Role of the Courts in Law-Making: Suggested Responses

Unit 3 Area of Study 3

Role of the courts in law-making: suggested responses

VCAA exams

2003 VCAA exam

Question 8

b. Although Parliament always decides what the laws will be, it is the courts’ role to decide how these laws will be applied to particular cases.

Comment on this statement and critically evaluate the lawmaking processes of both Parliament and the courts. (14 marks)

VCAA Examiner’s report response

b (Average mark 6.18/ Available marks 14)

Evaluation of our law-makers should be expected on the examination and students should be well prepared to answer such questions. Essentially, the material required is the advantages and disadvantages of the processes used by courts and the parliament to make laws; however, this is not all that is required to answer the question well. Students should give some thought to the way they will present their answers to a question worth 14 marks. The time to spend on this question is about 25–28 minutes (maximum) and this means that there is plenty of time to present a detailed discussion about our law-makers. More successful answers began with the required comment about the statement which became the basis for the evaluation of the law-making processes. For example, ‘Although parliament is the supreme law-maker it does not ‘always’ decide what the laws will be. Some of our laws have been made in the courts, the law of negligence for example.

This means that we need both the parlt and courts working together to make laws. As an introductory comment this paragraph provides the basis for a discussion about the advantages and disadvantages of the law-making processes of the courts and parliament. The answer could go on to say, ‘Parliament is the supreme law-maker because it is representative and responsible. It is made up of the elected representatives of the people who are able to vote out of power any parliament that does not represent the views and values of society. The process that parliament uses to make laws is also very effective. It provides opportunities for detailed debate and scrutiny of legislation and this ensures that the best laws are made. The three reading stages and the committee stage ensure that bills are considered very carefully before they are passed, especially at the committee stage when amendments are most likely.

Legislation also has to be passed by both houses of parlt and if the govt does not have a majority in the upper house then it can be very difficult for bills to become law. However, if the govt has a majority in both houses it can pass any legislation it likes (although finally the people can vote them out of office if they don’t like the laws).’ This answer could go on to discuss other aspects of the process, as well as discussing advantages and disadvantages of the law-making processes of the courts (statutory interpretation and the use of the doctrine of precedent). Some students made the point that judges make the law quickly – this requires a little more thought. Most cases will not be conducted quickly, thus increasing the time taken to produce a judgment.

Courts – strengths

·  Courts can change a law quickly if a relevant case is brought to it

·  Courts can keep the law from becoming too rigid by distinguishing, overruling and reversing previous decisions and giving meanings to words in statutes

·  Courts can fill the gaps in the law by making a decision on a matter when it arises

·  Courts can interpret the words of an act of parliament to give a more just result

·  Judicial decisions are free from outside pressure

·  The doctrine of precedent limits possibility of prejudices influencing judicial decisions

·  Appeals process allows for the review of decisions.

Courts – weaknesses

·  Courts cannot change a law unless a case is brought before the court

·  Courts may be bound by an old precedent, which could lead to unjust results

·  Changes in the law through the courts are ex poste facto

·  Changes through the courts is very expensive for the parties involved

·  Parliament can override court-made law

·  some judges are very conservative and could be reluctant to change bad laws

·  Not a democratic system of law-making and judges tend to be drawn from a narrow, socio-economic background and are usually male though this is increasingly being addressed.

2004 VCAA exam

Question 1

Provide two reasons why judges need to interpret statutes. (2 marks)

Suggested response

·  The words contained in legislation may be ambiguous, requiring the court to interpret the words and apply them to the case. One of the key roles here for the court is to determine parliament’s intention in the original drafting of the legislation.

·  Where inconsistencies arise between Acts, or between 2 or more sections of the same Act. In this situation, the courts must determine which of the sections of legislation should prevail.

2004 VCAA exam

Question 8

b. Describe how courts and Parliament make law. Discuss two differences between the lawmaking processes of courts and Parliament. 10 marks

A very good answer presented the material in the following way: Courts make law essentially as a by-product of dispute resolution. They make common or case law through the doctrine of precedent and statutory interpretation. The doctrine of precedent is based on the concept of .stare decisis. (to stand by the decision) and refers to the notion that the reasoning (or ratio decidendi) behind decisions of higher courts should be binding on lower courts in the same hierarchy where the facts of the case are so similar that they cannot be distinguished. Statutory interpretation is where a judge gives meaning to the words in the laws passed by Parliament. This meaning may form a precedent for future, relevant cases.

Parliament is the supreme lawmaker and is able to make laws by following the legislative process of debate and questioning in order to create statutes or legislation. Bills are introduced into either house of Parliament (with the exception of money bills that must originate in the lower house) by the Minister responsible for the area of law or an individual member of Parliament. The bill undergoes a first and second reading, detailed scrutiny in the committee stage, and a third reading in both houses of Parliament. The Royal Assent is given by the Queen’s representative if this process is passed successfully. The final stage is the proclamation of the law.

