Unit 4 AOS 2a

Question 1

What is the role of parliament?

Answer 1

It is to make laws. As parliament is democratically elected the laws passed should represent the views and values of the majority of Australians. This is done through the legislative process.

Question 2

What is a bill?

Answer 2

It is a proposed law. It is a document that outlines what a new potential law should be including the scope of the law, the requirements that the people need to adhere to etc

Question 3

What are the two types of bills?

Answer 3

Government bills
Private member’s bills

Question 4

What are government bills?

Answer 4

They are proposed laws that have been approved by the Cabinet (PM and senior ministers) and they are created and introduced as a result of either government policies, community needs/expectations; general interst groups in the community. They can include money bills

Question 5

What are private member’s bills?

Answer 5

They are proposed laws that do not have the Cabinet’s support. These bills are commonly introduced by a memeber of the opposition, a government backbencher or an independent. They are usually unsuccessful and will be out-voted by the gov

Question 6

Stages in the legislative process in the Lower House

Answer 6

Initiation and first reading
Second reading
Consideration in detail
Third reading

Question 7

Stages in the legislative process in the Upper House

Answer 7

Initiation and first reading
Second reading
Committee of the whole
Third reading

Question 8

Stages in the legislative process in Royal Assent

Answer 8

The Crown will act on the advice of the executive council when giving their approval to a bill that has passed both houses

Question 9

What is proclamation?

Answer 9

It refers to the date for the commencement of the Act which may be announced by the Crown or the gov Gazette

Question 10

What is the bills compatibility with human rights?

Answer 10

In Vic, the bill must comply with the Charter of Rights and Responsibilities during the 2nd reading speech, or explains the extent of the incompatibility

Question 11

Factors that can impact Parliament’s ability to make laws

Answer 11

The roles and Houses of parl
The representative nature of parl
Political pressures
Restrictions on lawmaking powers of parliament

Question 12

What are the roles and houses of parl?

Answer 12

Majority government, majority government in both houses, minority government, hostile Senate and the balance of power

Question 13

How does a majority gov impact lawmaking?

Answer 13

Gov is formed in the LH and if a political party manages to secure the majority of the seats, a majority gov will be formed. Any bills that are proposed by the gov will most likely be accepted

Question 14

How does a majority gov in both houses impact lawmaking?

Answer 14

If a party holds the majority in both houses of parl it has the ability to introduce whatever bill it likes since members of the party will vote along party lines to pass the bill in both houses. This may allow laws to be made more efficiently but there is often a lack of scrutiny and debate as a result of the rubber stamp effect ocurring

Question 15

How does a minority gov impact lawmaking?

Answer 15

When a political party fails to secure the majority of seats in the LH or, when both parties secure the same amount of seats, this is referred to as a hung parliament. if this occurs, majority parties must seek support from members of minority parties to form gov.

Question 16

Why can a minority gov be problematic?

Answer 16

Because gov must constantly negotiate with minor parties and independents to pass bills and this can result in the gov being forced to dilute its original policies

Question 17

How does a hostile Senate impact lawmaking?

Answer 17

It refers to a situation when the Opposition controls the majority of seats in the UH and this means bills passed from the LH may face significant opposition from the Senate and crossbenchers which can vote together to force the gov to amend it’s original bill

Question 18

How does the balance of powers impact lawmaking?

Answer 18

Occurs when no single political party has majority of seats in either one or both houses and this means members of the crossbench can band together and vote against government bills, means the gov will need to win support of the minority parties and independents to get bills passed

Question 19

What are other concerns regarding the balance of powers?

Answer 19

Members from minor parties do not represent the views and values of the the majority of people but they have a disproportianate amount of influence

Question 20

What is the argument in favour of the balance of power?

Answer 20

It is argued that it results in a more effective parliament as the gov may need to take into consideration wider views and perspectives to reflect community interests

Question 21

What is representative government?

