Legal U2 AOS 1 SAC 2 Evauluations

Bicameral Structure - Allows for review of legislation

Strengths:

• provides for checks and balances against abuse of power

• identifies errors and omissions in bills

• ensures legislation isn’t rushed through

Weaknesses:

• increased minor parties and independents means: Law-making may become stalled

• bills may be watered-down and less effective

Bicameral Structure - Constitutionally protected

Strengths:

• as the bicameral structure is established by the constitution, it is very well protected

• Can only be changed by referendum

Weaknesses:

• the difficulty of changing the constitution means that potential reforms such as extending the term of the House of representatives is hard to achieve

Bicameral Structure - Rubber stamp

Strengths

• if govt. controls the senate, it can pass any legislation

Weaknesses

• this undermines the house of review

• Dilutes checks and balances of the upper house

• Can mean legislation that is too radical is passed through, E.g., WorkChoices Legislation

Bicameral Structure - Lack of debate in lower house

Strengths

• as the government controls the majority in the lower house, there is generally very little debate about proposed bills

• this means that the expertise of many members is underutilized in the law making process

Weaknesses

• if there is a hung parliament, then considerable debate can occur in the house of reps

• the government may need to negotiate with crossbench MPs tom secure passage of bills through the lower house

Bicameral Structure - Costs and delays

Strengths

• none

Weaknesses

• parliament is incredibly expensive

• Having two houses increases costs further

• the process of passing legislation is very slow

• Bills that pass the lower house may be amended or rejected by the upper house, leading to delays in legislation being passed

strengths - Bicameral system acting as a check on parliament

Strengths

• existence of two houses allows for scrutiny of all bills by both houses

• if government holds slim majority in lower house or is in minority in lower house, extra debate likely in lower house

• A Senate with large numbers of crossbenchers or opposition senators will review bills very carefully

• Commonwealth Parliament must be bicameral pursuant to the constitution

Weaknesses - Bicameral system acting as a check on parliament

Weaknesses

• Australian constitution does not specify that all state parliaments must be bicameral

• Law-making can be stalled or significant compromises may need to be made in order to pass bills. this may not reflect the will of the majority of voters

• this situation is unusual, but it can mean reforms are stalled as passage of bills subject to intense negotiation with independents and minor parties

• if the government holds a majority in both houses, the upper house is unlikely to fully scrutinize bills.

the law making process - Strengths

• as bills need to be passed by both houses, it ensures there is ample opportunity to review any bill and propose amendments

• Parliament can move quickly to pass laws when the need arises, especially if the government controls both houses. For example, the Victorian Parliament passed new laws toughening bail laws in just 34 days in 2017.

• Both houses get to debate any proposed bill, so all members get the chance to say what they like and do not like about the proposed law

• At the Victorian level, there is a compatibility statement tabled to ensure that the bill being presented is compatible with the Human Rights that are protected by the Charter of Human Rights and Responsibilities Act.

The law making Process - Weaknesses

• As the legislative process is complex, it can be very slow.

• Parliament only sits for a limited number of days each year. For example, in 2016, the Senate sat for 42 days (60 in 2015), and the House of Representatives sat for 51 days (75 days in 2015). This limits the number of new laws that can be created.

• In practice, most bills are introduced by the

  government. Private member bills are only

  rarely introduced as they normally are not

  passed.

High Court in acting as a check on parliament - Strengths

• Judges are independent of the legislature and executive so act as an independent check on their exercise of powers

• Judges are appointed, not elected, so can make decisions free from political pressure

• Judges are experienced and experts in Constitutional law so can bring these qualities to their decision making

• The High Court can act as an independent Check to confirm if a law is an abuse of power

High Court in acting as a check on parliament - Weaknesses

• The High Court cannot change the actual words of the Constitution and can only affect the meaning of the words

• Judges are appointed by politicians and governments often appoint judges with leanings towards their side of politics

• Judges are reactive and have to wait until a case is brought to them

• Judges can only rule on the facts of the case before them

High court as a check on parliament - Being independent

Strengths

• judges are:

  • independent of the executive and the legislature

  • not elected

• decisions based on the law rather than political pressure

Weaknesses

• judges may not reflect the values of the community

• Decisions may be too ‘legalistic’ rather than representing society’s views on an issue

High court as a check on parliament - Provides a check and balance

Strengths

• High court allows individuals to:

  • bring a matter to court

  • have a law overturned

• Ensures that:

  • members of parliament are not above the law

  • judges are able to scrutinize laws

  • HC can act as a check whether there has been an abuse of power

Weaknesses

• HC cannot intervene unless a case is brought before them

• such cases are often complex and expensive

• Means that a matter may be brought before the court

High court as a check on parliament - Experienced decision maker

Strengths

• HC judges are experienced and knowledgeable

• Have access to a wide range of legal resources

• Helps ensure that decisions are properly made

Weaknesses

• Decisions depend on the composition of the HC justices

• some justices are more conservative are more conservative than others

• Role is limited to interpreting the constitution, rather than changing the words, or ruling whether the law is desirable.

Effectiveness of separation of powers in acting as a check on parliament - Strengths

• allows executive to be scrutinized by the legislature - legislature can refuse to pass legislation sought by the executive

• judiciary is independent of the other two arms. this is especially important in cases where the commonwealth is a party.

