Legal Studies PDF

Preview

Summary

Summarised legal studies notes...

Description

Legal Studies Revision! Parliaments and Courts and Law Reform Factors that affect the ability of Parliament to make law! * The roles of the houses of parliament! * The representative nature of parliament! * Political pressures! * Restrictions on the law-making powers of parliament! The Roles of the Houses of Parliament! * The effectiveness of the lower house depends on whether the government holds a majority or minority in the house! Lower House! * Role is to initiate and make laws, represent the people and act as the house of government! * For a law to be passed, the upper house needs to scrutinise it and agree! * One party rarely achieves a majority in both houses! * Added onus on the lower house to vote in line with the views of their electorate or else they face losing the next election! Upper House! * Role is to initiate and make laws, and act as the house of review! * A hostile upper house can ensure government bills are carefully scrutinised! * A hostile upper house can block bills or force amendments! The Representative Nature of Parliament - Representative Government! * Means that at both parliament and state levels, parliament and government consists of members elected by the people to make laws on our behalf! * If members fail to do this, they will risk being reelected ! * This is our democratic system and helps ensure members of parliament engage with and listen to the views and concerns of the people! Views of Majority! * Parliament is elected by the people and need to make laws to reflect the values and views of the community! * Individuals, pressure groups, media and public opinion can force government to carefully consider law reform! * Government needs to ensure they’re considering views of majority of the public! Regular Elections! * Government that doesn’t represent the needs of the majority can be voted out of office! * Fixed terms give government a specified period to implement programs! * Compulsory voting helps ensure government has support of majority! Political Pressures! * Our parliamentary system is representative of the people. We elect members of parliament to make laws on our behalf.! * If they fail to do this they may jeopardise their reelection, meaning that members of parliament need to maintain their popularity if they want to stay in their position! * This can cause pressure on politicians to implement law reforms! Domestic Political Pressures! * Groups and people can use demonstrations, petitions and court action to force law reform! * Powerful organisations may influence government agendas! Internal Political Pressures! * Members of parliament who belong to a political party are generally expected to make decisions on the views of their party! International Political Pressure! * International treaties can improve quality of domestic laws and encourage stronger relationships with other countries! * International treaties can pressure governments to act more in the interest of other countries!

Restrictions on the Law-Making Powers of Parliament! Jurisdictional Limitations! * Ensure parliaments can only legislate within their power! * Allow individuals and groups to challenge legislation! * The High Court can declare a law to be ultra vires (beyond its powers)! * Challenging legislation is expensive, time consuming and has no guarantee of success! Specific Prohibitions ! * Restrict law-making powers of parliament and indirectly protect individual rights! * Section 109 limits the state parliaments when legislating in concurrent areas of power! * The commonwealth can influence the state agenda through grants! * The wording of the constitution can only be altered to change the Commonwealth’s law-making powers by a referendum ! The Roles of the Victorian Courts and the High Court in Law-Making! Precedent! * A court can make law when a court resolves a dispute where there is not existing law that can be applied to resolve the case! * A court can make law if an existing statute needs interpretation. This refers to interpreting the meaning of the words and phrases! Doctrine of Precedent! * Creates consistency and predictability as courts lower in the same court hierarchy must follow the decision made enabling doctrine of precedent! Key Features of Doctrine of Precedent! * Stare decisis: means stand by what has been decided! * Ratio decidendi: means the reason behind the decision! * Binding precedent: established by superior courts that must be followed by lower courts! * Persuasive precedent: precedents that aren’t binding on the court but may be used for the judge to consider and influence their decision! Obiter dicta: means ‘by the way’, comments made by the judge in a particular case that may be * persuasive in future cases! Using and Avoiding Precedent! *Apart from following a binding decision, judges can:! 1. Distinguish a precedent! 2. Reverse a precedent! 3. Overrule a precedent! 4. Disapprove a precedent! Distinguishing a Precedent! * Judge may be able to avoid following a binding precedent if they can find a difference in the material facts of the case! Reversing a Precedent! * When a case is taken to appeal to a higher court, the superior court can change the decision of the lower court therefore creating a new precedent! Overruling a Precedent! * When a higher court decides not to follow a previous precedent set by a lower court, it can choose to overrule the existing precedent and therefore makes a new precedent! Disapproving a Precedent! * When a lower court disapproves an existing precedent made by a higher court, it may express dissatisfaction however will still need to follow the existing precedent! Statutory Interpretation! * When judges make law when called to interpret the meaning of a statute in order to resolve a case. Judges do this to bring meaning of words and phrases contained in a statute.! Reasons for Statutory Interpretation! 1. Problems that occur as a result of the drafting process! 2. Problems that occur when a court is applying the statute the resolving a case!

