U4 AOS2 - THE PEOPLE, THE PARLIAMENT, AND THE COURTS

Question 1

what are two roles of the lower houses (HoR and LA)?

Answer 1

Determine the government – after an election, the political party/coalition that has the majority of members in the lower house forms government.

Initiate most bills – as it determines the government, bills in line with legislative agenda will be introduced in the lower house. Gov has the confidence of the house. All bills except for money bills can be introduced into either house.

Question 2

what are strengths of the lower houses in law making?

Answer 2

Majority government
If the government holds the majority of seats in the Lower House, legislative programmes are usually accepted and passed. Allows for law reform as bills can progress to the Upper House. Power to introduce whatever bills it likes. Can pass bills with less debate as members vote along party lines, so faster

Minority government
Hung parliament is when no party has a majority so a major party needs support of minor political parties/independents to form government. As such, constantly engaged in negotiation to ensure it’s legislative program is supported and passed by the Lower House, which means errors and omissions are drawn out.

Question 3

what are limitations of the lower houses (vic and cth) in law making?

Answer 3

Majority government
However, less scrutiny. Also means can reject private members’ bills without debate (although introduction may raise publicity for bill)

Minority government
May result in watered down legislation

Question 4

what are two roles of the upper houses (LC and Senate)?

Answer 4

House of review –
given the majority of bills are initiated in the Lower House, Upper House scrutinises those already passed.

Examine bills through its committees –
extensive committees debate proposed laws at length and recommend whether bills should be supported

Question 5

what are strengths of the upper houses (cth and vic) in law making?

Answer 5

Government majority - rubber stamp environment
Because members vote according to directives of their party, a government with a majority can introduce promised law reform.
Government bills inevitably passed.

Government minority - hostile environment
Thorough debate and scrutiny means the government takes into account a wider range of views, better reflecting community interests.

Balance of power
The diversity may better reflect community values. Means main parties don’t totally dictate.

Question 6

what is a limitation of a rubber stamp environment in both vic and cth parliaments?

Answer 6

prevents the Upper House from adequately fulfilling the role of ‘House of Review’ or representing interests of state/regions. Can become a ‘rubber stamp’ merely confirming decisions made by the government.

Question 7

what are two limitations of a hostile upper house in both vic and cth parliaments?

Answer 7

government to implement policy agenda. Composition is a significant factor because all bills must be passed by both in order to become law.

Rejection/significant amendments/stalled process = obstructed ability for the government to implement law reform.

Question 8

what are limitations of the balance of power in both vic and cth upper houses?

Answer 8

Independents/minor party members hold disproportionately high levels of power compared to their voter base.

Members of the crossbench may be able to vote in a bloc to reject government bills so they do not pass.

Often don’t represent majority views. As well, often focus on a relatively narrow range of policy issues without having a detailed plan on a broad range of key issues and areas of lawmaking.

Question 9

what is meant by the representative nature of parliament?

Answer 9

Parliament and government consist of members elected by the people in line with S7 and S24 of the constitution

If they fail to make laws reflecting the people’s views and values they will jeopardise the chance of being re-elected. Essential principle of democratic system.

Question 10

what are 4 strengths of having a representative government/parliament?

Answer 10

1. Generally results in the laws made by parliament being condoned by the majority of Australians because parliament is made of elected representatives whose purpose is to represent the interests and values of the wider population through laws they enact.
2. Activities like forming petitions and demonstrations can be influential in promoting law reform as members of parliament are required to reflect the people’s views so as to not lose voter support.
3. Compulsory voting ensures the government has the support of the majority and not just those who bother to vote.
4. Ensures that members of parliament keep in mind the public’s views when making laws so as to not be voted out.

Question 11

what are 4 limitations of the system of representative gov/parliament?

Answer 11

T1. he fact that parliament is made of elected members can increase the difficulty of making laws as it may deter them from passing laws that are too controversial (even if they are necessary) out of fear of voter backlash and not being re-elected.

2. It can be difficult to enact laws that suit everyone when there are conflicting views amongst voters on certain topics.
3. Government can introduce popular law to win voters rather than do what is in the best interests of the country in the long run.
4. May not want to initiate law reform where a group of highly vocal people don’t support the change despite opinion polls suggesting the majority of Australian voters support it. Parliaments have been slow to change laws (euthanasia) which are controversial without overwhelming support

Question 12

what are 4 strengths of political pressures in parliaments law making?

