legal 4

4 Factors that affect the ability of parliament to make law (RRRP)

4 Factors that affect the ability of parliament to make law (RRRP)

• The roles of the houses of parliament.

• The representative nature of parliament.

• Political Pressures

• Restrictions

role of house of parl: scrutiny that parliament provides on gov pro and con

pro

→ On one hand, the system decreases the likelihood of abuses of power occurring & increases the likelihood of the principles of justice being upheld. IF SCRUTINY

con

• On the other hand, this system results in bills being passed less efficiently. (due to scrutiny and majority voting)

• Also, members of the Federal Opposition don’t always use Question Time and the media to hold the MPs to account for abuses of power but rather to ‘score political points.’

NEW ROLE OF UPPER HOUSE + pro/con

to scrutinise bills via parliamentary committees

pro

On one hand, scrutiny decreases the likelihood of abuses of power occurring / increases the likelihood of the principles of justice being upheld.

con

On the other hand, this scrutiny results in bills being passed less efficiently.

role: system of responsible gov def, pro and con

def: The system of responsible government involves the parliament holding members of the government to account for the members’ actions. This is primarily carried out by the opposition (Leader of the Opposition and their shadow ministers) during Question Time, to clarify ambiguities or expose issues with the Minister’s actions.

pro

This decreases the likelihood of abuses of power occurring, due to the system exposing these abuses to the general public and thus decreasing the likelihood of re- election.

con

Members of the opposition do not always use Question Time and the media to hold the members of the government to account for potential abuses of power. Instead, the media can be used to ‘score political points’ instead. E.g. politicians making comments that appeal to the views of their voters, regardless of how just, logical or relevant these views are.

Explain how the role of the lower house to form gov may affect the ability of parliament to make law.

Because the government is formed by the political party (or coalition) that has a majority of seats in the lower house, government bills generally are passed by the lower house with minimal scrutiny (members of government tend to ‘vote along party lines’). This minimal scrutiny helps result in bills being passed, and thus statute laws being made, more efficiently.

Explain how the role of the upper house to act as a house of review may affect the ability of parliament to make law.

Because most bills are initiated in the lower house, the upper house often has the task of scrutinising bills that have already been passed by the lower house. This scrutiny helps decrease the likelihood of abuses of power occurring by increasing the likelihood of these abuses being discovered and exposed (eg, by members of the crossbench).

how does the representative nature of parliament affect the ability to parliament to make law

• This representative nature of parliament affects the ability of parliament to make law by encouraging members of parliament to create laws that reflect the views and values of the majority of the members’ electorates, since they are elected by the Australian public.

• This is the case because, if members fail to create these laws, their electorates may elect different members during the next election

consideration: Extent to which bills are effective and just. How does work with the representative nature of parliament when passing bills? pro and con

strength

If the bills that the majority of the electorates want to be passed are just and/or effective, the representative nature of parliament encourages parliament to pass these bills because these members will need to pass these bills in order to retain the confidence of the public (and be re-elected).

weakness

If the majority of the electorates are in favour of unjust and/or ineffective bills, the representative nature of parliament encourages parliament to pass these bills. E.g. the majority of the public may still favour is a bill that infringes the rights of unpopular minorities, such as asylum seekers (e.g. Australia’s laws regarding the offshore detention of asylum seekers).

how can election terms affect ability to parliament to pass laws

The fact that election terms are short (3y in HoR, 4y in Vic Houses) may discourage governments from introducing law reforms that have a long term benefit if this benefit is accompanied by a short term detriment that is unpopular among voters (e.g. the initial cost of implementing the reform). Note: in order for Cth Parliament election terms to change, s128 must be fulfilled. This is because s28 of the AC provides a CP term must last no longer than 3 years.

sources of domestic political pressures

individual members of the Australian community, business groups (e.g. the Business Council of Australia), unions (e.g. the Australian Education Union)

NOTE: system of resp gov play into here. Yet, some members of public can have greater influence on politicians if they’re more vocal, even if they’re aren’t majoritiively supported

sources of internal political pressures

WITHIN OWN POLITICAL PARTY

1. VOTING ON PARTY LINES: to avoid the risk of being removed. Strength: efficiency of debate because less contradicting opinions. Weakness: politicians may not truly represent their electorate if the opinions of their electorate and political parties clash. But not for independents duh

2. CROSSING THE FLOOR: occasionally a member of a political party will vote differently to how their party tells them to vote. Allows them to avoid internal pressures, but this is rare because they don’t wanna risk being removed for the party.

3. CONSCIENCE VOTES: When MPs need to vote on a highly controversial issue such as abortion, a political party may allow their members to make a conscious vote: a vote based on their own beliefs rather than along party lines. This allows MPs to overcome internal pressure, as bills will be passed based on public majority not party majority. But this is rare for parties to allow this, and conscious votes don’t guarantee an outcome reflecting the views of general public

international pressures source

other countries, international organisations (e.g. the UN) and multinational corporations (e.g. McDonalds). This is particularly the case if Australia has signed a relevant international agreement (e.g. treaty).

