Unit 4 Legal AOS 1 Notes PDF

**Key Knowledge: Roles of government (law making)** **[Shared roles for both upper house and lower: link to law making ]** 1. - - - - - - 2. **-Most bills that are introduced to parliament are government bill**s → both houses play an important role in scrutinising the governmen...

**Key Knowledge: Roles of government (law making)** **[Shared roles for both upper house and lower: link to law making ]** 1. - - - - - - 2. **-Most bills that are introduced to parliament are government bill**s → both houses play an important role in scrutinising the government and ensuring the bills they propose are not too radical or flawed and that the government is developing the best policies and bills which form the basis of parliament\'s legislative agenda[. ] \- members of both houses of parliament can ask the government questions during question time. Where other members of parliament question members of government holding them accountable by asking them to explain government policy and proposed legislation. - ↳Formal explanation: Ministers sit in both houses of parliament and are held to account by it. The opposition will question ministers during question time, debate government policy and point out flaws in government bills. In this way, the best laws should be made. This ensures the government is responsible (held to account) in law making. 3. both houses provide a forum for a popular representation in the law making, each house represents the people and the citizens who elected them, as they ensure the laws that are made represent the needs of the people (each house represents different members of society) **[House of reps role: ]** 1. As the lower house, the house of reps have the role in forming government (the commonwealth government) Political party\\coalition with the most seats in the house of reps forms government ([where two parties join together,] eg the liberal party and national party working together) ↳**[in relation to law making:]** the government sets the legislative agenda of parliament and most bills that are initiated are government bills → bills introduced usually by a minister in behalf of the government. (whoever is government will have the majority of seats so it is likely for it to pass) Note: other members of parliament can introduce bills not on behalf of the government, these are called **private members bills** 2. **Note: very occasionally no party will have a majority of group in that case the minority of seats will be elected to form government** Add to get top marks: currently the labour party has 78 seats which is why they are government **Senate role: "states house"** Each state is equally represented in the senate (each state has 12 members) therefore the senate acts as the states house and ensures that the laws passed meet the needs of all states 1. - Note: how effective the senate is as a house of review depends on the composition of the senate. Where the government has the majority not the most majority, the senate may scrutinise the bills less effectively and nearly rubber stamp it. If the opposition has the majority in the senate, the senate can be very hostile and reject many government bills from the lower house. Homework: 1. Two roles that both the houses of the commonwealth parliament ( the house of representatives and the senate) share are act as a legislature and law making, this means that both the houses have the role to initiate bills except for certain bills like money bills ect. The bill must pass through both houses to become a law, before it goes for royal assent. Another role that they both share is that they can both scrutinise the government, this is where Ministers sit in both houses of parliament and are held to account by it. The opposition will question ministers during question time, debate government policy and point out flaws in government bills. In this way, the best laws should be made. This ensures the government is responsible (held to account) in law making. 2. The government sets the legislative agenda of parliament and most bills that are initiated are government bills which are bills introduced usually by a minister on behalf of the government. (whoever is in government will have the majority of seats so it is likely for it to pass). This means that they usually initiate the bills as they usually have a majority of seats. Members of the house represent different elecorates and bring forward the views and concerns of their constituents when discussing and voting on the bill, the house plays a crucial role in representing the people as they are known as the "house of the people \'\'. 3. The key role held by the senate is to review and amend bills as they are commonly referred to as the "house of review", they review the proposed bill by either rejecting the bill, suggesting amendments to it or passing the bill.In this way the Senate can ensure that bills which have passed the HOR are not too radical and that flaws are amended. However, how effective the senate is as a house of review depends on the composition of the senate. Where the government has the majority not the most majority, the senate may scrutinise the bills less effectively and nearly rubber stamp it. If the opposition has the majority in the senate, the senate can be very hostile and reject many government bills from the lower house. 