Answer 12

1. Desire to maintain voter support will mean members of parliament listen to action being demanded by the public when deciding whether or not to support a bill meaning necessary law reform will be enacted.
2. Ensures members of parliament are responsive to the needs of the people and make laws that reflect the views of the community.
3. Enables individuals, groups, and organisations to have a sense that they can influence individual members of parliament and gov.
4. Internal political pressure from opposition, minor parties, and independents will ensure laws proposed by the government are heavily debated and take into account broad views.

Question 13

what are 4 limitations of political pressure?

Answer 13

1. Those with significant financial power or the ability to influence community perceptions can place pressure to implement policies in their best interest rather than the nations.
2. Can result in parliament preferring to pass popular laws, rather than those that are necessary but controversial.
3. Sometimes small but vocal minority pressure groups and powerful businesses may place excessive pressure on politicians and impede important law reform.
4. Internal political pressure to vote along party lines may see members of parliament voting in accordance with party agenda rather than their own moral conscience.

Question 14

what jurisdictional limitations are there on parliament?

Answer 14

State parliaments are unable to enact laws in areas of exclusive power and commonwealth parliament is unable to legislate in areas of residual power.

Only way the Commonwealth Parliament can make laws in these areas is if given the power to do so through a High Court interpretation of the Constitution, change to the Constitution or states hand over their powers.

Question 15

what specific prohibitions are there on parliament in law making?

Answer 15

The Constitution imposes a number of restrictions which hinder parliament’s ability to create certain laws. Including:

• Expressly banned from making laws in certain areas
  Section 106, 107, and 108, prohibit Commonwealth parliament from making laws in areas of residual powers.
• Section 128 prevents parliament from altering the constitution without the referendum process.
• Section 115 prohibits states from making their own currency.
• Section 109 limits states’ law-making power and may discourage them from legislating in concurrent areas.
• Express rights.

Question 16

what is the role of Victorian Supreme Courts of Record (Supreme Court Trial Division and Court of Appeal) in law making?

Answer 16

1. Deciding on cases where there is no law to apply to the case or when a previous principle of law requires an expansion to apply to the new situation.
2. Conducting statutory interpretation: by interpreting the meaning of words in an Act of Parliament in order to apply the Act to a case before the court, and a precedent will be set for the way in which those words are to be understood in the future.

Question 17

what is the role of the High Court in law making?

Answer 17

Interpreting the Constitution or an Act of Parliament.

Expanding or changing a previous principle of law so that it may be applied to a new situation (thereby expanding or narrowing the law’s meaning) or deciding on a case when there is no other law to apply.

Question 18

what is the doctrine of precedent?

Answer 18

Common law principle by which the reasons for the decisions of the higher courts are binding on courts ranked lower in the same hierarchy when there is a case with similar facts.

Question 19

what are the 5 key principles of the Doctrine of Precedent?

Answer 19

1. Stare decisis - process of lower courts following the reasons for decisions in the higher courts. Judges should stand by previous decisions to ensure common law is consistent.
2. Ratio decidendi - the reason for the decision. The binding part of a court judgement. ie. lower courts must follow same reasoning.
3. Binding precedents - a precedent that has been established in the superior courts and must be followed by lower courts in the same hierarchy when resolving disputes with similar material facts.
4. Persuasive precedents - precedents that are not binding on a court but may still be considered by the judge in making a decision. It’s the legal reasoning by a lower court, or a court in the same jurisdiction, or in other hierarchies
5. Obiter dictum - Statements or comments made by a judge that are not an actual part of the reason for the decision (and thus aren’t binding) but are still important and may be considered in future cases or influence parliament and generate media attention.

Question 20

what are the four ways a judge can avoid following a precedent? - RODD

Answer 20

1. Distinguishing a precedent - A judge may avoid following a precedent if they can find a difference between the material facts of the case they’re deciding and the case in which the precedent was set,
2. Reversing a precedent (in the same case on an appeal) - When hearing a case on appeal from a lower court, a judge in a superior court may disagree with and decide to change the previously established precedent set by the lower court. A new precedent is subsequently created by the superior courts decision.
3. Overruling a precedent (in a different and later case) - A judge in a superior court may decide not to follow a previously established precedent set by a lower court. A new precedent is created that makes the earlier precedent inapplicable. Different to reversing because it applies in a different and later case.
4. Disapproving a precedent - Judges and magistrates in lower courts who are bound to follow precedents set by superior courts may express their dissatisfaction with the precedent. This statement of discontent does not spare them from following the precedent, but it may be used during an appeal to indicate the original judge’s dissatisfaction or encourage parliament to change the law. Can form obiter dictum.

