Unit 4: Area of Study 2 - The People, the Parliament and the Courts Flashcards
(142 cards)
1
Q
Majority Government
A
Is a Government that holds the majority of seats in the Lower House
2
Q
Factors that Affect the Ability of Parliament to Make Law
A
- The Roles of the Houses of Parliament
- The Representative Nature of Parliament
- Political Pressures
- Restrictions on the Law-Making Powers of Parliament
3
Q
Minority Government
A
Is a Government that does not hold a majority of seats in the Lower House, and therefore has to rely on the support of Minor Parties and Independents to form Government
4
Q
Rubber Stamp Upper House
A
Is where the Government holds the majority of seats in both Houses and therefore automatically approves the decisions that are made in the Lower House because the members of the Government generally vote along their Party’s values, leading to minimal opposition against a Bill
5
Q
Hostile Upper House
A
Is where the Government does not hold a majority of seats in the Upper House and therefore has to rely on the support of the Opposition or the Crossbench to have their Bills passed. An Upper House that acts in a hostile manner is able to fore amendments to Government Bills or block proposed Legislation
6
Q
How a Majority Government Assists the Parliament’s Ability to Make Law (List 2)
A
- A Bill needs to be passed in this House and the Senate to become a Law
- It ensures that the Parliamentary Law-Making process is rigorous and thorough
- It encourages the Parliament to produce effective and just laws which reflect the views and needs of the majority of the community
7
Q
How a Minority Government Assists the Parliament’s Ability to Make Law (List 2)
A
- A Bill needs to be passed in the Upper House and the House of Representatives to become a Law
- It ensures that the Parliamentary Law-Making process is rigorous and thorough
- It encourages the Parliament to produce effective and just laws which reflect the views and needs of the majority of the community by scrutinizing Bills
8
Q
How a Rubber Stamp Upper House Assists the Parliament’s Ability to Make Law
A
The Government can easily make pass Bills and make Law due to them holding the majority of seats in both Houses
9
Q
How a Hostile Upper House Assists the Parliament’s Ability to Make Law (List 2)
A
- It can assist the effectiveness of the Parliament as a ‘Law-Maker’, as it can ensure Bills are more thoroughly scrutinized
- It ensures that a wider range of views and community interests are reflected in the Legislation
- Can assist in rigorous and thorough debate, meaning that Bills have been well thought through and all aspects of it has been considered
10
Q
How a Majority Government Limits the Parliament’s Ability to Make Law
A
By producing Laws that are effective and reflect the needs of the majority of the community, it can slow the process of Law Reform
11
Q
How a Minority Government Limits the Parliament’s Ability to Make Law
A
By producing Laws that are effective and reflect the needs of the majority of the community, it can slow the process of Law Reform
12
Q
How a Rubber Stamp Upper House Limits the Parliament’s Ability to Make Law (List 2)
A
- There is very little discussion and negotiation of a Bill and making the Law, since the Government has the majority in both Houses, essentially ‘controlling’ them
- It gives the Opposition, Independents and Minor Parties the ability to force amendments to, or block, Government bills which can obstruct the ability of the democratically elected Government to implement its legislative program
- It can also allow Independents and Minor Parties to hold a disproportionately high level of power compared to their relatively low voter base
13
Q
How a Hostile Upper House Limits the Parliament’s Ability to Make Law (List 2)
A
- It is very difficult getting any Bill through the Upper House
- It can obstruct the ability of the Government to implement its policy agenda, usually for the Parliamentary Member’s own reasons
- It allows Independents and Minor Parties to hold a very high level of power, compared to their relatively low voter base, which can be seen as an undemocratic restriction on the Parliament’s Law-Making ability
14
Q
Representative Government
A
Is a Government where the people elect representatives to govern on their behalf
15
Q
Characteristics of the Representative Nature of Parliament (List 2)
A
- A Representative Democracy in Australia is achieved through Sections 7 and 24 of the Constitution which provides the right to citizens to vote and elect Politicians to represent them.
- They should be upheld through regular Elections
- The members who are viewed as not representing the interests of their Electorate will be replaced
- A point of view may get considerable media coverage, but not actually represent majority views
-
16
Q
The Representative Nature of Parliament: The Views of the Majority
A
- If Law made by Parliament does not represent the views of the majority, it is likely that the Government will be voted out at the next Election
17
Q
The Representative Nature of Parliament: Regular Elections
A
Elections may limit Law-Making by providing Governments with a short-term focus, such as aiming to win the next Election
18
Q
Sources of Political Pressures
A
- Domestic Pressures
- Internal Party Politics
- International Pressures
19
Q
Domestic Pressures
A
- Organisations can be well funded and be very persuasive through expensive ad campaigns. Governments can avoid difficult issues if it means they risk losing the next Election
20
Q
Internal Party Politics
A
- Is where voting on party lines causes Politicians to vote against their values, or the desires of their Electorate. Disagreements within a party can slow the process of Law-Making down
21
Q
International Pressures
A
- These pressures can affect the types of Legislation that is or is not introduced. International Treaties can lead to Law Reform in Australia
22
Q
Jurisdictional Limitations
A
Is where Parliament can only make Laws within its area of power
23
Q
Specific Prohibitions
A
Is when the Constitution expressly bans Parliament from making Laws in an area
24
Q
Ways that the Commonwealth Parliament is restricted in Law-Making (List 2)
A
- Through Residual Powers, unless given power by the interpretation of the Constitution by the High Court or a Referendum.
