Legal Studies U4 AOS1

what are the two houses of Victorian and federal parliament?

lower house (legislative assembly in Victoria and house of representatives in federal)

upper house (legislatice council in Victoria and senate in federal)

how many seats are in the lower houses of Victorian and federal parliament?

legislative assembly: 88 seats

house of representatives: 151 seats

how many seats are in the upper houses of Victorian and federal parliament?

legislative council: 40 seats

senate: 76 seats (each state has 12 states and each territory has 2 seats)

what are the roles of the lower houses of Parliament?

• propose bills

• form government (whoever hold the majority in the lower house becomes government)

• control government spending

• scrutinise government activities (through question time)

• represent the people (MP’s are voted in by the people)

what are the roles of the upper houses of Victorian and federal parliament?

• review bills from lower house

• initiate bill (except money bills)

• scrutinise bills and government activities

• represent the interests of the states (because it’s comprised of equal state reps)

what are the two kinds powers of the Crown (and examples)?

-executive powers (written in the constitution). including: granting or withholding royal assent appointing executive council (appointing PM’s cabinet), and issuing a writ for an election (calling election)

-reserve powers (not written in constitution). including refusing an election, appointing a PM if an inconclusion is inconclusive and dismissing a PM

what is the division of law-making powers?

The distribution of law making powers between states and the Commonwealth parliament.

They are split into:

• exclusive powers (powers written in the Australian Constitution that only the Commonwealth parliament can exercise)

• concurrent powers (powers that both the Commonwealth parliament and state parliaments share)

• residual powers (powers in the Australian Constitution that were not given to the Commonwealth parliament and lie with the state parliament)

what are some exclusive powers?

• defence

• currency

• citizenship

• immigration

what are some concurrent powers?

• trade

• taxation

• marriage and divorce

• postal services

what are some residual powers?

• road laws

• education

• criminal law

• medical procedures

• public transport

what is section 109 of the constitution?

a part of the constitution that states that where there is a conflict or inconsistency between State and Commonwealth laws, then the Commonwealth prevails to the extent of the inconsistency between the two pieces of legislation

what are the requirements to use section 109 of the constitution?

1. the parts of the state law that are inconsistent with the Commonwealth law will be invalid (you cannot obey both laws at the same time)

2. a party with standing (sufficient connection to the case to bring the matter to court) challenges the conflicting laws in the High Court

what are the three factors that affect the ability of Parliament to make laws?

-the bicameral structure of parliament

-the representative nature of parliament

-international pressures

what is the bicameral system of parliament?

the structure of the Commonwealth parliament having two houses (an upper and lower house)

what are the strengths of the bicameral system of parliament?

• allows for scrutiny of all bills by both houses

• senate with a large number of crossbenchers (opposition senators) will review bills very carefully

• question time allows for the scrutiny of Government bills

• Government debate with parties in the senate means that they are more likely to take more ideas on board

what are the weaknesses of the bicameral system of parliament?

• if government holds the majority in both houses they can pass whatever bill they want, regardless of what other parties say, leading to little scrutiny of bills (called a rubber stamp senate)

• MP’s may find it very hard to vote against their own party even of they disagree

• if the government does not control the Senate, they may be prevented from passing any laws (called a hostile senate)

what parts of the constitution ensure the representative nature of parliament?

-section 7 (requires the Senate to be composed of an equal number of elected members from each state)

-section 24 (requires the House of Representatives to be composed of members chosen directly by the people)

what are the strengths of the representative nature of parliament?

• regular elections put pressure on MP’s to represent the views of their voters or risk being voted out

• there has been an increase in First Nations and female MP’s, ensuring their views are represented

• compulsory voting ensures that the MP’s are selected by the people

what are the weaknesses of the representative nature of parliament?

• parliament has generally not been representative of the diversity in the community, leading to a lack of diversity in the views represented in decision making

• MP’s may end up introducing and supporting laws that are popular with voters rather than controversial but necessary

• MP’s may feel compelled to vote with their political party rather than in line with the desires of their electorate, reducing the representation of voters in law-making

• a political term of 3 to 4 years may not be enough time for productive legislative activity, meaning parties can make shallow election promises they never uphold

what are some examples of international pressure in Australia?

• local/international activists

• major international trading partners or defence allies

• the UN

• transnational corporations

• non-government organisations (such as Amnesty International)

what are the strengths of international pressures in terms of Parlimentary law making?

• if Australia is found to be in a breach of obligations within an international treaty, they will likely face criticism and potentially consequences from other countries

• international organisations may be able to spark public interest in relation to issues Australia may fail to uphold

• international organisations such as the UN or WHO have the ability to impose sanctions on countries for breaching international treaties, putting pressure on countries to comply with them

what are the weaknesses of international pressures?