Question 21

what is statutory interpretation?

Answer 21

Statutory interpretation:
As well as establishing precedents when resolving cases in which there is no existing law that can be applied, courts can also make law when called upon to interpret the words of an Act of Parliament in order to give it meaning so that they may be applied to the immediate case.

As such, judges can broaden or narrow the meaning of the legislation and subsequently establish a legal principle to be followed in future similar cases.

Question 22

what are three reasons for statutory interpretation, with examples?

Answer 22

The Act may no longer reflect community views and values: Community values may evolve over time to be inconsistent with what was at the time of creating the Act.

An act not accounting for future circumstances:
when an Act is drafted, the parliamentary counsel may fail to acknowledge changes in future circumstances where the law may need to be applied.

The meaning of the words in an Act being ambiguous:
the words and phrases used in an Act attempt to be broad to cover a range of issues, so subsequently, the meaning may be unclear or carry more than one meaning.

Question 23

what are three effects of statutory interpretation?

Answer 23

The words in an Act are given meaning:
by interpreting an Act of parliament, the words within the statute are not changed, however, the implications and definitions of the words are asserted as well as the way they are to be understood in the future.

The law being restricted through a narrow interpretation:
If the court interprets a word or phrase in an Act in a way which makes it more narrow, this can restrict the scope of the law and provide for greater precision and specification.

The law being expanded through a broad interpretation:
if the courts interpret the words or phrases in an Act and make it more extensive, it can result in the meaning of the legislation being broadened to cover a new situation or area.

Question 24

what are four strengths of statutory interpretation?

Answer 24

Allows the courts to extend the relevance and lifespan of parliament’s laws, making sure it continues to be appropriate to social attitudes and contemporary circumstances.

It is impossible for parliament to draft every law in a way that it could relate to every circumstance. The power allows parliament to legislate for only the general principles or most likely scenarios.

Courts are not subject to political influence when making an interpretation and will therefore make an interpretation based on the original intentions of the Act and how it best applies in the current day.

Judges who take a broader interpretation of statutes are able to expand on the application of laws to better suit the needs of the community at the time.

Question 25

what are four limitations of statutory interpretation?

Answer 25

Courts can use power to radically change application and meaning of the law from what parliament intended. Unelected judiciary overriding the will of an elected legislature.

Courts must wait for a case to be brought before them, by someone with standing, that requires statutory interpretation to occur and cannot just choose to interpret a statute if they feel it needs clarification.

Courts cannot undertake community consultation and are not in a position to make decisions that reflect the needs of the community.

Judges can be conservative in their interpretations preferring to leave parliament to make any necessary changes to the law.

Question 26

what are four strengths of the doctrine of precedent?

Answer 26

The principle of stare decisis ensures consistency in common law because lower courts must follow precedents.

Ensures predictability - parties can anticipate what law is likely to be applied.

Common law is flexible because judges can overrule and reverse precedents or avoid them through distinguishing precedents.

Judges have the power to expand, clarify, or limit the meaning of legislation so it can be applied to immediate cases.

Question 27

what are four limitations of the doctrine of precedent?

Answer 27

Lower courts must follow a binding precedent even if it is deemed outdated or inappropriate.

It can be difficult, costly, and time consuming to identify the relevant precedent to be used as there is a large amount in existence and judges may use different reasoning in the same case.

Judges may be reluctant to change an existing precedent, preferring parliament to change law.

Judges can only make precedents when a case arises.

Question 28

what is judicial conservatism?

Answer 28

Judicial conservatism is when judges adopt a narrow interpretation of the law when interpreting Acts of Parliament and deciding cases ie. avoiding major, controversial changes. Influences the ability of courts to make law because judges who take a conservative approach won’t go very far beyond the established law.

Question 29

what are three strengths of judicial conservatism?

Answer 29

Helps maintain stability in the law because judges are cautious and show restraint when making decisions that could lead to significant changes.

Lessens the possibility of appeals on questions of law.

Allows the parliament, which has the ability to reflect community views and values, to enact the more significant and controversial changes.

Question 30

what are three limitations of judicial conservatism?

Answer 30

Judges who feel inclined to adhere to previous laws and be reluctant to undertake law making reduce the ability of the courts to make law.

Can discourage judges from considering a range social and political factors when making law.

May be seen as not progressive and not factoring current views and values.

Question 31

what is judicial activism?

Answer 31

Refers to the willingness of judges to consider a range of political, social, and economic factors, including community views and values and the rights of the people, when interpreting the law and making decisions.

