AOS 2 - UNIT 4

Question 1

What are the four factors that affect a parliament’s ability to make laws?

Answer 1

1. Role of houses of parliament
2. Representative nature of parliament
3. Restrictions on the law-making powers of parliament
4. Political pressures

Question 2

How does a majority government in the lower house affect the law-making ability of parliament?

Answer 2

+ Can easily introduce and pass bills that support their legislative program or policies

• Private members bills are likely to fail (since they rarely have the government’s support)

Question 3

How does a majority government in the upper house affect the law-making ability of parliament?

Answer 3

+ Bills easily passed because members vote along party lines, easily fulfilling legislative program (aka rubber stamp)

• Debate is reduced, preventing them from fulfilling their role as a ‘house of review’ and risking radical bills from being passed

Question 4

How does a minority government in the lower house affect the law-making ability of parliament?

Answer 4

+ Thorough debate of bills due to having to negotiate with the crossbench

• Difficult to pass laws and fulfil legislative agenda because the government has to negotiate with the crossbench to gain support

Question 5

How does a minority government in the upper house affect the law-making ability of parliament?

Answer 5

+ Rigorous debate prevents radical bills and allows for a more diverse consideration of views and values within society

• Rigorous debate results in ‘watered-down’ bills which may not allow the government to fully implement their legislative program
• If the crossbench holds the balance of power, this can mean bills are blocked so laws aren’t made, and means their voters interests are disproportionately represented

Question 6

What are two positives of the impact that the law-making process can have on parliament’s law-making ability?

Answer 6

*Work of lower house can be checked to prevent radical bill or errors
*Numerous debate stages allow members to consider a range of views, making the law more effective and representative in the long run
*Parliament can change a law quickly if there is a need for urgency
*In Vic, all proposed bills have to have a compatibility statement created to show it works with the Victorian Charter of Human Rights & Responsibilities

Question 7

What are two negatives of the impact that the law-making process can have on parliament’s law-making ability?

Answer 7

*Process of going through both houses can be time-consuming, especially if there is lots of debate
*Parliament must make laws during ‘sitting times’ which are limited
Parliament can only pass the laws introduced to it

Question 8

What is one positive and one negative of the impact of the committee system on the law-making ability of parliament?

Answer 8

+A range of committees allow for a range of opinions to be considered, and areas of law to be investigated comprehensively

-Committees can increase debate and slow down the process of making laws

Question 9

What are two positives of the impact that the representative nature of parliament can have on their law-making ability?

Answer 9

*Public are able to use methods (like petitions) to express their views, and parliament are able to respond by making laws that are reflective of this
*Regular elections ensure people are able to hold the government to account

Question 10

What are two negatives of the impact that the representative nature of parliament can have on their law-making ability?

Answer 10

*Parliament may make laws that are popular with voters, avoiding issues that are controversial but necessary to ‘save their seat’
*Parliament may be unwilling to make law reform on issues where there are highly vocal unsupportive groups (even if a minority)
*May be reluctant to change laws if there’s no clear majority view
*Having no fixed date for federal elections allows the government to make soft policies to try and save their seat, instead of making laws and policies that are really needed

Question 11

What are the three types of restrictions imposed on parliament that may inhibit their law-making abilities?

Answer 11

1. Jurisdictional limits
2. Specific prohibitions
3. The law-making process

Question 12

List two positives of the impact that restrictions on parliament’s law-making powers affects their ability to make laws.

Answer 12

*Parliament are restricted to making laws about certain areas, so they can’t control everything and the states retain some power
*Parliament is able to extend their powers under certain circumstances (i.e. HC interpretation), allowing them to make necessary laws
*The validity of laws can be challenged, stopping invalid laws from being enforceable
*Parliament are restricted from making laws in areas that breach human rights

Question 13

List two negatives of the impact that restrictions on parliament’s law-making powers affects their ability to make laws.

Answer 13

*Parliament is restricted to areas they have jurisdiction in, possibly preventing them from making laws that are needed
*Parliament is still able to make laws in any restricted area, as it must be challenged before being made invalid

Question 14

List two positives of the impact that political pressures can have on parliament’s ability to make laws.

