Activity 9n

1. There are a number of ways in which the costs and time in bringing a case to court affects the ability of parliament to make law including:

• thedesirability of the ‘matter-based’ process – for example, ensuring that courts only determine the law in response to disputes preserves the independence of the judiciary.
• the efficacy of the ‘matter-based’ process– for example,the courts will always be developing law in response to realneeds in the community. Parliament is not always able toforesee what situations will require legal clarification or newlegal principles, and seeing real cases gives the courts this kindof practical insight.

2. The task word ‘discuss’ require students to consider both sides of something. The ‘discussion’ of the ability of courts to make law in relation to the costs and time in bringing a case to court requires students to write about relevant factors enabling courts and relevant factors limiting courts.

3. The task word ‘analyse’ requires features or concepts to be broken down and shown how they relate to each other. It may require both sides of the question to be addressed to some extent, and a clear opinion to be provided. In this case, a clear opinion on one way in which the costs and time in bringing a case to courtaffects the ability of courts to make law should be given.

For example, in relation to the efficacy of the ‘matter-based’ process, the courts will always be developing law in response to real needs in the community. Parliament is not always able to foresee what situations will require legal clarification or new legal principles, and seeing real cases gives the courts this kind of practical insight. However,matter-based development of the law can cause delays. Courts cannotdetermine what the law is, or alter existing common law, until a case isbrought before a superior court of record by someone with standing,and who makes the right legal arguments. Courts cannot initiate achange in the law by themselves, even if society’s values or law-makingneeds have changed, and inferior courts cannot set or develop precedent, even if anappropriate case does come before them.

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 while there are some limiting factors, the costs and time in bringing a case to court do enable courts to make law. In this case, ‘evaluating’ the ability of courts to make law in relation to the costs and time in bringing a case to courtrequires students to write about relevant factors enabling courts and relevant factors limiting courts.

This question asks for an evaluation by feature – this means that students should point out factors enabling courts and factors limiting courts by feature. For example, in relation to courts only making law in response to “matters” being resolved, ensuring that courts only determine the law in response to disputes preserves the independence of the judiciary.Allowing the courts to issue advisory opinions on request of the executive government could undermine the public’s confidence in the judiciary’s ability to act independently of the government in other cases. However, preventing the courts from clarifying the law without a matter being brought to them can limit their ability to clarify the law. Laws can operate for many years without the public knowing for sure what they mean or whether they are even constitutional.