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UNIT 4 AOS 2 LEGAL
Terms in this set (58)
Factors that affect the ability of parliament to make laws
- The role of the houses of parliament
- The representative nature of government
- Restrictions on law making powers
Role of the Lower House
- Initiate and make laws
- Determine the government
- Represent the people
- Control Government Expenditure
Role of the Upper House
- Act as a house of review
- Examine bills through committees
- Initiate bills on behalf of the states
When the government holds the majority of seats in both the lower and upper houses of parliament, then bills passed through the lower house may easily pass through the upper house without any meaningful debate or amendments occurring. The upper house is said to just rubber stamp, or automatically approve, the bill.
A situation where the upper house is controlled by the opposition, making it very difficult to pass laws.
system of government in which public policies are made by officials selected by the voters and held accountable in periodic elections
Parliament may delay the passing of a bill to allow for the public to debate the issue and give opinions through polls and media.
Strengths of Representative Government
- Laws reflect the views and the values of the voters
- Parliament is directly chosen by the people through sections 7 and 24 of the constitution.
- requires cabinet to initiate legislation with an elected minister to undertake investigation
Negatives of Representative government
- Only reflects the views of the majority of people, therefore, minority groups are underrepresented
- conflicting policies and moral standings of representatives may lead to views of the public not being represented
- Legislation may be watered down due to the inability of the government to pass laws
- Domestic Political Pressures
- Internal Political Pressures
- Conscience Vote
Domestic Political Pressures
Groups and voters may place pressure on parliament to implement law making or reform, such as demonstrators or organisations against changes.
Internal Political Pressures
Members of political parties may be expected to vote a certain way that goes against their own views and the views of their voters.
A vote by political members that is in accordance to their own political views and may be against the views of the political party
Restrictions on law making powers
Areas on law that the commonwealth or the states do not have the power to make legislation over. Eg. Express rights or residuals and concurrent powers.
freedom of religion
Prevent the commonwealth from making laws that the states have the power to legislate over.
When can courts make laws
- When a case comes before them from a person with standing
- When the matter is being heard by only a judge
- Where there is no binding precedent that has already been established
- When a court is required to perform statutory interpretation
The court's reasoning for its decision.
A statement not essential to deciding a case and therefore not binding.
A decision of a higher court that must be followed by lower courts in the same hierarchy.
A precedent that a court does not have to follow but can be very influential when determining a case
Methods to avoid precedent
When the decision in a case on appeal is changed or reversed by the judge in the higher appeal court.
Judge in higher court can overrule earlier precedent and replace with different one
A second case does not have to follow the precedent because the facts of the case are different.
Second hearing of a case, the judge disapproves of the established precedent and establishes new precedent.
let the decision stand
Judge considering legislation that is passed by government in order to resolve the matter that has come before the court. A Judge will need to interpret statutes to apply the legislation.
Impact of statutory interpretation
- Broaden the scope of legislation or narrow the scope of legislation.
- created precedent is able to be read in other cases to determine of guide the outcome
Methods to interpret legislation
- Intrinsic materials
- Extrinsic materials
- The act itself
- The provided purpose of the act
- definitions provided with the act
- Previous judgements that are persuasive
- Reports created by law reform bodies.
Factors that affect the ability of the courts to make laws
- Judicial conservatism
- Judicial Activism
- Cost and time
- Requirement for standing
Judges who are willing to make ruling to allow for the considerations of new values of society and the rights of individuals
Strengths of Judicial Activism
- Allows for judges to broadly interpret legislation to ensure that it takes into consideration different circumstances
- Allows judges to be mindful of changing social and political views
- Allows judges to be more creative in the development of law.
Weaknesses of Judicial Activism
- Leads to an increase in appeals
- Leads to radical changes in the law
- Undermines stare decisis
a theory that encourages judges to limit the exercise of their own power, leaving the parliament as the ultimate law making power.
Strengths of Judicial Conservatism
- Maintains stability in law making
- lessen the likelihood of appeals
- allows for parliament to be the ultimate law making body
Weaknesses of judicial conservatism
- restricts the ability of court to consider changing views of society.
- discourages the judges from taking into consideration the social and political views of people.
Costs of bringing a case to court
Legal representation is expensive as well as court fees, that would severely disadvantage and discourage a person from coming to the court to settle disputes.
