Unit 4 AOS 2 Flashcards
Factors that affect Parliament’s ability to make law
- Roles of the two houses
- Representative nature of law
- Political pressures
- Restrictions on the law-making powers of Parliament
Strengths + Weaknesses of the Law Making Process
Strengths:
- Scrutiny (2 houses)
- Representative of the people
- Charter rights
- Parliament can move quickly to make a law when there is a need
Weaknesses:
- Complex and slow
- Rubber stamping affecting scrutiny
- Houses only sit for a limited amount of time each year
Role of the Two Houses
- Hostile houses, minorities and majorities can affect the scrutinisation of bills
- Encourages debate, revision of bills, enabling law reform
Representative nature of Parliament
- Represents the people, makes laws that reflect the values of the majority
- People can use methods to pressure change
- Regular elections give fixed time periods to make changes, but can discourage from pursuing long term reform programs
- Elections allow unpopular govs that don’t represent to be unelected
Political Pressures
- Domestic
- Internal
- International
Jurisdiction
- Parliament can only legislate within their powers
- S. 109 limits states
- Courts can declare unconstitutional legislation as ultra vires
Binding Precedent
Those that must be followed by lower courts in cases with similar material facts
Persuasive Precedent
Those that may influence a judge but which a judge is not obliged to follow, created by lower courts
Stare Decisis
“To stand by what has been decided”
- Rationale for the doctrine of precedent, inferior courts follow superior precedent
Ratio Decidendi
“Reason for the decision”
- It is the binding part of the judgment and is a legal principle, rather than the actual decision or sanction/remedy given
Obiter Dicta
“Things said by the way”
- Comments that are not binding but may be persuasive for courts in later cases
Precedent
The reasoning behind a court’s decision. Establishes a legal rule which must be followed by lower courts in future cases of similar material facts
Avoiding precedent
- Distinguishing (different facts)
- Overruling (superior courts creating new precedent from persuasive, making previous inapplicable)
- Reversing (When decision is appealed, court can create new precedent)
- Disapproving (judge expresses dissatisfaction, still has to follow but can prompt Parliament to review precedent or encourage an appeal)
Reason for statutory interpretation
- Meaning of a phrase or words in statute are confusing, unclear or contain omissions
- Problems applying an Act to a case = drafted in general terms, must be interpreted to apply to specific circumstances
Intrinsic materials
Things found in an Act (title, headings, margin notes and foot notes)
Extrinsic materials
Sources outside of Act (debates, reports from committees and law reform bodies, dictionaries)
Effect of statutory interpretation
- Words or phrases are given meaning
- Decision is binding on parties and precedent is created
- Meaning of legislation is narrowed or broadened
Studded Belt Case
- Plaintiff arrested for having a studded belt - “regulated weapon” and raised studs in the Wrongs Act
- Appealed to the Supreme Court
- Judge interpreted that the belt was being used as an accessory and was not being used as a weapon
- Limited the parametres in which the wording could be applied
Strengths and Weaknesses of the Doctrine of Precedent
Strengths:
- Like cases are decided in like manners
- Judges have guidance and legal rep. can advise on the likely outcome
- Same point is not being decided over and over, saving time and resources
Weaknesses:
- Binding precedents must be followed even if outdated
- Time-consuming, expensive and difficult to identify precedents
- Judges must wait for a case to come to them, cannot change words only the meaning
Judicial conservatism
Pros:
- Judge’s role is to apply the law, not make it or break new grounds. Law making is left to the elected
Cons:
- Change may be necessary, conservatism may hinder their ability to make new laws
Judicial activism
Pros:
- May be progressive and necessary
- Reflects community values
Cons:
- Allows judges to change the meaning of words contrary to the intentions of parliament
- Not elected, so should not really reflect community values
Time
Pros:
- Courts can resolve disputes quickly when the need arises
- Do not have to follow the lengthy processes of law making that parliament does in passing legislation
Cons:
- Backlogs in caseloads
- Pre-trial procedures can delay preparations
Costs
Pros:
- Discourages frivolous and unfounded claims
Cons:
- Can deter litigants who cannot afford the costs and cannot access legal aid in pursuing their case or appeal
Requirement of standing
Pros:
- Ensures cases are only brought to court by people who are genuinely affected
- Encourages those not affected to seek other avenues of redress
Cons:
- People with a general interest have no right to pursue a challenge on behalf of public interest or common good
- Potential improvements to the law from those with an intellectual interest are lost