4. The main role of the houses of the commonwealth parliament is to introduce bills and ensure that they are not too radical and that they represent the people. Through both the houses having the role to initiate bills but it must be reviewed and scrutinised to ensure that the bill isn't too radical and thatit represents the views of the people, which is through the house of representatives and the senate reviewing the bills to identify the flaws in which the bill may have. **Victorian Parliament:** Like the Commonwealth Parliament, the main role of the Victorian Parliament is to make laws. The process of passing a bill in the Victorian Parliament is similar to the Commonwealth Parliament, in that it must go through specific stages in both houses of parliament, and it must be passed by a majority in both houses in identical form. The bill must then receive royal assent from the Governor of Victoria before it becomes a statute. **Structure of Victorian parliament:** - Structure includes: -The **King** represented by gouverneur general -Upper house **(legislative council)** -Lower house **(legislative assembly)** **[Role of Legislative assembly (lower house) ]** [General information ] - - ↳member is expected to represent the interests of the people in their district, and will remain in office for four years. - [Law making] - - - - - - **[The legislative council role: ]** [General information:] - - The primary role of the Legislative Council is to act as a house of review. That is, it will review bills that have already been passed by the Legislative Assembly, and can scrutinise, debate and reject proposed legislation. This is an important part of the checking process in law-making. [Role linked to Law making: ] - - - **Role of the crown** The crown (british monarch) is represented in Australia in the commonwealth parliament by the GG (goven gen) and by the governor in state parliament **Role of governor general and governor in law making: Both** 1. 2. These powers are exercised to ensure the country the GG and governour continues to be governed + laws continue to be made. Eg, they include the power to appoint a PM\\premiear in a **hung parliament** **Eg.** the power to dismiss a PM \|premiear who has lost the confidence of parlaiment. This occurred once in q975 when the gg dismissal with Whittman gov 3. Governor general establishes general executive council, consisting of the gov general + prime minister + senior ministers and the gov establishes the state executive council consisting of the gov + premier +senuour state ministers. Their role is to approve delegated legislation, that is regulations made by subordinate authorities such as government departments eg education departments, regulations in regards to the VCE. These bodies make regulations in their areas of expertise 4. 5. **Key knowledge: Division of powers:** **Study tip: The VCE Legal Studies Study Design requires you to explain the law-making powers** **of the state and Commonwealth parliaments, using examples. Make sure you know two examples for each power.** - - - **Residual powers:** - - - - - **Specific powers:** - - - - **Exclusive powers:** - - - - **Concurrent powers:** These are powers over which both the state parliament and commonwealth can make laws. Both have the jurisdiction (shared powers) Includes all the powers given to the commonwealth parliament in the constitution which are not exclusive to the commonwealth eg. taxation (both commonwealth and state have this power) Commonwealth use this power to raise money for higher income tax plus GST, state parliament uses this power to raise money via stamp duty and payroll tax Eg. marriage- **S109** provides that if there is a conflict between state and commonwealth laws in an area of concurrent law making power, **the commonwealth law will prevail to the extent of the inconsistency.(must know this off by heart)** Therefore any inconsistent state laws are invalid to the extent of the inconsistency.Eg marriage Commonwealth marriage ACT 1961 made the victoria marriage act 1958 invalid as the entire state legislation was inconsistent with the commonwealth legislation in this area. **Section 109- importance** Section 109 of the Australian Constitution is designed to help resolve conflicts and inconsistencies between state and Commonwealth laws **Intro:** States that laws made by state parliament that are inconsistent with the commonwealth laws shall be invalid to the state of the inconsistency. - - S.109 has no impact on laws made under exclusive or residual powers ↳The high court may need to determine if there is an inconsistency. s.109 is significant as: 1\. Acts as a restriction on state parliaments - they are constrained from making laws under their concurrent powers in areas where the commonwealth has legislated already as any inconsistent legislation can be declared invalid to the extent of the inconsistency. 2\. S.109 states that in areas of concurrent power the federal parliament\'s laws will prevail over the state parliament\'s laws to the extent of the inconsistency. Therefore it is significant as it provides a consistent approach for resolving conflicting legislation where state and federal parliament share power. This does not impact on exclusive or residual powers, and is therefore only significant for concurrent powers. 3\. It only limits State\'s law-making powers if the Commonwealth has legislated in the concurrent area, and even then it only limits the State\'s from passing inconsistent legislation. This may require the High Court to determine if the State and commonwealth legislation conflict, otherwise both pieces of legislation may continue to operate (until declared inconsistent by the high court). 