Unit 4 AOS 2 Flashcards
Factors that affect Parliament’s ability to make law
- Roles of the two houses
- Representative nature of law
- Political pressures
- Restrictions on the law-making powers of Parliament
Strengths + Weaknesses of the Law Making Process
Strengths:
- Scrutiny (2 houses)
- Representative of the people
- Charter rights
- Parliament can move quickly to make a law when there is a need
Weaknesses:
- Complex and slow
- Rubber stamping affecting scrutiny
- Houses only sit for a limited amount of time each year
Role of the Two Houses
- Hostile houses, minorities and majorities can affect the scrutinisation of bills
- Encourages debate, revision of bills, enabling law reform
Representative nature of Parliament
- Represents the people, makes laws that reflect the values of the majority
- People can use methods to pressure change
- Regular elections give fixed time periods to make changes, but can discourage from pursuing long term reform programs
- Elections allow unpopular govs that don’t represent to be unelected
Political Pressures
- Domestic
- Internal
- International
Jurisdiction
- Parliament can only legislate within their powers
- S. 109 limits states
- Courts can declare unconstitutional legislation as ultra vires
Binding Precedent
Those that must be followed by lower courts in cases with similar material facts
Persuasive Precedent
Those that may influence a judge but which a judge is not obliged to follow, created by lower courts
Stare Decisis
“To stand by what has been decided”
- Rationale for the doctrine of precedent, inferior courts follow superior precedent
Ratio Decidendi
“Reason for the decision”
- It is the binding part of the judgment and is a legal principle, rather than the actual decision or sanction/remedy given
Obiter Dicta
“Things said by the way”
- Comments that are not binding but may be persuasive for courts in later cases
Precedent
The reasoning behind a court’s decision. Establishes a legal rule which must be followed by lower courts in future cases of similar material facts
Avoiding precedent
- Distinguishing (different facts)
- Overruling (superior courts creating new precedent from persuasive, making previous inapplicable)
- Reversing (When decision is appealed, court can create new precedent)
- Disapproving (judge expresses dissatisfaction, still has to follow but can prompt Parliament to review precedent or encourage an appeal)
Reason for statutory interpretation
- Meaning of a phrase or words in statute are confusing, unclear or contain omissions
- Problems applying an Act to a case = drafted in general terms, must be interpreted to apply to specific circumstances
Intrinsic materials
Things found in an Act (title, headings, margin notes and foot notes)
Extrinsic materials
Sources outside of Act (debates, reports from committees and law reform bodies, dictionaries)
Effect of statutory interpretation
- Words or phrases are given meaning
- Decision is binding on parties and precedent is created
- Meaning of legislation is narrowed or broadened
Studded Belt Case
- Plaintiff arrested for having a studded belt - “regulated weapon” and raised studs in the Wrongs Act
- Appealed to the Supreme Court
- Judge interpreted that the belt was being used as an accessory and was not being used as a weapon
- Limited the parametres in which the wording could be applied
Strengths and Weaknesses of the Doctrine of Precedent
Strengths:
- Like cases are decided in like manners
- Judges have guidance and legal rep. can advise on the likely outcome
- Same point is not being decided over and over, saving time and resources
Weaknesses:
- Binding precedents must be followed even if outdated
- Time-consuming, expensive and difficult to identify precedents
- Judges must wait for a case to come to them, cannot change words only the meaning
Judicial conservatism
Pros:
- Judge’s role is to apply the law, not make it or break new grounds. Law making is left to the elected
Cons:
- Change may be necessary, conservatism may hinder their ability to make new laws
Judicial activism
Pros:
- May be progressive and necessary
- Reflects community values
Cons:
- Allows judges to change the meaning of words contrary to the intentions of parliament
- Not elected, so should not really reflect community values
Time
Pros:
- Courts can resolve disputes quickly when the need arises
- Do not have to follow the lengthy processes of law making that parliament does in passing legislation
Cons:
- Backlogs in caseloads
- Pre-trial procedures can delay preparations
Costs
Pros:
- Discourages frivolous and unfounded claims
Cons:
- Can deter litigants who cannot afford the costs and cannot access legal aid in pursuing their case or appeal
Requirement of standing
Pros:
- Ensures cases are only brought to court by people who are genuinely affected
- Encourages those not affected to seek other avenues of redress
Cons:
- People with a general interest have no right to pursue a challenge on behalf of public interest or common good
- Potential improvements to the law from those with an intellectual interest are lost
Need for Law Reform
