parliament, people, courts

Question 1

changes in beliefs,

Answer 1

In any society, beliefs, values and attitudes tend to change overtime
in order for the law to remain relevant and acceptable it must keep up with and reflect these changes.
However, rapid changes of law, before communities are ready accept them can result in people becoming resistant
Most people are law abiding citizens however if laws do not reflect basic beliefs and standards they may be reluctant

Question 2

political conditions

Answer 2

Changing in political and global circumstances will influence law reform. Laws need to be kept relevant with economic and political circumstances that may occur

Question 3

petition

Answer 3

a formal written request to the government to change the law or to take action on a matter.

Question 4

strengths of petitions

Answer 4

simple and inexpensive way for a group of people to be able to share their desire for a law to be reformed
by creating a large group of people sharing their support for the change of a law makes the government for inclined to adopt this change

Question 5

weaknesses of petitions

Answer 5

petitions may not gain a large amount of signatures due to the need for people to put their and address and email on the petition.
petitions may not gain a large amount of media coverage making it difficult for the government to recognise and adopt the change if it doesn’t have a large amount of community support
government receives hundreds of petitions in which many are not supported as there is no compulsion or guarantee for the change to be adopted

Question 6

demonstration

Answer 6

occurs when a group of individuals gather together to express their common concern or disatisfaction for an existing law

Question 7

VLRC

Answer 7

law reform organisation implemented to assist the government with continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in victorian laws.

Question 8

inquiring

Answer 8

examining or reporting on a proposal referred by attorney general and making recommendations to the attorney general for law reform. this may include conducting research or consulting the community.

Question 9

investigation

Answer 9

if in the case recommendations for law reform do not consume to many resources, VLRC can investigate minor areas of law reform without the need for referral by the attorney general.

Question 10

monitoring

Answer 10

VLRC will monitor and coordinate law reform activity in victoria in which they will may then make suggestions to have VLRC investigate a particular law reform issue

Question 11

education

Answer 11

VLRC will hold education programs to the community about the work vlrc does with its investigations on law reforms and relevant laws.

Question 12

strengths of VLRC to influence law reform

Answer 12

• By the government asking for VLRC to investigate a certain law reform this makes the government more inclined to implement the recommendations and reports from VLRC (approx 70 per cent are accepted)
• By the process of consulting and receiving submissions from the community VLRC are able to MEASURE community values and reflect these views in the recommendations they make; furthermore this makes the government more inclined to implement these recommendations as they may uphold the principles of a representative government
• VLRC is independent of parliament and other political parties allowing for its recommendations to be objective and unbiased, rather than based on the views of a specific party.

Question 13

weaknesses of VLRC in influencing law reform

Answer 13

• VLRC does not have access to investigate a large amount of reforms as the reforms in which they can investigate must either be minor issues that do not take up a lot of resources or must be referred to investigate by the attorney general.
• although VLRC can make recommendations on reforms; the government has no obligation to adopt these recommendations as well as they may require the crossbench to support these recommendations in order to pass these reforms
• VLRC can only investigate victorian law reforms and not commenwealth

Question 14

royal commisions

Answer 14

the highest form of inquiry into matters of public concern and importance
- they are considered ‘royal’ as they are created by australians head of state through their representatives.

Question 15

processes used by royal commissions: consultation, research and background papers

Answer 15

prepared to provide information to the public and community surrounding the inquiry to
form the basis of discussion and interest

Question 16

consultation sessions

Answer 16

may be prepared to gain input views and opinions from individuals or organisations who may be particularly interested in the area of investigation.

Question 17

public hearings

Answer 17

may be held or commissions may meet in private to gather relevant evidence to the terms of reference

Question 18

prepare a report

Answer 18

once submissions and evidence is considered the commission will construct a report gathering their finding and make recommendations in relation to the matter under investigation

Question 19

strengths for royal commissions ability to influence law reform

Answer 19

• royal commissions are referred to by the government on matters of public concern and importance, this means the reports and recommendations made by RC are more likely to be adopted
• royal commissions have the ability to measure community views, by conducting consultations and submissions, this results in the government being more inclined to adopt the reports and recommendations made by RC as they satisfy the means of representative government
• royal commissions are independent of parliament meaning the recommendations that are made are objective and unbiased

Question 20

weaknesses of royal commissions in their ability to influence law reform

Answer 20

• royal commissions may lose credibility if the government of the day believes the recommendations posed by royal commissions may jepardize their support of voters
• royal commissions are extremely costly and take an extensive amount of time making it hard for royal commissions to influence law reform in a timely and cost effective manner (one royal commission costly 60 million)
• although royal commissions may make recommendations on relevant matters of public concern and importance, governments have no obligation to adopt these recommendations.

Question 21

the supremacy of parliament

Answer 21

as parliament works as the supreme law making body , it holds the power to legislate in all areas given it falls within its law making powers. this means parliament may codify or abrogate common law precedents made by courts if they feel it is necessary to do so.

however although parliament can override common law precedents; the courts also hold the power to challenge a law made by parliament, declaring it is as invalid, if they feel it is acting outside of parliaments law making powers (ultra vires)

Question 22

courts influencing parliament

Answer 22

courts can influence parliament to make or change legislation a number of ways
one in which may be through judges making passing comments when passing down judgements (obiter dictum), which may inspire or encourage parliament to make new legislation
another way courts may influence parliament is if they are bound by previous precedent and follow the principle of judicial conservatism, where a judge may shy away, leaving it up to parliament to initiate new legislation

Question 23

courts giving meaning to statues; STUDDED BELT

Answer 23

in order for legislation to be effective it must be understood. in some cases courts may need to apply statues to cases brought before them, in which they may need to give meaning or interpret words or phrases used in acts made by parliament.

