Unit 4 AOS 2 - unit 4 legal notes PDF

Preview

Summary

unit 4 legal notes...

Description

Unit 4 AOS 2 Legal Studies The people, the parliament and the courts

Dot Point 1 from the VCAA study design (DP): Factors that affect the ability of parliament to make law Key Skill from the VCAA study design (KS): Explain, and discuss The roles of the houses of parliament  Note: Explanation of specific roles of the houses of parliament are in Unit 4 AOS 1 DP 1 One of the main roles of the lower house is to initiate and make laws. It is less strenuous for the government to pass laws if it has a majority in both houses of parliament. This is because bills are passed with less debate, meaning that the government can pass more legislation in a timely fashion. A hostile upper house (controlled by the government opposition) is more likely to thoroughly scrutinise, amend and reject bills from the lower house. This can ensure that bills are effective and don’t have mistakes in them, but slows down the process of creating laws.

The parliament’s law-making process, which involves both houses, ensures that bills are thoroughly scrutinised, debated and amended before they become laws. Victorian parliament helps ensure that laws are consistent with human rights through the statement of compatibility. This is beneficial because the process leads to laws which are effective for society.

If there’s a minority government in the lower house (due to a hung parliament), it’s harder for the government to pass bills in the lower house. More debate and discussion of bills is likely to happen. This means that laws are made slower and the government can’t pass as many laws, but it may mean that laws are more scrutinised and thought out. An upper house that’s a rubber stamp (controlled by the government) is likely to pass laws from the lower house with little scrutinising, amending and rejecting. This may mean that laws aren’t as effective as they have not been thoroughly discussed by a different house, although it does decrease the lengthy law-making process. The parliament’s law-making process is lengthy and time-consuming. It requires bills being passed by both houses, and amendments made by the second house must be checked by the first house. Additionally, parliament only has a limited number of sitting days it can make laws in. This delays the ability of parliament to make laws.

The representative nature of parliament  Parliament is meant to be representative of the community; that is, the laws that parliament make should reflect the views and values of society.  Representative government is upheld by regular elections, as the government can be voted out of office at the next election if they don’t represent our views. Parliament is directly elected by the people, so should represent their views and values when making laws. Parliament can gauge people’s views and implement them into laws. E.g. The

Parliament is reluctant to pass laws on controversial topics, in fear of being voted out of office. This may mean that the law is stagnant and parliament isn’t able to create a

same-sex marriage law created in December 2017 after the postal survey considered Australia’s views on same-sex marriage. Individuals and groups can pressure parliament in a variety of ways (e.g. petitions, demonstrations) to change the law. The representative nature of parliament should consider these law reform suggestions and change the law accordingly. (You can use any petition, demonstration, court, or media example from later in the AOS here.) Elections are held regularly every 3-4 years (federal, state and territory elections), meaning that there’s regular opportunity for the government to be voted out of office if it doesn’t represent the views and values of the majority of people. This means an unrepresentative government can be voted out.

law that pleases everyone.

Parliament may decide to change the law on areas of law reform that people popularly advocate for, in order to win voter support, instead of considering the less popular law reform suggestions. This is a weakness of parliament in law-making because they’re more concerned about voter support than issues that are important to certain groups. 3-4 years is a relatively short period to implement long and effective law reforms campaigns that go over many years. This makes the government hesitant to make large law reforms, even if they’re necessary for society. Law reforms that must happen over many years is avoided by the government due to regular elections.

Political pressures  There are many pressures on politicians to change or keep our laws in certain ways.  The people pressure parliament through means such as petitions and the media, parliament gets pressured by its own structures and politicians, and international organisations and laws also pressure parliament. Individuals and groups can pressure parliament in a variety of ways (e.g. petitions, demonstrations) to change the law. Parliament may consider the people’s opinion in law reform as they’re meant to be representative of the people. (You can use any petition, demonstration, court, or media example from later in the AOS here.) Parliament can allow a conscience vote for laws, which means that members of parliament do not have to vote as their party is voting. Members of parliament can pressure their party to amend the proposed law by crossing the floor. This is beneficial as challenged laws encourages thorough debate of law reform. International treaties can pressure Australian parliaments to implement laws which incorporate the rules and rights of the treaties. This is a strength as Australian’s laws are more likely to uphold laws of justice and promote human rights if it does so.