- Change in beliefs, values and attitudes (marriage equality)
- Advancements in technology
- Greater awareness of the protection of rights (Equal Opportunity Act, Discrimination Act)
Petitions
Pros:
- Simple, inexpensive method to show support
- Lots of signatures show greater community support, increasing pressure
- Those presented to an MP must be tabled and formally responded to
Cons:
- Some are reluctant to sign
- Smaller ones not supported by other means do not succeed
- Do not gain public/media attention, easy to ignore
Demonstrations
Pros:
- Those that attract positive attention increase pressure
- Raise awareness
- Those attract a lot of people highlight community support
Cons:
- Violent, out-of-control ones can lead to a loss of support
- Hard to organise and attract people
Use of the Courts
Pros:
- Challenging existing law can enable vague/unclear laws to be clarified
- Judges independent, not subject to political pressures, consider case in merit
- Have the power to declare “ultra vires”
Cons:
- Courts are reactive, have to wait for a case to come to them
- Judges not elected, do not represent community values
- Parliament can abrogate common law (unless HC interpretation of Constitution)
- Expensive, time-consuming
Traditional media stat
52% of Australians
Role of Media
Pros:
- Can attract community support easily
- Increased people’s ability to be informed of legal processes and law reform
- Parliamentarians have been more active and aware
Cons:
- Oversimplifies complex issues
- Desensitise people to legal issues
- Biased and not always independent, misinformation
VLRC
- Aims to assist Vic Gov. in providing a fair, inclusive and accessible legal system by investigating the need for law reform
- Provides impartial advice and recommendations for change
VLRC case
- March 2020 - inquiry into Victoria’s committal system, regarding whether it needed to be abolished, replaced or reformed to ensure it best supported victims, witnesses and procedural fairness for accused
Some areas it investigated to make reforms to:
- Minimise the trauma to victims/witnesses, including the need to give evidence multiple times and offering best support for victims
- Ensure rights of the accused are upheld
- More efficient uses of the courts’ time
- Encourage appropriate early guilty pleas
VLRC pros and cons
Pros:
- If government refers an issue, more likely the recommendations will be acted upon
- Independent of gov. and can get input directly from the community (values, views)
- Investigates minor law reform issues without referrals
- Can complete comprehensive investigations of issues and access expert opinion
Cons:
- May only investigate major areas with a referral
- Gov. is not obliged to implement recommendations
- Limited to its resources
- Investigations time-consuming and expensive
Royal Commissions
Pros:
- Can use the findings and recommendations to justify the need for change
- Raise community awareness and interest in areas of concern
- Government more likely to act when they ask RC to investigate
- Measure community views (consultations, public submissions)
Cons:
- RC lose credibility when gov. doesn’t include areas of investigation that may be damaging for them
- Effect on law-reform is mixed (may need bipartisan support)
- Can be used as tool against political opponents, avoid getting on with difficult legislation
- No obligation for parliament to support or introduce law reform
RC case study
Royal Commission into the Management of Police Informants
- Lawyer X had a legal obligation of confidentiality and privilege to her clients, could not reveal information give to her without her clients’ permission
- Ms. Gobbo used between January 1995-2009
- RC investigated how many times and the extent to which her conduct affected the outcome of cases. plus whether the VP should recruit people who are subject to legal privilege
- $28 million, finished in November 2020
- Discovered many faults in the VP’s informant processes
- Review of more than 20 cases, Faruk Orman’s conviction overturned on the basis of tainted evidence
Ability of Parliament to respond to the need for law reform
Pros:
- Elected by the people, supreme law making body with power to change/make any laws within its powers
- Can change/make laws to reflect the views of society
- Get input from experts and public to help guide them
- Abrogate common law to ensure it reflects community views and values
Cons:
- Can be slow to change controversial laws - fear of voter backlash
- Financial/budgetary restrictions can limit them
- Investigations can be time-consuming, resource intensive
- Can abrogate sound common law for political advantage
Ability of the Courts to respond to the need for law reform
Pros:
- Make law where none exists, give meaning to unclear legislation
- Decisions and comments can lead to reform through legislation
- Independent and don’t make decisions with regard to voter support
- Can declare unconstitutional legislation ultra vires
Cons:
- Conservative judges are reluctant to overturn established precedent
- Judges are reactive
- Don’t reflect community values
- Parliament can abrogate common law