4\. If at some time in the future the Commonwealth Law is abrogated or changed, any state law that was inconsistent and which continues to exist, will be in force and have effect. That is, the state law will have no practical effect only for as long as the Commonwealth law remains in force. **The High Court and the division of law-making powers** case : In the 1935 Bryslm was charged with not having a wireless licence as was required from the wireless **telegraphy act 1905 (Cth)** requiring all owners of wireless sets to hold a licence. The defendant was charged with not holding a licence under this Act in 1934, she claimed that the wireless telegraphy act was invalid because she thought it was not in the jurisdiction of the commonwealth. The defendant argued that the commonwealth had acted ***ultra vires** by passing the wireless telegraphy act 1905 (cth) as the term 'wireless act' was not mentioned and therefore did not fit within s 51 (v). The commonwealth argued it was a like service.* *The high court interpreted s51 (v) broadly to include wireless sets which made the commonwealth law invalid. The high court found that a wireless was a like service as it was* ***Timeline:*** *S51 (v) gives the commonwealth the power to legislate on postal telegraphic telephonic and other like services* *Commonwealth passed the wireless telegraphy act 1905 (cth) requiring all owners if wurekess sets to hold a licence.* *The defendant was charged with not holding a licence under this act in 1934* ***WHO HAS NOT RATIFIED =** wireless became a concurrent power (a power that is shared between teh state and commonwealth parliament)* - *Any state legislation that was inconvenient with the commonwealth wireless telepath act was invalid to the extent of the inconsistency* - ***SIGNIFICANCE OF HIGH COURSE COURT*** - - - - - *Increases the power of the commonwealth and it decreases the power of th state because they interpreted s51 broadly.* **Key knowledge: Parliament and the Australian Constitution: factors that affect the ability of parliament to make law** **bicameral factor:** Bill process: [House of Origin (Note: For Appropriation Bills the house of origin must be the lower house)] -First reading: bill is introduced -Second reading: purpose of the bill is explained and debated (amendments can be made) Consideration in detail (optional): bill is debated clause by clause (amendments can be made) -Third Reading: members vote on bill in its final form [Second House] -Repeat steps in house of origin -If passed in identical terms: Goes to GG (C/th) / G (Vic) for Royal Assent -Law applies from date specified in the Act, date proclaimed or 28 days from receiving royal assent **to discuss how bicameral system affects the ability of Parliament to make law:** Australia's Commonwealth Parliament and Victoria's Parliament are bicameral - this means they are parliaments with two houses - In the Commonwealth Parliament the upper house is called the Senate and the lower house is called the House of Representatives. This is established in Section 1 of the Commonwealth of Australia Constitution Act 1900 (UK) which provides for the following: **"1. Legislative power** The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called ***The Parliament***, or ***The Parliament of the Commonwealth\"***. **↳ In the Victorian Parliament the upper house is called the Legislative Council and the lower house is called the Legislative assembly** ** ** ** The requirement for the Victorian Parliament to be bicameral is set out in the Victorian Constitution, called the Constitution Act 1975 (Vic).** **discussion :** 1. **Strength-** The bicameral structure positively affects the ability of Parliament to make laws as laws must pass the bill process in two houses of parliament in identical terms to become a law. As bills are scrutinised and debated in multiple stages in two houses, this guarantees quality control and helps ensure that Parliament is creating the most appropriate laws. **Weakness-** However, requiring bills to be scrutinised and passed in two houses can be a time consuming process and cause the delay of bills -- this would impact negatively on Parliament\'s ability to make laws in a timely manner. ↳On the other hand, the speed with which the Vic Parliament passed Covid legislation does indicate Parliament can respond more quicky when needed. ↳Less controversial legislation and legislation supported by both the major parties (ALP and Liberal national coalition) are likely to pass both houses more quickly. 