Parliament is reluctant to pass laws on controversial topics, in fear of being voted out of office. Parliament has no legal obligation to consider or accept the pressures from society to change the law. This is a weakness as some of these areas of law reform are necessary to change, but parliament is hesitant to change them. Parties can have internal disagreements which distract members of parliament from their roles in law-making. When internal party instability occurs, there’s less pressure on parliament to focus on law-making, which can result in ineffective laws that take a longer time to pass through parliament. Implementing the principles of international treaties may result in Australia’s laws being more concerned of what the world wants than what is specifically needed for the people of Australia. International influences may detract from parliament prioritising the making of laws for Australians’ needs.

Restrictions on the law-making powers of parliament  Parliament is restricted in its law-making powers in several ways.  For example, the parliament must ensure that it makes laws within its constitutional lawmaking powers and laws that are constitutional/lawful. Different parliaments must ensure that they are making laws that are within their constitutional law-making powers. They can’t make laws outside these powers. E.g. The Commonwealth Parliament can only make laws under exclusive and concurrent powers. This controls and restricts parliament’s ability to make certain laws. The High Court has the ability to declare a law ultra vires (outside its power) and thus invalid when a parliament breaches its law-making powers. The High Court provides a mechanism to ensure that parliament is restricted by its constitutional law-making powers, which keeps parliament accountable. Parliaments are also restricted by specific provisions in the Constitution. For example, parliaments cannot make laws that infringe on express and implied rights in the Constitution, like the right to freedom of religion. This restricts the ability of parliament to make laws that breach specific sections of the Constitution.

The High Court must wait for a case to come to it before it can keep parliaments accountable. The High Court can only declare legislation that’s outside a parliament’s constitutional lawmaking power ultra vires (outside its power) if someone takes a case to it. This means that law-making powers don’t restrict parliaments unless a case is brought to the High Court. Even though the High Court has the power to declare a law ultra vires, it can only do so if a person/parliament has standing, time and money to bring a case to the High Court. This means that law-making powers don’t restrict parliaments unless someone or a body has enough resources to bring a case to the High Court. Specific prohibitions in the Constitution aren’t restricting on parliaments as there’s only a few and they’re limited in scope. E.g. The constitutional right to trial by jury for Commonwealth indictable offences is limited as most offences come under state law and the Commonwealth decides what classifies as indictable offences. This means that the Constitution doesn’t fully restrict the ability of parliament to make law.

Sample Q: Discuss one factor that affects the ability of parliament to make law. 4 marks A: One factor that affects the ability of parliament to make law is the roles of the houses of parliament. One of the main roles of the lower house is to initiate and make laws. It is less strenuous for the government to pass laws if it has a majority in both houses of parliament. This is because bills are passed with less debate, meaning that the government can pass more legislation in a timely fashion. However, if there’s a minority government in the lower house (due to a hung parliament), it’s harder for the government to pass bills in the lower house. More debate and discussion of bills is likely to happen. This means that laws are made slower and the government can’t pass as many laws, but it may mean that laws are more scrutinised and thought out. [2 marks] Furthermore, a hostile upper house (controlled by the government opposition) is more likely to thoroughly scrutinise, amend and reject bills from the lower house. This can ensure that bills are effective and don’t have mistakes in them, but slows down the process of creating laws. However, an upper house that’s a rubber stamp (controlled by the government) is likely to pass laws from the lower house with little scrutinising, amending and rejecting. This may mean that laws aren’t as

effective as they have not been thoroughly discussed by a different house, although it does decrease the lengthy law-making process. [2 marks] Thus, the roles of the houses of parliament affects parliament’s ability to make laws to a certain extent. Tip: For this question, you could’ve chose any factor that affects the ability of parliament to make law. I just decided to choose the roles of the houses of parliament. 