Problems as a result of the Drafting Process! * Mistakes can occur during the drafting of a bill! * The act may have not taken future circumstances into account! * The intention of the act may not have been clearly expressed! * There may be inconsistent use of the same words in the act giving it different meanings! * An act may have not covered new types of technology! Problems Applying the Act to a Court Case! 1. Most legislation is drafted in general terms so it may be too broad to be applied ! 2. The act may have become out of date! 3. Meaning of the words may be ambiguous ! 4. Acts may be silent on an issue and courts may need to fill the gaps! 5. Meaning of words can change over time! Effects of Statutory Interpretation! * Words and phrases are given meaning! * The decision reached becomes binding on parties! * Precedents are set for future cases to follow! * Meaning of the law can now be restricted! Factors That Affect The Ability Of Courts To Make Law! * The doctrine of precedent ! Doctrine of Precedent ! * The doctrine of precent enables and restricts the ability of courts to make law through binding precedent and persuasive precedent! * Judges can only make law when the issue is brought before them in trial, this limits their ability to make common law! * Parliament can override judge made law therefore limits courts! Judicial Conservation! * Judges can gold different views on how they should interpret the law. Judicial conversation refers to the idea that the courts should show restraint or caution when making decisions and ruling that could lead to significant changes in the law! * This helps maintain the stability in the law, lessens possibility of appeals and restricts the courts to make major and controversial changes to the law! Judicial Activism ! * Refers to judges considering a range of political and social factors, including the rights of people, when interpreting the law and making decisions! * An example of judicial activism is in the Mabo case where the justices of the High Court recognised the rights of Aboriginal people! Costs and Time In Bringing A Case To Court! * For a court to apply and make law, a case needs to come before them! * This is heavily affected when costs and time factors affect the ability of parties to take their case to court! Requirement of Standing! * Means cases are only brought to a court by people who are directly affected by an issue or matter! * They need to stand before the court and be heard and can only do this if this person is directly affected by it! Relationship between Courts and Parliament! Supremacy of Parliament! * Parliament is the supreme law-making body with the ability to make and change law! * Has power to either confirm or override (abrogate) decisions made through the courts!