Question 32

what are four strengths of judicial activism?

Answer 32

Increases the ability of courts to make law as judges who adopt an activist approach are willing to set new principles and precedents.

Allows judges to broadly interpret statutes in a way that recognises the rights of the people.

Allows judges to consider a range of social and political factors and community views = more fair and just decisions.

Judges do not fear voter backlash as they are appointed, not elected, so they can be more creative and innovative

Question 33

what are three limitations of judicial activism?

Answer 33

Can lead to more appeals on a question of law because they’re inappropriately exercising power = stalled law making.

Can lead to courts making more radical changes in the law that do not reflect the views of the community and are beyond the communities level of comfort.

Judges are appointed, not elected, and thus may not necessarily represent the views and values of the general public.

Question 34

what is the requirement for standing?

Answer 34

Standing (locus standi) refers to the ability of a party involved in a case to demonstrate to the court that there is a sufficient connection to the issues, legal, and factual, to support their involvement in the case.

Question 35

what are three strengths of the requirement for standing?

Answer 35

Ensures that cases are only pursued by people who are genuinely affected by an issue or matter, which in turn ensures that court resources are not wasted on resolving cases in which the plaintiff is not directly affected by the matter and outcome of a case.

Ensures cases brought before court have merit and discourages frivolous actions.

Encourages people not directly affected to seek other avenues of redress like lobbying members of parliament or petitioning or demonstrating.

Question 36

what are three limitations of the requirement for standing?

Answer 36

Can prevent plaintiffs who have a general interest in the matter from pursuing the matter on behalf of another person or in the interest of the general public. Ie. blocks cases where legislation could potentially breach peoples rights.

Might prevent people who have greater financial capacity, time, oral skills, and confidence from pursuing a matter on behalf of a party who is less able and willing who has directly had their rights breached.

Means that potential improvements to the law based on intellectual interest that could have been made are lost

Question 37

how can courts influence parliament?

Answer 37

Courts can indirectly influence parliament when making comments while handing down judgements, either as part of the reasons for the decision or as obiter dictum, that highlight an issue and inspire parliament to enact reform.

Parliament can also be influenced if a court is bound by a precedent that results in an injustice.

A court’s decision may highlight a problem or cause public uproar that can lead to the parliament changing the law.

Judicial activism can also influence parliament to change a law. Ie. If the court takes an activist approach when determining a case and overrules another common law principle, parliament may be inspired to confirm and enshrine the decision in legislation.

Question 38

what is meant by the codification and abrogation of common law?

Answer 38

THE CODIFICATION OF COMMON LAW
Parliament can make law that confirms a precedent set by the courts. Ie. incorporates common law principles into parliament legislation, thereby reinforcing and endorsing the principles established by courts in their rulings.

THE ABROGATION OF COMMON LAW
Parliament has the power to pass legislation that overrides/aborgates/cancels decisions made through the courts, with the exception of High Court decisions on constitutional matters, meaning that the common law is no longer of effect in the courts and the precedent is overruled by parliament.

Question 39

how does the relationship between courts and parliament favour the courts?

Answer 39

Parliament is constrained by the Constitution and division of powers. The High Court has power to interpret these restrictions and enforce them.

Parliament never has complete power over what the law means or how it is enforced because of statutory interpretation. If parliament responds through legislation, the court can interpret that legislation.

Courts can narrow/broaden scope of legislation

Parliament may not expressly abrogate the law. Depending on the wording parts of the Common law may continue to operate in the gaps

Question 40

how does the relationship between courts and parliament favour parliament?

Answer 40

Parliament can choose whether they agree with courts or not. Has final say in terms of legislating to confirm or abrogate those laws.

Precedent developed piece by piece whereas parliament has the ability to see big picture and make comprehensive changes

Can word a statute however they want

Question 41

what are three reasons for law reform, with examples?

Answer 41

CHANGES IN BELIEFS, VALUES, AND ATTITUDES
If a law is to remain relevant and acceptable to the majority of people, it must keep up with modern attitudes, beliefs, ethical principles, and values overtime. People will be reluctant to believe in and obey laws that do not reflect their beliefs and standards.
- eg. In 2018, the Vic Parliament passed the Domestic Animals Amendment (Puppy Farms and Pet Shops) Act 2017 (vic) making it illegal to sell dogs and cats in pet shops unless they are obtained from rescue shelters or pounds.