Answer 21

MPs are democratically elected to uphold the views and values of their voters and to incorporate them into their law making decisions and if they are seen as not upholding their electorates wants and values they risk not being re-elected

Question 22

How does a representative majority impact lawmaking?

Answer 22

Although MPs should strive to uphold the views and values of their electorates this can lead to supporting and passing bills that are popular rather than passing controversial laws that may be required

Question 23

How do democratic elections impact lawmaking?

Answer 23

Regular elections ensure that Australians can monitor and hold their MPs to account and that they can be replaced if they are not actikng in accordance with the requirements of their people

Question 24

What are political pressures?

Answer 24

They are direct or indirect influences that exist either within a political party or from sources outside of parl and parl needs to respond to political pressures appropriately when making laws or ministers risk being voted out

Question 25

What are the three types of political pressures?

Answer 25

Domestic political pressures Internal political pressures International political pressures

Question 26

What are domestic political pressures?

Answer 26

They are influences or demands that are made by individuals, groups or organisations that exist within Aus and they use methods such as petitions, demonstrations, media, social media, not voting etc

Question 27

What are examples of domestic political pressures?

Answer 27

The Rigth To Life Australia (RTLA)

Question 28

What are internal political pressures?

Answer 28

Pressures that occur within parl and they occur when MPs are expected to vote along party lines but may disagree with the bill or they believe that the legislation does not align with the people they are representing

Question 29

What can internal political pressures cause?

Answer 29

If a minister strongly disagrees with their partys policy they may vote against the policy in a conscience vote that prioritses their moral and ethical beliefs or if no conscience vote is available they may choose to support the Opposition and 'cross the floor'

Question 30

What are international political pressures

Answer 30

They arise from outside of Aus and can come from other countries or international orgnaisations such as the UN

Question 31

What are examples of international political pressures?

Answer 31

Aus has the obligation to uphold its international treaties and pass legislation to uphold these e.g Conventions on the Rights of the Child – raising the minimum age of imprisonment from 10 to 14 Aus can be placed under pressure to ban imports from certain countries if they are deemed to be aggressive towards other countries Aus was banned from speaking at the UN Climate Summit 2019 because gov was not doing enough

Question 32

What are the restrictions on Parliaments law making powers?

Answer 32

Jurisdictional limitations The legislative process Specific prohibitions The High Court The Aus Constitution

Question 33

How do jurisdictional limitations restrict Parliaments lawmaking powers?

Answer 33

Parl must operate within its are of lawmaking/jurisdiction and it is restricted from legislating outside of its are of lawmaking

Question 34

How does the legislative process restrict Parliaments lawmaking powers?

Answer 34

A proposed bill must be passed through both houses of Parl and there are multiple stages involved to ensure proper scrutiny, debate and amendment to the bill and Parl is not able to bypass this process, the bill will also need to receive royal assent

Question 35

How does the Aus Constitution restrict Parliaments lawmaking powers?

Answer 35

It restricts both State and Cth Parl ability to make laws as it upholds the division of powers and it outlines the areas Parl are restricted from legislating in and if they are found to be doing so the law may be declared ultra vires

Question 36

How do specific prohibitions restrict Parliaments lawmaking powers?

Answer 36

The Const imposes further limitations on Parl as it expressly bans Parl from making laws in particular areas, banning Cth from making laws that may infringe upon express rights, restricting Cth powers by not providing these within S51 and by including S109

Question 37

How does the High Court restrict Parliaments lawmaking powers?

Answer 37

It can act as a restriction on Parl as it has the ability to declare laws ultra vires if they are considered invalid and this ruling cannot be abrogated, the only way to circumvent the ruling is to change the wording of the Const through a successful referendum

Question 38

Why do courts make laws?

Answer 38

When a dispute arises but there is no legislation covering the matter a test case will need to be conducted as no Act exists When a legal principle is being disputed regarding the interpretation of an Act – Statutory Interpretation When a trial has occurred but one party believes that the judgement was made in error and would like a more senior court to review the decision – appeal Courts only make laws when the decision sets precedent

Question 39

What is Common law?

Answer 39

A system of law developed as a result of judges making decisions on cases they hear, it ensures consistency and certainty and it can set precedent

Question 40

What is the doctrine of precedent?

Answer 40

It is a system used by courts to ensure that similar cases are dealt with in similar ways to ensure consistency and fairness in outcomes and it operates based upon the court hierarchy

Question 41

What is precedent?

Answer 41

It is a reported judgement of a court that establishes a point of law

Question 42

What is ratio decidendi?

Answer 42

It is the ‘reason for decision’ and it refers to the legal principle that the judge has used to come to their decision and only ratio decidendi is used to determine later cases

Question 43

What is obiter dictum?

Answer 43

It is the ‘statements made by the way’ and they are comments made by the judge on question of law or how they were influenced by previous legislation or their opinion, it is not part of ratio decidendi but may be used as a persuasive argument and can be used to influence Parl to amend legislation

Question 44

What is stare decisis?

Answer 44

It is ‘standing by what has been decided’ and it underpins the doctrine of precedent as judges in lower courts should stand by decisions of higher courts in ‘like cases’ and it forms the rules for ‘flexibility of precedent’

Question 45

What is binding precedent?

Answer 45

It is precedent that has been established by a higher court in a similar ‘like’ case that a judge must follow and they must follow this decision because the precedent was established by a higher court within the same hierarchy and because the case is of similar ‘like’ nature

Question 46

What is persuasive precedent?

Answer 46

It is precedent that is not binding on the current judge and they do not have to follow the decision made

Question 47

What causes persuasive precedent?

Answer 47

Decision made by a lower court, decision made within a different hierarchy, decision made by a court on the same level, the facts of the case were not similar enough in nature or the obiter dictum statements were used to influence the decision

Question 48

What are the four types of flexibility of precedent?

Answer 48

Reversing Overruling Disapproving Distinguishing

Question 49

What is reversing precedent?

Answer 49

It is when a higher court hears a case on appeal and decides that the lower court which heard the matter at trial was incorrect and, in doing so, will reverse the decision

Question 50

What is overruling precedent?

Answer 50

It is when a higher court decides not to follow the decision of a lower court in a previous case as they believe that the case was wrongly decided

Question 51

What is disapproving precedent?

Answer 51

It is when a judge decides not to use precedent previously set by a court at the same level and it demonstrates that their opinion of the law differs from the judge in the earlier case. It can also occur when an inferior court is bound to follow the decision of a higher court but does not agree with the decision of the court and the judge may make comment about the precedent which can influence change

Question 52

What is distinguishing precedent?

Answer 52

It is where the facts of the case are sufficiently different from those in a previous case and the decision in the previous court will not be considered binding

Question 53

What is statutory interpretation?

Answer 53

It is when judges decide on the meaning and application of the words or terms within an Act to resolve a dispute

Question 54

How do courts interpret statute?

Answer 54

Courts can consider what Parl had in mind when making the Act and what Parl’s intent or purpose was when the bill was drafted and the courts can use a number of sources to help them arrive at the intention of the legislation, these may be intrinsic or extrinsic to the Act

Question 55

What are the two types of sources that courts can use when interpreting statute?

Answer 55

Intrinsic and extrinsic sources

Question 56

What are intrinsic sources?

Answer 56

They are found within the Act itself. Judges will refer to other sections of the Act to interpret the meaning of words/clauses and they can refer to margin notes, footnotes, the long title, the objective or purposes of clauses

Question 57

What are extrinsic sources?

Answer 57

They are found outside of the Act and can include dictionaries, legislative guidelines, second reading speeches of Parl and previous decisions of other courts

Question 58

What effect can statutory interpretation have?