• unless Australia is a member of an international organisation or has ratified an international treaty, they have no obligation to comply with international expectations or standards

• international society may have conflicting views and opinions on certain issues, meaning following the views of one country may upset another

• if Australia does not act in a way approved of by international standards, it can decrease their international reputation

what is a check on Parliament?

a process or structure designed to reduce the potential for abuse of power

how does the High Court act as a ‘check’ on Parliament? (strengths)

• 7 justices of the High Court are independent and have no political affiliations, meaning they make decisions based on legal principles rather than political pressure

• the High Court can uphold processes promoting a representative government even if it is against the will of Parliament

• can protect citizens rights

• judges are specialists

• by making decisions/interpreting the language of the constitution, they protect/guard it

how does the High Court fail to act as a check on Parliament? (weaknesses)

• 7 justices are not elected

• can only rule on the facts of a case brought to them by a person with standing, not on any issue

• lack of diversity in justicers

• takes time and money

• words of the constitution are limited

what is the separation of powers?

the separation of executive, judicial and legislative powers that ensures that no one government body has absolute power in the legal system

what are the three kinds of powers divided by the separation of powers ( and what parts of the legal system hold them)?

-executive power (the power to administer the laws and manage the business of government. held by the Govenor-General, Prime Minister, senior ministers and senior government departments)

-legislative power (the power to create laws. held by the two houses of Parliament- senate and house of reps)

-judicial (the power to enforce and apply the law, held by courts and tribunals)

how does the separation of powers act as a check on Parliament? (strengths)

• prevents one party.body from having complete power

• written in the constitution so is hard to change

• judicial power is seperate from parliament or government, allowing the review and potential overruling of government policy

• question time allows those with legislative power to question government policies (executive powers)

how does the separation of powers fail to act as a check on Parliament? (weaknesses)

• there is an overlap betwen legislative and executive powers, meaning it acts as a weaker check

• judges can be appointed on advice from those with executive powers, limiting the ability of judicial and executive powers to act as a check

• doesn’t apply to State parliament

what are express rights?

rights written explicitly in the Constitution. this means Commonwealth parliament cannot pass legislation that infringes or goes against these rights

what are the five express rights?

• right to freedom of religion

• right to free interstate, trade, and commerce

• right to not to be discriminated against on the basis of the State in which you reside

• right to recieve ‘just terms’ when property is acquired by the Commonwealth

• right to trial by jury for indictable Commonwealth offences

how do express rights act as a check on Parliament? (strengths)

• prevents Parliament making laws against the express rights

• written in constitution so is hard to change

• people with standing can take a case to court if they feel their rights have been breached

what are the three systems that act as a check on Parliament?

-the high court

-separation of powers

express rights

how do express rights not act as a check on Parliament? (weaknesses)

• no bill of rights, limited rights being protected

• limited ability to add new rights as that would require a referendum

• cost of initiating a case in the High Court is a lot and takes time, meaning laws that infringe people’s rights may remain in place

• does not prevent Commonwealth from passing a law against the rights, the law must be challenged and declared invalid

what is statutory interpretation?

a process where judges interpret the meaning of a word or phrase in an Act of Parliament

what are the four reasons for statutory interpretation?

• mistakes in drafting (mistakes made while legislation was being drafted that led to a word or phrase lacking clarity)

• not taking account of future (act may not have taken into account future circumstances)

• meanings of word changes over time (a certain meaning of word in a statute may not have been considered at the time the Parliament passed the law)

• ambiguity of words (since words and phrases in an Act attempt to cover a borad range of issues, they may need to be interpreted due to ambiguity)

what are the four effects of statutory interpretation

• setting precedent (interpretation of words in an Act forms a precedent and will be read together as part of the law w/the Act)

• narrows scope of legislation (if the court interprets a word or phrase narrowly, it could restrict the scope of the law or circumstances it applies to)

• expands scope of legislation (a broader interpretation or phrase in an Act can extend the law to cover a new situation or area)

• influence Parliament to change law (Parliament may change law in response to statutory interpretation)

what is a precedent?

the reasoning behind a court’s decision which establishes a legal principle or rule which can be used to provide guidance when deciding future cases

what is state decisis?

a term that means ‘to stand by what has been decided’ and is a way to describe the process of lower courts following the decision of higher courts

what is ratio decidendi?

defined as ‘the reason for deciding’ and is the legal reasoning behind the decision to be followed in the future

what is obiter dictum?

a comment made by a judge that is not an actual part of their reason for decision but are still important and may be considered persuasive in future cases

what are the two kinds of precedent?

• binding (precedent that has been established in superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar facts)

• persuasive (precedents that are not binding on a court but may still be considered by a judge and used to influence their decision)

what are some situations where precedent may be influential (persuasive)?

if it is:

• precedent from courts in another hierarchy

• precedent from courts on the same level of the same hierarchy

• precedent from courts lower in the same hierarchy

• obiter dicta from a court in the same or another court hierarchy

what are the four ways that judges avoid or deal with precedent?