1. CHANGING INTERNATIONAL CIRCUMSTANCES/GLOBAL EVENTS eg wars. australia passes laws that are effective but may not be supported by aus public/take resources from domestic issues like healthcare

2. INTERNATIONAL AGREEMENTS: can pressure parl/gov to reform laws that comply with the agreements, otherwise Australia’s relationships with the other countries can be negatively impacted if a relevant agreement has been signed. But sometimes these agreements may conflict with domestic pressures, and usually MPs err on the reforms that are supported by majority of Aus public. for votes too1

restrictions on law-making type 1

CONSTITUTIONAL

• placed by the AC on Cth and state parl

• restircts them by discouraging passing laws that can be delcared invalid by HC if challenge

• eg: express rights and s109

restrictions on law-making type 2 and pro/con

LOGISTICAL - broken into parliament’s limited funding and sitting days

funding: This acts as a restriction as it means that proposed law reforms must be financially viable.

strength: Because parliament decides how their funding is allocated, they can choose to allocate the majority of this funding to the reforms that are the most important in the eyes of the majority of the public.

weakness: The limited amount of funding can result in important law reform issues being allocated minimal/no money if they are not key parts of the government’s reform agenda and/or are not financially viable.

sitting days (days where politicians can introduce/debate/vote on bills. Acts as restriction becuase not all bills can be passed, they must prioritise the bills they find most important from a gov perspsective.

strength: parliament has the ability to extend these days.

weakness: they can just spend most days focusing on their own agendas rather than the opposition/crossbench

4 roles of vic courts law-making

Technically making law is SECONDARY ROLE, primary is just to resolve disputes but

1. To create precedents that give meaning to the words of the Australian Constitution, when resolving a dispute thus, creates precedent.

2. Creating new precedents when there are no existing precedents when resolving an issue. E.g. British case Donoghue v Stevenson helped establish the tort of negligence in Australia.

3. Creating new precedents by avoiding an existing precedent. For example, distinguish an existing precedent to create a new precedent. E.g. Mabo

4. Disapproving of precedents to encourage higher courts and/or parliament to reform the law. When resolving a dispute, a court may follow a precedent (binding or persuasive) that the court disapproves of. One reason for the court to do this is to encourage higher courts and/or parliament to reform the applicable law. E.g. Trigwell (note: HCA)?

what does a judge have to give in judgement

Outcome of the case = the court’s decision

A judgment consists of two main components.

→ Ratio decidendi = the legal reasoning behind a court’s decision - binding part of a judgment

→ Obiter dictum = comments made by a judge that do not form part of the judge’s legal reasoning (and thus are not binding), but may nevertheless be persuasive in future cases. like btw comments

precedent is binding when

1. Precedent was created by a superior court (SC-T, SC-CA, HCA) that is higher in the same hierarchy

2. Precedent was created in a case with the same material facts that are sufficiently similar

A precent is persuasive by SOLD

S: same level, same hierarchy

• O: obiter dictum = the precedent is a judicial comment made that wasn’t directly relevant in the initial case, but may be relevant to future cases.

• L: lower level, same hierarchy

• D: different hierarchy = different state, different country

HOW CAN JUDGES AVOID PRECEDENT (RODD)

• R: Reversing = an appellate judge is changing a precedent created by a lower court in same case. The old precedent is replaced with a new one that is binding for all courts below. NOTE: original precent must not have been binding.

• O: Overruling = judge is changing a precedent created by a lower court in a different case. They make a new precedent which overrules the old one and now becomes binding for all courts below them.

• D: Distinguishing = judge in higher court in same hierarchy stating that the material facts of their case are not sufficiently similar (aka the 2nd element of binding precedent is not present). Whether this will create a new precedent is dependent on whether the lower court follows another precedent instead or creates an entirely new precedent.

• D: Disapproving = lower court judge expressing their disapproval or disagreement of a precedent - (doesn’t change the precedent). Occurs in 2 ways:

→ Disapprove & avoid – this is when the precedent Is binding

→ Disapprove & follow – this is when precedent is binding OR to get parliament/a higher court to change the law (e.g. Trigwell, persuasive). More common among judicial conservatives.

3 roles of HCA

1. To create precedents that give meaning to the words of the Australian Constitution.

2. To declare invalid a Commonwealth or state law that conflicts with a specific section of the Australian Constitution if the law’s validity is challenged in the High Court. o E.g. conflicts with express rights, SoP, s109

3. To declare invalid (ultra vires) a Commonwealth law that goes beyond the scope of the Commonwealth Parliament’s exclusive and concurrent powers if the law’s validity is challenged in the High Court.

reasons for stat interpretation

1. The meaning of the words in the statute and/or the intention of the statute (or part of the statute) may be unclear.

→ By determining the meaning of an ambiguous term in the statute, the term can be used to help resolve a parties’ dispute.

→ By determining a statute’s intention, the statute can be applied to a case to help resolve a parties’ dispute.