* Parliament needs to pass statute laws that courts need to apply in their cases! * Can also pass legislation to change jurisdiction of courts so types and severity of cases can be changed! Ability of Courts to influence Parliament! * Courts can influence parliament to make or change law. Can do this through judges making comments when handing down judgements, and this can inspire parliament to initiate law reform! * Parliament can also be influenced to change law if a court decides based on previous precedent and this creates injustice! Interpretation of Statutes by Courts! * Courts must apply statutes to cases brought before them. Courts sometimes need to interpret or give meaning to words or phrases of a statute! * This relationship outlines how parliament and court need to work together to interpret a law and therefore becomes a precedent! Codification of Common Law! * Parliament can make law that confirms a precedent set by the courts. This involves passing legislation that reinforces the court’s ruling! Abrogation of Common Law! * Parliament has power to pass legislation that overrides, and essentially cancels the decisions made through courts! * This may be necessary where parliament believes the courts have interpreted the meaning of the words in a statute in a way that was wrong ! Law Reform - Reasons for Law Reform! For Laws to be Effective! * Needs to be known! * Be enforceable! * Be accepted by people in society! * Be able to be changed! * Be easily understood! Reasons why Law Reform is Necessary! 1. Changes in beliefs, values and attitudes! 2. Changes in social, economic and political conditions! 3. Advances in technology! 4. Greater need for protection! 5. Greater awareness of the need to protect rights! 6. Greater need to provide greater access to law! 7. Encouraging changes in values! 8. Greater need to clarify, simplify or expand unclear laws! Individuals influencing Law Reform! * Through petitions, demonstrations and use of courts! Petitions! * Formal written request to parliament for action in relation to particular law that needs reform. Usually has collection of signatures on it! * Once the organiser feels as though there’s enough signatures, they forward it to a local member of parliament! * There are two ways to be presented - 1. Print petitions and 2. Digital petitions! Strengths and Weaknesses - Petitions! * Relatively simple, easy and inexpensive way for people to show desire for change in law! * Members of parliament more likely to consider law reform that has strong support within community!

* Some people are reluctant to place their name, address or email on petition and can find requests to do so an imposition! * Good ideas may be overlooked if there’s no other community pressure beyond petition! Demonstrations! * Also known as protests, occur when group of people gather to express common concern or dissatisfaction with existing law! * Individuals and pressure groups can influence law reform by alerting government the need for change! * To be effective, demonstration needs to attract large numbers of people and positive media coverage! Strengths and Weaknesses - Demonstrations! * Demonstrations that attract large numbers of participants can attract free positive media attention! * Can gain support of members of parliament who want to ‘adopt a cause’ - particularly one that might improve their public profile or image! * Can be less effective and even decrease support for law change if they cause public inconvenience, become violent or lead to breaches of the law! * Can be difficult and time-consuming to organise and attendance may be affected by factors like location and weather! The Use of Courts! * Individuals or groups can bring about change in law by taking matter to court! * If parliament has passed law that’s unclear or unfair, legislation can be challenged through court system in hope that judge will interpret and clarify meaning of law in their favour! * However apart from high court, parliament can still override decisions made by courts! Strengths and Weaknesses - Use of Courts! * Challenging existing law in higher court can enable vague or unclear law to be clarified! * Even if court challenge is unsuccessful it may gain significant media coverage and help increase awareness of possible need to change law! * Courts are limited in ability to change law because they can only do so when case comes before them and only in relation to issues in case! * Individuals can be reluctant to challenge case because it can be expensive and time-consuming and a successful outcome can’t be guaranteed! Role of Media in Law Reform! * Traditional media and social media have important role to play in influencing changes in law! * Use of these platforms have gained significant popularity, and this makes social media an important way for individuals and pressure groups to gain awareness of an issue! Social Media! * Can create interest or raise awareness of legal issues. People can use Facebook, Instagram, and Twitter to share their views and opinions! * Politicians can also now communicate their opinions to a broader audience with a greater speed than any time in history! * Is influential in law reform because users can directly access political party or politician via their website, facebook or twitter. Public can more directly interact with members of parliament to make them more accountable for their actions! Traditional Media! * Refers to newspapers, television and radio. Around 52% of Australians still rely on traditional media! * Has important role in influencing law reform through ability to examine, discuss and inform people about legal issues and possible changes to law! * Problem with traditional forms of media is that may not always present information in an unbiased and independent manner. Television and radio can manipulate content! * Can also influence law reform by broadcasting public opinion!