- If it is out of their Jurisdiction
- Cannot make a national religion or force individuals to practice a religion
- Changing the wording of the Constitution
25
Ways that the Victorian Parliament is restricted in Law-Making (List 2)
- If it is out of their Jurisdiction
- If it concerns Military or Naval Forces
- Creating a new currency
- Changing the wording of the Constitution
26
The Court Hierarchy (From Bottom to Top)
- Magistrates' Court
- County Court
- Supreme Court (Trial Division)
- Supreme Court (Court of Appeal)
- High Court
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When do the Courts Make Law?
- When the Court is asked to resolve a dispute where there is no existing Law
- When the Court is asked to resolve a dispute where there is an existing Statute, but the words require interpretation because the Law is ambiguous
28
The Doctrine of Precedent
Is the process where Judges follow the reasons for their decisions, which are given by the Courts that are higher then them in the Court Hierarchy when deciding on similar future cases
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The Key Features of the Doctrine of Precedent
- Persuasive Precedent
- Ratio Decidendi
- Obiter Dictum
- Binding Precedent
- Stare Decisis
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Persuasive Precedent
Is the legal reasoning behind a decision of a lower (or equal) Court within the same Jurisdiction, or a Court in a different Jurisdiction that may be considered relevant, and therefore used as a source of influence even thought it is not binding
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Ratio Decidendi
Is a term that means 'The Reason'; the legal reasoning behind a Judge's decision. This forms the binding aspect of a Precedent
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Obiter Dictum
Is a term that means 'By the Way'
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Binding Precedent
Is the legal reasoning for a decision of a Higher Court that must be followed by a Lower Court in the same Jurisdiction in cases where the key facts are similar
34
Stare Decisis
Is a term that means 'Let the Decision Stand', which is the basic principle underlying the Doctrine of Precedent
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The Key Features of Developing and Avoiding Precedent
- Reversing a Precedent
- Overruling a Precedent
- Distinguishing a Precedent
- Disapproving a Precedent
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Reversing a Precedent
This is where a Superior Court changes a previous Precedent set by a Lower Court in the same case in Appeal, thereby creating a new Precedent which overrides the earlier Precedent
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Overruling a Precedent
This is when a Superior Court changes previous Precedent that was established by a Lower Court, in a different and later case, thereby creating a new Precedent which overrules the earlier Precedent
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Distinguishing a Precedent
Is the process by which a Lower Court decides that the main facts of a case are sufficiently different to that of a case in which a Precedent was established by a Superior Court, so that they are not bound to follow it
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Disapproving a Precedent
Is when a Court expresses its dissatisfaction of an existing Precedent, but is still bound to follow it
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Statutory Interpretation
Is the process by which Judges give meaning to the words or phrases in an Act of Parliament, so it can be applied to resolve the case before them
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Reasons for Statutory Interpretation
- Broad or General Wording
- New Technology
- Changing Values
- Unintended Consequences
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Reasons for Statutory Interpretation: Broad or General Wording
Most Legislation will use general and broad terms in drafting but will need to apply to specific circumstances. The Courts therefore can give precise meanings to general terms. Words such as 'weapon' may need to be clarified in the context of a particular case
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Reasons for Statutory Interpretation: New Technology
New technology may develop faster than Parliament can keep up. There may also be a need to interpret the Constitution to determine if the Commonwealth Parliament has the power, with respect to a new technology
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Reasons for Statutory Interpretation: Changing Values
Society's views and the meaning of words and Laws can change over time. For example, views on requirements for 'consent' are evolving, and notions of gender or marriage have considerably shifted
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Reasons for Statutory Interpretation: Unintended Consequences
Laws sometimes Sometimes laws can be used in ways that are unintended by Parliament. Defensive Homicide laws in Victoria, intended to protect women who killed their husbands as a result of domestic violence, were instead used by men to justify murdering their partners. This was not something fixed by Statutory Interpretation. Parliament Repealed the law
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Case Regarding Statutory Interpretation
The Studded Belt Case
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Summary of the Studded Belt Case
The Defendant was wearing a black leather belt that had raised metal studs on it. He was arrested by police because he was 'possessing a weapon.' He was found guilty at the Magistrates' Court because they found that the belt was a "regulated weapon."