2. The statute may not have taken future circumstances into account when it was originally drafted. E.g. new tech.

3. There may be inconsistencies within the statute or between the statute and other statutes that needs resolving. → E.g. the same term is given different definitions in different parts of the statute.

4. Excessive time pressures may have been present when the statute was drafted (political pressure), leading to errors in the statute that need to be addressed.

5. Parts of the statute may no longer reflect the values of the majority of society (i.e. not consistent with recent social change). NOTE: only possible if the statute is vague. If clear, parliament, as the supreme law-making body, prevails.

2 effects of stat interpretation

1. Broadening or narrowing the scope of a statute → If a court gives a term a narrow definition, the number of cases in which the term applies are reduced, thereby narrowing the scope of the statute. → If a court gives a term a broad definition, the number of cases in which the term applies may also broaden, thereby broadening the scope of the statute.

2. Creating a precedent that can be applied in future cases (need to figure out if binding or persuasive. Unless it’s reversed, overruled or abrogated by parliament

5 factors that affect the ability of courts to make law (Please conserve, act & stand timely)

• The doctrine of precedent.

• Judicial conservatism.

• Judicial activism.

• Costs and time in bringing a case to court.

• The requirement for standing.

how does precent enhance court? PROMOTE

Promoting flexibility: by allowing a judge to avoid a persuasive precedent if they believe following it will result in an unjust outcome. This can occur when a higher superior court in the same court hierarchy reverses a precedent, overrules a precedent (e.g. Mabo) or distinguishes the material facts in the two cases. MORE ABLE TO MAKE LAW

Promoting consistency Because under the doctrine, lower courts must follow the precedents created by higher superior courts in the same court hierarchy, if the material facts of the two cases are sufficiently similar

Promoting efficiency due to predictability Because the doctrine results in judges not needing to resolve legal issues in new ways for every case. Instead, parties and legal practitioners can use past cases to help predict the likely outcome in their own case as under the doctrine, “like cases tend to be treated alike.”

Sharing of expertise of the superior courts among other courts. Because the doctrine results in courts being legally required to research precedents created by higher superior courts (which have more expertise) before making a decision in their case.

how does doctrine of precedent restrict courts

The existence of binding precedents. Because they can prevent a court from making a new precedent when it wishes to do so the court would like to create one to better achieve just outcomes. Also, this disadvantages parties who cannot afford to appeal the decisions of lower courts to higher courts in order to try and reverse/overrule this binding precedent.

 Judicial conservatism: One limitation to the doctrine’s flexibility is that judges are not required to interpret the law in a flexible manner. E.g. judicial conservative is more likely to follow persuasive precedent even if they disagree with the precedent so as to not make significant or controversial changes to the law (e.g. Trigwell)

 Time and money: As only superior courts (i.e. SC-T, SC-CA, HCA) can make precedents, this is a restriction because bringing a case before these courts is very time-consuming and expensive.

 Standing issues: As only superior can make precedents under the doctrine, this is a restriction because someone who has the sufficient time & money does not have standing.

 Conflicts between persuasive precedents o because superior court judges will need to decide which/if precedent should be applied to the case the judge is hearing → which is time-consuming and expensive.

define judicial conservatism

= is the concept that, when they are deciding cases, judges generally should adopt a narrow interpretation of the law that only takes into account legal considerations, so as to not make significant or controversial changes to the law.

evaluation of JC: factors and pro/con (TRIPLE R)

1. role of parliament

strength: JC increases amount of law reform left to parl, who, unlike judges, are democratically elected by Australia’s enrolled electors. Plus, parliaments have access to more resources regarding investigating reforms (VLRC, parl commitees).

weakness: parl may be reluctant to enact significant reforms, particularly if they are controversial due to fear of losing public votes. Also, use of law reform commissions and parliamentary committees is often expensive and time-consuming

2. relevance of personal beliefs: Conservative judges are generally opposed to involving their personal beliefs to determine the outcomes of cases before them.

strength: Helps promote consistency and impartiality because judgments are based on consistent legal considerations rather than on the inconsistent and biased personal beliefs of different judges throughout Australia.

weakness: JC result in judges following precedents that they personally believe are unjust which can encourage higher courts/parl to reform the law. But not promoting justice is contrary to a fundamental role of a judge

3. reluctance to change law

strength: Helps promote predictability because precedents used by parties to help predict the likely outcome in their case are unlikely to be changed to a significant extent.

weakness: Can result in courts being very slow to change the law to reflect changes in modern Australian society, such as changes in the views of the majority of the Australian public. E.g. recognition of native title in Mabo wouldn’t have occurred if the HCA had adopted a conservative approach to int.

judicial activism def

= the concept that, when they are deciding cases, judges generally should adopt a broad interpretation of the law that takes into account a range of social and political factors (such as the views of the community and the need to protect human rights).

evaluation of JA: factors and pro/con OPP

The ability to promote just outcomes

STRENGTH: Helps result in just outcomes in cases where the existing law does not reflect the current views of Australian society/is outdated and would have resulted in an unjust outcome. E.g. Mabo

WEAKNESS: As parliament is the supreme law-making body, judges cannot change the words of statutes in statutory interpretation, even if they think that the words do not reflect the current views of Australian society and/or are otherwise outdated. Plus, parliament arguably has more resources to identity public views on matters (VLRC, PC), so judges’s beliefs may not be the most accurate of changing societal attitudes

The impact of parliament

STRENGTH: Parliament can codify the changes made by judicial activists if it agrees with these changes, by passing a statute which enshrines the change. E.g. CP passing Native Title Act to codify precedent from Mabo.

