unit 4 aos 2 - people, parliament and courts

parliament and law making

- laws should reflect the views, values and needs of the people

- the process of passing a law means it must pass both houses in the same form\####the lower house - majority government

- party with the majority of seats forms government

- since they hold most seats, bills are generally passed quickly

- can ensure private member bills are rejected without debate

- majority in both houses means no debate\####the lower house - minority government

- hung parliament - have to seek the support of minor parties/independents to create a minority gov.

- have to constantly negotiate with them (watered down bills)

- but ensures thorough discussion\####the upper house - gov majority

- rubber stamp

- senate cant act as a house of review

- bills arent carefully discussed and looked at\####hostile upper house

- gov doesnt hold majority

- crossbench and opposition can vote together against the gov and force them to make amendments

- limits the gov from implementing their legislative policy agenda

- however necessary legislation may be rejected or diluted\####upper house - balance of power

- minor parties and independents can hold a high level of power compared to their voter base

- can vote with opposition to block bills

- can provide for range of views, but they might have limited aims which don't reflect the people\####the law making process - strengths

1. gives an opportunity for the upper house to check the bill and suggest amendments

2. allows for debate that can point out flaws to be fixed

3. parliament can change the law quickly when necessary\####the law making process - weaknesses

1. requirement for bills to pass both houses, so changing the law can be slow

2. parliament only sits for a limited time yearly

3. parliament can generally only change laws based on what is presented by the government 4. a hostile upper house can prevent necessary law changes\####representative nature of parliament

members of parliament are elected by the people and they must make laws that reflect the views of the people.\####views of the majority

2. government may support popular law reform to win voter support rather than other reforms.

3. government may be reluctant to initiate law reform in areas where there are vocal minority groups

4. assessing the view of the majority can be difficult for controversial issues\####regular elections

1. they let people choose politicians who will act on their behalf and un-elect those who won't

2. federal elections don't have a fixed date - they can call it early if it's beneficial. it's also helpful when an issue may disrupt the election

3. compulsory election ensures gov has support of the majority\####domestic political pressures

1. individuals and groups can use demonstrations, petitions and court action to force law reform.

2. populist governments can be reluctant to pass controversial but necessary laws.

3. vocal minorities and powerful organisations may influence government legislative agendas.

4. independent candidates can directly influence law reform.\####internal political pressures

1. voting along party lines ensures certainty and stability.

2. however, if they disagree with the party, they may still feel compelled to vote along party lines, meaning they can't truly represent their people\####international political pressures

1. treaties can generate law-reform in parliament in order to meet the obligations of the treaties and build stronger international relationships

2. ratifying treaties can place limits on the types of laws parliament can pass

3. international organisations can influence parliament to act in interests of other nations rather than Aus\####restrictions on law making powers - jurisdictional powers

1. ensures parliament only legislates within their power

2. allows individuals and groups to challenge legislation potentially made ultra vires

3. high court cases can be expensive, and they cannot intervene in disputes unless a case is brought to them\####restrictions on law making powers - specific prohibitions

1. restricts parliament and indirectly protect individual rights

2. section 109 limits state govs when legislating in areas of concurrent powers 3. constitution also places restrictions through sections such as express rights\####tied grant

funding given to a state government by the Commonwealth on the condition that it spends the money in a certain way specified by the Commonwealth (such as making a law in an area of residual power)\####precedent

- specialisation

- administrative convenience

- development of precedent\####common law

- judge-made law

- common law develops from the reasoning behind their decisions

- the principles developed from these decisions from precedent\####key terms of the doctrine of precedent

- stare decisis

- ratio decidendi

- obiter dictum

- binding precedent

- persuasive precedent\####operation of the doctrine of precedent

- higher courts are superior to lower courts

- principle of stare decisis means lower courts stand by what is decided in higher courts

- higher courts can overrule or reverse precedents from lower courts\####stare decisis

Let the decision stand; decisions are based on precedents from previous cases\####limitations of doctrine of precedent

- the position of the court in the hierarchy

- judges may be bound by existing precedent\####ratio decidendi

- legal reasoning behind the decision which should be followed in the future

- binding part of a court judgement\####obiter dictum

- statement/s that helped the judge come to a decision

- not essential to deciding a case and therefore not binding\####binding precedent

the decision of a higher court in the same hierarchy, that must be followed by lower courts when making a decision on a case with similar material facts\####persuasive precedent

- therefore, these can include obiter dicta and decisions from lower courts, other states, other countries\####what can judges do when they are not bound to follow an earlier precedent

- adopt the precedent

- affirm the precedent (agree with it)

- avoid the precedent (could be outdated or irrelevant to the case)\####how does avoiding precedent help

this way, judges can keep common law up to date with the changing needs and values of the society\####four techniques available when developing or avoiding precedent are:

