unit 4 aos2 the people,plmt and courts

Question 1

role of parliament

Answer 1

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

Question 2

what is a bill

Answer 2

a proposed law. a document that outlines a new potential for a law

Question 3

types of bills
2x

Answer 3

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

Question 4

what is a proclamation

Answer 4

a date for commencement of the act which may be given by the crown

Question 5

what is compatibility of human rights

Answer 5

in victoria the bill must comply with the charter during the second reading

Question 6

what are the 4 factors that support/hinder parliaments ability to make laws

Answer 6

1- roles and houses of parliament
2- representative nature of parliament
3- political pressures
4- restrictions on lawmaking powers of parliament

Question 7

factor 1- roles and houses of parliament

4x

Answer 7

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

Question 8

factor 2: representative nature of parliament

x2

Answer 8

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

Question 9

strengths of parliamentary law making processses

x2

Answer 9

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

Question 10

weaknesses of parliamentary lawmaking processes

x2

Answer 10

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.

Question 11

political pressure (factor 3)

definition

Answer 11

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

Question 12

political pressure:

domestic pressures- def and examples

Answer 12

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

Question 13

political pressures:

internal pressures- def

Answer 13

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”

Question 14

political pressures:

international political pressures- def and examples

Answer 14

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

Question 15

factor 4: restictions on parliaments law making powers

def

Answer 15

although the parliament is the supreme law making authority, there are number of factors that can restrict the ability to make laws

Question 16

restrictions on parliaments law making powers

jurisdictional limitations

Answer 16

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

Question 17

restrictions of parliaments law making powers:

the legislative process

Answer 17

in order to pass a law must go through both houses> multiple stages involved to ensure properly scrutinised debated and amended + royal assent

Question 18

restrictions of parliament law making powers:

the australian constitution

Answer 18

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”

Question 19

restrictions of parliament law making powers:

specific prohibition

Answer 19

constitution further imposes limitations on plmt by

• banning cth in making laws in areas of express rights
• introducing section 109

Question 20

restrictions of parliament law making powers:

the high court of aust

Answer 20

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

Question 21

why do courts make laws?

x3

Answer 21

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

Question 22

what is common law?

Answer 22

system of laws developed as a result of judges decision on the cases they hear

Question 23

what is the doctrine of precedent

Answer 23

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

Question 24

what is precedent

Answer 24

a reported judgement of a court that establishes point of law

Question 25

what is ratio decidendi

Answer 25

“reason for the decision”. legsal principle judge has used to come to their decision

Question 26

what is obiter dictum

Answer 26

statements made by the way = comments made by the judge on questions of law that may be used by a persuasive argument

Question 27

what is stare decisis

Answer 27

to stand by what has been decided= rule underpins doctrine of precedent whereby judges in lower courts should follow decision of higher courts

Question 28

what is binding precedent

Answer 28

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

Question 29

persuasive precedent

Answer 29

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

Question 30

flexibility of precedent: reversing

Answer 30

when a higher court hears a case on appeal and decides the lower court which heard the matter was incorrect therefore decision is reversed

Question 31

flexibility of precedent: overruling

Answer 31

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

Question 32

flexibility of precedent: disapproving

Answer 32

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

Question 33

flexibility of precdent: distinguishing

Answer 33

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

Question 34

what is statutory interpetation

Answer 34

judges decide on the meaning and application of the words or term within an act to resolve a dispute before a court

Question 35

why are the courts required to interpret statutes?

x3

Answer 35

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

Question 36

how do courts interpret statues

1- intrinsic
2- extrinsic

Answer 36

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

Question 37

what effect does interpreting statutes does it have:

x3

Answer 37

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

Question 38

studded belt case

facts
methods
decision
impact

Answer 38

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

Question 39

factors that affect parliaments ability to make laws

factor 1: doctrine of precedent

Answer 39

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

Question 40

precedent assisting courts in lawmaking powers

x2

Answer 40

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

Question 41

precedent limiting courts in lawmaking powers

x2

Answer 41

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

Question 42

factors that affect parliaments lawmaking ability

factor 3: activism of judges

Answer 42

• judges consider a range of political and social factors when interpreting acts of parliament. decisions made are more progressive

Question 43

judicial activism assisting court in lawmaking

x2

Answer 43

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

Question 44

judicial activism limiting court lawmaking

x2

Answer 44

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

Question 45

factors that affect parliaments ability to make laws

factor 2: judicial conservatism

Answer 45

• 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

Question 46

judicial conservatism assisting court lawmaking

x2

Answer 46

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

Question 47

judicial conservatism limiting court lawmaking

x2

Answer 47

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

Question 48

factors affect lawmaking ability:

factor 4: cost and time of bringing a case to court

what is a novel/test case

Answer 48

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

Question 49

cost and time of bringing a case to court ASSISTING court making

x2

Answer 49

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

Question 50

cost and time of bringing a case to court LIMITING court making

x2

Answer 50

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

Question 51

factors affecting ability of courts law making powers

factor 5: the requirement standing

Answer 51

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

Question 52

legal standing ASSISTING courts in lawmaking

x2

Answer 52

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

Question 53

legal standing LIMITING courts in lawmaking

x2

Answer 53

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

Question 54

relationships between parliaments and the courts

factor 1: supremacy of parliament

Answer 54

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

Question 55

relationship between parliament and the court

factor 2: courts ability to influence plmt

Answer 55

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

Question 56

relationship between parliament and the court

factor 3: statutory interpretation

Answer 56

• 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

Question 57

relationship between parliament and the court

factor 4: codification and abrogation of common law

Answer 57

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

Question 58

the trigwell case

facts
how did judicial conservatism be applied
why was it aborgated

Answer 58

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