WEAKNESS: Parliament can abrogate the changes made by judicial activists if it disagrees with these changes, by passing a statute which abolishes the change.

The impact of the doctrine of precedent

STRENGTH: When all the precedents relevant to a case are persuasive, a judicial activist who is hearing this case will have the scope to adopt a broad interpretation of the law.

WEAKNESS: If at least one of the relevant precedents is binding, a judicial activist will be unable to adopt a broad interpretation of the law. → Limitation: judicial activists will still be able to disapprove of the binding precedent that they are following in order to influence higher courts and/or parliament to reform law.

cost and time of bringing a case to court def and evaluation JUST MERIT

= brining a case to court is costly and time-consuming

The relationship with merit

Strengths: The costly and time-consuming nature of bringing a case to court can discourage people from bringing unmeritorious claims (e.g. frivolous or trivial claims). Ultimately, this helps stop the courts’ time and money from being wasted on such cases, saving resources for better cases

Weakness: The costly and time-consuming nature of bringing a case to court can prevent people from bringing meritorious cases, thereby reducing the courts’ opportunities to make law. This particularly is the case among the ‘missing middle’

the requirement for standing def

a person must be significantly impacted by a case or have a vested interest in it, in order to be eligible to bring it to court. This ensures that only people who have a high change of “winning’ use the courts’ resources

impact of standing on ppl who satisfy and don’t satisfy requirements

The impact of the standing requirement on people who satisfy it.

STRENGTH: This helps reduce case backlogs by reducing the number of people who can bring a case to court, and such cases with standing can be heard quicker

WEAKNESS: This can prevent courts from being given the opportunity to make law as people who satisfy this requirement can lack the time and/or money needed to bring their case to court (e.g. the missing middle).

The impact of the standing requirement on people who do not satisfy it.

STRENGTH: This encourages people who do not have standing to seek other means of resolving their dispute or influencing law reform that are more appropriate for their needs, such as a petition or demonstration. In turn, saving court resources and ability to courts to make law in other cases

WEAKNESS: This may prevent the courts from hearing the valuable insights of people who do not satisfy the requirement for standing (e.g. insights of academics), potentially decreasing the effectiveness of the law created by the courts.

what are the 5 features of the relationship between courts and parliament in law-making SAICA

• supremacy of parliament

• ability of courts to influence parliament

• the interpretation of statutes by courts

• the codification of common law

• the abrogation of common law

In general, the courts and parliaments have an interconnected role in law-making. On one hand, parliament is the supreme law-making body, able to make and change any law within its constitutional law-making powers. On the other hand, the courts complement parliament’s law-making by interpreting statutes they make in order to resolve disputes, and/or developing precedents.

supremacy of parliamentary def

Parliament is the supreme law-making body (that’s their primary role), in order to uphold concept of democracy since MPs are democratically elected whereas members of the judiciary are not.

3 ways that parliament is supreme law-making body

1. Codification and abrogation = Enshrining or abolishing common law. Statute law generally prevails over common law in a conflict UNLESS the common law relates to interpreting the AC. If parliament wishes to abrogate HCA’s interpretations of the AC, a referendum is needed due to the SoP (AC interpretation is a judicial power of the HCA, not a legislative power of the parliaments).

2. Establishing courts & changing jurisdictions

3. Restricting courts’ decision-making = at times, restricting the types of decisions that can be made by the courts to generally encourage the courts to make judgements that reflect the views and values of the majority. E.g. Introducing a mandatory minimum sentence for an offence to encourage courts to increase the severity of the sentences they are imposing on offenders who commit this offence.

codification and abrogation strength and weaknesses

STRENGTH

If there is a conflict between statute law and common law, statute law generally prevails. Thus, parliaments can create statutes which codify or abrogate common law precedents. Examples: → Mabo – CP codified HCA’s decision in Mabo to create the Native Title Act.

WEAKNESS

Common law prevails over statute law when it relates to the interpretation of the AC (re enshrinement of SoP). Plus the ability of parliaments to abrogate common law precedents can result in the abolishment of unpopular but just precedents to replace them with unjust precedents which are more popular.

Establishing courts & changing jurisdictions strength/weakness

STRENGTH

Parliaments can create, abolish and/or change the jurisdiction of courts based on the needs of Australian society. E.g. The Magistrates’ Court Act being amended to create the Koori Court division to help reduce disadvantage experienced by Indigenous offenders in Australia’s traditional sentencing system.