• distinguishing (court decides that the main facts are sufficiently different that the precedent is not binding)

• reversing (a higher court- on appeal- makes a different decision than a lower court did on the same case, meaning the initial precedent no longer applies)

• overruling (when a higher court makes a different decision than in a previous case and the initial precedent no longer applies)

• disapproving (when a court expresses disapproval of a previous precedent but is still bound by it)

what are the two main ways precedent can affect decision-making?

• allows for consistency and predictability

• allows for flexibility

how does precedent allow for consistency and predictability?

a party that takes a case to court can look at similar past cases and anticipate how the law may apply to their situation. this gives them the ability to somewhat predict the outcome as precedent allows for similar cases to be decided in a similar matter

how does precedent not ensure consistency and predictability?

• there is difficult and cost in locating relevant precedents

• there may be difficulty in identifying the legal reasoning behind past decisions

• there may be difficulty in predicting future developments

how does precedent allow for flexibility?

through the process of reversing, overruling, distinguishing, and disapproving precedents change and develop over time to allow the gradual expansion of common law.

even if they don’t do this, they still need to interpret the meaning of past precedents and refine the law, which expands and develops the law

how does precedent not ensure flexibility?

• judges in superior courts may be reluctant to reverse or overrule existing precedents

• while not binding, judges in courts of the same standing will consider precedents to be highly persuasive and are unlikely to overrule them

• precedent restricts the ability of lowers courts to change the law in cases where they are bound to follow a precedent established by a higher court

what are limiting factors of the doctrine of precedent?

• judges must wait for a relevant case to be brought before them

• only the superior courts (Supreme Court and higher) typically make law

• courts are reliant on parties being aware of their rights, willing and able to pursue a matter in the courts, determined to see the matter through appeals

• the doctrine of precedent only permits courts to make law retrospectively

• parliament can abrogate any common laws that judges make through statutory interpretation

what is judicial conservatism?

the idea that the courts should show restraint or caution when making decisions and rulings that could lead to significant changes in the law, leading to a narrow interpretation of the law

how does judicial conservatism assist the ability of courts to make law? (strengths)

• maintains stability in the law because judges show restraint when making decisions that could lead to significant change in the law

• lessons possibility of appeals on a question of law

• allows parliament (which reflects community views and values) to make the more significant/controversial changes in law

how does judicial conservatism reduce the ability of courts to make law? (weaknesses)

• restricts ability of courts to make major and controversial changes

• discourages judges from considering social and political factors when making law

• may be seen as not progressive or modern

what is judicial activism?

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

how does judicial activism assist the ability of courts to make law? (strengths)

• allows judges to broadly interpret statutes to recognise the rights of people

• allows judges to consider a range of social and political factors when making a decisions, potentially leading to more fair judgements

• allows judges to be more creative when making decisions

how does judicial activism limit the ability of courts to make law? (weaknesses)

• can lead to more appeals on the question of law

• can lead to radical changes being made that do not reflect community values

how does time assist the ability of courts to make law? (strengths)

• courts can make law relatively quickly once a dispute is brought before them

• judges do not have to follow lengthy procedures like in parliament

how does time limity the ability of courts to make law? (weaknesses)

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

• parties can be delayed getting a case ready for trial

what are some statistics related to time affecting courts making law?

• country court takes 12-14 months on average

• Mabo case took 10 years to go to trial

how does cost assist the ability of courts to make law? (strengths)

• courts can manage disputes so the issues in the dispute are narrowed, potentially saving costs

• high costs lead to only legitimate claims being pursued to appeals courts

how does cost limit the ability of courts to make law? (weaknesses)

• high costs can deter litigants who can not afford them- and do not qualify legal aid- from pursuing their case in court

• high courts can deter parties from pursuing the appeals process

what are examples of a person having a ‘special interest’ in a High Court case?

• a public interest group challenging a government decision that may cause public concern

• a trade union challenging a decision that may affect their members

• a person challenging a decision that may affect them

how does standing assist the ability of courts to make law? (strengths)

• it ensures that cases brought to the court are only done so by people who are genuinely affected by them

• encourages people who are not directly affected by the issue to seek other avenues (e.g. petitioning MP’s or protesting) instead of going to court

how does standing limit the ability of courts to make law? (weaknesses)

• means that people who have public interest in a case have no right to pursue it on behalf of the public or greater good

• means that potential improvements to the law made by those with only intellectual interest would be lost

what are the four relationships between Parliament and courts?

• the supremacy of Parliament

• the ability of Parliament to be influenced by courts

• the codification of common law

• the abrogation of common law

what is the supremacy of Parliament?

as the supreme law-making body, Parliament has the ability to make and change any law within its constitutional law, therefore giving it the power to codfiy and abrogate common law

what is the ability of courts to influence Parliament?

statements made ober dictum during a court case, or the outcome of a case can directly or indirectly influence Parliament to make or change law

what is the codification of common law?

Parliament can confirm a precedent set by the courts by passing a legislation which reinforces and endorses the principles established

what is the abrogation of common law?

Parliament has the ability to pass laws that overrides decisions and laws made by the courts (excluding the High Court on constitutional matters)