He Appealed to the Supreme Court, under the Weapons Act which stated that "A person must not possess, carry or use any regulated weapon without a lawful excuse." Under this followed a list of weapons. The Defendant Appealed on the fact that a studded belt was not a regulated weapon.
The Supreme Court decided that the studded belt was not a regulated weapon, even though it could be used as one. The Defendant had a "lawful excuse" for possessing the belt, which was to hold up his pants, therefore he did not intend to use it as a weapon.
48
Effects of Statutory Interpretation
- The Parties will Receive a Binding Resolution
- The Meaning of Legislation can be Restricted or Expanded
- Precedent may be Set for Future Cases to Follow
- Words or Phrases of the Statute are Given Meaning
49
Effects of Statutory Interpretation: The Parties will Receive a Binding Resolution
Once the Legislation has been interpreted, it can be applied to the case. It will make clear the application of the law in the particular case, pending any Appeal
50
Effects of Statutory Interpretation: The Meaning of Legislation can be Restricted or Expanded
The interpretation given to the words may be more restricted or be more expansive
51
Effects of Statutory Interpretation: Precedent may be Set for Future Cases to Follow
If a decision of a Superior Court is given that interprets the meaning of words and phrases, that is Binding on later Courts, and the Act will be read together with the Precedent
52
Effects of Statutory Interpretation: Words or Phrases of the Statute are Given Meaning
This is where specific words or phrases of Statutes are given meaning and will be solidified in Precedent
53
Case Regarding the Effects of Statutory Interpretation
Is Ciabatta Bread? Case
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Summary of Is Ciabatta a Bread? Case
The Plaintiff took the Australian Taxation Office (ATO) to Court after it was ruled that is mini Ciabatta was a biscuit, not a bread, therefore he had to pay no GST.
If his product attracted GST, he would owe the ATO $85,000. The Federal Court found in favour of the ATO as the Ciabatta was broken during the hearing and cracked like a cracker. The Plaintiff therefore was liable and had to pay GST
55
Factors that Affect the Ability of the Courts to Make Law
- The Doctrine of Precedent
- Judicial Conservatism
- Judicial Activism
- Costs and Time of Bringing a Case to Court
- The Requirement for Standing
56
How the Doctrine of Precedent Assists the Court's Ability to Make Law (List 2)
- If Statute Law of Common Law doesn't exist or it is unclear, Judges can create new and applicable Law
- Judges of Superior Courts can overrule or reverse a decision of a Lower Court, thereby developing Law
- If a Party is able to distinguish from another case, the Court does not have to follow Precedent and may create new Law
- Judges can disapprove Laws, which may encourage Superior Courts to set new Precedent
57
How the Doctrine of Precedent Limits the Court's Ability to Make Law (List 2)
- Laws can only be developed when a case is brought to the Superior Courts, and can only occur when a Party has Standing
- Law can only be developed where there is no existing Law or if a Law is not clear
- Judges may be conservative and unwilling to make new Law
58
Advantages of the Doctrine of Precedent (List 2)
- Judges can reverse Precedents
- Judges can overrule Precedent
- Judges can distinguish the Precedent
- Judges can make Law Ex Post Facto
- Parliament can overrule Common Law, with the exception of the High Court on Constitutional matters
59
Disadvantages of the Doctrine of Precedent (List 2)
- There may be reluctance to overrule the Precedent
- Judges must wait for a case to come before them
- The Judges are required to clarify some issues or matters
- Binding Precedent is limiting on the Courts, which means that in many instances the Court is unable to change the Law, even if it is needed
60
Ex Post Facto
Is a term meaning ' Out of the Aftermath' and describes a Law that is established in relation to an event that has already taken place
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Judicial Conservatism
Is the reluctance of a Judge to develop new Law due to their traditional views and beliefs
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How Judicial Conservatism Assists the Court's Ability to Make Law (List 2)
- It can lead to small, incremental changes in the Law
- It helps maintain stability in the Law because Judges are cautious and show restraint when making decision that could lead to significant changes in the Law
- It lessens the possibility of Appeals on a Question of Law
- It allows the Parliament, which has the ability to reflect the views and values of the community to make more significant and controversial changes in the Law.