WEAKNESS

This ability is nevertheless subject to constitutional restrictions. E.g. HCA jurisdiction cannot be changed without a referendum as this is enshrined in the AC. This means that if a change is favoured by the AUS public but subject to constitutional restrictions, POJs may be restricted

restricting courts’ decision-making strength/weakness

STRENGTH

This ability helps parliaments encourage courts to make judgments that reflect the views of the majority of the Australian public.

WEAKNESS

This ability is subject to constitutional restrictions. E.g. AC prohibits the CP from passing laws which prevent the HCA from declaring a Cth law ultra vires as this would infringe the SoP doctrine enshrined in AC?? This can also mean parliaments force courts to make popular but unjust, decisions, particularly in relation to sentencing.

the ability of courts to influence parliament which brings in 3 things we already covered for some reason, but ig from diff lenses

1. JC: Judicial conservatives follow persuasive precedent that they disapprove of because, in their opinion, it is the proper role of democratically elected parliament to make significant/controversial changes to the law. This is to influence parliament to abrogate the precedent that has been disapproved of it.

(trigwell?)

2. JA: tends to lead to significant/controversial changes to the law (cos they consider range of factors)n→ i.e. changes that encourage parliament to either codify or abrogate the precedent created by the judicial activist. (Mabo)

3. Domestic political pressure The outcomes in particular cases can result in the media and/or members of the general public placing domestic political pressure on parliament to reform the law.

PROS AND CONS OF THE ABOVE

JC

strength: This act of disapproval can influence parliament to abrogate the precedent that has been disapproved of (i.e. to create a statute that abolishes the precedent).

weakness: Parliament may be reluctant to enact significant reforms, particularly if the reforms are controversial so as to not lose the public’s vote. Judge’s role of justice slightly breached

JA

strength: Parliament can codify the precedents made by judicial activists if it agrees with these precedents by passing a statute which enshrines it. E.g. Mabo

weakness: Parliament can abrogate the precedents made by judicial activists if parliament disagrees with these precedents, by passing a statute which abolishes the precedent. Exception: common law interpretation of AC by the HCA, needs s128 because enshrined.

DOMESTIC POLITICAL PRESSURE

strength: This pressure encourages politicians to reform the law because, if they don’t, they risk being voted out and replaced by other politicians who will reform the law as such. General public satisfied

weakness: The media can pressure politicians to enact law reforms that reflect their interests rather than the views/interests of the majority of the general public. This may create laws that are ineffective and/or unjust

the interpretation of statues by courts def and factors to consider

def: a court will often need to interpret a statute to determine its meaning or define ambiguous terms when resolving a dispute IE STAT INT.

factors

1. The fact that judges can only interpret the sections of the statutes that are relevant to the case before them.

2. The independence of the judiciary.

3. The fact that judges cannot change the words of statutes, due to parliament being the supreme law- making body.

pro/con of above factors

The fact that judges can only interpret the sections of the statutes that are relevant to the case before them.

strength: This means courts can tailor the way in which they interpret statutes to the facts in a specific dispute to help achieve a just outcome in the dispute.

weakness: The costly and time-consuming nature of bringing a case requiring statutory interpretation to court can prevent people from bringing meritorious cases, thereby reducing the courts’ opportunities to interpret statutes. E.g. missing middle.

The independence of the judiciary.

strength: As judges are independent of parliament and the government when interpreting statutes, they base their interpretations on legal principles NOT political pressures. This means that courts can still make just decisions even if they are not supported by parliaments, governments and/or the general public.

weakness: If judges interpret statutes in a way that does not reflect the views of the majority of the community, the public’s confidence in the justice system may be reduced, which decreases the likelihood that people will obey the law.bit of a stretch collom

The fact that judges cannot change the words of statutes, due to parliament being the supreme law- making body.

strength: Judges are able to give broad interpretations to the words of statutes, to help statutes keep pace with domestic and/or international legal developments (e.g. development of new tech) without changing the words of the statutes themselves.

weakness: Sometimes judicial conservatives interpret the words of statutes narrowly because, in their opinion, any significant or controversial changes to the law should be left to parliament.

codification of common law factors, pro/con

the ability to clarify and simplify the common law: When parliaments codify precedent(s) in the same statute, they can clarify and simplify the existing common law. This is particularly the case if the codification occurring is recommended by a law reform commission/parliamentary committee through thorough investigation of existing common law.?

strength: This can help save Australia’s justice system time and money in the long term, as less resources will need to be spent on the complicated common law that previously existed.

weakness: Codifying and simplifying statutes can be time-consuming and expensive in the short term, particularly if the codification has been recommended by parl com thru investigation.

the role of parliament: When parliament codifies a common law precedent, this can demonstrate to the courts and the general public that the precedent is supported by the parliament.

strength: This support can increase public confidence in Australia’s justice system. Also, Parliament’s support can discourage the courts from using statutory interpretation to try to override the codified common law precedent.

weakness: Some judicial activists may seek to use statutory interpretation to try to override the codified common law precedent in order to achieve a just outcome, in their opinion. → Minor limitation: judicial activists can only do this if the words and/or intentions of the codifying statute are vague.

