Legal Studies 3/4

VCAA 2001

Question 8

A. Discuss the strengths and weaknesses of parliament as a law-maker. Illustrate your answer with a comparison of law-making by courts. (12 marks)

Parliaments primary role is to make laws on behalf of the community as the need arises. Parliament can also change the law as the need arises. Eg//cloning. As parliament only sits for a small portion of the year they cannot always change the law as the need arises. They also may not be able to foresee all future circumstances and laws may become outdated. Sometimes to help with this problem parliament makes laws in futuro, meaning that laws are made for the future with the future in mind for as far as possible. Although rare, parliament can make retrospective laws, which makes something that was legal at that particular time illegal. This is seen as a weakness of parliament as people can been prosecuted for crimes they committed many years ago.

Parliament is the supreme law-making body; it can make laws on all issues within its jurisdiction. However, the process of law-making can be slow. The courts, on the other hand, can change the law quickly if a relevant case is brought before them, they also can create precedent to be followed by other in the community in the future. Courts cannot change the law unless a relevant case is brought before them; this requires a person to be directly affected by the issue and also be prepared to spend the time and money involved in taking a matter to court. For example, in the John McBain v. State of Victoria & Ors, Dr. McBain wanted the courts to change the law to allow all women to have access to IVF treatment. Dr McBain could only bring proceedings in the Federal Court under S109 of the constitution (if there is a conflict between state and Commonwealth laws in an area of concurrent law, Commonwealth law will prevail.), because he was able to show that a particular patient of his (Leesa Meldrum) was directly affected by the conflicting legislation.

Parliament is able to involve the public in law-making and to gauge public opinion about any future changes in the law. There is often debate in the media when a change in the law is proposed. Committees may be required to investigate matters fully and gain public input. However, it is not always possible to respond to changing values in the community because there may be conflicting values. For example, there have been strong conflicting attitudes and views about legalising voluntary euthanasia. As a result the law remains unchanged.

Courts are not subject to political influence when making a decision. Judges are independent and unbiased and are not subject to the whims of the electorate. The doctrine of precedent helps in this as judges can refer back to previous cases and decide accordingly without being influenced by political persuasions. However, as the courts cannot gauge public opinion they may not reflect current community values when making a decision. For example, in the case of R v. David Norman Johns there was uproar about statement by the judge, Ð''a measure of rougher than usual handling' is acceptable behaviour by a husband seeking consent to sexual intercourse.

The state and Commonwealth Parliaments are the supreme law-making bodies, within their own jurisdictions. They have the right to override laws when implementing the law-making powers given to them. Parliaments can change the law when the need arises because they are not bound by previous acts of parliament. Courts can interpret the words of an act of parliament but parliament can abrogate (cancel) a law made by parliament or can pass an act to reinforce common-law (laws made by judges in court). However, parliaments are restricted to making laws only in their jurisdiction. The Commonwealth Parliament is restricted to making laws outlined in the Commonwealth of Australia Constitution Act 1900. Some of their powers are exclusive powers meaning that they can only be exercised by the Commonwealth parliament. Eg// coining of money. Which means the states cannot make laws in the areas belonging to the Commonwealth parliament. The commonwealth parliament is restricted in making laws in areas of residual powers, meaning the law-making powers left with the states at the time of federation. Eg// education.

The courts can change the law when it becomes outdated, if a relevant case is brought before the courts. To prevent the law from becoming got static and rigid the process of distinguishing, overruling and reversing can be used. Distinguishing a previous decision is when there is a binding precedent from a superior court but the judge is able to find some material fact that is different from the facts of the previous case and so therefore is not bound by that precedent. When a superior court decides not to follow an earlier decision of a lower court, it can overrule the previous decision. The ratio decidendi of this case is now the precedent that is to be followed in the future. Reversing a previous decision (in the same case) is when a case is taken on appeal to a higher court and the court decides to change to decision made in the lower court, thereby reversing the earlier decision in the same case. A courts ability to change the law can be restricted by the doctrine of precedent. It may be bound by a previous decision of a higher court in the hierarchy that it may not be able to distinguish. The High Court is not bound by its own decisions and so is able to change the law when a case comes before it. Sometimes when the courts are bund by old precedent they may act conservatively because they feel the law-making should be left to parliament. For example, in the case of State Government Insurance Commission v. Trigwell (1979) the court decided to follow old common law that allowed animals to roam free on the roads. This was then later changed by parliament.

Some strengths of parliament can be seen as weaknesses of the courts. Some weaknesses of parliament can be seen can be seen as strengths of the courts. Parliament and the courts need to work together so the law is flexible and can apply to any situation that may arise. The courts are dependant upon parliament to make the bulks of laws. Parliament is dependant upon the courts to establish new laws on situations that may have arisen for the first time. The courts and parliament need each other so that the law is smooth running.

B. Explain how the legislative powers of the Commonwealth parliament can be altered by referendum and high court interpretation of the constitution. Using examples comment on the impact of one of these processes. (8 marks)

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