Legal Studies 3/4

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VCAA 2001
Question 8

A.Discuss the strengths and weaknesses of parliament as a law-maker. Illustrate your answer with a comparison of law-making by courts. (12 marks)

Parliaments primary role is to make laws on behalf of the community as the need arises. Parliament can also change the law as the need arises. Eg//cloning. As parliament only sits for a small portion of the year they cannot always change the law as the need arises. They also may not be able to foresee all future circumstances and laws may become outdated. Sometimes to help with this problem parliament makes laws in futuro, meaning that laws are made for the future with the future in mind for as far as possible. Although rare, parliament can make retrospective laws, which makes something that was legal at that particular time illegal. This is seen as a weakness of parliament as people can been prosecuted for crimes they committed many years ago.

Parliament is the supreme law-making body; it can make laws on all issues within its jurisdiction. However, the process of law-making can be slow. The courts, on the other hand, can change the law quickly if a relevant case is brought before them, they also can create precedent to be followed by other in the community in the future. Courts cannot change the law unless a relevant case is brought before them; this requires a person to be directly affected by the issue and also be prepared to spend the time and money involved in taking a matter to court. For example, in the John McBain v. State of Victoria & Ors, Dr. McBain wanted the courts to change the law to allow all women to have access to IVF treatment. Dr McBain could only bring proceedings in the Federal Court under S109 of the constitution (if there is a conflict between state and Commonwealth laws in an area of concurrent law, Commonwealth law will prevail.), because he was able to show that a particular patient of his (Leesa Meldrum) was directly affected by the conflicting legislation.

Parliament is able to involve the public in law-making and to gauge public opinion about any future changes in the law. There is often debate in the media when a change in the law is proposed. Committees may be required to investigate matters fully and gain public input. However, it is not always possible to respond to changing values in the community because there may be conflicting values. For example, there have been strong conflicting attitudes and views about legalising voluntary euthanasia. As a result the law remains unchanged.

Courts are not subject to political influence when making a decision. Judges are independent and unbiased and are not subject to the whims of the electorate. The doctrine of precedent helps in this as judges can refer back to previous cases and decide accordingly without being influenced by political persuasions. However, as the courts cannot gauge public opinion they may not reflect current community values when making a decision. For example, in the case of R v. David Norman Johns there was uproar about statement by the judge, ‘a measure of rougher than usual handling' is acceptable behaviour by a husband seeking consent to sexual intercourse.

The state and Commonwealth Parliaments are the supreme law-making bodies, within their own jurisdictions. They have the right to override laws when implementing the law-making powers given to them. Parliaments can change the law when the need arises because they are not bound by previous acts of parliament. Courts can interpret the words of an act of parliament but parliament can abrogate (cancel) a law made by parliament or can pass an act to reinforce common-law (laws made by judges in court). However, parliaments are restricted to making laws only in their jurisdiction. The Commonwealth Parliament is restricted to making laws outlined in the Commonwealth of Australia Constitution Act 1900. Some of their powers are exclusive powers meaning that they can only be exercised by the...
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