Free Essay Sample on Australian Legal System

Outline two ways in which the role of the upper house may affect the ability of parliament to make laws

The upper house is the senate of the bicameral parliament of Australia. The framers of the constitution deliberated that the main role of the senate would be to safeguard the interests of the less populated states in the federal government by providing an equal presentation in the entire states. As was foreseen by certain framers, the Federation parliamentarians started to vote as members of the political parties instead as states representatives. Whereas this has disguised the role of the senate as a guardian of the less populated states, the state-oriented system of representatives has guaranteed that legislative decisions are made by the representatives of the scarcely populated states. Moreover, the senate has also presumed greater significance as a check on the authority of the government. The framers' design of the Senate has it to execute this role effectually.

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It is mandatory for a bill to be passed by the House of Representatives and the senate in similar terms before is converted into laws. Majority of the bills are enabled by the government and implement the policy of the government. The Senate scrutinizes the entire bills to guarantee that they increase the interest of the citizens. Eventually, the Senate might pass a bill in the absence of an amendment, pass it with amendments or reject it.

Distinguish between a binding precedent and a persuasive precedent

Binding and persuasive precedents are the two forms of precedents in the Australian legal system. The 'doctrine of precedent' is the verdict that a legal principle has been formed by superior court ought to be adhered in another equivalent case by that court and others.

The difference between these two precedents. In a binding precedent ought to be followed irrespective of the fact that the judge approved the principle constituted therein or not. A precedent is 'binding' on a court in the condition that the precedent was made by a Superior court is authoritative in the court's hierarchy. A binding precedent ought to be followed if the precedent is appropriate and the situations of the cases are satisfactorily similar. For instance, the judgments of the High Court are binding on the whole number of courts though a verdict of the Supreme Court is not mandatory on the High Court, and a verdict of the District Court is not obligatory on the Supreme Court.

Persuasive precedent does not have to be preceded though is taken into account by the court in making its decision and might be followed. A precedent is 'persuasive' in case it was formed by a superior court that is not higher in the court's hierarchy. This implies that the precedent should be serious taken into account, though is not necessitated to be followed.

Explain one reason why a court may need to interpret a statute

The courts require to interpret statutes to rectify drafting errors. Grammatical errors, typos, and textual inference are the examples of drafting errors in the legal system. For instance, the latest verdict in O'Connor v. Oakhurst Dairy, No. 16-1901 acts as a reminder that failing to utilize the oxford comma in legislation could have serious implications. Obvious, this was an error because it was absurd to provide greater protections to an unregistered over registered marks (Norris, 2017).

Discuss how judicial conservatism and judicial activism can affect the ability of courts to make law

Judicial activism interprets the constitution to be in approval of modern values. Judges are capable of exercising their authority to rectify a constitutional legal injustice. In the topic of judicial activism, the judges have an obligation in creating social policies in various areas, particularly the safeguarding of civil rights and rights of the person and mass morality. The aim of judicial activism is to establish policy change when it is required in particular situations. In case judicial activism is exercised, it provides the court the authority to overrule particular judgments. In Rowe v Electoral Commissioner and Roach v Electoral Commissioner, judges use interpretive techniques that have the impact of significantly increasing their discretionary authorities at the point of the usage of the constitution (Maurer & Barrat, 2016).

Judicial conservatism is the opposite of judicial activism which strives to restrain the authority of judges to create new policies or laws. It describes that a judge is falling more on his interpretation of law than on precedent. The judge allows their perspectives to bleed into his decisions.

Using examples, analyze the relationship between the courts and parliament in law making

There exist a relationship between parliaments and courts in decision making. Firstly, the courts apply the laws of the parliament. The key and most common role of courts are to apply the regulations made by parliament specifically when such laws are broken. Secondly, the courts interpret the law of the parliament. The connotation of words in a particular act is unclear. When a pertinent case comes before them, courts can provide meaning to these phrases. Deing v Tarola was a 1993 case that demonstrated how courts interpret statutes regarding the connotation of the Weapons Act. Thirdly, abrogation is the third relationship that exists between the courts and the parliament. If a court makes law deemed to be unsuitable, parliament may pass a law overriding the court made-law.

Codification is another relationship that exists between the courts and parliament. Parliament can confirm the predominant principles of law. Possibly including to them or drastically amending them, when employing the principles in statute form. When approving these principles, the parliament will pass a 'codifying Act.' For example, after the Mabo decision, the Federal parliament passed the law of Native Title of 1993. The high court can increase the commonwealth law-making authority of parliament. For instance, the Franklin Dam case increased the authority of the commonwealth in the field of external affairs. Sixthly, Courts can heat the issues to the parliamentary laws. In R. v Brislan, the law was challenged by the plaintiff asserting that an individual ought to have a license to utilize a wireless radio. Moreover, parliament can pass acts that launch courts and their jurisdictions. For instance, the parliaments passed the Family Law Act of 1975 and Magistrates Court Act of 1989. Lastly, the verdict of the court can influence parliament (Brown, 2017).

"The representative nature of parliament, combined with political pressures, significantly impact on the ability to make laws" Discuss.

The political pressures from local government officials, target politicians, and civil servants might result to change in the law as the law commission receives the perspectives of politiciansthe when examining the law. The passing and adoption of new laws were strongly opposed by some politicians, from the trade union movement. Critics claimed that the regulations removed the rights of workers and were fundamentally unfair. In the Workplace Relations Act 1996, was a legislative law of the Australian Parliament that was passed in March 2006. It constituted various contentious amendments to the Work Relations Act of 1996, the primary federal statute which controlled the industrial relations (Brown, 2017).

References

Brown, A. J. (2017). Protection from child emotional abuse in family law parenting matters over two regimes of the Family Law Act 1975 (Cth): Policy, legislation and judicial reasoning(Doctoral dissertation, Queensland University of Technology).

Maurer, A. D., & Barrat, J. (2016). E-Voting case law: a comparative analysis. Routledge.

Norris, M. (2017, 17). A Few Words About That Ten-Million-Dollar Serial Comma. Retrieved from https://www.newyorker.com/culture/culture-desk/a-few-words-about-that-ten-million-dollar-serial-comma