2. **Strength:**One strength of a bicameral parliament is that the second house checks the laws that have already passed the first house to ensure they are not too radical or rushed. Flaws can be identified and amended. This is usually the role of the upper house. **Weakness :** How effective the upper house is as a house of review will depend on the composition of the Senate / Legislative Council -- if the opposition has a majority in the upper house it may be a hostile upper house -- this may mean legislation that is needed, is blocked for political reasons. Alternatively, if the government has a majority in the upper house, it may merely rubber-stamp government bills with little scrutiny. Both of these would negatively affect Parliament's ability to make quality laws / legislation. Note: Government is usually the party / coalition with the majority of seats in the lower house -- so government bills usually pass the lower house and may not be fully scrutinised / reviewed here **Weakness:** However, where no party / coalition has a majority in the lower house, a minority government will be formed. When this happens the government may need to negotiate bills through the lower house too and government bills may be more fully scrutinised / reviewed or blocked 3. The bicameral structure affects parliament\'s ability to make laws as in order to pass the two houses of parliament in identical terms, government bills need to meet the broader needs of society and not just the needs of those who voted for them. The laws made should represent the needs of the majority of people as well as the states (C/th) / regions of Victoria. This enhances the quality of laws being made in a democracy. **Key knowledge: Parliament and the Australian Constitution: factors that affect the ability of parliament to make law** **Key terms:** **Crossbenchers** are members of parliament who are not a part of the opposition or the government, they can decide if they wanna join the bill to get it passed or go against it. **United Nations :** international body that was established after world war 2, and most countries are members of the UN (193 states - countries). Most countries are represented, where they talk and discuss global issues and make treaties, to promote global peace and wellbeing. International treaty: agreement between countries, that comes with treaty obligations, to implement the treaty in their own countries. Most treaties are negotiated through the UN. \\ Ratification: when a government signs a treaty, its done outside the country, they bring it back to the parliament and parliament will agree and approve the treaty that has been signed by the government. **Non gov organisations:** not a profit organisation, and is not a government run organisation, they often promote a social cause, eg. green peace= environment **transnational corporation:** organisation that is operating on a global scale (big companies that are global) notes : 1. **International pressures:** are demands or forces applied to parliaments from international or domestic bodies to persuade them to make (or not make) law to address matters of international concern. international concerns can be generated at a state or national level which acts as pressures on the Australian parliament to make domestic law. [Pressure on Parliaments in Australia to make / not make laws can also come from a range of international organisations or people operating on a global level including:] - - - - - ↳The larger the number of international organisations / people who call for our Parliaments to reform a particular law, the greater the pressure on Parliament to act. Failure to do so, may negatively affect Australia's international reputation and relations with other Countries. 2\) **[Pressure on Australian Parliaments to make laws from international organisations / people operating on a global level can also spark political pressure domestically (within Australia) for change.]** Eg. [ ] In August 2018, 15-year-old Greta Thunberg and other young activists sat in front of the Swedish parliament every schoolday for three weeks, to protest against the lack of action on the climate crisis. -She posted what she was doing on Instagram and Twitter and it soon went viral. -School students in countries across the globe, including in Australia, joined this global youth movement and started striking on Fridays for climate change. -The purpose of this international movement was to highlight to parliaments that they needed to address climate change and to call upon the current generation of law makers to take action to protect the environment for future generations. -The size of this movement internationally and domestically put pressure on parliaments to act and to ensure climate justice for youth -However, some parliamentarians viewed the strikes negatively, believing that school children should be at school and not striking. For these parliamentarians this global movement may have had a negative affect on parliament as a law maker by isolating them further from the issue and not resulting in climate legislation 3\) **[united nations ]** -The UN has successfully facilitated the negotiation of many international treaties -- an international treaty is an agreement between countries in which they agree to follow the obligations set out in the treaty and to incorporate them into domestic laws (their country's laws). -Australia is a signatory to several international treaties including: the Convention on the Rights of the Child (1989) and the Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (1984). International treaties impose international obligations (pressures) on governments / parliaments to pass domestic laws to implement the terms of the treaties they have signed and ratified. However, sometimes Parliament does not uphold its treaty obligations, which can result in pressure from UN and other Countries to amend legislation to meet treaty obligations. For example, the Convention on the Rights of the child (1989) aims to protect the rights of all children. Australia ratified this treaty in 1990. However ,our Commonwealth Parliament / Government have been criticized for breaching this treaty (i.e by allowing refugee children to be detained in