Chapter 13.4

Question 1

The use of the courts

Answer 1

An individual can take a matter to court or use their involvement with the court to possibly initiate law reform in one or two ways

Question 2

how do the courts influence law reform

Answer 2

• an individual can use the courts and hope that their case will result in the court hearing the matter changing or creating a new principle of common law
• an individual can use the courts hoping that it will result in the judge hearing the matter, conveying the need for parliament to change the law in their ‘obiter dicta’ or hoping that the case will gain the attention of a member of parliament which in turn may result in parliament changing the law

Question 3

Example of the law changing as a result of using the courts

Answer 3

whilst being tried for a number of drug trafficking offences in 1980s, Olaf Dietrich used the courts to initiate law reform regarding the conduct of criminal trials. Dietrich successfully pushed for the high court to change the law so that it was required that a person charged with a serious criminal offence have their trial staged until they can obtain legal representative.

Question 4

The effectiveness of the courts

Answer 4

The ability to use the courts to change the law depends on various factors including
- Whether someone is willing and able to challenge the law in the courts
- If someone is prepared to challenge the law in the courts, then it could highlight to parliament as issue with the law, or it can results in the court ruling the law as being made ultra vires or otherwise void
- While challenging the law in the courts can lead to a change in the law, it can be an expensive and time consuming way for an individual to influence law reform and there is no certainty in the outcome of any case
- Standing is also required, meaning that not everyone can use this method to influence a change in law

Question 5

advantages of the courts

Answer 5

• in using the courts to push for law reform, an individual makes direct contact with a body which has the power to make common law
• the use of the courts is advantageous, as cases are frequently reported in the media- which can result in the law reform issue gaining widespread attention and support
• using the courts to influence law reform is beneficial as it can result in respected legal experts supporting the need for legislative change in their obiter dicta which in term can encourage parliament to change the law

Question 6

disadvantage of using the courts

Answer 6

• using the courts to push for law reform can be extrodinarly time consuming and expensive
• despite taking a matter to court hoping that it will result in law reform, the court presiding over the matter may not have the power to change the law even if it want to
• an individual must have standing in order to take a matter to court which generally means that the individual must be directly impacted by the law in question