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How Judicial Conservatism Limits the Court's Ability to Make Law (List 2)
- The Common Law remains unchanged despite the changes in community values
- The development of the Common Law can be restricted because conservative Judges are unwilling to change Law
- It restricts the ability of the Courts to make major and controversial changes in the Law
- It can discourage Judges from considering a range of social and political factors when making Law
- It may be seen by some as not being progressive enough and not factoring in 21st Century views or values when deciding cases
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Judicial Activism
Is when a Judge considers a range of social and political factors when interpreting Acts of Parliament and deciding cases, not just the matter before them
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How Judicial Activism Assists the Court's Ability to Make Law (List 3)
- Judges believe that they have a broader responsibility to take a holistic view of their decisions
- Judges consider their secondary role as Law-Makers in their decision making
- Judges can develop the Law by placing pressure on the Parliament to change Legislation
- As the High Court is not bound by Precedent, they have the most scope to engage in Activism and change the Law
- It allows Judges to broadly interpret Statutes in a way that recognise the rights of the people
- It allows Judges to consider a range of social and political factor and community views when making a decision, which may lead to more fair judgements
- It allows Judges to be more creative hen making decisions and making significant legal change
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How Judicial Activism Limits the Court's Ability to Make Law (List 2)
- Progressive Judges changing the Law may lead to inconsistency and confusion
- The Courts must wait for a case to come before them before they can influence the Law
- It can lead to more Appeals on a Question of Law
- It can lead to Courts making more radical change in the Law that do not reflect the community's values or are beyond the community's level of comfort
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How Costs Assists the Court's Ability to Make Law (List 1)
- The Court's are able to manage disputes so that the issues in a dispute are narrowed, possibly saving the Parties' costs and allowing them to proceed to the final determination
- The high costs may mean that only important and legitimate claims are pursed all the way to Appeal Courts
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How Time Assists the Court's Ability to make Law (List 2)
- Judges are not bound by the procedures in Parliament to make a Bill, so it can create Law more quickly and easily
- Courts can make Law relatively quickly once a dispute has been brought before them and cases must continue until a decision has been made to resolve the dispute
- Courts are not required to follow lengthy process like those that are involved in the process of developing, drafting and passing a Bill through Parliament when deciding cases
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How Costs Limits the Court's Ability to Make Law (List 2)
- High costs can deter the Plaintiffs who cannot afford these costs, and who do not quality for Legal Aid from pursuing their case and their rights in Court
- High Costs can deter the Parties' from pursuing the Appeals process
- Costs can discourage the Parties' from pursing a case, thereby limiting the number of cases, which may allow the development of Common Law
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How Time Limits the Court's Ability to Make Law (List 2)
- The time taken for cases to reach the Superior Courts can delay the development of the Law
- Some Courts, particularly the Courts of Appeal where most Precedents are established, can take months to hear and determine more complex cases
- The Parties' can be delayed in getting a case ready for trial
- Time can discourage Parties; from pursuing a case, thereby limiting the number of cases which may allow the development of Common Law
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Standing
Also known as 'Locus Standi' is a principle that only the people who are directly affected by the operation of a Law are able to bring the matter before the Courts for resolution
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In what situations does a Party have Standing (List 2)
- A family who has had their house destroyed
- A Public Interest Group challenging a Government decision that could have public concern
- A Trade Union challenging a Government decision that may impact its members
- A business challenging a Government decision that may be favourable to a rival business
- A member of the public challenging a Government decision that affects them
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How the Requirement for Standing Assists the Court's Ability to Make Law (List 1)
- It ensures that cases are only brought to Court by the people who are genuinely affected by an issue or matter, rather than wasting valuable Court time and resources on listening to people who are not affected by a matter
- It ensures that the people who are not directly affected by the issue or matter to seek other avenues of resolution, other than Court, such as Petitioning
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How the Requirement for Standing Limits the Court's Ability to Make Law (List 2)
- The Requirement for Standing limits the ability of people who may want to change the Law from doing so
- It means that those without Standing will have to seek other means to initiate change, such as Petitioning
- Potential improvements to the Law are missed, as the only voices that are being heard are those with Standing
- It means that people that have a general interest in a case have no right to pursue a legal challenge on the behalf of public interest or the common good
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The Features of the Relationship Between the Courts and Parliament in Law-Making
- The Supremacy of Parliament
- The Ability of the Courts to Influence Parliament
- The Interpretation of Statutes by the Courts
- The Codification of Common Law
- The Abrogation of Common Law
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The Supremacy of Parliament
- Parliament can always override the Courts as long as it acts within its Jurisdiction
- The Parliament can also establish and define the power of the Courts
- The Parliament can alter the Jurisdictions of the Courts
- Parliament can also pass Laws to restrict what the Courts can make decisions about
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The Abilities of the Courts to Influence Parliament
- Judges can provide feedback to Parliament through their Obiter Dictum in a case, being forced to make a decision because the Doctrine of Precedent resulted in an unjust outcome and the Courts can Abrogate or Codify Law
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Abrogation
Is where Common Law is abolished by passing an Act of Parliament