DP2: The roles of the Victorian courts and the High Court in lawmaking KS: Explain The roles of Victorian courts and the High Court in law-making  Courts have many roles in relation to making laws.  Courts can make law (also called precedent) when deciding on cases before them. Judges give reasons for their decisions (called ratio decidendi) that form precedents (called common law). Courts can make precedent in cases without juries (civil cases or appeal cases). According to the doctrine of precedent, laws made by higher courts must be applied to and are binding on lower courts in the same court hierarchy, in like cases (this is based on the principle of ‘stare decisis’, or ‘to stand by what has been decided’).  Similarly, in cases without juries, courts can make common law through statutory interpretation. Statutory interpretation is when judges give meaning to the words in the Constitution (High Court) or legislation (all courts), that’s required to resolve the case before them. That meaning or interpretation of the words becomes a precedent for lower courts in the same hierarchy to follow in the future when they’re interpreting the same part of the Constitution/legislation.  Note that judges not only make new laws, but can also change existing common law through its decision of cases and statutory interpretation.  Courts can reverse or overrule past precedents under the ‘doctrine of precedent’. Reversing is when a case comes on appeal to a higher court, which changes a previous precedent made by the lower court in the same case. Overruling means that a court changes a previous precedent made by a court at a lower or the same level (if it’s the High Court), in a different separate case.  Courts can make precedent by distinguishing the case before its court and a previous case, meaning that it’s not bound by the law set in the previous case from a higher court in the same hierarchy. This allows the present court to create a new precedent, instead of following the precedent from a previous case.  Courts can also create something called persuasive precedent (rather than binding precedent that must be followed). Precedent is persuasive if it’s from a court in the same hierarchy that’s lower or on the same level, from a court in a different hierarchy or from obiter dicta statements (sayings made ‘by the way’ by the judge that are not part of the ratio decidendi). A famous example of this is when the Australian case of Grant v Australian Knitting Mills (1935) used persuasive precedent from Donoghue v Stevenson (1932) to establish Australia’s law of negligence.  The High Court is the only court in Australia that has the jurisdiction to hear cases involving the Constitution. The High Court decides whether a person or body’s actions are constitutional and whether legislation is within its constitutional law-making powers. The

court can invalidate laws that aren’t constitutional, and set precedents for the whole of Australia through its decisions and statutory interpretation.

Sample Q: Explain one role of Victorian courts in law-making. 3 marks A: Victorian courts can make precedent when deciding on cases before them. Judges give reasons for their decisions (ratio decidendi) that form precedents. Courts can make precedent in cases without juries (civil cases or appeal cases – so usually the Victorian Supreme Court of Appeal). According to the doctrine of precedent, laws made by higher courts must be applied to and are binding on lower courts in the Victorian court hierarchy, in like cases (this is based on the principle of stare decisis, or ‘to stand by what has been decided’).