Answer 58

It does not change the wording of the Act but it the meaning of the words are determined in order to settle a dispute and create a ruling What other effects can statutory interpretation have? Forming a precedent Limiting the scope of the legislation Increasing the scope of the legislation

Question 59

What does limiting the scope of the legislation mean?

Answer 59

If the courts give a narrow or limited interpretation to words or terms, the interpretation may limit the range of circumstances tat the Act may apply

Question 60

What does increasing the scope of the legislation mean?

Answer 60

If the courts give a broad interpretation to words or terms, the interpretation may extend the range of circumstances the Act may apply to

Question 61

What are the factors that may affect the courts ability to make laws?

Answer 61

The doctrine of precedent Judicial conservatism Judicial activism Cost and time in bringing a case to court The requirement for standing

Question 62

How does the doctrine of precedent impact the ability of courts to make laws?

Answer 62

The courts are not free to make laws in the same way as Parl and judges cannot make laws as an immediate response to community demands or when a general need is perceived

Question 63

How can the doctrine of precedent assist courts in lawmaking?

Answer 63

Stare decisis ensures consistency and predictability, it is flexible, the establishment of precedent has the power to clarify and expand or limit the meaning of legislation and it is able to compliment, clarify or update legislation

Question 64

How can the doctrine of precedent limit courts in lawmaking?

Answer 64

If lower courts cannot distinguish their case they are bound to follow precedent from superior courts which may be outdated or potentially unjust, the process of locating, interpreting and applying precedents from previous decisions can be costly and time consuming, judges must wait for a case to come before them before they can establish precedent and judges can only clarify the law ex post facto (after the fact)

Question 65

How does judicial conservatism or activism impact the ability of courts to make laws?

Answer 65

Judges must be willing to adopt a lawmaking role and some judges may prefer to leave lawmaking to Parl and will not disrupt the status quo, others will choose to adopt this lawmaking role

Question 66

What is judicial conservatism?

Answer 66

It is when a judge adopts a narrow interpretation of the law and avoids creating major/controversial decisions or changes surrounding the law as they prefer to leave lawmaking to Parl and they are not influenced by their political beliefs

Question 67

What is judicial activism?

Answer 67

It is when a judge considers a wide range of social and political factors when interpreting Acts and it tends to be more progressive and sometimes controversial and it often reflects the political views held by the judge

Question 68

How can judicial conservatism assist courts in lawmaking?

Answer 68

Helps maintain stability in the law, lessens the possibility of appeals and allows Parl to make more significant and controversial changes to the law

Question 69

How can judicial conservatism limit the courts in lawmaking?

Answer 69

Restricts the ability of courts to make major and controversial changes in the law, can discourage judges from considering a range of social and political factors when making law and may be seen by some as not being progressive enough

Question 70

How can judicial activism assist courts in lawmaking?

Answer 70

Allows judges to broadly interpret statutes in a way that recognises the rights of the people, allows judges to consider a range of social and political factors and it allows judges to be more creative when making decisions and significant legal change

Question 71

How can judicial activism limit courts in lawmaking?

Answer 71

Can lead to more questions on law and can lead to courts making more radical changes in the law that may not reflect the communities views and values or are beyond the communities level of comfort

Question 72

How can the cost and time of bringing a case to court impact the ability of courts to make laws?

Answer 72

Court action is expensive as a result of court fees and legal costs such as disbursement fees, legal representation, filing a writ etc and this can mean people are reluctant to take test cases to court due to the uncertainty of the outcome A decision also may not be reached quickly as the court needs to hear all arguments and this can take considerable amounts of time, it can also mean that final determination may not be reached until the matter is heard on appeal

Question 73

How can the cost and time of bringing a case to court impact the

Question 74

What is test case?

Answer 74

It is a case concerned with a particular issue or legal question which has not been decided before in a superior court in the same hierarchy

Question 75

How can cost and time assist courts in lawmaking?

Answer 75

The courts are able to manage disputes which can allow them to save money and time, means that only legitimate cases are brought forward, courts will attempt to make a decision relatively quickly once the case has been nrought before them and courts are not required to follow the lengthy process bodies such as Parl have to

Question 76

How can cost and time limit courts in lawmaking?