- reversing

- overruling

- disapproving\####distinguishing a precedent

a lower court can avoid following a binding precedent from a higher court if they can find a difference between the material facts of their case, and the one from which the precedent was set\####reversing a precedent (in the same case on appeal)

- overruling is when the judge changes the precedent set from a lower court on a DIFFERENT and EARLIER case\####disapproving a precedent

a judge in a lower court can express disapproval of a binding precedent, to encourage parliament to change the law (this doesn't allow them to avoid the precedent)\####statutory interpretation

- Changing nature of words

- Words within the Act may be ambiguous

- Future and changing circumstances\####mistakes in drafting a bill

- parliament may have drafted a flawed bill

- courts need to interpret the legislation according to the intention of parliament\####changing nature of words

- meaning and application of words can change over time as society changes

- legislation needs to be interpreted to ensure acts of parliament stay relevant\####words within act may be ambiguous

legislation needs to cover broad situations, however this can result in confusion, and too many ways for interpretation\####future and changing circumstances

- Statutory interpretation by courts of record creates a new precedent. (decision is binding on lower courts in the same hierarchy)

- Broad interpretation may extend the law (can cover new situations or new areas of law)

- Narrow interpretation may restrict the law to only cover particular situations.\####parliamentary action

- decisions may sometimes result in parliament taking action to clarify an issue

- they can also act to limit the powers of courts to interpret in ways that are not considered appropriate today

- parliament cannot overrule the interpretation of the constitution by high court\####Deing v Tarola (1993)

- Deing was charged with wearing a studded belt under the Control of Weapons Act

- Magistrates Court found the studded belt was a weapon and he was guilty

- he appealed to the SC and the court interpreted the term "regulated weapon" should be defined as anything that is not commonly used for any other purpose than as a weapon\####Mansfield v Kelly

- Mansfield was charged with being drunk in a public place

- he was in his private car on a public road and argued that he was in a private place

- court interpreted that public place included being in a private car parked in a public place\####AG v Kevin and Jennifer and Human Rights Equal Opportunity Commission

(Kevin's Case)

- kevin was born a female, but lived as a man and had undergone surgery.

- kevin and Jennifer married and applied to have it validated

- the Attorney General argued that Kevin was born a female and that marriage between two females was not valid

- the Family Court found that the word 'man' in the statute should be determined at the date of marriage and that Kevin was to be considered a man.

- took into account advancements in technology and changes in society.

- parliament incorporated this finding into the marriage act.\####factors that affect the ability of courts to make law

1. the doctrine of precedent

2. judicial conservatism

3. judicial activism

4. cost and time in bringing a case to court

5. the requirement for standing\####how does the DOP allow for consistency

- cases are decided in a like matter (so legal rep and parties can see how their case might be decided)

- judges can refer previous cases and decide accordingly

- overruling, distinguishing, disapproving and reversing precedents allow for flexibility\####limitations of DOP

- can be difficult to find a relevant precedent, making it hard to determine the right one to use

- lower courts must follow binding precedents (even if outdated)

- courts can only clarify meaning of legislation ex post facto (after the dispute has risen)\####trigwell's case

- car crash led to death and injury caused by swerving due to sheep on the road which escaped from a rundown fence

- trigwell sued the owner of the sheep, arguing they were negligent

- courts originally applied old english law that states owners weren't responsible

- vic gov changed the law to abolish the common law saying stock owners are liable for damage caused by straying animals\####judicial conservatism

- judges who are hesitant to change of expand laws, even though they're allowed

- often abide by the idea that parliament is the supreme law making body

- helps maintain stability and lessens appeals

- however, can restrict necessary changes to the law\####judicial activism

- judges who are willing to consider a range of social/ political factors, community's values and rights, when interpreting law and making decisions

- allows for broad interpretations and consideration of a range of views

- however, can lead to more appeals\####Mabo Case (1992)

1. Eddie Mabo (on behalf of the Meriam people) took court action due to a loss of land rights.

2. The High Court ruled in favour of Mabo's court action, establishing a common law that provided native title to Indigenous Australians and abolishing the principle of Terra Nullius (land belonging to no one).

3. This is therefore an example of judicial activism\####cost factors in bringing a case to court

- high costs mean that only legitimate claims are brought to court

- however, it deters litigants who cannot afford these costs or obtain legal aid from pursuing their case and rights in court\####time factors in bringing a case to court

- courts can make law quickly when a dispute is brought and must resolve it

- they also don't have to follow the process of passing bills

- however, appeals, where most precedents are set, can take months to hear and decide on due to complexity\####standing/locus standi

a person must be directly affected by the issues or matters involved to be able to bring the case to court\####the requirement for standing

- however, means people who have a general interest cannot bring the case to court on behalf of others\####relationship between courts and parliament in law making

1. the supremacy of parliament

2. the ability of courts to influence parliament

3. the interpretation of statues by courts

4. the codification of common law

5. the abrogation of common law\####the supremacy of parliament

- they are the supreme law making body and can make and change any law within their constitutional power