Legal U4 AOS1B

ways the constitution acts as a check on parliament

• High court in protecting the principle of representative government

• the seperation of powers

• express rights

High Court

• Highest court in the Court Hierarchy (federal)

• S.75/76 provides the HC with jurisdiction to hear matters arising under the constitution or involving its interpretation, treaties, disputes b/w states

Ultra vires

describes an act done without the legal power or authority to do it (becomes invalid)

The principle of representative govt

s.7/24 - members of the Senate/HOR are to be ‘directly chosen by the people’

• has been interpreted in many instances by the HC

• enabled protection of voting rights and recognition of the implied right of freedom of political communication

How does the High court act as a check on parliament (strengths)

• High Court’s ability to declare laws as ‘ultra vires if it breaches the principle of representative govt and parliament creates laws beyond their jurisdiction, ensuring protection of voting rights

• Independent of the executive and legislature, therefore lack of political pressure to pass laws and instead legal principles. Therefore can seek to uphold processes that promote RG

• Requirement for standing ensures that relevant cases are brought before the High Court

• The existence of the High Court and the principle of RG are entrenched in the Constitution and therefore can only be abolished by a referendum

How does the High Court not act as a check on parliament

Judges can only make decisions regarding law when a case is brought before them, meaning an invalid law may be in operation for years until a person with standing challenges its validity - can limit the courts ability to protect PORG Requirement for standing prevents individuals with general interest in the law from challenging the law Can only protect PORG relevant to the facts of the case brought before them, cannot create laws outside of the scope of the case As High Court judges are appointed by the GG on the advice of the PM, they may deliberately choose judges that align with the government’s political agenda - potentially restrict PORG Subject to change if interpreted in the HC differently in the future dependent on conservative or activist approach

seperation of powers

a system that divides government responsibilities into the legislative, executive, and judicial branches to prevent any single group from holding all the powe

Legislative

The power vested in parliament that enables it to create laws

Executive

The power vested in the Governor-General to administer the law and business of government

• in practice is exercised by the PM, senior ministers and govt - overlap

Judicial

The power vested in courts and tribunals that enables them to enforce the law and resolve legal matters

How the SOP acts as a check on parl (strengths)

SOP is entrenched in the Constitution and therefore can only be abolished by a referendum Judiciary (High Court challenges) can strike down laws made by legislature and declare actions of the executive unlawful if made outside of the scope of their jurisdiction Ensures decision about application of law is made without fear of electoral backlash and political pressure Legislature can check judiciary as it can pass laws to override decision of courts

How the SOP doesnt act as a check on parl (limitations)

• Overlap of legislative and executive which can limit the check - the power to administer the law through govt departments is carried out by ministers, who are drawn from the executive. Reduces objectivity when creating laws

• High Court judges are appointed by the executive, therefore may only choose judges that align with their political agenda/listen to what exec wants

• Courts can only act as a check on parl’ when a case is brought before them

express rights

he five human rights that are explicitly stated and entrenched in the Australian Constitution (very difficult to change - only through referendum)

• any law that infringes these rights can be declared invalid by the HC

what are the 5 express rights

• The right to the acquisition of property on ‘just terms’

• The right to a trial by jury for Commonwealth indictable offences

• The right to interstate trade and commerce

• The right to freedom of religion 

• The right to not be discriminated against based on your state of residence

how express rights acts as a check on parl (strengths)

• Imposes limits of parliament when making laws in certain areas

• Entrenched - can only be abolished by a referendum

• High Court has the power to declare laws as ultra vires if constitutionally invalid

how express rights doesnt act as a check on parl (limitations)

• Rights are limited in scope - e.g only apply federally rather than also on a state level

• The difficulty of successful referendums has left the current amount of express rights unchanged - reducing checks as it is unlikely for additional rights to be added in the future

• Case in which express rights are breached must be brought before the High Court before being declared ultra vires

statutory interpretation

a process whereby the courts give meaning to the words in legislation when applying the legislation to a case. 