One difference between the lawmaking processes of courts and Parliament is the ability of Parliament to make law at any time, as long as they are sitting. They have the capacity to make laws very quickly whenever the need arises, as long as the issue isn.t so controversial that they decide to defer the decision to legislate (eg, abortion). In contrast, courts may perceive the need to create a law, but can only make laws when a case is brought before a superior court. They are not as free as Parliament to make laws, and may even be bound by precedent that will prevent a court from making law even if there is a need to.

Another difference is the resources available to both lawmakers. Parliament has an array of experts and technical advice at its disposal when assessing the need for change and drafting a bill. They can even initiate government inquiries and VLRC recommendations to assess the alternatives and variety of opinions on an issue. In contrast, courts are reliant on and limited by the information presented to them by the parties to a dispute and so the resources available are much less than those available to the Parliament.

Other differences that could have been mentioned include:

·  Parlt can make law in futuro, while changes in the law through the courts are ex poste facto

·  Parlt can delegate legislative power to subordinate authorities in areas where this is most effective; courts do not have this authority

·  Members of Parlt are democratically elected; judges are appointed and independent

·  the Parliamentary process can be compromised by pressure from special interest groups; the courts are free from any obligation to listen to the community’s views on a matter relating to cases before them.

2005 exam – Question 9

‘A weakness in Australia’s system of law-making is that both parliament and courts can make law. It would be better if law-making was left to parliament alone.’

Discuss this statement indicating the extent to which you agree or disagree with it. Justify your conclusions. (12 marks)

Breaking down the question

Students need to acknowledge that there is a quote attached to the question. This quote needs to be referenced in the answer to show the assessor that the question has been read carefully. This is not simply a strengths and weaknesses of parliaments and the courts question. It refers to the law-making process, so this would need to be explained in the first part of the response:

·  The law-making process of parlt (initiation, the passage of a bill, royal assent and proclamation)

·  The process of law making by the courts: explaining that the doctrine of precedent is based on the common law, which is developed through court decisions. Brief reference would be made to binding and persuasive precedent.

·  The key aspect of the statement ‘both parliament and courts can make law’ should be addressed next. Answers should mention that courts make law through statutory interpretation (giving meaning to the words in Acts of Parliament) and comment on the complementary role of the courts and parliament as law makers:

-  Statutory interpretation can set a precedent that will be binding or persuasive on judges.

-  A wide interpretation extends the law to cover a new situation or new area of law.

-  A narrow interpretation may restrict the law to cover only certain situations.

-  Statutory interpretation does not amend or modify the actual words in the Act.

-  The interpretation or definition of a word is only valid for the statute interpreted.

Discussion of the parliament as a law-maker: examples of strengths and weaknesses

Strengths

·  Parliament investigates areas for reform and collects information from a variety of sources to make informed decisions when drafting Bills. Through the VLRC, committees and public inquiries, parliament allows the community to be actively involved in regard to proposals for law reform. The public is given the opportunity to submit written and oral statements in an attempt to influence law reform, which provides for representative govt.

·  Parliament makes law in futuro and has the power to cover future circumstances. This creates confidence in the legal system in that the community can be informed of changes and then plan accordingly. Parliament undertakes public education programs before the law comes into effect, especially in key areas such as taxation and road laws.

Weaknesses

·  Politicians are conscious of public opinion and therefore, controversial areas such as euthanasia may not be addressed because political parties fear losing voter support.

·  Where the government does not control the upper house, such as at the Commonwealth level, the opposition can frustrate its legislative program purely for political purposes. Changing statute law can be very time consuming, and much needed law reform can be delayed because opponents of the government wish to indulge in ‘point scoring’ rather than an objective analysis of the issues. On the other hand, if the government controls the upper house, such as in Victoria, it might act only as a ‘rubber stamp’ and not vigorously review government Bills.

Discussion of doctrine of precedent: examples of strengths and weaknesses

Strengths

·  Courts can keep the law from becoming too rigid by distinguishing, overruling and reversing previous decisions and giving meanings to words in statutes. In this way, courts can fill the gaps in the law by making a decision on a matter when it arises.

·  Judicial decisions are free from outside pressure. The doctrine of precedent limits the possibility of prejudices or bias influencing judicial decisions.

Weaknesses

·  Courts cannot change a law unless a case is brought before the court. In this way, judges may be bound by an old precedent, which could lead to unjust results.

·  Change through the courts can be very expensive for the parties involved.

Overall conclusion

Students should now address the part of the question, ‘indicating the extent to which you agree or disagree with it’. It would be wise for students to argue that the parliament and courts work together as law-makers and it could not be said that law-making should be left only to parliament. The courts play a vital role in hearing and determining disputes and in the process, creating legal principles that affect the scope of legislation. The courts also play the vital role in declaring legislation ultra vires that is not constitutional according to powers given to the law-making body.

2010 VCAA exam

Question 9

The doctrine of precedent allows for both consistency and flexibility.

Critically examine these two strengths of the doctrine of precedent. (6 marks)

The doctrine of precedent allows for consistency

·  The doctrine of precedent limits the possibility of prejudices influencing judicial decisions.