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Codification
Is collecting all the Law on one topic together into a single Statute
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Statute
Is a Law made by Parliament; the Bill has passed through both Houses of Parliament and has received Royal Assent
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The Interpretation of Statutes by the Courts
Courts may be asked to interpret Statutes in order to resolve disputes which come before them. By clarifying the meaning of the words, they are clarifying the Legislation which can narrow or broaden the meaning of the Legislation. However, for this to happen, a case must be brought before the Courts
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The Codification of Common Law
Codification is rarely a 'word-for-word' substitution of Legislation for Precedent, but can arrange the principles into a more organised statement of the Law. Usually, the Codification will adopt some of the principles from the Precedent, but offer further clarification, alter detains or expand or restrict the application of the Common Law
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The Abrogation of Common Law
- The Abrogation of Common Law can be Express (abolished) or Implied (is where a new Law is incompatible with an old one
- A common cause for Abrogation is where an older Precedent is o longer keeping up with modern values or technology
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Reasons for Law Reform
- Community Value Shifts
- Changes in Social, Economic and Political Conditions
- Advances in Technology
- The Protection of Society
- Significant Events
- Improving the Legal System
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Reasons for Law Reform: Community Value Shifts
The values of society change over time. It is important for the Law to keep up with these values and reflect the general views and beliefs of the community
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Example of Law Reform Due to Community Value Shifts
Community values regarding sexuality and marriage have changed over time, and the law has adapted gradually. Until 1949, Homosexual sex was a crime and was punishable by the death penalty. Homosexuality was decriminalised in 2008 in Victoria and in 2015, criminal charges for Homosexuality were expunged (taken off a persons criminal record) in Victoria. Marriage equality was legalised for all Australians in 2017
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Reasons for Law Reform: Changes in Social, Economic and Political Conditions
Changes in society such as changes in population, wealth or politics can bring about the need for changes to the Law in order to resolve issues
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Example of Law Reform Due to Changes in Social, Economic and Political conditions
Counter-Terrorism Laws were changed due to the increase in terrorism. These new Laws meant that it is more difficult for individuals who are charged with terrorism offences to be granted Bail and once a person is found guilty, they are ineligible for Parole
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Reasons for Law Reform: Advances in Technology
Even though Parliament's law apply 'In Futuro', not all technology can be anticipated when writing laws. Sometimes an issue can only be known after the technology has been implemented
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Example of Law Reform Due to Advances in Technology
Driverless cars pose legal and social issues. The Victorian Parliament passed the Road Safety Amendment (Automated Vehicle) Act 2018. The road rules assumed a driver was in charge of a vehicle until this time. The Legislation allowed the trialing of driverless vehicles; the permit holder for the driverless vehicle is liable for any offences committed by this vehicle
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Reasons for Law Reform: The Protection of Society
From time to time it becomes evident that the current laws do not protect society as well as they could. Parliament will need to change the laws, particularly to protect those who cannot protect themselves
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Example of Law Reform Due to Protecting Society
Victoria introduced stricter Bail laws in the wake of the Bourke St killings. James Gargasoulas was released on Bail days before driving through Bourke Street and killing and injuring many people. The Bail Act (1977) was amended to be tougher on bail decisions, ensuring that community safety is a higher priority when considering Bail. Bail will be refused, except in exceptional circumstances for crimes of Rape, Kidnapping and Armed Robbery
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Reasons for Law Reform: Significant Events
A significant event, such as a violent murder of an individual can provoke the need for change in the Law
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Example of Law Reform Due to Significant Events
- The violent Rape and Murder of Jill Meagher in 2012 created outrage, and brought about changes to the Victorian Parole System
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Reasons for Law Reform: Improving the Legal System
Law Reform can sometimes be required to better achieve the Principles of Justice
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Example of Law Reform Due to Improving the Legal System
The Introduction of the Koori Court enabled fairer Access to the Justice System for Indigenous Australians
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Law Reform
Is the process of constantly updating and changing the Law so it remains relevant and effective
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How Individuals can Influence Law Reform
- Petitions
- Demonstrations
- The use of the Courts
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Petitions
Are formal documents that request a change in the Law and include the signatures of the people who agree with the change in the Law
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Strengths of Petitions (List 2)
- It can be used by citizens to make direct contact with the relevant Minister
- A large number of signatures indicates a large amount of support about an issue
- Even if the Legislation does not change, the Petition may raise public awareness about an issue
- Online Petitions are easy to set up and enable access for members of the public to submit and sign Petitions online and to track their progress
- Petitions are a relatively simple, easy and inexpensive way for people to show their desire for a change in the Law
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Weaknesses of Petitions (List 2)
- The Minister tabling the Petition may have little influence over Government policy
- It is difficult to gain a large number of signatures
- Petitions are not as visual, so it doesn't translate so well compared to a news story
- Online Petitions can only be accepted through the Parliament's website
- Some people are reluctant to place their name, address or email address on a Petition