CHANGES IN POLITICAL CONDITIONS
Changing political circumstances on both domestic and international levels may influence law reform
- EG. increasing global violence and threat of terrorist attacks which has led Commonwealth Parliament to pass the Counter-Terrorism Legislation Amendment Act 2019 (Cth) to make it harder for individuals charged with terrorist related offences to be granted bail.

GREATER NEED FOR PROTECTION IN THE COMMUNITY
Law reform must continually occur to ensure that individuals and groups within our community are protected and feel safe. One of the major roles of the law is to protect people from law. Some people in the community also have specific needs and rights that must be protected, especially if they are unable to protect themselves. Eg. children and people with disabilities.

Question 42

what are petitions?

Answer 42

A petition is a formal written request to a member of parliament(s) to create a law or amend an outdated or unjust law.

A petition must:
Be addressed to the house in which it is represented.
Contain a clear statement or request for action.
Contains the name, address, and signature of at least one individual who supports it.

Question 43

what are four strengths of petitions in influencing law reform?

Answer 43

Relatively simple, easy, and inexpensive way for people to express their desire for law reform.

Online petitions are particularly easy to set up and enable access for people to sign it.

MPs are more likely to consider a petition that has many signatures demonstrating strong support within the community due to the system of representative gov which requires them to reflect the views of the people in law making.

The act of creating a petition and gathering signatures can generate public awareness about the issue and support for the desired legislative change.

Question 44

what are four limitations of petitions?

Answer 44

Some people may sign a paper petition more than once which compromises the integrity of the petition and makes it null and void

Parliaments receive hundreds of petitions each year and there is no compulsion or guarantee that suggested law reform will be adopted

Opposing petitions can also lower the impact.

They are not as ‘visual’ as other methods of influencing law reform like demonstrations.

Question 45

what is an example of a petition?

Answer 45

In October 2019, Ms Zali Steggall, an independent MP, tabled a petition in the House of Representatives - online with 404,538 signatures - which demanded that the HoR declare a climate emergency in Australia and introduce legislation to reduce the causes of human made climate change.

After the petition was tabled, the Minister for Energy and Emissions reduction responded by outlining the Federal Government’s plan to reduce emissions and greenhouse gases by 2030 while still ensuring a strong economy.

Question 46

what are demonstrations?

Answer 46

A demonstration is a gathering of members of the community, in a public place, to alert parliament of a needed change in the law, and to show the participants support of the legislative change. They are held to accentuate the views of the public and are more successful when they involve a large number of attendants.

Question 47

what is an example of a petition?

Answer 47

On 26 January each year, demonstrations take place all over Australia to protest the ‘Australia day’ celebrations held on the anniversary of the colonisation of Australia. The aim of these is to raise community awareness of the suffering of Indigenous Australians since colonisation and to increase support for changing the celebration of Australia to a more appropriate and inclusive date - they also seek law reform in relation to Indigenous Australians.

Question 48

what are four strengths of demonstrations?

Answer 48

Demonstrations that attract a large number of people can attract positive media attention. MP’s are more likely to consider law reform that has strong community support.

They can gain the support of MPs who want to a ‘adopt a cause’ - particularly one that may improve their public image.

They can raise social awareness, making members of the public consider and think about the issue for the first time which can help generate change over time.

They are far more visual and attention grabbing than other methods of promoting law reform.

Question 49

what are four limitations of demonstrations?

Answer 49

Demonstrations can be less effective and even decrease public support for a law change if they cause public inconvenience, become violent, or lead to breaches of the law. Also, any negative media attention may decrease the credibility of a demonstration and the likelihood of MP’s supporting the cause.

They can be difficult and time consuming to organise and attendance can be affected by factors like location and weather.

They are often single events that may not generate ongoing support for the desired law reform.

It is possible for those to participate in demonstrations to be dismissed as a vocal minority group.

Question 50

what is an example of an individual using the courts to influence law reform?

Answer 50

Massons v Parsons [2019]: A man agreed to be a sperm donor for his female friend and her wife in the belief that he would be involved in the child’s life undertook court action in an attempt to be legally recognised as the child’s father. It went to the High Court where Massons was successful. Ruling set a precedent that a sperm donor who had been actively involved in the child’s life may be recognised as a parent.

Question 51

what is a strength of influencing law reform through courts?

Answer 51

Even if a court challenge is unsuccessful it may gain significant media coverage which may generate community interest in the decision and the possible need to change a law

Judges are politically independent and determine cases based on the merits rather than electoral consequences

Judges can rule that legislation made outside the power of parliament is invalid or state legislation conflicts with federal legislation and is invalid in accordance with section 109.

Judges’ decisions and comments made in court (obiter dictum) can encourage parliament to change the law.

Question 52

what are four limitations of using the courts to influence law reform?

Answer 52

Courts are limited in their ability to change the law because they can only do so when a case is brought before them and in relation to the issues in the case.

With the exception of High Court disputes involving the interpretation of the Constitution, a judge-made law can be abrogated by parliament

Judges are unelected and their decisions and comments may not necessarily represent the views and values of the community.

Individuals can be reluctant to challenge existing laws through the courts because it is so expensive and time consuming and a successful outcome is not guaranteed. Also the requirement for legal standing.

Question 53

what is the role of the media in law reform?

Answer 53

Informing the public and members of parliament of established community views regarding issues of law reform, for example, by publicising the actions of individuals who hope to initiate law reform.

Initiating pressure for legislative change. This can be seen through media personalities who use their positions to draw the public and parliaments attention to an issue of law reform not previously addressed.

Using social media to organise events like petitions, to share petitions, and communicate with members of parliament who actively use social media.

Groups using the media can persuade voters to hold a particular opinion leading law-makers to change the law to retain the support of these voters.

Question 54

what are two examples of media in law reform?

Answer 54

SOCIAL MEDIA
Social media 2017 hashtag marriage equality was the most popular hashtag on Twitter in Australia which ensured law-makers understood widespread public desire for this change.

TRADITIONAL MEDIA
In 2016, the film Chasing Asylum showed and raised awareness of the distressing plight of people who were seeking asylum in Australia, and it contained footage of the poor conditions in Australian detention centres at Nauru and Manus island. It was made to place pressure on the Australian Government to change the laws relating to the detainment and treatment of asylum seekers in Australia. It generated great interest on traditional and social media and people were encouraged to sign an online petition and write to their local MP’s.

Question 55

what are four strengths of media in law reform?

Answer 55

1. Social media users can create interest in and raise awareness of legal issues on a large scale. Approx. 60% of the Australian population actively uses Facebook.
2. The use of social media and mobile devices allows people to capture and broadcast images and videos and live stream events to generate great interest in issues. Footage of conditions in detention centres have been placed on social media to gain support.
3. Newspapers, television, and radio are still a major source of news within the community and are accessed by millions every week. They can shape the views and attitudes of their audience.
4. Television programs such as The Project provide a forum for parliamentarians to outline their policy stance on law reform and explain actions, being held accountable for their views.

Question 56

what are four limitations of media in law reform?

Answer 56

1. People who share information or opinions on social media don’t generally follow codes of ethics that are subscribed to by many reputable traditional media organisations and journalists. This means much information on social media may not be accurate, authenticated or impartial.
2. Social media platforms are highly visual and can include graphic images and live streams that portray complex legal issues in a simplistic way and may evoke emotional responses based on limited facts and knowledge.
3. Television and radio producers and newspaper editors can manipulate content in an attempt to alter a community’s perception of a particular individual/pressure group if the owners of their media organisation do not support their views and discredit it
4. Often criticised for showing political biases

Question 57

what is VLRC?

Answer 57

The VLRC is Victoria’s leading independent, government funded, law reform organisation, which reviews, researches, and makes recommendations to the Parliament of Victoria about possible changes to Victoria’s laws.

Question 58

what are the four roles of VLRC as outlined in Victorian Law Reform Commission Act 2000 (Vic)?

Answer 58

1. Inquiry: to examine and report on any proposal or matter referred to it by the Victorian Attorney General and make recommendations to the Attorney General for law reform.
2. Investigation: to investigate any relatively minor legal issues that the VLRC believes is of general concern within the community and report back to the AG
3. Monitoring: to monitor and coordinate law reform activity in Victoria. Ie. consultation with various groups or other law reform bodies, the VLRC may suggest to the Attorney General new references where law reform may be desirable.
4. Education: to undertake educational programs and inform the community on any area of the law relevant to its investigations or references.

Question 59

what is the process used by VLRC?

Answer 59

Undertakes initial research and consultation with experts in the law under review and identifies the most important issues.

Publishes an issues or discussions paper (consultation paper) which explains key issues in the area under review and poses questions about what aspects of the law should be changed, and how, for community consideration.

Holds consultations with and invites submissions from parties affected by area under review and members of the community

Asks experts to research areas requiring further information and publishes these findings.

Publishes a report with recommendations for changes in the law, presents the final report to the Attorney-General who tables it in Victorian Parliament. Parliament may decide to implement but is not bound to do so.

Question 60

what are four strengths of VLRC?

