.
media can raise opinions, and raise awareness of social/legal issues.

the ‘exchange of information’ can help individuals to develop opinions which influence law reform

48
Q

Types of Media

A
  • Traditional Media
  • Social Media
49
Q

How media can influence law reform (x3)

A
  • Exposing social issues and injustices, creating community awareness regarding how existing laws may be inadequate in a particular area
  • Making law-makers informed of community opinion on social issues (which could then propel law-makers to match community opinions)
  • Groups using the media to persuade voters to hold a particular opinion on a social issue. Law-makers may then change the law to retain the support of those voters
50
Q

How media can influence law reform examples (x1)

A

Marriage Equality - in 2017 #marriageequality was the most popular hashtag on Twitter.
This informed law-makers of community opinion, and prompted further debate for law-makers

51
Q

VLRC (+ aim, established)

A

Victorian Law Reform Commission

Body to investigate issues and recommend possible changes to the law. Main aim is to ensure that the law meets the needs and aspirations of the Victorian community.

Established by VicPol under the Victorian Law Reform Commission Act 2000 (Vic)

52
Q

VLRC roles (x5)

A

Recommended Major - To make law reform recommendations on matters referred to it by the Attorney General

Recommend Minor - Make recommendations on minor legal issues of general community concern
Suggest - to the AG that they refer an issue to the commission
Educate - the community on areas of law relevant to the Commissions work
Monitor - monitor and coordinate law reform activity

53
Q

VLRC - reference

A

VLRC can only conduct major projects with a reference from the Vic AG.

Can only research minor issues without a reference from the AG

54
Q

VLRC - parliament obligations

A

parliament is not required to enact any of the recommendations.

however - the terms of reference usually come from the AG and as a result, it means the government is usually willing to change the law

55
Q

VLRC - community input

A

The VLRC can consult broadly with the community -> meaning legislation is likely to reflect public concern. New laws will likely reflect community values.

However, time consuming - typically takes up to 18 months to complete

56
Q

VLRC - scope of investigation

A

able to investigate broadly and has access to experts -> recommendations will likely address the issue

however - investigations are very costly, given the limited budget of the VLRC, not all issues can be referred to the VLRC

57
Q

VLRC - political pressures

A

VLRC is not subject to political pressures. Able to objectively review the law (including areas that are controversial), and make recommendations without thinking about public opinion (e.g. abortion law reviews in 07/08)

however - parliament which passes the recommendations are still subject to political pressures

58
Q

Royal Commission

A

Highest form of inquiry.

They seek to investigate a particular issue through consultation with experts and the community.

Final report (containing recommendations for law reform) are tabled in Parliament

59
Q

Royal Commissions - coercive power of investigations

A

They have the ability to:
- summon a person to appear before the commission
- require an entity to give/provide evidence under oath
- provide penalties of people who fail to comply

Provides RC’s a greater ability to determine the truth, gain an insight into the issue and review all the evidence

60
Q

Royal Commissions - scope of investigation

A

Royal Commissions can influence reform as they can comprehensively investigate issues. Have access to experts and consult intensely with the community.
increases the quality of the suggestions

However - very expensive, government cant always establish an RC

61
Q

Royal Commissions - parliament obligations

A

Parliament is not required to follow the suggested recommendations.

However - small weakness - the public nature of RC’s and the recommendations would make it hard to voters to ignore recommendations without voters being dissatisfied.

62
Q

Royal Commissions - coercive powers

A

Increases the ability of RC’s to come to a conclusion based on accurate facts and evidence.

However - difficult to investigate breaches of the Royal Commission Act, and the penalties for failure to comply are limited

63
Q

Royal Commissions - Independence

A

independent, not influenced by political influences and the truth can emerge.

still dependent on the government to be willing to send the issue to a RC for investigation

64
Q

Parliamentary committees

A

established to undertake a specific task. Committees are composed of members from one or both houses and include government and non-government members.

Parliamentary Commissions review areas of laws and suggest amendments to the law.

65
Q

Types of Parliamentary Commissions

A

Joint investigatory bodies - members of the committee are from both parties
Standing Committee - created at the start of each parliament (and operates for the duration of the parliament)
Select Committee - established to investigate a specific issue, limited life span and only established as required
Domestic Committee - investigate matters relating to the operations and practices of parliament

66
Q

Parliamentary Commissions - Coercive Powers

A

Broad power to summon witnesses (including experts) - similar to Royal Commissions

Has parliamentary privilege - immunities are afforded which prevent witnesses from being sued or prosecuted based upon evidence they provide

67
Q

Parliamentary Commissions - parliament obligations

A

parliament doesn’t have to act on recommendations

68
Q

Parliamentary Commissions - independence

A

Parliamentary Commissions are made up of members from the houses of parliament. This means they may not be independent.
If members of a Parliamentary Commission are made up of a majority of one party -> the recommendations may be biased

69
Q

Parliamentary Commissions - expert opinions

A

PC’s can have access to export opinions which means the recommendations are likely to have solid solutions -> more likely to adopt the recommendations.

However - fees can be very costly

70
Q

Reasons for change in law (x5)

A

Community Value Shifts
Advances in Technology
Protection of Society
Significant Events
Improving the Legal System

71
Q

Process for passing a referendum

A

Legislation passes both house of the cwth parliament that outlines the changes (known as a constitutional alternation bill).
the referendum, must than be put to the people within 2 to 6 months of the bill passing parliament.

if the proposal achieved a double majority, the bill receives royal assent from the GG

72
Q

Political Pressures - International (Impacts + pros x1 + cons x2)

A
73
Q

Factors that affect the ability of the courts to make law

A

Doctrine of Precedent
Judicial conservatism
judicial activist
costs and time in bringing a case to court
the requirement for standing

Legal Studies Unit 3/4 (7 decks)

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