abrogation of common law factors and pro/con

system of representative gov

strength: This system encourages politicians to abrogate a common law precedent if the precedent does not reflect the views of the majority of the Australian public. If they don’t, they risk being voted out at the next election to be replaced by a politician who will abrogate the precedent.

weakness: The media can pressure politicians to abrogate common law precedents in order to promote the interests of the media rather than the views of the majority of the general public.

resources

Unlike courts, parliaments can refer the investigation of law reform issues to parliamentary committees (e.g. the Legal and Social Issues Committee) and law reform commissions (e.g. VLRC).

strength: These resources can be used to help parliament determine the views of the majority of the community and to thoroughly investigate whether a particular common law precedent should be abrogated.

weakness: Using these resources can be expensive and time-consuming (particularly the public consultations and public submissions component of these resources).

reasons for law reform TAP-C

technology= the law may be reformed to address advances in technology. E.g. to reduce the likelihood of society being harmed due to these advances.

shifting society values/attitudes = The law may be reformed to reflect changes in the values and/or attitudes of the majority of Australian society OR encourage Aus society to change

protect the community: In response to increased threat of terrorist attacks throughout the world, Australian parliaments have passed numerous anti-terrorism laws to protect Australian society from terrorism.

Changes in social, economic and/or political conditions (explained later)

Changes in social, economic and/or political conditions

Changes in POLITICAL conditions = law may need to be reformed to reflect changes in Australia’s domestic and/or international political conditions: → New anti-terrorism laws

Changes in SOCIAL conditions = the law may need to be reformed to reflect changes in Australia’s social conditions to help maintain social cohesion and a good standard of living. E.g. retirement age. This can create the need for law reform in areas such as education, healthcare, housing, transport, law enforcement, welfare payments (e.g. aged pensions) & taxation.

Changes in ECONOMIC conditions = The law may need to be reformed to address changes in Australia’s economic conditions to help maintain a prosperous society. → Changes in the Australian workforce (e.g. increase in part-time and casual employment) = can result in Australian industrial relations laws to be reformed: e.g. employee wages, workplace conditions

the ability and means by which individuals can influence law reform (3) definitions and influence

petitions: a formal written request made by someone to parliament for a particular law to be reformed, by gathering a satisfactory number of signatures and is forwarded to a local MP. MP tables (presents) the petition at the next sitting of parliament. Can be paper or e-petiton). Influences law by placing domestic political pressure on parl, and due to the system of representative gov, politicians should reform the law as requested by the petition or else risk losing votes

demonstrations: a gathering of people to protest their desire for a particular law to be reformed. Eg Annual Invasion Day demonstrations on 26 January to try and change the date of Australia Day. Influences law through increasing public awareness of issues to increase political pressure, and gain media attention

bringing a case to court: can be direct influence (Creating a new precedent when there are no existing precedents, avoiding a precent, or by courts declaring a Cth or state law invalid (e.g. express rights, ultra vires, s109)) Can also be indirect influence - When a court follows a persuasive precedent though it disagrees with it (a judicially conservative approach) to encourage parliament to abrogate the precedent. E.g. Trigwell

petitions factors evaluation

time and money

strength: Administering a petition generally is less time-consuming and expensive than many other means of influencing law reform, such as bringing a case to court, demonstrations.

weakness: The quick and cheap nature of administering and signing a petition can result in parliament receiving a very large number of petitions every year. This prevalence can arguably dilute the impact of each individual petition on MPs, especially if parliament has received petitions on both sides of a particular proposed reform. Plus some ppl don’t wanna share their personal details when signing

number of signatures

strength: Large signatures indicate large support, can put a lot of domestic political pressure on politicians to reform the law because, if they do not, the signatories of the petition may not vote for these politicians during the next election. PLUS issue can gain media attention, putting further pressure

weakness: If a petition has very few signatures on it, this can discourage politicians from reforming the law because this lack of signatures may indicate that the majority of the general public are not in favour of the reform proposed in the petition. PLUS they gain less media attention than demonstrations

demonstrations factors evaluation

public awareness:

strength: An increased awareness may result in members of the public putting more domestic political pressure on politicians to reform the law. Particularly if there is a visual spectacle like contacting radio stations

weakness: A demonstration which has raised awareness and attracted much public attention to a particular issue is usually more time-consuming and expensive to run (and continue to run).

media attention:

strength: likelihood of parliaments reforming the law because: a) This increases the reform’s credibility b) Some politicians will vote in favour of positively viewed reforms to protect/ improve their public profile or image.

weakness: Negative media attention decreases the likelihood of parliaments reforming the law because: a) This decreases the reform’s credibility b) Some politicians will distance themselves from reforms that may tarnish their public image. PLUS if demonstration is violent, may receive negative media attention, thus less support from public or politicians

bringing a case to court factors evaluation

The fact that bringing a case to court can directly influence law reform.

strength: One way is by courts creating a new precedent. This can occur when there are no existing precedents or by avoiding existing precedents. Another way is by courts declaring a Commonwealth or state law invalid. (express rights, ultra vires)

weakness: The ability of courts to reform the law is subject to various restrictions: o The courts can only reform a law when they are resolving a dispute that involves this law + requirement for standing. o The courts may be unable to directly reform a law because the law may be a binding precedent.

The fact that bringing a case to court can indirectly influence law reform.

strength: One way is through judicial conservatism. When courts follow a persuasive precedent, even though the courts disapprove of this precedent because doing so may influence parliament to abrogate this precedent. E.g. Trigwell

weakness: Parliament may be reluctant to enact significant reforms, particularly if the reforms are controversial and thus likely to cause a political party to lose votes if the reforms are enacted.

3 role of the traditional media in law reform

1. increasing public awareness of law reform issues:

2. Providing politicians with a platform to outline their views on law reform issues

3. Providing a reliable account of law reform issues. BECAUSE reports from reputable organisations adhere to journalist codes of ethics about accuracy of published information, and examine law reform issues in more depth than social media

evaluation of the above

Increasing public awareness of law reform issues

strength: Increasing the public’s awareness of law reform issues can cause the public to apply domestic political pressure on politicians to encourage politicians to reform the law, due to the system of representative government. link to loss of votes in next election

weakness: Traditional media organisations can favour raising awareness of issues that reflect their vested interests & political ideologies. Eg only showing violent segments of a demonstration to alter audience perception of it. This can be problematic as it results in favouring outcomes that may not be just.

Providing politicians with a platform to outline their views on law reform issues

strength: This platform can help politicians educate the public about why particular reforms are necessary. aka Andrews with corona. This can change their view on reforms and encourage them to push for law reform using methods such as petitions.

weakness: Because lengthy interviews with politicians are often edited by media editors, politicians are encouraged to express their views on law reform issues in simple, attention-grabbing ways (e.g. political slogans) – even when an issue is complex. This oversimplification can prevent the public from gaining the understanding needed to form an informed opinion about the proposed law reform.

providing a reliable account of law reform

strength: This reliability influences law reform because it increases the likelihood of politicians and/or the general public acting in response to what the content of trusted media organisations.

weakness: The detailed analysis of law reform issues that tends to be carried out by reputable traditional media organisations is time-consuming and expensive. Disreputable media organisations can always use persuasive language techniques (e.g. appeals to fear) and oversimplifications to encourage members of the public and politicians to reform the law in certain ways.

3 role of social media in law reform (HINT, TWO OF THEM SAME AS TRADITIONAL)

1. Increasing public awareness of law reform issues

Social media tends to increase public awareness of law refom issues to a greater extent than traditional media because:

➢ It tends to be more accessible than traditional media due to its cheaper cost and tendency to use mages and short statements rather in in-depth analysis.

➢ individuals and pressure groups can use social media to increase the public’s awareness of issues that are being censored or not addressed by traditional media, since they aren’t filtered by trad media

2. Providing politicians with a platform to outline their views on law reform issues

to educate ppl, eg andrews using twitter to justify stage 4 restrictions

3. Informing the public about law reform issues in an efficient manner, particularly as compared to traditional media

This greater efficiency is due to many people who use social media not following the journalist codes of ethics that are followed by reputable traditional media organisations.This efficiency can influence law reform by increasing the speed at which members of the public try to get the law reformed (apply domestic political pressure to MP).

EVALUATION OF ABOVE

Increasing the public’s awareness of law reform issues, particularly as compared to traditional media

strength: This platform can influence law reform by helping politicians to educate the public about why particular reforms are necessary and change public views about reforms and encourage the public to get the law reformed using methods such as demonstrations or petitions.

weakness: Because social media favours the use of images and short statements, social media encourages politicians to express their views on law reform issues in simple, attention-grabbing ways, regardless of the complexity of the issues. This oversimplification can prevent the public from gaining the understanding needed to form an informed opinion about whether a law reform proposal is necessary.

2. Providing politicians with a platform to outline their views on law reform issues

strength: This platform can help politicians educate the public about why particular reforms are necessary. This can change their view on reforms and encourage them to push for law reform using methods such as petitions.

weakness: Because lengthy interviews with politicians are often edited by media editors, politicians are encouraged to express their views on law reform issues in simple, attention-grabbing ways (e.g. political slogans) – even when an issue is complex. Oversimplification like above

3. Informing the public about law reform issues in an efficient manner, particularly as compared to traditional media

strength: This increase in efficiency can influence law reform by increasing the speed at which members of the public try to get the law reformed (some members will start taking steps to get the law reformed like contacting their MP)

weakness: This efficiency can decrease the reliability of the information provided via social media. BECAUSE

• First, this decrease may reduce the likelihood of politicians and/or the general public acting in response to what is being published on social media about a law reform issue.