- Some people may sign a paper signature more than once, which compromises the integrity of the Petition
- Parliaments receive hundreds of Petitions each year, so there is no guarantee that the suggested Law Reform will be adopted
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How Petitions can Influence Law-Making
Petitions can influence Law-Making by bringing the issue to the attention of Parliament. A large number of signatures demonstrates a high level of support on an issue, leading to a higher chance of Law Reform
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Demonstrations
Are gatherings of people who protest their common dissatisfaction with an existing Law
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Strengths of Demonstrations (List 2)
- Demonstrations that attract large numbers of participants can attract free positive media attention
- Demonstrations can arouse public interest, especially of the relevant Minister
- Demonstrations can raise social awareness, making members of the public think about the issue for the first time, which can eventually bring upon change
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Weaknesses of Demonstrations (List 2)
- Demonstrations are ineffective without large amounts of people
- Demonstrations are not very effective if they have no media coverage
- Demonstrations can attract protestors from the opposing side, which may undermine the initial cause
- Demonstrations are often single events that may not generate ongoing support for the desired Law Reform
- Demonstrations can be difficult and time-consuming to organise and attendance can be affected by factors such as the location of the demonstration and the weather conditions
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How Demonstrations can influence Law Making
Demonstrations can influence Law Making by bringing an issue to the attention of the community will possibly gain their support and therefore the issue will be brought to the attention of Parliament
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How Individuals can Influence Law Reform: The Use of the Courts
Individuals can pursue a matter through resolving it in the Courts. They must have Standing and may be a criminal or civil matter. Also, they may Appeal to a higher Court in attempt to overrule a previous Precedent
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Strengths of Using the Courts as a Means of Law Reform (List 2)
- Court cases may bring the issue to the attention of the
community which may lead to Parliament changing the Law
- A finding against the person seeking change may raise awareness and encourage change in Parliament
- The case may gain media interest which can influence the community or the Parliament
- Judges can rule that Legislation made outside the power of Parliament is invalid
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Weaknesses of Using the Courts as a Means of Law Reform (List 2)
- Large costs are involved with cases that are resolved through the Courts
- The Individual must have Standing to be able to bring the matter to the Courts
- The Court processes can take some time and may be Court backlogs
- Courts are limited in their ability to change the Law because they can only do so when a case is brought before them and only in relation to the issues in the case
- Judges must wait for a party to challenge the authority of Parliament to legislate before they can make a ruling and declare Legislation invalid
- Judges are unelected and their decision and comments may not necessarily represent the views and values of the community
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How the Courts can Influence Law Making
Bringing an issue to the attention of the superior Courts can form Precedent for all the Courts in that Jurisdiction. Changing the Common Law in the superior Court may prompt Parliament to change the Law. Even if the Courts do not change the Law, it may raise awareness and Parliament may choose to change the Law
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Traditional Media
Are conventional ways that information is sent out and received, such as via newspapers, televisions, magazines and radios
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Strengths of Using Traditional Media to Influence Law Reform (List 3)
- Traditional Media can influence Law Reform through its ability to examine, discuss and inform people about legal issues and possible changes to the Law
- Traditional media can shape the views and attitudes of their audience depending on the manner in which they present a legal or political issue or argument
- Television programs such as A Current Affair often contain segments about the need for Lew Reform and possible changes to the Law
- Television programs provide a forum for political parties and MP's to outline their policy stance on Law Reform, explain their actions and be held accountable for their views on Law Reform
- Some television programs investigate problems in our community to inform the public of injustices and the need for change in the Law
- Programs such as Four Corners can influence public opinion and assist Governments to decide whether there is sufficient community support for a change in the Law
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Weaknesses of Using Traditional Media to Influence Law Reform (List 2)
- Traditional forms of media may not always present information in an unbiased and independent manner
- This type of media tends to reflect the political interests of their owners
- Television, radio producers and newspaper editors can manipulate content in an attempt to alter the community's perception of a particular individual or pressure group if the owner of their media organisations do no support their views
- More broadcasting time can be given during radio and televisions interviews to individuals, pressure groups and MP's who support the views that are held by the owners of the media organisations
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Social Media
Are a range of digital tools, applications and websites, such as Facebook and Twitter, that are used to send out and receive information in real time between large groups of people
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Strengths of Using Social Media to Influence Law Reform (List 3)
- Exposing social issues and injustices can create community awareness
- Social Media users can create interest in, and raise awareness of legal issues on a large scale
- 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 and awareness of legal and political issues, an the need for Law Reform
- Social Media connects people around the world and can be used by Global Reform Movements to create local branches to influence Law Reform on global issues at a domestic level
- Social Media can give individuals, groups and organisations direct access to political parties and local members of Parliament to gain insight into their views on legal issues and receive up-to-date information, which can in turn increase accountability for political entities' actions