DP3: The reasons for, and effects of, statutory interpretation KS: Explain The reasons for statutory interpretation Act might not have taken into account future circumstances  Acts may not take into account all future circumstances as changes that arise in technology and society can’t always be foreseen, thus interpretation is needed to cover new circumstances.  For example, this was necessary with the interpretation of the words “man” and “woman” in the Kevin and Jennifer marriage case. Mistakes can occur during the drafting of the act  Parliamentary council may make mistakes when drafting a Bill. Thus, interpretation is needed to correct these mistakes and properly apply the law to the case.  For example, S51 of the Crimes Act 1958, which related to the sexual exploitation of mentally impaired people, originally required a witness to support the victim’s evidence. However, the Act was amended through statutory interpretation as it was unlikely there would be a witness to such crimes. Meaning of the words may be ambiguous  Words in Acts attempt to cover a broad range of issues so their meaning may be ambiguous, thus interpretation is needed to clarify and apply the proper meanings.  For example, Davies v Waldron 1989 questioned whether “start to drive” in the Road Safety Act 1968 applied to an accused (over the legal blood alcohol limit) sitting in a car with the engine running. The court found this does mean “start to drive”.  Another example is the Tasmanian Dams case. The Act might be silent on an issue and the courts need to fill gaps in the law  Acts may be silent on issues which leads to courts filling gaps in the law.  It may not be possible for an Act to cover all situations that arise in relation to the issues covered due to unforeseen situations or gaps left in legislation.  For example, in the Brislan case, it was unsure whether wireless radios were included in ‘other like services’ in s 51 of the Constitution as there was no explicit mention of them. They were interpreted to be included by the High Court.

Effects of statutory interpretation The law is restricted through a narrow interpretation of a statue  If the court interprets a phrase in an Act narrowly, it can restrict the scope of the law, thus limiting the extent it can be applied.  For example, the interpretation in Deing v. Tarola restricted the definition of regulated weapon to be items likely to be used for an offensive or aggressive purpose only, thus excluding studded belts. The law is extended by a broad interpretation of a statute  If the court interprets a phrase in an Act broadly, it can extend the law to cover a new situation or area.  For example, the interpretation in the Tasmanian Dam case extended “external affairs” in the Constitution to include areas covered by international treaties, expanding Commonwealth’s power to legislate in these areas and greatly broadening the scope of which law can be applied. Precedents are set for future cases to follow  The interpretation of words forms a precedent which is read together as a part of law with the Act.  Lower courts in the same hierarchy are bound by precedent set by superior courts, allowing for consistency and predictability in the law.  For example, the interpretation of ‘other like services’ in the Brislan case set a precedent including wirelesses that must be followed by future like cases in Australia. Courts can reverse or overrule a previous decision of courts  When a case is appealed and the superior court changes the decision of the lower court, the earlier decision of the case is reversed and a new precedent is created.  Likewise, when a superior court decides not to follow an earlier precedent of a lower court, it can overrule it and make it inapplicable by creating a new precedent in the new case.

Tip: Questions on this topic are relatively simple, and will go something like this: “Explain one/two reasons of statutory interpretation” or “explain one/two effects of statutory interpretation” for 2-4 marks. One reason or effect is generally worth 2 marks (but could be 1 or 3 marks), but it depends on the mark allocation of the question.

DP4: Factors that affect the ability of courts to make law KS: Explain, and discuss Tip: For this topic, questions can ask you to ‘explain’, ‘discuss’ or ‘explain and discuss’ factors that affect the ability of courts to make law (all together), or just one specific factor that affects the ability of courts to make law. Note: The information in the tables is what you use for ‘discuss’ questions.

The doctrine of precedent  Doctrine of precedent: Refers to the concept of lower courts following the precedents set by higher courts in the same hierarchy, in like cases. It’s based on ‘stare decisis’ which means to stand by what has been decided.  Allows for consistency and predictability in the law.  Key terms: ratio decidendi (reasons for the decision that becomes binding precedent) & obita dictum (sayings made by the way that become persuasive precedent) The doctrine of precedent based on the principle of stare decisis allows for consistency and predictability in the law. This aids fairness as the same law is applied to similar cases for consistency. Additionally, legal practitioners can predict their client’s outcome using previous common law. The doctrine of precedent allows for flexibility in precedent. Higher courts can reverse and overrule past precedents from lowers courts, and lower courts can distinguish their case from previous cases to not be bound by their precedents. This means that courts sometimes have the option of not following past precedents, but rather creating new ones. Judges can interpret statutes and in this process, set precedents for lower courts in the same hierarchy to follow. Statutory interpretation can restrict or expand the ...