Parliament as Law Makers – A question from Maddy

Hello All,

I am hoping that you are all studying hard. English is tomorrow and I wish everybody well for that. Im sorry I havent been posting more stuff Ive just been so mental.

I was asked by Maddy to provide some insite into Parliament as law maker evaluations. I was not able to track down a copy of this evaluation so I thought Id take the relevant excerpt from my notes. This is a sample of the Unit 3 summary that is avaliable on the Resources tab.

If you are interested in purchasing any of the notes send me an email on the contact form on the Resources tab and Ill work out a deal for you.

So here it goes:

Strengths and weaknesses of law making by parliament

• Parliament is the supreme/sovereign law maker
• Creates laws that encourage social cohesion
• Primary Function
  • