unit 4 outcome 2

Question 1

Factors affecting parliaments law making abilities
4

Answer 1

• role of houses and their impact: the composition of each house has impact on parliaments law making ability
• impact on representative nature of parliament: the democratic practices of cth and vic parliaments
• impact of political pressures: actions of political parties, aus organisations and international bodies that seek to influence how laws are changed
• ability to make law: constitutional limitations and operations of parliament can impact ability to repsond

Question 2

Role of parliament
Role of Victoria court 3 and 1 restiriction

Answer 2

Parliament - supreme law making body
Courts - resolve disputes, interpret legislation, make common law

Courts can only make laws when a case is brought before them, there is not existing precedent and if it is relevant.

Question 3

Doctrine of precedent

Answer 3

The doctrine of precedent is based on the principle of stare decisis. When superior judges decide a case the reasons for their decisions (ratio decidendi) created a precedent which is binding on lower courts within that court hierarchy. This ensures predictability and consistency for cases with SIMILAR MATERIAL FACTS.

Question 4

Key features of the doctrine of precedent
2

Answer 4

Stare decisis: to stand by what has been decided
Ratio decidendi: the reason for the decision

Question 5

Obita dicta

Answer 5

A comment made by a judge on a question of law which was not directly relevant to deciding the case.

Question 6

How can courts develop laws
4

Answer 6

• Distinguishing a precedent: courts are only bound to follow precedent for cases with similar material facts.
• Reversing: when a higher court hears a case on appeal it can reverse the earlier decision of the lower court
• Overruling: when a higher court overruled a legal principle that was created in an earlier case.
• Disapproving: the court may give its opinion that the earlier case was wrongly decided which may encourage parliament to abrogate the common law.

Question 7

Example of disapproving, courts influence on parliament

Answer 7

Trigwell
Me and Mrs injured after collision while trying to avoid sheep. Trigwells sued farmer but he was found not responsible because a common law allows animals to roam free. High court followed common law but expressed disapproval but was later abolished by the vic parliament.

Question 8

Statutory interpretation
3 reasons for it

Answer 8

Courts are required to interpret meaning of words in legislation when a case comes before them
- language can be complex
- parliaments intention may not be clear
- change of language over time

Question 9

Materials to help judges interpret statutes

Answer 9

Extrinsic: found outside act (debates, law reports, dictionaries)
Intrinsic: contained within legislation (title, words, other sections of the Act)

Question 10

Effect of statutory interpretation
4

Answer 10

Words are given meaning
Interpretation created precedent
Interpretation is binding
Can either narrow (studded belt case) or expand (Kevin and Jennifer) the impact of law

Question 11

Factors affecting ability of courts to make law
5

Answer 11

Doctrine of precedent
Judicial conservatism
Judicial activism
Costs and time
Requirement for standing

Question 12

Affect of doctrine of precedent in courts making law
3 strengths and weaknesses

Answer 12

• ensures consistency but lower courts must follow precedent even if outdated
• ensures predictability but identifying the relevant precedent can be time consuming
• judges can clarify unclear legislation but it can only be interpreted when a case comes before them.

Question 13

Judicial conservatism
3 strengths and weaknesses

Answer 13

When a judge interprets a narrow view of the law and indicated that because they are not elected representatives, law making on controversial issues would be best left to parliament.

-helps maintain stability but restricts ability of court to make major changes to law
- lessens possibility of appeals on question of appeal but can discourage judges from considering social factors
- allows parliament to reflect community values but may be seen as not progressive enough of 21st century views

Question 14

Judicial activism
3 strengths and 2 weaknesses

Answer 14

When judges claim responsibility to support the development of the common law.
- allows judges to interpret statues but can lead to more appeals on question of law
- allows judges to consider social factors but can lead to courts making more radical changes in law that do not reflect community values
- allows judges to be more creative when making decisions

Question 15

Costs and time of bringing a case
3 weaknesses for each

Answer 15

Cost:
- can deter litigants from pursing action
- may stop people from appealing
- may encourage ADR which means courts do not make law

Time:
- can take years
- can only make law on piece meal areas of law
- parties may suffer delays

Question 16

Requirements for standing
2 strengths and weaknesses

Answer 16

Court needs to wait for a case to be brought before them
Person bring case must be directly affected by the issues or matter.

• ensures cases are only brought by people genuinely affected but some people can’t make legal actions
• encouraged use of ADR but potentiometer improvements to law may not be made

Question 17

Relationship between Courts and parliament in law making
5

Answer 17

• Supremacy of parliament:
  Parliament is only body with ability to make or change law within their constitutional powers
• courts ability to influence parliament:
  Through obiter dicta or disapproval
• interpretation of statues by courts:
  Giving meaning to legislation
• parliament ability to codify common law:
  Turning common law into legislation
• parliament can abrogate common law:
  Parliament can override common law

parliament sets the legislation for future circumstances so cannot foresee situations and the courts have the ability to apply and interpret the legislation to suit cases that come before them and see if there are any problem with the legislation.

Question 18

reasons for law reform
3

Answer 18

• changes in community values (puppy farm case)
• social conditions may change
• advances in technology

Question 19

how can individuals influence change
2

Answer 19

• informed voting
• pressure groups

Question 20

petitions

Answer 20

• A petition is a formal written request to the Government to change a law which is considered unjust.
• A member of Parliament may present a petition signed by the people in their electorate.
• A petition needs to relate to a matter within the parliament’s power, set out the facts, contain a request for action
• can be either paper petitions or e-petitions

Question 21

strengths and weaknesses of petitions
3

Answer 21

• results in direct contact w parliament but bc of the large number of petitions, parliament cannot respond to them all.
• lots of signitures = high degree of support but theyre not as visual as other methods so are less likely to obtain media support
• can result in public being more aware of the issue but the minister who presents the petition may have little influence on Gov policy

Question 22

demonstrations
- aim
- example cases - 2

Answer 22

Demonstrations are large gatherings of individuals to show their shared support for or opposition to an issue such as a change of law or Government policy.
Aim - bring attention to an issue to the community and law makers. So it requires large numbers and positive media coverage.
More indirect than petitions because it does not include direct communication with Parliament – instead it seeks to show widespread community support of an issue.

• australia/invasion day demonstration (good)
• taxi industry reform (irresponsible)

Question 23

strengths and weaknesses of demonstrations
3

Answer 23

• if numbers are large the media is likely to report, gaining support but they need to be well publicied to make an impression
• may result in mational awareness and support but no media support = unnoticed
• may bring the issue to parliament attention but needs to be on an area within the jurisdiction of Aus to change

Question 24

individuals influencing law reform through courts

Answer 24

• seeking interpretation of unclear legislation
• seeking courts to make law where there is no legislation
• seeking a parliament law is ultra vires

Question 25

strengths and weaknesses of use of courts in law reforms

Answer 25

• can enable unclear law to be clarified but courts are reactive not proactive
• even an unsuccessful challange can reuslt in media coverage and action by the Parliament but a person must be standing
• Dissaproval of a law can assist Parliament to see a need for law reform but it can be expensive and time consuming to bring a claim

Question 26

role of media in law reform
3

Answer 26

• media coverage allows parliament to gauge public opinion
• demonstrations and petitions rely on media to gain commnitty awareness
• allows individuals to access politicians directly

Question 27

strengths and weaknesses of media
3

Answer 27

• can result in support but can portray issues in too simplistic a manner
• gov is fully aware of issues the media covers but often is overly emotional and may create a bias view
• allows parliamentarians to have websites and accounts for direct contact but gov can only consider media view if it is within their legislative programs and policies and there is a high level of community support

Question 28

Victorian Law Reform Commision (VLRC)
aim

Answer 28

• formal law reform organization developed to assist Parliament to undertake a thorough investigation of an issue.

The primary function is to provide independent, impartial advice to gov

Question 29

3 roles of VLRC

Answer 29

• Examine, report and make recommendations to the Attorney General on any matter relating to law reform referred to it by the Attorney General or other minor issues
• Suggest to the Attorney General a proposal or matter relating to law reform - monitor.
• Provide educational programs and supply information - educat

Question 30

process when inquiry is requested 7

Answer 30

Victorian Attorney General provides a terms of reference (scope fo the outline of what vlrc are able to investigate) to VLRC
- vlrc undertake initial research with experts and identify important issues
- Prepare discussion papers which explain issues and poses questions for the public
- undetakes surveys, engages consultant from the public
- publishes final report with suggested reports
- presents to attorney general
- attorney general tables report in parliament

Question 31

exmaple of vlrc law reform
- what was project about
- statistics
- critisms
- dates
-terms of reference
- 1 recommendation and response

Answer 31

Should VIC maintain, abolish, replace or reform the commital system
- most committals (64%) are committed to supreme/ county court
- criticisms: trauma to victims, maintaining rights of accused.
- matter was referred to commission in oct 2018. March 2020: report was delivered to parliament
- terms of reference: review and report on VICs committal system
- submissions received from groups including victims, courts, police
1 recommendation: retain cross examination in lower courts, subject to additional safeguards
Response: additional safe guards may decrease trauma for victims but they still may need to give evidence more than once

Question 32

strengths and weaknesses of VLRC

Answer 32

• terms of reference shows parliament sees a need for law reform but it restricts what they can investigate
• submissions allow for community views and values but they cannot compel evidence
• they are independent so free from political pressures but parliament are not obligated to implement reccomendations

Question 33

Royal Commision

Answer 33

A royal commission is a major public inquiry to investigate an issue of importance to Aus or the State
Royal bc created by crown (gov general/govenor)

Question 34

issuing of a royal commission
3 things it covers

Answer 34

crown issues a “letters patent” setting out who will conduct royal commision, terms of reference, dte the royal commision needs to be complied by

Question 35

investigations undertaken by royal commision
4

Answer 35

• consultation
• conduct sessions
• hold public hearings
• report on findings and make reccomendations

Question 36

strengths and weaknesses of royal commisions

Answer 36

• Promotes public debate but Government sets terms of reference so may not include areas which are damaging to them
• Increase public awareness but it is very expensive compared to VLRC
• Have power to compel evidence but this may be seen as a privacy breach.

Question 37

exmaple of one royal commusion
- dates
- terms of reference
- submissions
- 1 reccomendation and response

Answer 37

Management of police informants
- December 2018: The Royal Commision were asked to investigate the “Lawyer X” scandal
- October 2020: report was submitted
- Terms of reference: Recommendations for changes that could be implemented to address problems relating to the use and management of those who are subject to legal privilege.
- 157 submissions
- 111 recommendations. 54 directed to VIC Government
- Recommendation: The VIC government should implement legislation that provide a clear frame work for police to obtain and use information from human source
- Response: Government is committed to implementing each of the 54 recommendations to the Victorian Government. 10 have been implemented so far.

Question 38

strengths and weaknesses of parliaments ability to repond

Answer 38

• parliament is supreme law maker but members of parliament may be reluctant to change laws for fear of being voted out
• represetnative and responsible to the people but finanical restraints can make it difficult to increase funding to areas like VLA
• can investigate need for law reform but cannot change laws outside law making power

Question 39

how does high court act as guardian of the constitution
2

Answer 39

• interpretation: ensures laws remains relevant to people today
• ensures cth remain within law making power

Question 40

Impact of the role of houses

Parliamentary law making

Answer 40

• Lower majority: Most bills introduced will be government bills and legislation can be quickly passed through the lower house.
• Lower minority: In a hung parliament, political parties must form coalitions which causes the process of initiating bills time consuming however this may lead to better views of the people.
• Upper rubber stamp: When a government holds majority seats in the upper house it is referred to as the rubber stamp. This is beneficial to government as they are act to enact law reform as promised during election but it may limit the Parliament’s ability to critique, amend or remove legislation.
• Upper hostile: When the opposition holds the majority of sats and refuses to pass legislation this can limit parliament’s ability to pass legislation, allows for check and balance
• Upper balance of power: In order to pass legislation there must be a majority of voters which may require members of minority parties or independent meaning that the views of the independents hold considerable power

Question 41

impact of representative nature 3

parliamentary law making

Answer 41

• Australian Constitution provides for a representative democracy through entitlement to vote so when introducing legislation, government reflect views of majority voters
• Regular elections ensure government is mindful to act in the best interests of the people or risk being voted out
• Voters can influence parliament to make laws through petitions, social media, making submissions to ALRC and writing to local member of parliament

Question 42

impact of political pressures 4

Answer 42

• Political party pressures: Members of parliament can be influences by internal party pressures which may encourage certain legislation to be introduced or discourse members of parliament from introducing certain bills
• Organisations in Australia: Organisations can pay to televise persuasive advertising to create community dislike for particular legislation which can put pressure on lawmakers to change law.
• Avoidance of controversial issues: To secure votes, controversial issues may be avoided.
• International bodies: International disputes or natural disasters can dictate types of legislation that is or isn’t introduced.

Question 43

impact of restrictions 3

parliamentary law making

Answer 43

• Jurisdiction (concurrent, residual, exclusive)
• Section 109 can cause states to be reluctant to change laws
• Parliamentary process can be time consuming and can cause law reform to be slow to react to new issues

Question 44

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