Answer 76

High costs can deter those with a legitimate case as they may not be able to afford these costs, can deter parties from pursuing the appeals process, some courts can take months to hear and determine more complex cases and parties can be delayed in getting a case ready for trial

Question 77

How can the requirement for standing impact the ability of courts to make laws?

Answer 77

Standing (locus standi) is the right of a party to start legal action in court and the party must be considered sufficiently connected to, and have an interest in, the court action

Question 78

What is locus standi?

Answer 78

It refers to a person having 'standing' in a legal case and this will be the case if the person will be directly affected by an action which would continue unless relief is granted by an order of the court, if a person does not stand to lose something, they do not have standing

Question 79

How can the requirement for standing assist courts in lawmaking?

Answer 79

Ensures cases are only brought to court by poeple who are genuinely affected by an issue or matter and encourages people who are not directly affected by an issue or matter to seek other avenues of redress

Question 80

How can the requirement for standing limit courts in lawmaking?

Answer 80

It means that people who have a general interest interest in the case have no right to pursue a legal challenge on behalf of public interest and means that potential improvements to the law that could have been made by listening to those with only intellectual standing in the case are lost

Question 81

What is the relationship between Parl and courts?

Answer 81

It is an investigation into how Parl and courts influence and affect each other when it comes to lawmaking

Question 82

What are the five factors that influence the relationship between Parl and courts?

Answer 82

Parls supremacy in lawmaking The ability of courts to influence Parl when making legislation Statutory interpretation Abrogation Codification

Question 83

What is the supremacy of Parl?

Answer 83

Parl is the supreme lawmaking body because they are given the primary role of lawmaking within the Const, members of Parl are democratically elected, is required to be representative of the people, is required to be answearble to the people, establishes the jurisdiction of the courts other than the HC, can pass laws that can override common law and can make/change laws at any time

Question 84

What is the relationship between the supremacy of Parl and the courts?

Answer 84

The High Court can declare laws made by Parl as ultra vires if it deems that Parl has legislated outside of its jurisdiction

Question 85

How can courts influence Parl?

Answer 85

Obiter statements and ratio decidendi Doctrine of precedent Community outrage

Question 86

How do obiter statements and ratio decidendi of the courts influence Parl?

Answer 86

Courts can make comments as part of their obiter statements or ratio decidendi and this can indirect;y influence Parl as it encourages them to initiate changes to the law

Question 87

How does the doctrine of precedent allow courts to influence Parl?

Answer 87

Parl can be encourgaed to change the law if courts are bound by previous precedent or if judges have chosen to interpret outdated statutes in a conservative way

Question 88

How does community outrage allow courts to influence Parl?

Answer 88

A court decision may cause public dissent or outrage because of a percieved unjust decision and Parl may be pressured to respond due to community dissatisfction and their need to be representative of the community in order to be re-elected

Question 89

How does statutory interpretation allow courts to influence Parl?

Answer 89

The application of Acts is left to judges and they can apply meaning to words and phrases in the Act in order to make a ruling. By giving meaning, judges are able to clarify legislation so it can be applied to the case at hand and depending on the position of the court they can create a precedent which allows the Act to be updated to reflect current views. The HC is the only court that can interpret the meaning of words in the Const and can alter the division of lawmaking powers between Cth and States

Question 90

How does codification allow courts to influence Parl?

Answer 90

If Parl agrees with a courts ruling, it can decide to bring the common law principles established by the courts into statute law by passing a bill within Parl which strengthens and enshrines the common law principle in legislation

Question 91

How does abrogation allow courts to influence Parl?

Answer 91

If Parl disgarees with a courts ruling, it can abrogate the common law principle by passing legislation that disregards or contravenes the principle, meaning it has been abolished Parl cannot abrogate HC decisions in relation to the Const