• broaden or narrow meaning

precedent

a legal principle or decision established by a court in a previous case that is used as a guide or authority in subsequent cases with similar facts or legal issues

• used to create common law

Reasons for statutory interpretation

• resolves problems that occurred during the drafting process

• resolve problems when court is applying statute to resolve a case

Problems that occur during the drafting process

• bill does not take future circumstances into account

• intention of bill may not be clearly expressed (due to drafting process)

• mistakes in the drafting of a bill

Problems when court is applying statute to resolve a case

• Clarifies the specific meaning of terms that are broad in nature - adds meaning to words that aren't defined, identify scope

• Act may become out of date and no longer reflects societal values

• Clarifies the changing nature of words - meaning of words changes, interpreted to align w/ societal values

• The meaning of words may be ambiguous - (applicable to too many issues)

• The legislation does not cover particular issues which must be filled by courts

Effects of statutory interpretation

→ Words and phrases contained in legislation are given meaning

• ensures relevant statute can actually be applied and a decision is made

→ The court's decision on the meaning of legislation is binding on the parties

→ A precedent may be set for future cases to follow

• definition and result of the case as a result of statutory interpretation must be followed by lower courts

→ The meaning of legislation can be restricted or expanded

• narrow interpretation can restrict scope of law (e.g regulated weapon)

• broad interpretation can expand scope of law (e.g external affairs)

what are the factors that affect the ability of courts to make law

• doctrine of precedent

• judicial conservatism and activism

• cost and time

• the requirement for standing

Doctrine of precedent

 a rule in which judges must follow the reasons for decisions given by superior courts in the same court hierarchy when deciding a case before them with similar facts.

binding precedent

a previous court decision that lower courts within the same court hierarchy are obligated to abide by when the facts of a case are similar

persuasive precedent

legal reasoning that can act as a guide for judges even though they are not bound to follow it

ratio decidendi

the legal reason for the decision.

• binding part of the judgement - decision must be followed by lower courts in the same hierarchy

obiter dictum

comments made by the judge to provide context to the judgment or legal suggestions. 

• persuasive part of judgement - not required to be followed but can be used as a guide for future cases

RODD

• reversing

• overruling

• distinguishiing

• disapproving

reversing

when a case is appealed and the superior court changes the precedent set by a lower court.

• a new precedent is established by the superior court as a result of the reversal, and must be followed by all future cases

overruling

hen a superior court does not follow a previous decision made by a lower court by setting a new precedent in a new case with similar facts

distinguishing

a lower court can avoid following an existing binding precedent if there is a difference in the material facts of the case they are deciding and the material facts of the case in which the existing precedent was set.

disapproving

hen a lower court disagrees with an existing binding precedent set by a superior court in the same hierarchy - can express dissatisfaction through obiter dictum

• still bound by precedent

• encourages parl’ to change law or party to lodge an appeal 

How the doctrine of precedent restricts law-making (-)

Cannot certainly predict how the HC or COA may treat the precedent in a new case, possibility of being overruled Restricts the ability of lower courts to change the law in a case where they are bound to follow a previous precedent established by a higher court, can result in unjust outcome Judges can only establish precedents when a case has been brought forward Parliament can abrogate common law Overruling/disapproving can prevent precedents from being changed/established

How the doctrine of precedent assists law-making (+)

Consistent and predictable:

• Parties are able to look at past cases with similar facts and see how the law applies to their situation

Flexibility:

• Precedents can change overtime (reversing, overruling, distinguishing and disapproving) which allows for the expansion of common law

  • e.g. can avoid following an existing precedent by distinguishing facts of case before the court with facts of the case in which the precedent was set

judicial conservatism

when judges show restraint or caution when making decisions and rulings to avoid significant changes in the law, as parliament is the supreme law-making body and therefore should not interfere with their role as law-makers

• narrow interpretation

• decisions based on legal considerations

How judicial conservatism restricts law making (-)

• Judges avoid the development of precedents, therefore resulting in courts applying outdated precedents

• Courts are less likely to make major changes in law when Parliament is slow to act

• Judges generally do not consider broader social and political factors, which may limit the law's ability to respond to changing community values.