Answer 14

*Members of the community can generate awareness for change and parliament is likely to respond to maintain voter support
*Global pressures may result in making laws that reflect international obligations and rights, extending their law-making powers to protect the people

Question 15

List two negatives of the impact that political pressures can have on parliament’s ability to make laws.

Answer 15

*Members usually vote along party lines due to internal pressures, meaning they may vote against what their electorate wants/has voiced
*Minority governments create a huge amount of political pressure when passing laws because of the constant negotiations with the crossbench
*Being a signatory to an international obligation can put pressure on our parliament to make laws they wouldn’t have otherwise made or focused on

Question 16

Explain the principle of stare decisis in relation to the doctrine of precedent.

Answer 16

*“To stand by what has been decided”
*Judges should, when appropriate, stand by previous decisions to ensure common law is consistent and predictable
*Allows for consistency and predictability in our system
*Heavily followed by conservative judges, who don’t change the law even when they have the ability/jurisdiction to do so

Question 17

What are the nine principles of the doctrine of precedent?
(Hint: PROBSRODD)

Answer 17

1. Persuasive precedent
2. Ratio decidendi
3. Obiter dictum
4. Binding precedent
5. Stare decisis
6. Reverse
7. Overrule
8. Distinguish
9. Disapprove

Question 18

Define the term ratio decidendi in relation to the doctrine of precedent.

Answer 18

The reason for the decision made by a judge, that then forms the precedent (point of law) to be followed in future cases with similar material facts.

Question 19

Define the term obiter dictum in relation to the doctrine of precedent.

Answer 19

Comments or remarks made by a judge in passing that form part of the overall judgement but are not part of the ratio decidendi. These are considered to be persuasive precedent, and are often used by a judge to disapprove an existing precedent.

Question 20

Outline when a precedent will be binding.

Answer 20

A precedent is binding if it was made in a higher court from the same court hierarchy, and the two cases share similar material facts.

Question 21

Outline when a precedent will be persuasive.

Answer 21

*It was made in a lower court in the same court hierarchy as the current case
*It was made by a court with equal standing in the same court hierarchy as the current case
*It was made in a different court hierarchy
*It is part of a cases obiter dicta

Question 22

Describe the principle of reverse in relation to the doctrine of precedent.

Answer 22

When a case being heard on appeal is decided in a different way to the previous courts persuasive precedent, creating a new ratio decidendi, which then forms a new precedent to replace the previous one.

Question 23

Describe the principle of overrule in relation to the doctrine of precedent.

Answer 23

When a new case being heard in a higher court doesn’t follow the existing persuasive precedent, creating a new ratio decideni, which then forms a new precedent to replace the previous one.

Question 24

Describe the principle of distinguishing in relation to the doctrine of precedent.

Answer 24

Finding differences in the material facts of the two cases so that the existing precedent no longer applies to your case (even if it was binding originally).

Question 25

How is distinguishing a precedent different to reversing or overruling it.

Answer 25

It is different to overruling and reversing because it creates a new precedent for a new set of facts, rather than cancelling out an existing precedent.

Question 26

Describe the principle of disapproving in the doctrine of precedent.

Answer 26

When a judge makes a comment/statement about their dislike for the law, however, they are unable or unwilling to change it themselves. This means if it binding, it remains so. If it persuasive, the judge states they don’t like it and therefore choose not to follow it, instead, creating their own. This doesn’t remove the other, since it is persuasive only. This process often opens the door for future law reform, either by parliament or the courts.

Question 27

List the 5 factors that can affect the courts ability to make laws.

Answer 27

1. The doctrine of precedent
2. Judicial conservatism
3. Judicial activism
4. Costs and time of bringing a case to court
5. Requirement of standing

Question 28

Outline two positive impacts that the doctrine of precedent has on the law-making abilities of the courts.

Answer 28

*Flexibility of reversing, overruling & distinguishing of cases
*Statutory interpretation allows the courts to expand or restrict the meaning of the law and embed that within a precedent (if determined by a superior court)
*Judges make laws without the influence of politics and bias
*HC interpretation of constitution can’t be overridden by parliament

Question 29

Outline two negative impacts that the doctrine of precedent has on the law-making abilities of the courts.

Answer 29

*Outdated laws may still have to be followed in lower courts
*Precedents can be difficult to find and navigate (number of cases, technical language of judgements, multiple ratio decidendi’s & multiple judges in a case)
*Laws made by courts can be overridden by parliament (except HC interpretation of the constitution)
*Judges are not elected members = potentially unreflective laws
*Judges may be unwilling to change the law themselves (Trigwell’s case)

Question 30

Outline two positive impacts that judicial conservatism has on the law-making abilities of the courts.

Answer 30

*Appeals on point of law are reduced (as there is less room for error when you’re not being creative or changing anything)
*The law is more stable, as the courts make less radical legal changes which may have also then had a greater possibility of being changed again by parliament (through codifying or abrogating)

Question 31

Outline two negative impacts that judicial conservatism has on the law-making abilities of the courts.

Answer 31

*Courts are discouraged from considering social and political factors when interpreting or making laws, which may result in laws that are ultimately not accepted
*Courts restricted from making major law reform or laws on controversial issues

Question 32

Outline two positive impacts that judicial activism has on the law-making abilities of the courts.

Answer 32

*Judges are able to interpret statutes broadly, recognising the rights of the people and societies views
*Judges law-making is flexible, allowing them to make significant changes to the law and decide on controversial issues (as seen in the Mabo case 1992))

Question 33

Outline two negative impacts that judicial activism has on the law-making abilities of the courts.

Answer 33

*More appeals on point of law may be made as a result of the ‘creative’ approach
*Courts are able to make radical changes that may not reflect the communities views, or go beyond what the community is actually comfortable with

Question 34

Outline two positive impacts that the cost and time of starting a case has on the law-making abilities of the courts.

Answer 34

*High costs can deter people with frivolous cases from pursuing them
*Once a case is started in the courts, it must continue until the dispute is resolved, ensuring progression of the case and a quick resolution
*Courts don’t have to follow lengthy processes when making laws, which is in contrast to the time-consuming process engaged in by parliament
*Judges have the ability to make rulings quickly if there is an urgent need

Question 35

Outline two negative impacts that the cost and time of starting a case has on the law-making abilities of the courts.

Answer 35

*High costs may deter parties from initiating appeals, which is often when a precedent is made or developed
*High costs may deter people from using the courts all together – instead, opting to use other institutions, stopping laws from being made altogether
*A number of factors (i.e. complicated pre-trial procedures) can all slow down the law-making process of the courts

Question 36

Outline one positive impact that the requirement of standing has on the law-making abilities of the courts.

Answer 36

*Court resources are not wasted on cases that have been started by people with no genuine interest in the matter

Question 37

Outline two negative impacts that the requirement of standing has on the law-making abilities of the courts.

Answer 37

*People with a genuine or intellectual interest in the case (for example, legislation made by the parliament that breaches individual rights) are prohibited from challenging that law in the courts, reducing the ability of the court to declare law ultra vires, even where there may be a need to do so
*Courts restricted by waiting for someone with a genuine interest to come forward, preventing new laws or improvements in existing ones from being made

Question 38

Outline the reason for statutory interpretations - errors made during drafting.

Answer 38

The parliamentary committee that draft the bill may accidentally make errors that aren’t picked up in the process of the bill getting passed.

Question 39

Outline the reason for statutory interpretations - The failure to account for future circumstances.

Answer 39

At the time the law is made, it may not include unpredictable or unforeseeable situations and circumstances (such as Coronavirus), making it difficult to apply when those things then do exist.

Question 40

Outline the reason for statutory interpretations - Unclear intention or purpose.

Answer 40

If parliaments intentions/purposes of the law are too vague or unclearly expressed it can be difficult to apply to a case.

Question 41

Outline the reason for statutory interpretations - Too general so difficult to apply.

Answer 41

Terms used within the law may be too general, so can’t be applied easily to specific circumstances in cases. An example of this is the Deing v Tarola case where the words “regulated weapon” had to be interpreted.

Question 42

Outline the reason for statutory interpretations - Ambiguous language.

Answer 42

If the law is drafted in an unclear way or uses the same word in different ways throughout the law, it can be difficult to apply to cases. An example of this was seen in the Davies v Waldron case where the judge had to interpret what was meant by “start to drive”.

Question 43

Outline the reason for statutory interpretations - Technology not included.

Answer 43

The act may not specifically include all forms of technology.

Question 44

Outline the reason for statutory interpretations - Silent on an issue.

Answer 44

A statute may not cover all situations, leaving gaps.

Question 45

Outline the effect of statutory interpretation - Precedent may be created.

Answer 45

If the interpretation is made by a superior court, precedent is formed and read WITH the act of parliament in the future (and can be amended like other precedents in the future following the doctrine of precedent).

Question 46

Outline the effect of statutory interpretation - Meaning added to the law.

Answer 46

Words or phrases are interpreted using the purposive approach, allowing them to be applied to the facts and giving the law added meaning.

Question 47

Outline the effect of statutory interpretation - Expansion or restriction of the law.

Answer 47

Interpretation may reduce the scope of the law (making it narrower – Deing v Tarola 1993) or expand the scope of the law (making it broader – Tas Dam Case 1983).

Question 48

Outline the effect of statutory interpretation - Binding decision for parties.

Answer 48

The interpretation allows the court to resolve the dispute before them, resulting in a binding judgement on their case (unless successfully appealed).

Question 49

What are the 5 features of the relationship between courts and parliament?

Answer 49

1. Parliament is the supreme law-maker
2. Courts can influence the parliament to act through decisions and comments
3. Courts interpret the laws made by parliament to apply them to cases (statutory interpretation)
4. Parliament can confirm common law through codification
5. Parliament can cancel common law made through abrogation

Question 50

Analyse the supremacy of parliament in the relationship between the courts and parliament.

Answer 50

*Parliament is able to make and change any law within its constitutional power
*Parliament passes the laws that establish courts and give them their jurisdiction (such as the Magistrates’ Court Act 1989 (Vic))
*Parliament can change court’s jurisdiction or add new courts at any time (I.e. the County Court used to be restricted to hearing civil disputes with a value up to $200,000 until it was changed to be an unlimited value in 2007)
*Parliament can also make laws that restrict the judges ability to make certain decisions, such as mandatory minimum sentences for some criminal offences
*Parliament can’t stop courts from interpreting the constitution though!

Question 51

Analyse the ability of courts to influence parliament in the relationship between the courts and parliament.

Answer 51

*Comments or reasoning provided for decisions may prompt, encourage or inspire law reform in that area
*Cases are decided unfairly because of binding precedent rules
*Judicial conservatism has been exercised, choosing not to overrule or reverse a precedent in preference to parliament doing it
*A case has identified a problem with the legal system, or has resulted in public dissatisfaction with the legal system (i.e. one punch laws in Victoria following the death of David Cassai)
*A court has exercised judicial activism which has inspired further change by parliament (i.e. Mabo case)

Question 52

Analyse the ability of courts to interpret statutes in the relationship between the courts and parliament.

Answer 52

*Courts are often required to interpret statutes in order to effectively apply them to the case before them (i.e. law is silent on an issue or doesn’t include new forms of technology)
*When interpreting these laws made by parliament, they are required to use the purposive approach, interpreting and giving meaning to the words by looking at what parliament intended when they made the law
*Interpretations can lead to the expansion or restriction of the law, and a precedent (if heard in a superior court)
*Only the HC can interpret the constitution (and possibly alter the division of law-making powers)
*However, for the courts to engage in any interpretation, a relevant case has to brought before them by someone with standing that is both willing and able to bring the case

Question 53

Analyse the ability of parliament to codify common law in the relationship between the courts and parliament.

Answer 53

*Since parliament is the supreme law-maker, they technically get the final say on the law (except for constitutional matters)
*If the parliament LIKES a piece of common law, they may decide to pass legislation that confirms and reinforces the important principles within it (i.e. Mabo case lead to the creation of the Native Title Act 1993 (Cth))
*Prevents courts from changing it in the future by overruling or reversing the precedent

Question 54

Analyse the ability of parliament to abrogate common law in the relationship between the courts and parliament.

Answer 54

*If the parliament DISLIKES a law the courts have made, they can abrogate it by passing a statute that overrides the court decision, effectively cancelling the principles it established (i.e. Jury Directions in criminal trials in Vic)
*Parliament will do this for a number of reasons, including the fact that the courts have interpreted a statute in a way that is inconsistent with parliaments original intentions

Question 55

Explain why laws would need to change due to a change in community values or beliefs.

Answer 55

*Community values and beliefs about certain issues change over time, often as a result of people gaining awareness and knowledge
*If laws don’t change to reflect these shifts in values, the law may no longer reflect or be accepted by the majority of society, leading to decreased effectiveness of our legal system overall
*EXAMPLE: Voluntary Assisted Dying

Question 56

Explain why laws would need to change due to advances in technology.

Answer 56

*Technology is continuously improving and advancing, opening up new ideas and ways of doing things
*As part of this, laws need updating to either control and regulate these new methods and activities, or to prevent people from being exploited in new ways
*EXAMPLE: Gene technology

Question 57

Explain why laws would need to change due to a greater need for community protection.

Answer 57

*Laws are needed to protect people from all forms of harm (physical, emotional, economic or financial)
*This is especially important for particular people or groups in society that have specific needs and rights or are unable to protect themselves effectively, such as children and people with a disability
*As new situations arise that could potentially lead to harm, the law must change to adequately protect society
*EXAMPLE: Jail for those who harm emergency workers intentionally

Question 58

Discuss the positives of using petitions to influence law reform.

Answer 58

*Petitions are a simple and inexpensive way for people to express their opinion
*Lots of signatures can show a high level of community support for an issue
*The act of getting signatures can generate further awareness for the issue
*Once a petition has been tabled in parliament, further support may be generated by other MP’s or the media

Question 59

Discuss the negatives of using petitions to influence law reform.

Answer 59

*Some people can be reluctant to support petitions by providing their personal information
*Traditional petitions can be difficult to physically collect a lot of signatures on
*Petitions can easily be overlooked by parliament if there is little support
*Parliament often receives more petitions than they can possibly address, so it is often unlikely to result in actual law reform
*Petitions will struggle to be successful if they don’t gain public awareness or media attention

Question 60

Discuss the positives of using demonstrations to influence law reform.

Answer 60

*Large demonstrations can attract positive and free media attention to the issue, enhancing the chances that parliament will listen
*Can be supported or ‘picked up’ by MP’s who want to adopt a cause
*Can focus on something that can be directly changed by parliament

Question 61

Discuss the negatives of using demonstrations to influence law reform.

Answer 61

*If demonstrations cause public inconvenience, become violent or lead to breaches of the law, the parliament is less likely to support the issue
*Difficult and time consuming to organise, and can be influenced easily by outside factors, such as the weather and location
*If it’s about an issue that parliament doesn’t have the power to change will be less successful

Question 62

Discuss the positives of using courts to influence law reform.

Answer 62

*Challenging an existing law can enable that area of law to be clarified
*Court challenges, even if unsuccessful, can gain large media attention and increase awareness for an issue
*Judges are not influenced by politics and determine cases (and the law) based on merits rather than influence
*Judge’s decisions and comments can influence parliament to change the law

Question 63

Discuss the of using courts to influence law reform.

Answer 63

*Can only change the law when a person with standing raises a case, and even then, can only deal with the issues in that case
*Time, cost and stress may prevent cases from starting
*Judges are unelected, therefore reforms may not reflect community values
*Judge-made law can be overridden by parliament since they are the supreme law-maker (with the exception of HC interpretation of the constitution)

Question 64

Discuss the positives of using the media to influence law reform.

Answer 64

*Vital way to gain community support and attracting the attention of parliamentarians
*Law-makers use media as a means of gauging public opinion on an issue, or public response to a recent or proposed change
*Parliamentarians often use media to generate awareness for issues (with most having their own website and/or social media account)

Question 65

Discuss the negatives of using the media to influence law reform.

Answer 65

*Information is usually visual and over-simplified, so individuals may not have a proper understanding of the real issues
*Graphic images used can evoke an emotional response rather than a logical one
*Social media generally has very few codes of ethics that have to be followed like those that traditional media sources are subjected to
*The ease of communication through media (especially social media) can result in people feeling overwhelmed about an issue because there is too much information

Question 66

Describe what petitions are and provide an example.

Answer 66

*Petition = A formal, written request to parliament for action on a particular law or issue within the community that is signed by supporters
*Can only be tabled in parliament by a MP
*The more signatures, the more likely it is to gain parliament’s attention
*Can be done electronically in some parliaments
*EXAMPLE: #Letusspeak campaign

Question 67

Describe what demonstrations are and provide an example.

Answer 67

*Demonstration = A gathering of a group of people at the same place at the same time to express their concern about an issue or law
*People demonstrate for a range of reasons, including trying to influence law reform on a particular issue or expressing dissatisfaction over a change to the law that has affected them negatively
*EXAMPLE: Australia Day protests

Question 68

Describe how courts are used to influence law reform, and provide an example.

Answer 68

*Individuals can bring about law reform through a court case in a number of ways (i.e. by clarifying or creating a law, by challenging an existing law that is suspected of breaching parliament’s jurisdiction or by challenging a law that breaches human rights)
*However, using this process to enact law reform is limited due to the courts restrictions (i.e. have to wait for a case by someone with standing)
*EXAMPLE: Registration of Gender-Neutral

Question 69

Describe how the media is used to influence law reform, and provide an example.

Answer 69

*Media can play a significant role in influencing changes to the law
*Allows information to be communicated to a large audience in an efficient and economical manner
*Social media is not limited by geographical borders
*EXAMPLE (Social): Ongoing support and campaign for Oscar’s Law
*EXAMPLE (Traditional): An ABC Four Corners television program highlighting the treatment of children in youth detention centers resulted in a police taskforce and investigation

Question 70

Who are the Victorian Law Reform Commission (VLRC)?

Answer 70

VLRC = A formal independent law reform body established in 2001 to investigate issues of law reform in an attempt to help the government establish a fair, inclusive and accessible legal system.

Question 71

Outline the four roles of the Victorian Law Reform Commission (VLRC).

Answer 71

1. Examine & investigate matters referred to them by the Attorney-General, then report back with recommendations for law reform
2. Investigate minor legal issues of community concern without a reference from the Attorney-General
3. Monitor & coordinate law reform activity in Victoria (including consulting with other law reform bodies)
4. Undertake educational programs as a means of informing the community about legal issues or areas relevant to their investigations or references

Question 72

Briefly outline the process used by the VLRC when a reference is given to them by the Attorney-General.

Answer 72

*Initial research & consultation with experts on key issues
*Consultation paper published to the public
*Consultations with affected parties & community members & submissions invited from the public
*Experts used to research areas for further information
*VLRC writes a report or their findings and recommendations for law reform
*Final report given to the Victorian Attorney-General

Question 73

Discuss the positives of using the VLRC to influence law reform.

Answer 73

*Since the government has usually asked for the area to be investigated, they are more likely to act on the recommendations made
*Can investigate areas thoroughly, resulting in laws that cover the ‘whole’ issue
*Engage and consult with experts and the community
*Independent body, separate from parliament and free from political pressures

Question 74

Discuss the negatives of using the VLRC to influence law reform.

Answer 74

*Even if influential, VLRC limited to issues referenced or minor community issues
*VLRC investigations, while thorough, are time-consuming and expensive to run
*There is no requirement or obligation that the Victorian Parliament adopt any of the recommendations made for law reform
*VLRC resources are limited, so can only investigate a small number of areas at a time

Question 75

Identify and outline one recent example of a VLRC investigation leading to law reform.

Answer 75

*Committals
*Reference received in October 2018, final report given back to AG in March 2020, report tabled in Parliament September 2020
*Through the investigations, the VLRC:
-Held a large number of consultations around Victoria (including with victims of crime, Victoria Legal Aid, forensic agencies & advocacy groups)
-Received 27 written submissions from the public
-Made 51 recommendations with the view that the current ‘strength of evidence’ test should be removed and replaced with an ‘issues hearing’
*Recommendations have not yet been implemented

Question 76

Describe the general process of a royal commission.