detention centres). Such criticism reflects poorly on Australia internationally and puts pressure on Australian parliament to change the law.. The United Nations / United Nations bodies may also call on Australia to make laws that meet international standards This can have a positive affect on C/th or state parliament as a law maker where it results in law reform. For example, in 2019 the UN Committee on the Rights of the Child noted its serious concern about the age of criminal responsibility in Australia -- calling on the age to be lifted in Australia to meet standards in other countries. As a result, the Victorian parliament will increase the age of criminal responsibility in 2024 from 10 years old to 12, and by 2027 this will be further lifted to 14 years old. This brings Victoria in line with other similar countries. International pressure to reform laws to meet international standards can have a positive affect on Parliaments ability to make laws as it can be used to explain / justify the change to Australian voters. It also helps maintain Australias reputation as a good global citizen **[4) Limits to international pressure affecting Parliament as a law-maker:]** - - - **[Key knowledge: the role of the High Court in protecting the principle of representative government]** **The role of the high court relating to the constitution:** - - - - The high court has been asked in a number of cases to interpret **section 7 and 24,** and in doing so, they have acted to protect the principle of representative government, and imposed **checks** on parliament's ability to limit representative parliament to pass laws that limit representative government **[The checks: ]** 1. The high court found that s24 and s7 enshrine representative government which means that the commonwealth can't make laws that unreasonably limit or infringe the right of people to vote in elections. Therefore, they have acted to protect representative government and the ability of the people to choose the members of parliament. Legislation that has been seen to unreasonably limit the right to vote has been declared invalid by the high court... ROACH CASE 2. In interpreting s7 and s24 in some cases, the high court has found an implied right to freedom of political communication. That is as the people directly choose members of the senate and the house of reps. The constitution enshrines the principle of representative government. Representative governments can only operate properly if there is freedom for people to communicate on political issues. Will be during and in between elections, otherwise, people will not be fully informed when making choices about who to vote for. High court has declared ;legislation that limits political communication as invalid → acted as a check on parliament\'s law making → **Lange case** **Limitations on the high court acting as a check:** - - - **Evaluating the high court as a check (evaluating the characteristics)** +-----------------------+-----------------------+-----------------------+ | | **strengths -** | **weaknesses -** | +=======================+=======================+=======================+ | **Independent** | - | **Judges are | | | | appointed by the | | | | government and may | | | | hold values in line | | | | with the government | | | | that appointed | | | | them\-\--\> may | | | | influence how they | | | | interpret the | | | | constitution. Some | | | | judges will be more | | | | conservative than | | | | other judges in their | | | | interpretation of s.7 | | | | and s.24** | +-----------------------+-----------------------+-----------------------+ | **Experts** | **Judges are experts | **They can only use | | | at constitutional | expertise to | | | interpretation and | interpret what is in | | | therefore decisions | the constitution. | | | are properly made and | They cannot change | | | the constitution is | the wording or insert | | | interpreted in a way | more rights to | | | to ensure Australian | increase the | | | laws are kept up to | protection of | | | date with modern | representative | | | understandings of | government.** | | | rights and legal | | | | principles. Therefore | | | | this check is | | | | appropriate.** | | +-----------------------+-----------------------+-----------------------+ | **Case Required** | **Individuals and | - - - - | | | parliaments can | | | | challenge legislation | | | | in the High Court if | | | | they believe the Act | | | | is in the breach of | | | | the constitutional | | | | principle of | | | | representative | | | | government. The high | | | | court can declare | | | | infringing | | | | legislation invalid | | | | and therefore | | | | provides a mechanism | | | | to resolve | | | | constitutional | | | | disputes / protect | | | | representative | | | | government.** | | +-----------------------+-----------------------+-----------------------+ Summary: the high court acts as a check on parliament as if parliament legislates in contravention of s7 and s24 of the constitution, the high court can declare the legislation as invalid, therefore this limits the legislation the commonwealth can pass. eg , cant pass legislation that unreasonably limits voting rights (roach) Eg. can't limit freedom of political communication unless the limit is reasonable and proportionate (lange case) **How do these cases illustrate the High court acting as a check on parliament by protecting the principle of representative government?