Is the Media Effective?! * Provides way for individuals and groups to gain community support for their desired law reform to attract attention! * Law makers also use media to gauge public opinion and have social media accounts to connect with community! * Social media, however, may sometimes not be appropriate and may influence people to have an opinion who don’t really understand the issue well! The Victorian Law Reform Commission (VLRC)! Role of the VLRC! * Victoria’s leading independent law reform organisation which reviews and makes recommendations to the Parliament of Victoria about possible changes! * Aims to assist government in continuing to provide fair, inclusive and accessible legal system by investigating the need for change in Victorian laws! Specific Roles! * Inquiry: examine and report on any proposal referred to make recommendations for law reform! * Investigation: to investigate minor legal issues of general concern for suggestions for law reform! * Monitoring: monitor and coordinate law reform activity in Victoria including making suggestions! * Education: to undertake educational programs and inform community on any area of the law! Recent VLRC Projects! 1. Medicinal cannabis! 2. Adoption laws! 3. Funeral and burial instructions! 4. Family violence ! 5. Litigation funding! Strengths and Weaknesses - VLRC! * Government asks VLRC to investigate need for law change in specific areas, government should be more likely to act on the VLRC’s report and recommendations ! Has ability to measure community views on areas of investigation by holding consultations and * receiving public submissions ! * Can only investigate issues referred to it by the government or minor community law reform issues that will not consume many resources ! * Can be time-consuming and costly ! Royal Commissions! * Major public inquiries established by government to investigate something of public importance or concern! * They’re called ‘royal’ commissions because they’re created by Australia’s head of state (the Queen)! * Given special investigatory powers including power to summon people to attend hearings, give evidence and be subject to cross examination! * Can be expensive, they often look into matters of significant importance and often matters surrounded by controversy ! Processes used by Royal Commissions! 1. Prepare an issues paper! 2. Conduct consultation sessions! 3. Hold public hearings! Examples of Royal Commissions! 1. Aboriginal Deaths in custody (1987-1991)! 2. Building and Construction Industry (2001-2003)! 3. Failure of Kings bridge (1962-1963)! 4. Bushfires royal commission (2009)! 5. Royal commission into family violence!

Royal Commission into Family (2014)! * Was required to investigate and make recommendations on how best to change government policy to - reduce and eliminate family violence, prevent the occurrence and escalation of family violence, build respectful relationships, increase awareness of the extent and effects of family violence and ensure the safety of people who are or may be affected by family violence! What happened?! * Royal commission undertook 12 months of investigation which included conducting several days of hearings and receiving 1000 submissions from range of individuals and organisations! * Report contained 227 recommendations aimed at improving the way our government and institutions respond to family violence! Ability of Royal Commissions to influence Law Reform! * Because government asks royal commissions to investigate something important, the government may be more likely to act on the royal commission’s report and recommendations! * Can measure community views on areas of investigation by holding consultations and receiving public submissions! * Can be used as a tool against political opponents. Can also be used to avoid getting on with difficult legislation! * No obligation on the part of the parliament to support or introduce law reform to adopt any of the recommendations made by royal commissions! Ability of Parliament and the Courts to respond to Law Reform! Parliament respond to Law Reform! 1. An elected and supreme law-making authority with extensive power to make and change the law on behalf of the people ! 2. Can be thoroughly investigated need for a change in law, including investigating and changing whole areas of law! 3. Can respond quickly to the needs and demands of the community! Strengths and Weaknesses - Parliament’s response to Law Reform! * Elected supreme law-making body with power to make and change any law within their own jurisdiction or area of law-making power! * Can make and change laws as need arises to ensure law reflects changing needs, views and values of society ! * Parliament isn’t able to change law if it’s ultra vires or outside their law-making powers! * Members of parliament may be reluctant to legislate in areas where there’s conflicting community views, or benefits will not be seen for many years, through fear of losing voter support! Courts respond to Law Reform! 1. They can make law in cases where none exists and interpret and interpret meaning of legislation! 2. They make independent judgements and decisions without fear of losing electoral or voter support! 3. They can declare legislation invalid if it’s been made beyond law-making powers of parliament! 4. Can highlight problem that raises community awareness about need for laws to be changed! Strengths and Weaknesses - Court’s response to Law Reform! * Courts can make law where none exists and give meaning to unclear legislation so it can be applied to resolve case at hand! * Decisions and comments made by judges can indirectly influence parliament to changi...