Answer 76

*Crown issues a ‘letters patent’ and a terms of reference for the investigation
*Issues paper published (including guidelines for how to make submissions to the commission)
*Consultations with community individuals or organisations to gauge their input or opinion
*Public or private hearings to gain evidence about certain matters (including those where the commission summons people to attend and give evidence under oath)
*Report of findings and recommendations is made
*Report is then tabled in parliament by a relevant minister
*Parliament determines what, if any, recommendations to accept and implement (no obligation to do any)

Question 77

Outline two positives of the use of royal commissions in influencing law reform.

Answer 77

*Government asks for commission, so more likely to follow recommendations
*Can investigate an area of law comprehensively
*Can consult with individuals and organisations within the community
*Can ask anyone to appear and give evidence (and can summons people to give evidence under oath)
*Independent from parliament, ensuring the process and recommendations made are unbiased and objective

Question 78

Outline two negatives of the use of royal commissions in influencing law reform.

Answer 78

*Can be used as tools against political opponents or to delay law-making
*Time-consuming and expensive to run
*No requirement for parliament to adopt any of the recommendations made
*Easily affected by external factors, such as bipartisan support, content of the issue & timing of the report

Question 79

Identify and outline one recent example of a royal commission leading to law reform.

Answer 79

Royal Commission into Victoria’s mental health system
* Established February 2019 by Jill Hennessy
* Investigated issues pertaining to mental health support and services
* Investigations included over 3000 public submissions, 61 community group consultations and 19 days of public hearings
* Total of 74 recommendations were made (9 in their interim report & a further 65 in their final report)
* Final report delivered February 2021 (after delays due to COVID-19 pandemic)

One recommendation was #42 that recommended the creation and implementation of a new ‘Mental Health and Wellbeing Act’ in Victoria. This passed parliament in Sept 2022 and came into effect 1st Sept 2023.

Question 80

Outline three weaknesses of parliament’s ability to respond to law reform.

Answer 80

*Restricted by jurisdiction and can’t change court decisions that relate to the interpretation of the constitution
*May be reluctant to implement some changes that may be perceived as controversial or likely to lose them support
*Investigations are usually time-consuming and expensive, and even if recommendations are implemented, the process of passing a bill can be time-consuming in itself
*Parliament may choose to abrogate a valid piece of common law in an attempt to gain community support
*Legislative reform can be slow depending on a number of factors (i.e. composition of the houses in parliament)

Question 81

Outline three strengths of the courts ability to respond to law reform.

Answer 81

*Can make laws where none exist, and clarify legislation, filling gaps in our legal system
*Decisions and comments made by judges can indirectly influence parliament to change the law (Mabo case)
*Judges are independent from parliament and devoid of any political pressure/bias, allowing them to make laws on controversial issues
*Judges can declare a law made by parliament ultra vires if challenged and found to be invalid
*May sometimes make rulings that spark public concern or highlight an issue, raising the awareness for the need for law reform

Question 82

Outline three weaknesses of the courts ability to respond to law reform.

Answer 82

*Parliament is able to abrogate or codify any common law that isn’t an interpretation of the constitution (provided they have the jurisdiction in that area)
*Judges in superior courts may be reluctant to change the law, instead, encouraging parliament to do the law-making
*Unelected bodies - have no requirement to make laws that reflect the communities needs or values
*Courts must wait for an issue to come to them by someone with standing who is willing to risk the expense, stress and time of challenging a law in order to declare a law invalid
*Conservative judges may be less likely to make laws in areas that may need it

Question 83

Outline two similarities between courts and parliament in their ability to respond to law reform.

Answer 83

*Can raise awareness for important issues
*Both parliament and courts have the power to change the laws made by the other body in certain circumstances (parliament through codification & abrogation, courts through statutory interpretation & declaring laws ultra vires)
*The composition of both parliament and courts can influence how effective they are in law-making

Question 84

Outline three differences between courts and parliament in their ability to respond to law reform.

Answer 84

*Parliament can act at any time, however courts have to wait for a case to come before them by someone with standing
*Parliament is an elected body, whereas courts are not
*Parliament can engage in external investigations whereas courts can’t
*Parliament can make comprehensive laws that cover whole areas, whereas courts are limited to the areas in the case before them
*Courts are able to make laws on controversial issues, whereas parliament shy away from those issues in an attempt to maintain voter support