** Roach- they found that as part is required by the constitution to be directly charged by the people, the c\\th parliament is limited in its ability to restrain the right to vote in australia. They could however limit the right to vote, to protect representative government eg, they could limit people unsound mind for guilty of serious criminal misconduct rom voting Lange case- former nz prime minister david lang sued abc for defamation, in a four corners program the ABC has broadcasted that when the labour party was in gov in nz under lang's leadership, the party\\ gov was under the influence of large businesses through political donations. Lage sued for defamation argueing the program suggested he was corrupt. It related to the political matters relevant to Australia Enshine representative government as parliament must be chosen by the people - **Key knowledge: Separation of powers:** (do not confuse with the division of powers) Things we need to do in notes: (must understand) - - - - Define separation of powers: In every political system there are 3 kinds of power- the executive power (the power to administer laws) the legislative power (the power to make laws) and the judicial power (the power to enforce laws) these powers should be held by separate bodies so they can keep a check and balance on each other and to prevent one body becoming too powerful. In this the rights of citizens are protected. **Legislative powers:** held by parliament as they have the power to make laws **Judicial powers:** held by the courts. As the c\\th level the high court + federal court have this power **Executive power**: held by the crown but exercised by the governor general on the advice of the government as they have the power to administer laws (ministers for each department) Linking to the constitution: The Australian constitution establishes the separation of powers at a federal level. **Chapter one establishes the legislative, chapter 2 establishes the executive and chapter 3 establishes the judiciary.** In so doing, power is separated between the legislative, executive and judicial branches. ↳ furthermore, section 1 vests the legislative power of the commonwealth in the federal parliament ( crown, senate , hOR)(only applies to commonwealth parliament not state!) [Section 61 vests the executive power of the commonwealth in the queen and is exercisable by the governor general ] [Section 71 vests the judicial power in the high court and other federal courts ] analysing : But in practice there\'s not a complete separation of powers. The legislature and the executive powers are interconnected: - - - Note: the australian constitution does not establish the separation of powers at a state level, it is established under the victorian constitution **How does the separation of powers act as a check?** - - **[Evaluating separation of powers 376]** +-----------------------------------+-----------------------------------+ | [Strength ] | [Weakness ] | +===================================+===================================+ | While parliament is the supreme | In reality, the legislative power | | law-making body, the judiciary | and the | | (courts) have the power to | | | invalidate, strike down or | executive power are combined. | | declare void a statute that has | This can | | been passed by parliament beyond | | | its law-making power | decrease the ability of the | | | separation of | | | | | | powers to act as an ongoing | | | check. | +-----------------------------------+-----------------------------------+ | The judiciary is independent of | Judges are appointed by the | | the **legislature and | executive. This may result in the | | executive**. This independence is | perception that the executive | | **vital,** especially when the | seeks to influence judicial | | Commonwealth is a party | benches. The government can | | | choose which judges they want to | | in a case before the Court. It | serve on the Court and some | | also ensures decision about the | people believe that these choices | | application of law can be made | are influenced by | | without the fear of electoral | | | backlash as judges are not | their progressive or conservative | | aligned with political parties. | views[.] | +-----------------------------------+-----------------------------------+ | The separation of powers is | The ability of the judiciary to | | specifically | act as a check on parliament is | | | dependent on people's willingness | | provided for in the Australian | to challenge laws. That is, the | | Constitution, therefore cannot be | courts can only act as a check on | | abolished without a referendum. | parliament when there is a case | | | before them, and that requires | | | someone willing and able to | | | initiate such a case. | +-----------------------------------+-----------------------------------+ | | The separation of powers in the | | | Australian Constitution does not | | | extend to states, although the | | | states separately provide for | | | separation of powers in state | | | constitutions or statutes. | +-----------------------------------+-----------------------------------+ **[Key knowledge: Expressed rights: ]** Rights that are given to citizens explicitly in the constitution - only 5 expressed rights (limited when in comparison to other western democracies) - - - - - Freedom of religion is important in a multicultural society where there are people who practice many different religions *5 rights:* 1. 