the use of the courts

Question 1

Introduction to the use of the courts

Answer 1

• Individuals can drive law reform by taking legal matters to court, potentially highlighting areas needing change.
• A person involved in a legal dispute might clarify or identify ambiguous laws, influencing future legal interpretations.
• Through statutory interpretation, courts can expand or refine the meaning of existing laws.
• If a law is unclear or perceived as unfair, individuals can challenge it in court, prompting judicial clarification or alerting parliament to necessary changes.
• Parliament has the authority to override court decisions, except for High Court rulings in constitutional matters.
• Courts can influence law changes only when a dispute is brought before them, relying on individuals to challenge existing laws.
• High costs, lengthy resolutions, and uncertainty about outcomes can deter people from pursuing court cases.
• A party must have legal standing to initiate court action, limiting the ability to challenge laws.
• Courts can only rule on specific issues directly related to the cases presented, constraining broader law reform efforts.

Question 2

define standing

Answer 2

the requirement that a party must be directly affected by the issues or matters involved in a case for the court to be able to hear and
determine it

Question 3

Examples of individuals using the courts

Answer 3

• Individuals can challenge legislation in court, arguing it may be ultra vires (beyond the powers of parliament) and seek to have it declared invalid.
• A challenge may also arise when state legislation conflicts with federal legislation, invoking section 109 of the Australian Constitution, which states that federal law prevails over state law in such cases.
• The High Court can resolve disputes by interpreting both state and federal legislation, as illustrated by a case that defined the term “parent.”
• In this scenario, the High Court found the relevant state legislation invalid based on its interpretation of the conflicting laws.

Question 4

Gender recognition laws - case example

Answer 4

• An individual challenged the New South Wales Registry of Births, Deaths and Marriages for not allowing them to register as ‘non-specific’ sex.
• The Registry claimed it could only change a person’s sex from male to female or vice versa, according to the Births, Deaths and Marriages Registration Act 1995 (NSW).
• The High Court ultimately ruled that the Registry had the power to record the individual’s sex in a gender-neutral way.
• This NSW case garnered national attention and influenced the Victorian Parliament.
• Five years later, the Victorian Parliament passed the Births, Deaths and Marriages Registration Amendment Act 2019 (Vic), allowing individuals who do not identify strictly as male or female to change their sex on birth certificates without needing surgery.
• The Act received support from organizations like the Australian Human Rights Commission and gender diversity activists.
• However, it faced opposition from the Liberal Party, which argued that birth certificates should reflect biological sex, distinct from gender identity.
• Australian Senator Janet Rice publicly supported the Act, sharing her personal story of her spouse, Dr. Penny Whetton, who transitioned from male to female.
• At the time of her transition, Dr. Whetton could not change her gender on her Victorian birth certificate while married to Senator Rice, despite having a passport that identified her as female.
• Dr. Whetton, a respected advocate for LGBTQIA+ rights, passed away shortly after the legislation was enacted.

Question 5

define ultra vires

Answer 5

a Latin term meaning ‘beyond the powers’; a law made beyond (i.e. outside) the powers of the parliament

Question 6

Sperm donation case sets precedent in High Court - case example

Answer 6

• Case overview involved Robert Masson, who donated sperm to his friend, Susan Parsons, believing he would play an active role in the child’s life
• Legal action occurred after the child was born and raised by Parsons and her partner, Masson sought legal recognition as the child’s father when Parsons planned to move to New Zealand in 2014
• Initial court ruling was in favor of Masson, recognizing his parental rights
• Appeal outcome reversed this decision by the Full Court of the Family Court, which applied the NSW Status of Children Act 1996 (NSW), stating that a sperm donor to a woman who is not his wife is not considered the child’s father
• High Court appeal ruled in favor of Masson, stating that the NSW legislation conflicted with the Family Law Act 1975 (Cth)
• Legal precedent established that an actively involved sperm donor can be recognized as a legal parent, thus retaining parental rights and the ability to prevent relocation of the child
• Constitutional reference invoked section 109 of the Australian Constitution, which ensures Commonwealth law prevails over inconsistent state legislation
• Financial impact saw Ms. Parsons and her partner reportedly incur over $800,000 in legal costs during the proceedings

Question 7

Is using the courts effective?

Answer 7

• The ability to use the courts to change the law relies on various factors, including an individual’s willingness and ability to challenge the law
• A legal challenge can highlight issues with the law to parliament or potentially result in a court ruling that the law is ultra vires or void
• Challenging the law can lead to legal change but is often an expensive and time-consuming process
• There is no guarantee of a favorable outcome in any legal case
• The requirement of standing means not everyone can initiate legal action to influence law reform

Question 8

Explanation points

Answer 8

• Individuals and groups can influence law changes by challenging the validity, meaning, or fairness of existing laws in court
• A judge’s decision can lead to legal changes or clarify the law’s meaning
• Challenging common law or statute law in a superior court can clarify vague or unclear laws through statutory interpretation
• Even unsuccessful court challenges can gain media coverage, generating community interest in potential law changes
• Judges can rule legislation as invalid if it is made outside the parliament’s power (ultra vires)
• Judges’ decisions and comments in court can prompt parliament to consider law changes
• Judges are politically independent and base their rulings on facts and merit, not electoral concerns

Question 9

Discussion points

Answer 9

• Courts have limited ability to change the law because they can only do so when a case is brought before them and only regarding the issues in that case
• This relies on individuals being willing to mount a court challenge, which requires standing and a willingness to pursue costly, time-consuming, and stressful cases with no guarantee of success
• Except for High Court disputes involving constitutional interpretation, parliament can abrogate (cancel) judge-made law
• Judges must wait for a party to challenge the authority of parliament to legislate before making a ruling and declaring legislation invalid; that party must also have standing
• Judges are unelected, and their decisions and comments may not necessarily reflect community views and values