- Lawmakers themselves, particularly MP's and Government Departments and bodies can monitor Social Media coverage, including remarks in online comment forums to measure public opinion and public responses to recent events and proposed Law Reform
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Weaknesses of Using Social Media to Influence Law Reform (List 2)
- People who place information, opinions, images and videos on Social Media do not generally follow the codes of ethics that are adhered by many Traditional Media organisations. This means much of the information on Social Media is inaccurate, authenticated or impartial
- 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 that are based on limited facts and knowledge. This means that individuals may make decisions about Law Reform without having a basic understanding of the issue involved
- Excessive exposure to graphic or vivid images may cause people to feel overwhelmed and become desensitised to social, political and legal injustices
- Owners of Social Media platforms have struggled to stop the spread of harmful or inaccurate stories in the past, given how fast they can be shared
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The Victorian Law Reform Commission (VLRC)
Is an independent body that was established to investigate, suggest, educate individuals on the matters regarding Law Reform and make recommendations to the Victorian Parliament about possible changes to Victoria's Law
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The Roles of the VLRC (VLRC) (List 2)
- To examine and report on any proposal or matter that has been referred to it by the Victorian Attorney General and to make recommendations to the Attorney General for Law Reform
- To investigate any minor legal issues that the VLRC believes is of general concern within the community and report back to the Attorney-General with suggestions for Law Reform. This means that the VLRC can also examine minor issues without a reference from the Attorney-General, provided the review will not consumer too many of its resources
- To monitor and coordinate Law Reform and activity in Victoria, including making suggestions to the Attorney-General that they refer to as a legal issue or a matter relating to Law Reform
- To undertake educational programs and to inform the community on any area of the Law that is relevant to its investigations or references. This means the the VLRC has a responsibility to deliver programs to help inform the community about what they are doing and provide a range of information about its investigations and references on its websites. This can be done by visiting schools across Victoria to talk to students about their role and past and present projects
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Strengths of the Victorian Law Reform Commission (VLRC) to Influence Law Reform (List 2)
- The VLRC can investigate some matters without reference from the Attorney-General
- The VLRC consults broadly with the community, so the recommendations should reflect community opinions
- 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 suggest that it can be highly influential on the Victorian Parliament. All or some of its recommendations are adopted in 70% of cases
- The VLRC is able to investigate Reforms in detail and has access to experts, meaning that they are more likely to solve the problem in question
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Weaknesses of the Victorian Law Reform Commission (VLRC) to Influence Law Reform (List 2)
- There is no obligation on the Government to enact any of the recommendations
- The Victorian Law Reform Commission is restricted to research those matters that are referred by the Attorney-General since the projects that are initiated by the VLRC are minor
- There is wide consultation with the community, which is time-consuming and enquiries may take between 1-2 years
- The Victorian Law Reform Commission 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
- Investigations can be costly and the Victorian Law Reform Commissions has a limited budget, so not all matters can be investigated
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Case Study Regarding the Victorian Law Reform Commission (VLRC)
Neighbourhood Tree Disputes
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Summary of the Neighbourhood Tree Disputes Case Study
Neighbours frequently have disputes over trees such as overhanging branches, unsafe trees, tree roots causing damage. The law regarding trees is complex and hard to find. Processes to resolve disputes can be difficult and expensive. VLRC began an investigation in June 2017 to explore the issues involved. Consultation paper delivered December 2017 which outlined the current law, the problems, and the questions the VLRC wanted answered by experts and the community.
The VLRC conducted 16 formal consultation sessions.
They received 124 responses to a community survey. A report that was delivered to the Attorney-General in July 2019 recommended that a new act be developed so that all laws relating to neighbourhood trees are in the one place. Disputes should be resolved informally with neighbours where possible, such as Mediation.
Education should be available for the community to learn about this new act. When not able to resolve informally, disputes should be managed by VCAT. The report was tabled in parliament in November 2019.
The Attorney General expressed support for all of the 63 recommendations. None have yet been implemented - the government has not set a timeline for this implementation.
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Royal Commission
Is an independent body, established by the Queen's representative; the Governor (State level) or Governor-General (Federal level) on the recommendation of the Government to investigate a particular issue. They are the highest form of inquiry into matters of public concern and importance
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Processes that are Used by Royal Commissions
- Consultation, Research and Background Papers
- Consultation Sessions
- Public Hearings
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Processes that are Used by Royal Commissions: Consultation, Research and Background Papers
These are prepared to provide information to interested Parties and the community and form the basis for discussion an submissions
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Processes that are Used by Royal Commissions: Consultation Sessions
These sessions are held with those with interest, experience or expertise in the issue and can gain input, views and opinions from a range of individuals and organisations
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Processes that are Used for Royal Commissions: Public Hearings
These may be held or the Commission may sit in private to gather evidence that is relevant to the terms or reference. Royal Commissions have extensive powers to gather evidence under oath
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Example of a Royal Commission
The Royal Commission into the Management of Police Informants
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Why was the Royal Commission into the Management of Police Informants Established?