2. 3. 4. 5. **The Australian Constitution -- section 92** **Trade within the Commonwealth to be free** on the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. **The Constitution -- section 117** **Rights of residents in States** A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other States. **[Evaluating expressed rights ]** Strengths: - - - - Weakness: - - - - - ***\"The Victorian courts and the High Court in law-making*** ***(statutory interpretation)*** [**Statue interpretation:**] the process a judge undertakes when they interpret the meaning of a word or phrase within an act that has been passed by a parliament to determine its impact, and applying it to cases to resolve them. **explain when judges interpret statutes:** When there is a dispute over the meaning of the words and phrases contained in an Act of Parliament and the The case is brought before the courts to be resolved. For example, in a criminal case involving an allegation that an offence occurred in a 'public place', the court may be required to interpret the words 'public place' to determine whether the offence did in fact occur in public. *Eg. studded belt case* **explain the impact this has:** [ ] The impact that it has is that it gives clarity on what the statue means, so the interpretation can be applied to other cases brought before the courts as well as the current dispute. ↳Depending on the court\'s superiority, the legal reasoning behind the judge's interpretation may set a **precedent** that can be followed in future similar cases (that is, when other judges are interpreting the meaning of those words or phrases in the same Act of Parliament). The newly established precedent becomes a part of the law and will be read along with the statute in future cases. **Reasons for statutory interpretation:** 1. ***[Mistakes of drafting the bill:]** Mistakes may be made when drafting a bill, which may be minor or more technical in nature. Words may have been missed in the text. Eg. (a High Court case once had to consider the inclusion of a comma in a clause to then determine what the clause meant to say).* ***[The intention of the bill might not have been expressed clearly:]** Sometimes a policy or instructions regarding the purpose of a proposed law may not be clearly expressed. This can lead to confusion about how it should be interpreted, which then leads to it having to be interpreted by the courts.* *Add in the other one* 2. ***[Most legislation is drafted in general terms:]** This is so it can cover a wide range of circumstances. However sometimes the terms used are so broad that they need to be interpreted before they can be applied to specific circumstances. Eg. studded belt case → deing vs terola word being weapon* ***[The act may have become out of date and no longer reflect community views and values:]** For example, while each state has laws banning the use of obscene and indecent language in a public place, what is considered offensive and indecent language changes over time.* ***The effects of statutory interpretation:*** ***The words or phrases contained in the disputed legislation are given meaning:** This is so that the relevant statute can be applied to resolve the case before the court. The meaning of the legislation as determined by the court will also provide guidance for parties involved in a dispute in relation to the same word or phrase.* ***The court's decision on the meaning of the legislation is binding on the parties:** Once a court has reached a decision on the meaning of a statute, the parties to the case are bound by (or must follow) that decision until one of the parties lodges a successful appeal against the decision (that is, the appeal court reverses it).* ***A precedent may be set for future cases to follow:** If the interpretation of the words and phrases in legislation is made by a superior court (e.g. the Supreme Court or High Court), the reason for the decision forms a precedent that is then read together with the Act of Parliament to determine the outcome of future cases. The case will remain as precedent unless it is changed by a higher court on appeal or abrogated (cancelled) by an Act of Parliament -- although parliament cannot abrogate (cancel) a High Court decision involving constitutional matters. ESSENCE: [Lower courts in the same court hierarchy must that are applying the same act to similar circumstances will need to follow this from the high courts (binding precedent) ]* ***The meaning of the legislation (law) can be restricted or expanded:** If a court interprets a word or phrase narrowly, this could restrict the scope of the law. For example, the decision in Deing v Tarola restricted the definition of a regulated weapon to items likely to be used for an offensive or aggressive purpose only. Similarly, a broad interpretation of a word or phrase in a statute can extend the meaning of legislation to cover a wider range of circumstances or new areas of law.* ***[Doctrine of precedent ]*** *Primary role of courts is to enforce laws and resolve disputes and apply laws to the cases before them.* *A secondary role of superior courts is to make laws or establish a precedent, they can do so if one case comes before them which raises a new point of law, there\'s no relevant legislation or common law exists or if a case comes before them which requires statutory interpretation. Eg. mansfield vs kelly drunk in a public case eg. donahue vs stevenson* *When courts establish a precedent, it will be binding on some courts and persuasive on the others. Whether every president is binding or persuasive depends on the relationship between the courts in the court hierarchy.