Unit 4 AOS 2

Question 1

Factors that affect Parliament’s ability to make law

Answer 1

• Roles of the two houses
• Representative nature of law
• Political pressures
• Restrictions on the law-making powers of Parliament

Question 2

Strengths + Weaknesses of the Law Making Process

Answer 2

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

Question 3

Role of the Two Houses

Answer 3

• Hostile houses, minorities and majorities can affect the scrutinisation of bills
• Encourages debate, revision of bills, enabling law reform

Question 4

Representative nature of Parliament

Answer 4

• 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

Question 5

Political Pressures

Answer 5

• Domestic
• Internal
• International

Question 6

Jurisdiction

Answer 6

• Parliament can only legislate within their powers
• S. 109 limits states
• Courts can declare unconstitutional legislation as ultra vires

Question 7

Binding Precedent

Answer 7

Those that must be followed by lower courts in cases with similar material facts

Question 8

Persuasive Precedent

Answer 8

Those that may influence a judge but which a judge is not obliged to follow, created by lower courts

Question 9

Stare Decisis

Answer 9

“To stand by what has been decided”
- Rationale for the doctrine of precedent, inferior courts follow superior precedent

Question 10

Ratio Decidendi

Answer 10

“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

Question 11

Obiter Dicta

Answer 11

“Things said by the way”
- Comments that are not binding but may be persuasive for courts in later cases

Question 12

Precedent

Answer 12

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

Question 13

Avoiding precedent

Answer 13

• 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)

Question 14

Reason for statutory interpretation

Answer 14

• 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

Question 15

Intrinsic materials

Answer 15

Things found in an Act (title, headings, margin notes and foot notes)

Question 16

Extrinsic materials

Answer 16

Sources outside of Act (debates, reports from committees and law reform bodies, dictionaries)

Question 17

Effect of statutory interpretation

Answer 17

• Words or phrases are given meaning
• Decision is binding on parties and precedent is created
• Meaning of legislation is narrowed or broadened

Question 18

Studded Belt Case

Answer 18

• 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

Question 19

Strengths and Weaknesses of the Doctrine of Precedent

Answer 19

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

Question 20

Judicial conservatism

Answer 20

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

Question 21

Judicial activism

Answer 21

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

Question 22

Time

Answer 22

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

Question 23

Costs

Answer 23

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

Question 24

Requirement of standing

Answer 24

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

Question 25

Need for Law Reform

Answer 25

• Change in beliefs, values and attitudes (marriage equality)
• Advancements in technology
• Greater awareness of the protection of rights (Equal Opportunity Act, Discrimination Act)

Question 26

Petitions

Answer 26

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

Question 27

Demonstrations

Answer 27

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

Question 28

Use of the Courts

Answer 28

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

Question 29

Traditional media stat

Answer 29

52% of Australians

Question 30

Role of Media

Answer 30

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

Question 31

VLRC

Answer 31

• 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

Question 32

VLRC case

Answer 32

• 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

Question 33

VLRC pros and cons

Answer 33

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

Question 34

Royal Commissions

Answer 34

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

Question 35

RC case study

Answer 35

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

Question 36

Ability of Parliament to respond to the need for law reform

Answer 36

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

Question 37

Ability of the Courts to respond to the need for law reform

Answer 37

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