Unit 4: AOS 2

Question 1

rubber stamp

Answer 1

majority in both houses. bill doesn’t receive enough scrutiny. limit review. government planned legislation achieved.

Question 2

hostile upper house

Answer 2

extra scrutiny to bills. obstruct government legislation program.

Question 3

hung upper house

Answer 3

cross benchers are even a large amount of power. hold balance of power. delays in government legislation. laws represent greater variety of views.

Question 4

committee system

Answer 4

economy and infrastructure, environment, planning, legal and social issues

Question 5

factors that affect the ability of parliament to make law (4)

Answer 5

• the roles of the houses of parliament
• the representative nature of parliament
• political pressures
• restrictions on the law-making powers of parliament

Question 6

the roles of the houses of parliament (4)

Answer 6

• effectiveness of upper house
• effectiveness of lower house
• law making process
• committee

Question 7

the representative nature of parliament

Answer 7

• meaning of representative parliament
• views of majority
• regular elections
• compulsory voting
• limited time and resources

Question 8

political pressures

Answer 8

• domestic
• internal
• international

Question 9

restrictions on law making power

Answer 9

• jurisdictional limitations
• specific prohibitions
• law making process

Question 10

role of victorian courts in law-making

Answer 10

developing and avoiding precedent

Question 11

role of high court in law-making

Answer 11

precedent

Question 12

statutory interpretation

Answer 12

reasons
-mistakes in drafting the bill
-broad wording
-act that is not relevant to current societal values
-change of nature of words
effects
-words given meaning
-creates new precedent
-extend the law (taste dam) or narrow (studded belt)

Question 13

factors that affect the ability of courts to make law (5)

Answer 13

-doctrine of precedent
-judicial conservatism
-judicial activism
-costs and time in bringing a case to court
-the requirement for
standing

Question 14

features of the relationship between courts and parliament in law-making (5)

Answer 14

• the supremacy of parliament
• the ability of courts to influence parliament
• the interpretation of statutes by courts
• the codification of common law
• the abrogation of common law

Question 15

doctrine of precedent

Answer 15

where a superior court establishes a new legal principle that is binding on inferior courts in the same hierarchy in similar fact cases, in an area where no law (legislation or precedent) exists.

Question 16

judicial conservatism

Answer 16

where a judge has the opportunity to change or extend the law, but is reluctant to do so. e.g. rape in marriage case bc marriage=consent

Question 17

judicial activism

Answer 17

where a judge is prepared to make a change in law when a suitable dispute comes before them. e.g. Mabo case

Question 18

costs and time in bringing a case to court

Answer 18

expensive (solicitor and barrister)
delays
e.g. studded belt case sought justice despite costs and delays

Question 19

the requirement for

standing

Answer 19

need to be directly or sufficiently affected by the law or be in danger of being so affected.

Question 20

the supremacy of parliament

Answer 20

aka sovereignty of parliament
make law within jurisdiction
can codify, change or abrogate
cannot override high court interpretation

Question 21

the ability of courts to influence parliament

Answer 21

• obiter dictum
• disapproving precedent
• courts can highlight problems within the law
• lenient sentences

Question 22

the interpretation of statutes by courts

Answer 22

• if meaning is unclear the court may need to interpret meaning
• can form precedent
• precedent created through interpretation is read out with legislation in future
• can broaden or narrow legislation

Question 23

the codification of common law

Answer 23

turn common law into legislation

Mabo case decision was codified in the native title act 1993

Question 24

the abrogation of common law

Answer 24

pass legislation that overrides common law

e.g. rape-marriage case crimes act 1985

Question 25

legislative process

Answer 25

- introduction, first reading - second reading - committee stage (optional) - third reading - same procedure but in other house - certification- clerk of parliament certifies bill - royal assent - proclamation- date comes into operation.

Question 26

ultra vires

Answer 26

outside the power or jurisdiction

Question 27

ratio decidendi

Answer 27

the reason for the decision. | creates the binding precedent

Question 28

obiter dictum

Answer 28

by the way. does not affect outcome of case persuasive precedent

Question 29

the decision inter partes

Answer 29

the outcome of the case between the parties | does not set a precedent

Question 30

distinguishing precedent

Answer 30

where a judge making a ruling in a case finds that the material facts of the current case is significantly different from the case that set the precedent. this means that the current judge does not have to follow the previous precedent.

Question 31

disapproving precedent

Answer 31

1. where a court refuses to follow a precedent set in a court of equal standing and makes a new decision. this establishes a new precedent, and also expresses disapproval of the earlier precedent. 2. Where a court expresses its disapproval of a precedent previously set by a higher court, even though it still needs to follow the precedent.

Question 32

overruling precedent

Answer 32

where a judge in a superior court disagrees with a precedent established in an inferior court and chooses to create a new legal principle in the current case, thereby overruling the previous precedent.

Question 33

reversing precedent

Answer 33

when a case goes to appeal and the superior court reverses or changes the decision of the inferior court.

Question 34

case on precedent donohughe v Stevenson 1932 (snail in a bottle)

Answer 34

created law of negligence in uk

Question 35

Mabo v state of QLD 1992

Answer 35

established native title in Australia | -mabo case decision was codified in the native title act

Question 36

statutory interpretation cases

Answer 36

- deing v tarola 1993 | - attorney general v Kevin and Jennifer and the human rights and equal opportunity commission 2003

Question 37

codify

Answer 37

to put principles established by common law into legislation

Question 38

stare decisis

Answer 38

to stand by what has been decided.

Question 39

preamble

Answer 39

a clause or statement at the beginning of a statute that explains the reasons for the Act and its objectives.

Question 40

extrinsic

Answer 40

outside actual legislation

Question 41

intrinsic

Answer 41

within the legislation

Question 42

effectiveness of the lower house

Answer 42

government and private members bill conscience votes minority governments

Question 43

effectiveness of the upper house

Answer 43

house of review voting along party lines hostile upper house

Question 44

law-making process

Answer 44

the committee system examine the need for law reform propose law reform