* *Lower courts are more restrictive to setting a precedent.* - **Binding precedent and persuasive precedents:** **Binding precedents** are precedents which courts must follow. A precedent is binding on all lower courts in the same court hierarchy to the court that established the precedent, when hearing similar cases. Eg, decisions of the supreme court are binding on the county court **Benefit:** This ensures [consistency + fairness] as similar cases are decided in similar ways. It also ensures predictability as lawyers know what law applies to different cases and can advise their clients **Persuasive precedent:** Are precedent that a judge may decide to follow, but they are not required to do so. Judges may decide to follow persuasive precedents as they are the considered opinion of another judge and therefore are noteworthy. Precedents are persuasive when they are made by lower courts in the same court hierarchy, made by courts in a different court hierarchy and made by another judge in the same court. The precedent is found in the ratio decidendi that is the legal reasoning that establishes that legal principle\\precedent. Sometimes you get an obiter dictum statement - there are additional statements made by judges that are not part of the legal reasoning for their decision. They are just additional statements said 'by the way' and are persuasive in nature. (lower courts are not obligated to follow) Doctrine of precedent upholds the doctrine of **stare decisis** which correlates to stand by what has been decided. That is, lower courts stand by decisions of higher courts. - **Reversing:** higher courts can change the precedent of lower courts when hearing appeals. When this occurs, a new precedent is established. **overruling** : when a higher court changes a precedent established by a lower court in an earlier and similar case. That results in a new precedent being established. **distinguishing :** when a lower court can distinguish the material facts of the case before them from the material facts of the precedent, they are not bound to follow the precedent. This results in a new precedent for the new factual scenario. **disapproving :** this INVOLVES a court indicating that they disagree with an established precedent (eg, out of date), they will still be bound by the precedent if it was made by a higher court in the same court hierarchy but by disapproving the precedent, parties may be encouraged to override the president or the parties may be encouraged to appeal the precedent **Ability of the courts to make laws:** **How the doctrine of precedent affect the courts ability to make laws:** - - [Flexibility: ] - - - - **Trigwell case:** - [Locating a precedent can be difficult] - - - [Case required: ] - - [Ex post facto: ] - - [Parliament has supremacy: ] - - **Judicial conservatism:** - - - **Judicial activism:** - - **Cost and time in bringing case to court:** - - **[Causes of cost:]** - - **time :** - - - - **Requirement of standing:** - - - - **Features of relationship between courts and parliament in law making:** Key points: - - - - **[The supremacy of parliament: ]** - - - **[The ability of courts to influence parliament: ]** - ↳ if a court is bound by an **outdated law** or **does not change common law**, when able to (acting in accordance with juridical conservatism) and this r**eflects in an injustice** parliament may legislate to **abrogate the outdated** precedent with an act which **reflects current community values and standards.** ↳eg. **Trigwell case** → in this case the high court said it was bound by the outdated precedent but stated that the law should be changed by parliament. - - **[The codification of common law: ]** - - - **[Abrogation of common law: ]** - - - Judicial conservatism: an expression used when judges adopt a narrow interpretation of the law when interpreting acts of parliament and deciding cases (to avoid any major controversial changes in the law and not be influenced by their political belifs - Trigwell case (some farmer case i am unsure) Judicial activism - Mabo case **RELATIONSHIP B/W PARLIAMENT AND COURTS:** 1. Benefit = it enables parliament to put all the statute law + common law relevant to an issue into one comprehensive piece of legislation For example, parliament passed the Native title act to codify the Mabo case and went further than the common law by legislation on how Native title would be protected. 2. For example, the victorian parliament amended the Wrongs Act to abrogate the High Court decision in Trigwells case - as a result, farmers could be held liable for accidents caused by animals straying onto the road \*\*\* IMPORTANT **- parliament is limited in their ability to abrogate - they cant abrogate high court interpretation of the constitution** 3. \- parliament can codify and abrogate common law \- amend any previous acts of parliament \- parliament passes legislation that: - - - Eg. Koori Courts Eg. the Victorian Supreme Court Act 1986 established the Vic Supreme Court 4. \- if the courts follow an outdated law - parliament may pass legislation to abrogate it \- court cases can highlight the need for law reform, sometimes a court may disapprove a law and highlight the need for parliament to reform the law Eg. trigwell