Answer 60

As the Government asks the VLRC to investigate the need for law change in specific areas, the Government should be more likely to act on its recommendations.

VLRC can measure community views on areas of investigation by holding consultations and receiving public submissions, and then reflect them in its recommendations. This should increase the likelihood of the Government implementing its recommendations, because, to maintain and increase voter support, governments generally implement law reforms that reflect the views of the people.

The VLRC is independent of the parliament and political parties so it remains objective and unbiased in making its recommendations.

Statistics suggest that the VLRC can be highly influential on the Victorian Parliament. All or some of its recommendations are adopted in about 70% of cases.

Question 61

what are four limitations of VLRC?

Answer 61

1. VLRC can only investigate issues referred to it by the Gov (ie. AG) or minor community law reform issues that will not consume many issues, and inquiries are also limited to the terms of the reference, meaning it can only investigate and make recommendations on things included in the reference even if they deem other things important.
2. there is no obligation on the part of Parliament to enact the recommendations and support or introduce law reform. Also, while the Gov may support the VLRC’s recs, it may need the support of the crossbench to pass law reform, particularly if the upper house is hostile.
3. the VLRC is limited by its resources and therefore can only undertake investigations into minor legal issues if it does not require a significant deployment of those resources.
4. it can only recommend changes to Victorian law, not commonwealth law. If certain areas it is investigating are governed by Commonwealth law, the VLRC cannot directly recommend that the Vic Parliament change this law as it has no ability to do so.

Question 62

what is an example of a recent VLRC recommendation?

Answer 62

In November 2019, the VLRC completed a community law reform project, Neighbour Tree Disputes, in response to community concern. It undertook the project after being advised about the large number of tree disputes being resolved by the Dispute Settlement Centre of Victoria (DSCV) and the need to make it easier for neighbours to resolve such disputes.

One of the main recommendations was that the Vic Parliament should introduce a new Neighbourhood Tree Disputes Act to be managed by VCAT, outlining when neighbours are able to take their dispute to VCAT for resolution and the type of remedies available. (as VCAT can resolve matters in an informal, cost effective, and timely manner compared to the courts).
Attorney-General tabled report in November 2019 and stated government intended to implement recommendations – hasn’t occurred yet but may be because of COVID, generally VLRC is effective.

Question 63

what are parliamentary committees?

Answer 63

A small group of Members of Parliament who consider and report on a single issue/subject in one or both houses. Committee members can come from either party.

Question 64

what are two roles of parliamentary committees?

Answer 64

To investigate a specific issue, policy, or proposed law and reporting their findings and recommendations for law reform back to the entire parliament.

To provide a way for members of the community to give input into the issues being investigated and have their views considered in the parliamentary decision-making process. Parliamentary committee consults with interested individuals, experts, pressure groups, business groups, organisations and government departments.

Question 65

what is the process used by parliamentary committees?

Answer 65

Terms of reference are given when parliament decides to have a committee investigate an issue or matter. They specify the purpose of the inquiry, the issues that must be investigated, and the date by which the final report must be completed. Established through written submissions from interested individuals, experts, groups and organisations within the community.

The media publicises the committee’s investigations and seeks input. This includes advertising in traditional media such as newspapers, and using the internet and social media.

Formal public, or occasionally private hearings are held by committees. They will invite a range of people (experts, group representatives) to provide input, give evidence, and answer questions from committee members. Most committees have the power to call certain individuals and experts, like people who work in government departments, to give evidence.

Committee will prepare a written report once all of the submissions have been received and considered, and all hearings have concluded. Will contain recommendations for law reform or actions and will be presented to parliament for consideration. Made public on parliament’s website.

Question 66

what are the four types of parliamentary committees?

Answer 66

Standing committees: appointed for the life of a parliament to investigate a range of specific issues and provide an ongoing check on government activities. Can be set up solely within each house or can have members from both houses.

Select committees: appointed to investigate a specific issue as the need arises. Ceases to exist once the inquiry is completed. Made from members of only one house.

Joint investigatory committees: appointed in each parliamentary term to examine a range of different issues. Members of both houses. Usually long standing committees (ie. standing) that investigate issues on behalf of parliament.

Domestic committees: appointed to specifically examine issues and matters that relate to internal operations and practices of parliament (admin matters). Members of one house.

Question 67

what is an example of a parliamentary committee recommending law reform?

Answer 67

The commonwealth parliament has an extensive committee system. An example of a federal parliamentary committee is the Senate Standing Committee on Community Affairs.