The Victorian Government established the Royal Commission because Nicola Gobbo broke the principle of 'Legal Obligation of Confidentiality and Privilege' and was a police informant, leaking private information from her clients to the police without their permission, meaning that they went to jail because this information was used against them
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What was the Royal Commission into the Management of Police Informants Terms of Reference?
- The number of times and the extent to which the conduct of Nicola Gobbo, in becoming a police informant for Victoria Police between January 1995 and January 2009 affected the outcome of Criminal Cases during that period
- The conduct of current and former police in disclosing their use of Ms Gobbo as a police informant
- The effectiveness of the processes in place at Victoria Police governing how people who are subject to legal obligations of confidentiality or privileges are recruited and managed
- Whether the police should recruit and use people who are subject to legal privilege during investigations of Criminal Cases and if so, how the use of these people might be best managed
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Who Managed The Royal Commission into the Management of Police Informants?
Margaret McMurdoc
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How Was Evidence Gathered Regarding The Royal Commission into the Management of Police Informants?
Advertisements were placed in major newspapers and their website
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What Did the Royal Commission into the Management of Police Informants Discover?
It found many faults in Victoria Police's police informant processes and the Criminal Justice System and led to the review of more than 20 cases
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Strengths of Royal Commissions (List 3)
- Royal Commissions investigate an issue, compel witnesses and consult experts which means that they gain a detailed understanding of the issues and can recommend suitable Reforms
- The Royal Commission's report is tabled in Parliament, so it is brought to the attention of Politicians, and the public, so there may be greater influence to implement Law Reform
- Royal Commissions can investigate a broad range of issues
- Governments can use the findings and recommendations of Royal Commissions to justify the need to make changes in the Law and Government policy
- Royal Commissions can measure community views on areas of investigation by holding consultations and receiving public submissions
- Royal Commissions can investigate an area comprehensively so the Government can initiate a new Law that covers an area that is inquired about
- Royal Commissions have the power to call anyone to appear before them to give evidence
- Royal Commissions are independent of Parliament, and more likely to remain objective and unbiased in making their recommendations
- Royal Commissions are independent of the Government and therefore are free from political influence
- They can compel witnesses to attend and provide information under oath, which enables the truth to be known in detail
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Weaknesses of Royal Commissions (List 2)
- They are very expensive: The Royal Commission into Police Informants cost around $100 million
- They cannot be used for every issue
- The Government can ignore some or all of the recommendations of the Royal Commissions, although this would be perceived negatively by the public
- Royal Commissions take a long time, so the Law Reform processes can be slow - The Royal Commission into Police Informants has been going for over 2 years now
- While the Royal Commission is independent of the Government, they require the Government to establish the Commission in the first place
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Coercive Powers
Is using force to persuade people to do things that they are unwilling to do
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Coercive Powers of Royal Commissions (List 2)
- Summon a person to appear before the Commission
- Require a person to give Evidence under oath
- Require a person or organisation to provide Evidence under oath
- Provide a penalty up to 2 years Imprisonment for those who do not attend or provide Evidence as requested
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Factors that Assist Parliament to Respond to the Need for Law Reform (List 3)
- Parliament is an elected Supreme Law-Making Body with the power to make and change any Law within their Constitutional power
- Parliament has the power to Abrogate Law made by the Courts (except the High Court in relation to Constitutional matters)
- Parliament can pass Legislation to Codify Common Law
- Parliament can make and change Law 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 Royal Commissions to investigate the need to change the Law
- Parliament can use independent organisations such as the Victorian Law Reform Commission (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
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Factors that Limit Parliament to Respond to the Need for Law Reform (List 3)
- Any Law that is made outside the Parliament's Constitutional Law-Making power may be challenged in and declared invalid by the Courts
- Parliaments may Abrogate an independent and valid Common Law to gain a political advantage and voter popularity
- 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 the fear of losing voter support
- Investigate the need for Law Reform can be costly and time-consuming
- The ability of Parliament to respond to the need for Law Reform may also be diminished by financial or budget restrictions
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Factors that Assist the Courts to Respond to the Need for Law Reform (List 3)
- The 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 changing the Law 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
- Judges who adopt an activist approach are often willing to consider a range of social and political factors, such as the views and values of the community and the need to protect the rights of the people when interpreting Acts of Parliament and making decisions
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Factors that Limit the Courts to Respond to the Need for Law Reform (List 3)
- Judges in Superior Courts may be reluctant to change the Law, preferring to leave the Law-Making to Parliament
- Judges in Superior Courts can only make Law 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
- Judges are not elected by the people and may make decisions that do not reflect the view and values of the community
- Judges must wait for a case to be challenged in the Courts before making a decision as to whether Legislation has been made Ultra Vires
- Parliament may Abrogate Common Law
- Judges may adopt a more conservative approach and show restraint or caution when making decision and ruling that could lead to significant changes in the Law
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Ultra Vires
Is a term meaning 'Beyond the Powers' and is a Law that is made outside the powers of Parliament