How judicial conservatism restricts law making (+)

• Provides parliament, the supreme law making body, with the ability to make more significant and controversial laws that reflect societal values

• Promotes certainty, consistency and predictability in the law by following existing legal principles and precedents.

judicial activism

when judges consider a range of social and political factors when interpreting the law and making decisions

• able to interpret law in ways that protect the interests and rights of particular groups

How judicial activism restricts law making (-)

• Parliament can abrogate any decisions of courts

• Courts may make more controversial changes that do not reflect societal values

• Courts cannot investigate issues on their own initiative; a suitable case must be brought before them. 

• Judges are limited to deciding the cases that come before them and must work within existing legislation and legal precedent. 

• Activist decisions are more likely to be appealed on a question of law

How judicial conservatism assists law making (+)

• Can respond to changing community values by developing the law through judicial interpretation

• Can make changes parliament may be unwilling to make

• Can interpret the law in ways that protect the rights of minority or underrepresented groups

costs

→ legal representation

• solicitor - $300-$800 per hour 

• barrister - $800-$1500 per hour 

→ court fees

• Standard filing fee (appeal) -$2,631.90

• Hearing fees - $896.80 per day 

• Jury fees -

how costs restrict law-making (-)

• can discourage litigants from pursuing due to costs/inability to meet criteria for legal aid

• deter appeals process

• prohibitive nature of costs can result in outdated precedents possibly never being challenged

how costs assist law-making (+)

• Parties eligible for legal aid are able to participate and therefore provide opportunities to establish precedents

• Case management (e.g. no. of witnesses) can save time leading to reduced costs

• Costs can stop people from making trivial claims

time

• gathering evidence

• lengthy trial procedures

• court backlogs

• delay tactics

how costs restrict law-making (-)

• Appeal courts, are where most precedents are established, can take months to hear and determine more complex cases

• Parties can be delayed in getting a case ready for trial

how time assists law-making (+)

• Court hierarchy allows for administrative convenience → minimise delays and increase capacity to amend or establish precedent/law

• Law making in courts can be immediately established as compared to law making in parliament

standing

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and determine it.

• High court only hears people with ‘special interest’ - meaning they are more affected by the Cth law than others

how the requirement for standing restricts law-making (-)

• The requirement for standing can prevent people who have a general interest in cases have no right to pursue a case on behalf of public interest

• Potential improvements to the law that could have been made are missed

• Individuals with standing still may not have the financial means to pursue a case

how the requirement for standing assists law-making (+)

• Requirement for standing ensures that cases are only pursued by people who are genuinely affected by an issue - prevent a waste of court resources

what are the features of the relationship between courts and parliament in law making

• the supremacy of parliament

• the ability of the courts to influence parliament

• codification

• abrogation

the supremacy of parliament

• parliament is ultimately the supreme law-making body

• parl’ establishes the existence of the courts and grants its jurisdiction to hear cases

  • e.g. County Court Act 1958 (Vic) sets out trials, appeals, etc

• can pass laws that override court decisions

ability of courts to influence parliament

• can influence parliament to change/approve law through obiter dictum - give a comment

• public outcry as a result of a case decision can also influence parliament

• note that courts do not have complete degree of control over parl’ due to supremacy

codification of common law

when parliament agrees with a court’s decision and takes steps to strengthen the common law by turning it into a statute law

• might not have considered it an issue at the time

• decision brought it to their attention

• public interest and response to court outcome was positive

abrogation of common law

when parliament disagrees with a courts decision and takes steps to pass legislation that overrides the common law to render it invalid

• Public interest in the case and response to court outcome was negative

• Goes against political agenda and therefore parl’ disagrees

• Does not reflect community values