In 2019, it was asked by the Senate to conduct an inquiry into the Social Services Legislation Amendment (Drug Testing Trial) Bill 2019 (Cth) which requires people who receive unemployment benefits such as Youth Allowance to undergo drug testing in order to receive the payment.

After examining the issues the Committee prepared it’s final report and recommended to the Senate that the Bill be passed.

Question 68

what are four strengths of parliamentary committees?

Answer 68

They have the power to request that specific individuals and representatives of organisations appear at hearings to give evidence and answer questions, which enables them to gain extensive and valuable information for consideration.

Committees play a vital role in ensuring that bills do not breach or impinge on basic rights and freedoms and making sure that the government is provided with independent advice and recommendations for law change.

Committees provide a way for members of the community to give input into the issues being investigated and have their views considered in the parliament’s decision making process.

Final reports enable parliament to be more informed before deciding whether or not to support a bill.

Question 69

what are four limitations of parliamentary committees?

Answer 69

due to limited resources (eg. funding and time) a committee cannot be formed for all worthy issues and concerns.

committees are restricted to examining matters and issues within the scope of the terms of reference and they can be very time consuming and costly.

members of the public may not be aware that a committee inquiry into a specific matter is taking place and calls for public submissions have been made.

No obligation on parliament to support law reforms suggested although may be more likely given that committees consist of members of parliament.

Question 70

what are five general strengths of the courts in responding to the need for law reform?

Answer 70

Courts can respond to the need for law reform by making law in situations where none exists and giving meaning to unclear legislation so it can be applied to resolve the case at hand.

Decisions and comments made by judges can indirectly influence the parliament to change the law (e.g. the Mabo case) by enshrining court decisions.

Judges are politically independent and can make decisions to create and change the law without fearing the loss of voter support.

Judges can declare legislation invalid if it was made ultra vires.

Courts can make a ruling that highlights a problem and in turn raises community awareness for the need for law change

Question 71

what are five limitations of the courts in responding to the need for law reform?

Answer 71

1. Judges in superior courts may be reluctant to change the law (by overruling and reversing existing precedents or broadly interpreting legislation), preferring to leave the law-making to parliament.
2. Judges in superior courts can only make law (including interpret legislation) when a case is brought before them and in relation to the issues involved in that case. This is reliant on parties being willing and financially able to pursue a case.
3. Judges are not elected by the people and may make decisions that do not reflect the views and values of the community.
4. Parliament may abrogate (or cancel) common law (other than cases involving the interpretation of the Constitution).
5. Judges may adopt a more conservative approach and show restraint or caution when making decisions and rulings that could lead to significant changes in the law.

Question 72

what are five general strengths of parliament in responding to the need for law reform?

Answer 72

Parliament has the power to abrogate (cancel) law made by courts (except for decisions made by the High Court in relation to constitutional matters). It can also pass legislation to codify court-made law.

Parliament can make and change laws as the need arises to ensure the law reflects the changing needs, views and values of society.

Parliament can assess the need and community support for law reform by establishing parliamentary committees and royal commissions to investigate the need to change the law. It can also use independent organisations such as the VLRC to investigate the need for law reform.

Parliament can respond quickly to the need for law reform compared to the courts because they do not have to wait for a conflict to arise or an issue to be brought before them before initiating law reform.

Parliament can change the law in anticipation of future needs

Question 73

what are four limitations of parliament in responding to the need for law reform?

Answer 73

Members of parliament may be reluctant to legislate in areas where there are conflicting community views, or the benefits will not be seen for many years, through fear of losing voter support.

Investigating the need for law reform can be costly and time-consuming.

The composition of the houses of parliament can limit the ability of the government to implement law reform. For example, legislative reform can be obstructed if the government does not have a majority in the upper house or a minority government does not have the support of the crossbench.

The parliamentary process to change the law can be very time-consuming (given a proposal for change must pass through several stages of discussion and debate in both houses of parliament and parliamentary sitting days are limited).

Question 74

what factors affect the parliaments ability to make law?

Answer 74

the roles of the houses of parliament
the representative nature of parliament
political pressures
restrictions on the law-making powers of parliament

Question 75

what factors affect the ability of courts to make law?

Answer 75

The doctrine of precedent
Judicial conservatism
Judicial activism
Costs and time in bringing a case to court
The requirement for standing

Question 76

what are the features of the relationship between parliament and courts?

Answer 76

The supremacy of parliament
The ability of courts to influence parliament
The interpretation of statutes by courts
The codification of common law
The abrogation of common law