The People, Parliament and the Courts

Question 1

Who represents the Crown at state and commonwealth levels?

Answer 1

Governor General represents crown for commonwealth parliament, Governor represents crown for state parliaments.

Question 2

What is the role of the Governor General in law making?

Answer 2

Grants/ withholds royal assent to bill that have passed both houses of Commonwealth parliament.

Question 3

What is the role of the Governor in law making?

Answer 3

The Governor gives royal assent to bills that pass both houses of state parliament. Does not have the authority to deny royal assent.

Question 4

List all the courts in the Victorian court hierarchy from lowest to highest.

Answer 4

Magistrates, county, supreme trail division, supreme court of appeals, high court.

Question 5

Define Supremacy of the Parliament.

Answer 5

Parliament is the supreme law making body, able to override decisions of all other at any time expect the high courts decisions in interpretation of the constitution.

Question 6

Define codification of common law.

Answer 6

Commonwealth parliament confirms precedents/ common law set by the courts in a piece of legislation.

Question 7

Define statutory interpretation.

Answer 7

The process by which the court gives meaning to words or phrases in acts of parliament. If done in a higher court setting a precedent for this particular interpretation that is binding on all lower courts in the same hierarchy.

Question 8

Define common law.

Answer 8

Judge made law. Law made by precedents set in higher courts that are binding on lower courts in the same hierarchy.

Question 9

Define abrogation of common law.

Answer 9

Commonwealth parliament repeals precedents/ common law set by courts in a piece of legislation.

Question 10

Define Representative Government.

Answer 10

Parliament and the government make laws on behalf of the people who elect them.

Question 11

Outline three features of a representative parliament.

Answer 11

Elected at regular intervals by the people. Represents the views of the majority. If the members fail to accurately represent the majority, then they are not re elected to serve another term.

Question 12

Define doctrine of precedent.

Answer 12

A system used by courts to make sure that similar cases are dealt with in a similar way forming a common law. Ensuring fairness and consistency.

Question 13

Outline and describe the different types of precedents.

Answer 13

Binding precedents. These are set by higher courts in the same court hierarchy and lower courts in that hierarchy are bound to follow them when resolving cases with similar facts.
Persuasive precedents. These are precedents made in another court hierarchy, lower courts in the same hierarchy, foreign courts, etc. Judges are not bound to follow these but may do so by choice. Unless it becomes a binding precedent.

Question 14

Define Obiter Dictum.

Answer 14

A judges opinion on a case, separate from the judgement. Can form a persuasive precedent.

Question 15

Define Ratio Decidendi.

Answer 15

The reason for a decision made on a case. Can form a binding precedent.

Question 16

Outline and explain the options judges have when confronted with a precedent.

Answer 16

Adopt it. Apply it to the case at hand.
Avoid it. Not apply it.
Affirm. State that they agree with it.
Distinguish. Show different material facts of the current case compared with the case that set the precedent.
Overrule. If a higher court they can abolish the precedent.
Disapprove. Say they don’t like it and encourage an appeal.
Reverse. Higher courts can reverse precedents on appeal.

Question 17

Define statutory interpretation.

Answer 17

The process by which judges give meaning to words/ phrases in acts of parliament so it can be applied to a case.

Question 18

Outline three reasons for statutory interpretation.

Answer 18

Because the act may not have taken future circumstances into account.
Because it is drafted in general terms that need to be determined to be implemented.
Because the meaning of the words used may be ambiguous and the court may need to interpret them to act on the will of the statute.

Question 19

Outline three effects of statutory interpretation.

Answer 19

Words in disputed acts given meaning so that a dispute can be resolved.
If interpretation is made by superior court it becomes a binding precedent.
The meaning of the legislation can be restricted or expanded.

Question 20

Outline two limitation and two assisting factors that affect the ability of the courts to make law.

Answer 20

Limitation: Judaical conservatism. A judge is unlikely to change law because their job is to interpret and enforce it not create it.
Assist: Judaical activism. A judge considers a range of social and political factors in their ruling.
Limitation: Standing. For the court to change any law, they must have a case come before them by someone who has proper standing. That is being genuinely affected by the issue.
Limitation: Stare Decisis. Only higher courts can make a change or binding precedent where no existing one applies.
Assist: Superior courts can overrule or adopt precedents of lower courts to ensure common law stays up to date with the community values.

Question 21

How could the courts intervene in Parliament.

Answer 21

Judges can make a comment on the need for reforms in the obiter dictum.
The High court can, if the case is brought by someone with standing, declare laws made by parliament to be of no legal effect
(ultra virus).

Question 22

What are three restrictions on Parliament in law making?

Answer 22

Jurisdictional Limitations. Parliament can only act within its power, laws could be challenged in the High Court and declared ultra virtue if outside jurisdiction.
Specific Prohibitions. S109 limits state parliaments law making ability in areas of concurrent powers. Law making powers can only be changed by S128 or the High Court.
International Political pressures. International treaties can create law making obligations that pressure Parliament to act in the interests of other countries.

Question 23

Outline three factors that assist Parliament in law making.

Answer 23

Because bills must pass through both houses they are debated and can be amended if needed. Which allows for the most effective law possible.
Debate in each house allows each of the present political parties to voice their perspective and so create the most representative law possible.
Crossbenchers in the Parliament allow bills to become more representative as they can support or not support bills freely as they are unaffiliated with a party.

