Activity 10l

1. Student responses will vary according to the features selected. For example, if a student selects the power to effect reform as a feature, they might compare any of the following strengths and weaknesses of parliament to any the following strengths and weaknesses of courts.

Strengths of parliament:

• Parliaments are given broad jurisdiction over a wide range of matters, so they have the power to legislate for the needs and good government of the states and country.
• Parliaments can make law virtually without limit, as long as the matter is within their powers: laws can be made prospectively or retrospectively, they can be made regarding things they are being lobbied on or things parliament decides itself, and laws can be on narrow issues or entire areas.
• Parliament can choose whether or not it agrees with the laws created by other bodies including the courts, and can legislate to confirm or abrogate them.
• Parliament has the ability to see laws in the big picture, and makecomprehensive changes that clarify and respond to an entire area of lawin one move.
• Parliament can make laws in futuro, meaning laws are made proactively for the future in anticipation of society’s future needs.
• If the Government wants to speed up a bill’s progress, and a majority of the house agrees, times can be specified for the remaining stages of the bill.

Weaknesses of parliament:

• Parliaments are restricted by the Australian Constitution, and each parliament can only pass laws on matters within its jurisdiction. For example, the Commonwealth Parliament may become concerned about the road toll in some parts of Australia, but it is restricted in its ability to act on this matter because road rules are a state responsibility.
• Parliaments do not have the time to monitor and reform all laws, particularly those dealing with the relationships between private citizens (civil law rules).
• It is not possible for law-makers to anticipate all future issues. Society’s values, behaviours and technology can change rapidly, creating new and unforeseen problems. As this occurs there will be gaps in the law, which will need to be filled no matter how hard the parliament tried to legislate in advance.
• The process of passing legislation can be very time-consuming, meaning law-reform can be slow, even if society’s needs are changing. This is especially so if there is a hostile upper house.
• Parliament cannot always make desirable laws because it is unable to fund the operation of those laws.
• Laws made by one parliament will often be repealed by a future parliament when a different political party gains the majority.

Strengths of courts:

• In some areas, such as constitutional law, history has shown test cases and statutory interpretation to be the easiest method to achieve change, and therefore it is the most powerful and effective.
• The courts will develop law in response to real needs in the community, so there is less guesswork and law-makers do not need to think of the matter themselves.
• Courts can make nuanced and incremental changes over time and in response to real cases that adapt to changing needs and problems.
• The rigidity of stare decisis assists in the development of law – judges can create new common law when a need arises and, because other judges will stand by that decision, a new principle of law is then settled for similar, future cases.
• Judicial activism is an important way in which the court communicate with parliament on the need for law – creative and progressive decisions can signal to parliament that an area of law is outdated, but that things happening in the community require the law to be changed.
• Courts can respond to the need to change the law reasonably quickly, as long as a case is brought before them – courts have the power to expedite hearings and judges can fast-track their decisions if the issue is urgent.

Weaknesses of courts:

• Courts cannot determine what the law is, or alter existing common law, until a case is brought before a superior court of record by someone with standing, and who makes the right legal arguments – courts cannot initiate a change in the law by themselves, even if society’s values or lawmaking needs have changed, and inferior courts cannot set or develop precedent, even if an appropriate case does come before them.
• A case must lend itself to the creation of precedent – it must have material facts that allow the judge to consider the desired area of law, and there must be no binding precedent or clear legislation relevant to the case.
• The process of bringing and hearing a case is not always quick – it takes time to appeal to higher courts and for superior courts to reach and deliver their decisions.
• Courts can only make laws ex post facto – in other words, they can only make laws in reaction to events, rather than planning for the future needs of society.
• Because parliament is the supreme law-maker and the only democratically-elected law-maker, many judges prefer to leave major changes or departures from existing law to the legislature.
• Stare decisis can promote rigidity over a balanced flexibility – it encourages conservative approaches in judges, and requires lower courts to follow principles of law that have been criticised by the public and other courts.
• Precedent develops in an ad hoc way, piece by piece – good laws can be developed in a disorganised and incomplete way, and bad laws can be overridden in a disorganised and incomplete way.

2. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of parliament to respond to the need for law reform requires students to write about factors related to strengths and weaknesses of parliament. Responses will vary according to the arguments selected.

3. The task word ‘discuss’ require students to consider both sides of something. In this case, ‘discussing’ the ability of courts to respond to the need for law reform requires students to write about factors related to strengths and weaknesses of courts. Responses will vary according to the arguments selected.

4. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that parliament does have the ability to respond to the need for law reform. In this case, ‘evaluating’ the ability of parliament to respond to the need for law reform requires students to write about relevant strengths and weaknesses.

This specific question requires students to evaluate strengths, meaning they must commence with a stated strength, giving reasons for why it is an advantage/benefit, then move on to provide reasons against that in the form of weaknesses that counterbalance the strength. Students should then finish with a concluding opinion on how ‘good’ the strength is overall.

For example, one strength of parliament is its ability to be representative and responsive – the principle of representative government means that, in governing on behalf of the people who elected them, laws will probably be made that are consistent with the values and beliefs of the majority of voters. This is because members of parliament must keep the majority in their electorates happy in order to keep their vote and win the next election. Further, regular elections are conducted every four years in Victoria and every three years at the Commonwealth level. This allows the voters to remove representatives who are not passing laws that represent their wishes about how society is governed. If elections were not regular, too many issues could arise in between for any one thing to be protested by voters; alternatively, the Government could keep delaying the next election and effectively never have to be re-elected.However, the people can only have limited input into law-making through elections. Partly this is because of the “parliament as prize” model of Westminster government we have developed: each voter must choose from among competing bids at election time, and each bid is composed of many different policies and proposals. We can only get the programs we want by also voting for the ones we don’t want – at the ballot box we cannot split our vote among individual policies. Further, political parties are each beholden to different interest groups. Sometimes parties may back policies that suit the interests of their supporters, rather than what could be seen as suiting the interests of the country as a whole or future generations.Overall, while parliament has a number of weaknesses in relation to its ability to be representative and responsive, it is largely able to respond to the need for law reform as it will make laws that are consistent with the values and beliefs of the majority of voters as representatives will be removed at election if they do not represent the wishes of the people.

5. The task word ‘evaluate’ require students to consider both sides of something, as well as express an opinion judging the relative strengths of the arguments. For example, a student might argue, based on evidence, that courts do have the ability to respond to the need for law reform. In this case, ‘evaluating’ the ability of courts to respond to the need for law reform requires students to write about relevant strengths and weaknesses.

This specific question requires students to evaluate strengths, meaning they must commence with a stated strength, giving reasons for why it is an advantage/benefit, then move on to provide reasons against that in the form of weaknesses that counterbalance the strength. Students should then finish with a concluding opinion on how ‘good’ the strength is overall.

For example, one strength of courts is that the court hierarchy contains its own mechanisms for reform and accountability. Superior courts can review the judgments of lower courts, and the High Court has the power to reconsider its interpretation and change it in future cases if it is persuaded that the original interpretation was in error. However, the judiciary is unelected, and its decisions on the interpretation of the Constitution cannot be overridden by the elected parliament. This is an undemocratic way of making law, and of developing constitutional law. In addition, allowing courts to “create” common law rules and protections such as representative government, which are highly political and have political effects, risks politicising the judiciary. When it involves interpretation of the Constitution, it also circumvents the referendum procedure and excludes the people from the process. Overall, while courts have a number of weaknesses in relation to accountability and oversight, they are largely able to respond to the need for law reform as they are accountable through the court hierarchy and through the appeals process.

6. The task word ‘discuss’ require students to consider both sides of something. In the case of this question, students also need to respond to the words, ‘the extent’ – for example, to a small extent, to some extent or to a large extent. The ‘discussion’ of the extent to which courts are able to overcome the limitations of parliament in responding to the need for law reform requires students to write about relevant factors limiting parliament and relevant strengths of courts to counter those limitations. Weaknesses of courts should also be referred to so that the student can determine the extent to which courts are able to overcome the limitations of parliament in responding to the need for law reform.