Question 24

roles of courts in law making; resolve disputes

Answer 24

courts primary role in law making is to resolve disputes, this means they must analyse and consider the facts of the case so that they can apply these when determining whether a parties actions were lawful or unlawful. Courts will also consider common law precedents to guide them in their decision.

Question 25

binding precedent

Answer 25

a precedent set by a superior court in which must be followed by lower level courts, where material facts are similar.
if a judge in a lower court is bound by previous precedent they must follow it regardless of their views towards it

Question 26

persuasive precedent

Answer 26

a precedent that a judge from a lower court is not bound to follow however may be influenced to, in which can be made by a lower court, court with equal standing or court from a different hireachy

Question 27

doctrine of precedent - stare decisis

Answer 27

lower courts must follow precedent made by superior courts in the case where material facts of a case are similar. this allows for consistency and fairness in cases following the principle of stare decisis.

Question 28

to make common law

Answer 28

in cases where no previous precedent has been implemented, (novel case) courts will need to make new law
as well when resolving disputes courts may need to give meaning to words and phrases used in statues by parliament in times where they may be misinterpreted.

Question 29

ratio decidendi

Answer 29

in the case where courts will need to make common law they will have to give reasons for their decision (ratio decidendi) in which becomes new legal principle (precedent) that works together with legislation passed by parliament.

Question 30

obiter dictum

Answer 30

comments made in passing by the judge of a superior court that are not the ratio decidendi and provided for context and legal suggestions, in which may be persuasive for courts in future cases

Question 31

ways in which a judge can avoid following precedent: distinguishing

Answer 31

a judge can avoid following precedent if the case at hand does not have similar material facts to the case in which set precedent. if a judge can find a distinct difference between the two cases, he or she will not have to follow it as precedent set by superior courts is only binding on lower courts if material facts are similar.

Question 32

ways in which a judge can avoid following precedent: overruling

Answer 32

when a judge of a superior court decides not to follow precedent previously established by a lower level court in a different case and instead overrules it in which creates a new precedent making the former precedent established not inapplicable

Question 33

ways in which a judge can avoid following precedent: reversing

Answer 33

when a case from a lower court is heard on appeal in a superior court when the judge from that court decides to disagree with the previously established precedent and create a new one in which is the one to follow in future cases.

Question 34

ways in which a judge can avoid following precedent: disapproval

Answer 34

when a judge of a court expresses their dissatisfaction for the existing precedent. However if the precedent is binding on that court, it will still need to follow it regardless of their view, however this may influence parliament to review the relevant law or encourage a party to the case to lodge an appeal.

Question 35

factors that affect the ability for courts to make law: judicial conservatism

Answer 35

when judges adopt a NARROW interpretation of interpreting the law and acts of parliament. committing to the proper role of parliament; to say and apply what the law is, leaving changing it up to parliament.

Question 36

how judicial conservatism affects ability for courts to make laws - strengths

Answer 36

allows courts to elaborate on what laws mean and provide interpretation that reflects the intentions of parliament

Question 37

how judicial conservatism affects ability for courts to make laws - weakenesses

Answer 37

however it restricts courts from creating common law and it discourages courts from making law in areas parliaments have chosen not to legislate on.

Question 38

factors that affect the ability for courts to make law: judicial activism

Answer 38

when judges consider a range of social and political factors when interpreting acts of parliament and laws themself. Refers to the willingness of judges to take a more active role in determining laws and implementing community views and beliefs when doing so.

Question 39

how judicial activism affects ability for courts to make laws - strengths

Answer 39

allows for judges to more broadly intepret statues as they are taking into account rights of the people and create significant legal change

Question 40

how judicial activism affects ability for courts to make laws - weaknesses

Answer 40

however judges taking into account a range of factors and aspects can sometimes be seen as acting outside of their judicial role/power

Question 41

factors affecting the ability of courts to make law: cost and time to take a dispute to court

Answer 41

the expenses of resolving a dispute in court and lengthy with most individuals/parties not being able to afford adequate legal representation or those who may not qualify for legal aid; in which can all deter individuals/parties from resolving their disputes in court.
the time it takes for a dispute to be resolved in court can be delayed significantly due to factors including pre-trial procedures, complexity of the dispute.

Question 42

factors affecting the ability of courts to make law: the requirement of standing

Answer 42

courts can only hear cases if they have the power/jurisdiction to do so, or in the case a party with standing is initiating it. this means the party who is taking the case to court must be directly affected by the issues involved or have a ‘special interest’ in the issues meaning they are more affected than the general public.

Question 43

factors affecting the ability of courts to make law: the requirement of standing - strengths

Answer 43

making sure no time is wasted by courts as cases are only heard when an individual or party is genuinely affected by the issue.

Question 44

statutory interpretation

Answer 44

when judges in courts need to give meaning to words and phrases used by parliaments in their statues. When parliaments makes these laws the words used may be ambiguous meaning they have more than one definition or no obvious meaning. in this case courts will CLARIFY these words so they can be understood.

parliaments make laws for future events - courts make laws in the presence of resolving a case.