• As the Senate is normally controlled by the

  crossbench, the legislature normally closely reviews decisions of the executive arm

• Ministers are still subject to question time in

  parliament so that legislature can review and expose decisions made by executive arm

Effectiveness of separation of powers in acting as a check on parliament - Weaknesses

• In reality, there is significant overlap between the legislature and executive – ministers are in both arms. This reduces the level of scrutiny provided.

• Judges are appointed by the executive so the executive can influence the composition of the bench

• When the government controls both houses, there will be less discussion and scrutiny regarding decisions of the executive

• The Australian Constitution only enshrines separation of powers at the federal level. Each state decides whether to adopt the principle in their own state constitution.

Separation of powers - Allows for the executive to be scrutinised by the legislature

Strengths

• parliament can refuse to pass inappropriate laws

• ministers have to answer questions in parliament

• opposition can examine bills and expose flaws

Weaknesses

• As legislative and executive are combined, this decreases the ability of SoP to act as a check

• if the government controls the upper house, the ability of parliament to scrutinize the executive is reduced.

Separation of powers - Independent Judiciary

Strengths

• the judiciary is independent of the parliament and government

• this independence is vital, especially when the Cth is a party in a case

Weaknesses

• Judges are appointed by the executive

• May result in the perception that the executive is influencing the make-up of judges of the superior courts

• that is, the government of the day can ‘choose’ which judges they want to hear cases.

Separation of Powers - Protected by Constitution

Strengths

• the principle of SoP is entrenched in the Constitution this means it is a very strong protection

• can only be removed by referendum, this requires the people’s consent

Weaknesses

• Constitution only guarantees SoP at Cth. level, not the states

• Although the states do also have SoP.

Effectiveness of express rights in acting as a check on parliament - Strengths

Strengths

• Impose effective limits on law-making powers of the Commonwealth

• Rights can be fully enforced by the High Court, the independent judicial arm

• Rights can only be removed by way of referendum pursuant to Section 128

• High Court can act swiftly in declaring a law ultra vires

• Opportunity for the public to become aware that such rights exist

Effectiveness of express rights in acting as a check on parliament - Weaknesses

Weaknesses

• Express rights can only be changed by a referendum

• Cost of initiating a court case is high

• Rights that are protected are limited in scope

• The protection of rights does not prevent the Commonwealth Parliament from passing the law

• Australia has relatively few express rights compared to other countries

express rights as a check on parliament - Provides a check on parliament

Strengths

• Express rights limit what parliament can make laws on

• Protects public against parliament making any laws it wants

Weaknesses

• Express rights are relatively few compared to other countries.

• Generally ineffective at acting as a check on

  parliament as:

  • there are so few of them, and

  • they are limited in scope.

express rights as a check on parliament - Fully enforceable

Strengths

• Any person who believes a law infringes express rights can take a case to the High Court

• High Court can then declare the law invalid

• This allows for a judicial check on parliament

Weaknesses

• Complaints-based, so Cth is not prevented from passing the law

• Expensive - some people may not be able to afford such action

• Could result in parliament making laws that infringe express rights, and those laws not being challenged.

express rights as a check on parliament - Entrenched in the constitution

Strengths

• As entrenched in the Constitution, they can only be changed or removed by referendum

• This requires the people’s consent

Weaknesses

• Referendum makes it difficult to add additional express rights

• Reduces ability for more express rights to act as a check on parliament.

Advantages of courts as lawmakers

• Consistency is ensured as lower courts have to follow binding precedents from superior courts

• Stare decisis ensures predictability as parties can anticipate how precedents will be applied in their dispute.

• Common law is flexible and develops over time as judges can reverse, overrule and distinguish earlier precedents.

• Statutory interpretation allows judges to clarify, expand or limit the meaning of words in legislation.

• Judges are independent, not subject to political pressure and are not voted in so need not be concerned with public opinion.

Disadvantages of courts as lawmakers

• Binding precedents must be followed even if they are outdated.

• It is time-consuming, expensive and difficult to identify precedents.

• Judges are conservative and can be reluctant to change existing precedents

• Judges must wait for a case to come to them and cannot change the words in legislation, only the meaning of words

• Decisions of judges may not fully reflect community values.

Judicial conservatism - Benefits and limitations

Benefits

• helps maintain stability in the law

• lessens the possibility of appeals on a question of law

• allows the parliament to make the more significant and controversial changes in the law

Limitations

• restricts the ability of the courts to make major and controversial changes in the law that parliament may not otherwise make

• can discourage judges from considering a range of social and political factors when making law

Judicial activism - Benefits and limitations

Benefits

• broadly interpret statutes to recognise the rights of the people

• consider a range of social and political factors and community views when making a decision, which may lead to more fair judgements

• be more creative and make significant legal change

Limitations

• more appeals on a question of law

• courts making more radical changes in the law that do not reflect the community values or are beyond the community’s level of comfort

the requirement of standing - benefits and limitations

Benefits

• restricts the number of cases that come before courts

• ensures court time and resources aren’t wasted on people who aren’t directly affected by a case

Limitations

• means people who have a general interest in an area of law can’t take a case to court in the public interest

• means potential improvements to the law may be lost