• Second, if politicians and/or the general public do act in response to inaccurate information that has been published on social media, this action is more likely to lead to ineffective and/or unjust law reforms than action taken in response to accurate information.

the role of VLRC and its ability to influence law reform. WHAT IS IT AND 4 ROLES

=VLRC is the Victorian formal law reform body which is funded by the government, but independent of VP and VG

roles

1. To examine, report and make recommendations to the Attorney-General on an issue referred

2. To monitor and coordinate law reform activity in Victoria

3. To undertake educational programs on any area of law relevant to a past/present reference (educate community about VLRC past and current references

4. To examine, report and make recommendations to Vic Attorney-General on relatively minor law reform issues of general community concern. Any member of the public can suggest a law reform to VLRC

extent to which VLRC can reform the law

factor: The fact that the Victorian Attorney-General (AG) generally decides the law reform issues that will be investigated by the VLRC.

strength: This increases the likelihood of the Victorian Government enacting the VLRC’s recommendations for law reform, as the AG is unlikely to have referred a matter unless the Government will likely be receptive to it

weakness: Without a referral from the Victorian AG, the VLRC can only research relatively minor law reform issues of general community concern that will not require a significant deployment of the VLRC’s resources. Won’t necessarily be referred cos AG doesn’t have to follow suggestion

factor: The fact that the VLRC’s investigations generally are very thorough.

strength: This thorough investigation increases the likelihood of the VP enacting the VLRC’s recommendations because they are more likely to be effective than recommendations that have not been thoroughly researched

weakness: On the other hand, a thorough investigation often is time-consuming and expensive.

factor: The fact that the VLRC often take into account the views of the public (e.g. via public submissions and/or consultations).

strength: If the VLRC’s recommendations reflect the views of the majority of the public, the Victorian Government is more likely to enact these recommendations, due to the system of representative government + explain.

weakness: If the VLRC’s recommendations do not reflect the views of the majority of the public, the Government is less likely to enact these recommendations + system of representative government. Plus it may be hard for VLRC to determine the public’ views on an issue esp if its controversial

whats a parl comm, and 2 types of commitees

Parliamentary committee = a body consisting of a small group of government and non-government members of parliament. Parliamentary committees have extensive power of investigation. They can receive written submissions, take evidence by phone or video and travel to consult with individuals, groups, organisations and experts.

standing committee:

• Appointed for the life of the parliament

• Investigate and report on law reform issues referred to them by parliament

• Each one specialises in a different subject area

select committee:

• Created to investigate the need for law reform in relation to a specific issue

• After the investigation ends, it no longer exists

role of parl committees

1. To investigate law reform issues referred to the committee.

• With standing committees, law reform issues are referred directly by parliament

• With select committee, the committee itself is created by parliament to investigate the need for law reform in relation to a specific issue. After the investigation, the committee’s findings and recommendations for law reform are reported to the Victorian Parliament.

pro/con of parl com

strengths:

• Can investigate a wide range of legal, social and political issues

• Can be more efficient than parliament – do not have to wait for sitting days

• Parlaimenty committees investigattions tend to be very thorough  → more likely to be passed

• Allows members of parliament to be involved

• Final reports enable parliament to be more informed before deciding on a bill

• Have access to expert opinions which means Parliament is more likely to adopt the recommendations.

weaknesses:

• Limited resources meaning they cannot examine all worthy issues

• Can be time-consuming and costly

• Large number of committees and the time commitment may deter people from being involved

• Members of governing party may dominate the composition of the committee

• No obligation on parliament to support or introduce law reform

• Not independent of the parliament, may prefer reforms w vested political interest not publics

evaluating ability of parl com to influence law reform

factor: the Victorian Parliament’s role: to form the committees from existing government and non-government members of parliament, as well as decide the law reform issues to be investigated by each committee

strength: these roles increase the likelihood of parliament enacting a committee recommendation because parliament will be receptive to its own referrals, and MPs who sat on a committee can directing advocate for the reform eg in QT

weakness: These roles can limit the investigations parl com to reforms that Parliament has a political interest. ALSO since the majority of parl com consist of gov members, there isn’t much investigation in recommended reforms unsupported by gov even if it has public interest.

factor: the fact that the investigations are thorough

strength: thoroughness increases the likelihood of the Victorian Parliament enacting the committee’s recommendations because these recommendations are more likely to be effective

weakness: time-consuming and expensive

factor: The fact that parliamentary committees often take into account the views of the public (e,g. via public submissions and/or consultations).

strength: If the committee’s recommendations reflect the views of the majority of the public, the Victorian Government is more likely to enact these recommendations, due to the system of representative government + explain

weakness: Since MPs are subject to the system of representative government (unlike the independent members of the VLRC), parliamentary committees are unlikely to make recommendations that are unsupported by the majority of the public EVEN IF they are just and/or effective. PLUS they might not accurately determine particular minority views

points about anti-villification

• Recommendation 24 - the victorian government established a criminal offence that prohibits the displays of nazi idealogy, including the swastika → in response, the vic government passed the law in june 2022 (vic is the first state in australia to pass this legislation

• they held 7 public hearings to gauge community opinions and responses.

kk13: responding to law reform factors

how the instutitons (court and parl) make law

impact of the public on the institutions

resources used