Question 24

Outline three factors that limit Parliaments effectiveness in law making.

Answer 24

Urgent laws can be obstructed by party negotiation or not passed because of two irreconcilable ideals between parties.
If the government holds a majority in the lower house debate becomes a formality and the law is less representative because other parties are not consulted.
If the government gains a majority in the upper house the senate will become a rubber stamp, passing laws without debate and scrutiny otherwise had.

Question 25

Define government bills.

Answer 25

A bill approved by the cabinet and created as a result of government policy.

Question 26

Define private members bill.

Answer 26

A bill introduced by a member of parliament without the support of the cabinet.

Question 27

Define a private bill.

Answer 27

A bill that only effects a small proportion of the community.

Question 28

Define the Victorian Law Reform Commission.

Answer 28

(VLRC) Is the central permanent agency for reviewing laws in Victoria. It receives inquires from the Attorney General and the community.

Question 29

Outline the five functions of the VLRC.

Answer 29

To examine any proposed area of law reform referred to the Commission and the Attorney General, and make recommendations to the Attorney General in the referred area.
To Examine, report and make recommendations to the Attorney General on a matter the Commission considers a relatively minor area of legal concern for the community.
To suggest to the Attorney General for a matter to be referred to the Commission.
To monitor and coordinate law reform activity in Victoria.
To undertake educational programs on any relevant areas of law.

Question 30

Outline the three factors of the VLRC.

Answer 30

Independent. A non partisan group independent of parliament and government.
Inclusive. They consult every group in the community.
Innovative. Commission finds creative solutions to law problems.

Question 31

Outline the nine step law reform process used by the VLRC.

Answer 31

1: Commission receives a reference or begins a community law reform project.
2: Staff begin to research and consult.
3: Expert panel is formed.
4: Consultation papers published and submissions are called for from the public.
5: VLRC consults with affected parties and the community.
6: Submissions received and considered.
7: VLRC writes a report.
8: Report given to Attorney General.
9: Report tabled in parliament and published.

Question 32

Outline three strengths of the VLRC in influencing law reform.

Answer 32

Because the government asks the VLRC to investigate need for law reform they are more likely to implement proposed changes.
VLRC can measure public opinion on potential reforms by receiving submissions.
VLRC is independent of parliament. Allowing it be objective and unbiased in its recommendations.

Question 33

Outline three weaknesses of the VLRC in influencing law reform.

Answer 33

VLRC can only investigate issues referred to them or minor law law reforms.
Parliament is not obligated to act on VLRC recommendations.
VLRC investigations are long and expensive.

Question 34

Outline on recent example of VLRC recommending law reform.

Answer 34

Changes to committal procedures.

Question 35

Apply the nine steps of the VLRC in law reform to a recent example.

Answer 35

1: Attorney General asked VLRC to review and report on legislative, administrative and procedural changes to committal proceedings which could reduce trauma had by witnesses.
2: Staff begin to research and consult with parties on trauma had from committal proceedings.
3: Expert panel formed of those familiar with committal proceedings and witness trauma.
4: VLRC calls for public submissions.
5: More consultations held with affected parties.
6: VLRC receives 27 submissions from parties including the Children’s Court and Victoria Police.
7: VLRC writes a report on committal issues.
8: Report given to Attorney General.
9: Report on committal and pretrial procedure in indictable criminal matters published.

Question 36

Define Royal Commissions.

Answer 36

A Royal Commission is the most serious type of inquiry that can take place. Created by the GG at the federal level or Governor at state level to deal with matters of importance.

Question 37

Define letters patent.

Answer 37

Letters sent by the Queens representative to establish a Royal Commission. Set out who will be appointed to the commission and when it will report its findings.

Question 38

Define terms of reference.

Answer 38

The scope of the inquiry issued by the Queens representative for a Royal Commission.

Question 39

Outline the four processes used by Royal Commissions.

Answer 39

Research and release of issues papers.
Conducting consultation sessions with experts or stakeholders.
Call for written submissions.
Community consultations and public hearings.

Question 40

Explain the powers of a Royal Commission.

Answer 40

A Royal Commission has coercive powers. These allow it to seize evidence, take testimony under oath, compel people to attend, allow for cross examination of evidence or witnesses.

Question 41

Outline three strengths of a Royal Commission.

Answer 41

Because they are established by the government they are likely to act on the recommendations of the commission.
Royal Commissions can raise awareness of an issue with public hearings.
They can use coercive powers to compel people to attend, give evidence, etc. Allowing for a comprehensive investigation.

Question 42

Outline three weaknesses of a Royal Commission.

Answer 42

Parliament is not obligated to act on the recommendations made.
Royal Commissions can be used for political purposes, which decreases their credibility.
Very time consuming and very expensive.

Question 43

Outline one recent example of a Royal Commission affecting law reform.

Answer 43

The Royal Commission into Institutional Child Sexual Abuse.

Question 44

Apply one recent example of a Royal Commission affecting law reform.

Answer 44

Terms of reference set the scope of the inquiry as: to better protect children in institutions, achieve best practice and ensure justice for victims.
The Royal Commission took 5 years, held around 8000 private sessions. Held hearings in every capital city and 25 regional locations to produce evidence.
Resulting in more effective policies and procedure, national minimum standards for investigations and implementation of 10 Child Safe Standards.