Time of bringing a case to court
Courts can quickly apply laws because they don't have to go through the process of passing a law through parliament
Complex cases can take months to hear and determine.
The requirement for standing
A party is not able to initiate a matter unless they have been personally affected by the law.
A person who has the time and financial capacity to take a case to court, cannot do so unless they have standing.
relationship between parliament and the courts
- parliament create courts through passing an act to establish the courts and their jurisdiction
- courts apply and interpret legislation created by parliament
- parliament can codify laws made by courts
- statements made by courts can influence parliament to create new laws
The courts precedent is added to the legislation by parliament
Parliament disagrees with the manner in which the courts have dealt with the laws and can remove the interpretation.
Reasons for law reform
- Changing communities values and beliefs
- Changing expectations of the legal system
- Greater need to clarify and expand unclear law
Changing community values and beliefs
With frequent changes, it is important that the views of society are kept up with through law making.
People are more likely to obey laws if they reflect the values that are held within the community
Example for changing community values
Legalisation of medical marijuana as it is believed to have great pain relief benefits.
The community saw a need for law reform and the beliefs of people changed, therefore, law reform was implemented and the law was changed.
Changing expectations of the legal system
Courts and parliament are required to play a more involved role in law and are now able to create specific laws based on the needs of people.
Done by not only stating the rights of people, but also creating laws that protect peoples rights and prevent them from being harmed.
Example of changing expectations of the legal system
Changes to the Tobacco Act 1987, which now states that peple are no longer allowed to smoke in outdoor dining areas, not only preventing people from smoking, but also protecting the rights of people around smokers.
Occurred through the Tobacco Amendment Act 2016 and came into force in 2017.
Greater need to clarify and expand unclear law.
Laws need to be understood by people in order for them to be followed, therefore, it is important that parliament introduce law reform to make laws more clear and able to be understood.
Laws often lack depth and therefore need to be expanded to include more detail and more accurately represent the purposes of parliament.
Example of Clarifying and expanding the law.
2015, changes to the Legal Profession Uniform Law Application Act 2015 states that lawyers are required to ensure that their clients understand the legal action that is being suggested and an estimate of the costs of taking the case to court.
Victorian Law Reform Commission
Independant, government funded body that aims to give impartial advice and make recommendations that are able to be implemented into law reform.
Attorney-General gives the VLRC a referral and then the VLRC will undertake extensive investigation.
it will then compile a report with a list of recommendations that will be tabled in parliament
Strengths of the VLRC
- Any referrals that are made to the VLRC will be influential in the parliament law reform, as the investigation is funded by the government.
- Able to seek input from various facets of society in order to write their reports and make their recommendations
- The VLRC is able to conduct minor investigations and table recommendations in parliament without the referral from the Attorney general
Weaknesses of the VLRC
-can only investigate issues referred to it by the government or minor issues that it can look into without a reference
-there is no obligation on the part of the government to follow any of the recommendations made
-investigations can be time-consuming and costly
Example of VLRC
Access to Medical Cannabis Bill 2015 (VIC),
- This was referred to the VLRC by the Attorney General to examine if the law should change to allow for the use of medical Marijuana. They used nine community based consultations and received just under 100 submissions from professionals and members of society in support of the change
This was then tabled into parliament with 42 submissions and parliament accepted 40 of the 42 submissions and introduced the significant changes into the law.
An independent public inquiry established by governments to examine complicated issues of public concern. The inquiry is given by the queens representatives and is asked to report findings and make recommendations to parliament.
The Queen's Representatives inquire based on the advice given to them by cabinet
Changes can be made to government policy, administrative systems or the law.
Strengths of the Royal Commission
- Able to measure community views on issues by holding public consultations
- Can investigate areas thoroughly so that government is able to create new law or reform.
- Government made the recommendation to the Governor General, therefore, are more likely to accept recommendations
Weaknesses of the Royal Commission
- There is no obligation for parliament to support areas of law reform that have been submitted.
- can be used as a tool against political opponents or a way to avoid getting on with legislation.
- investigations can be time consuming and costly.
THIS SET IS OFTEN IN FOLDERS WITH...
Reforms Criminal Law
Reforms Civil Law
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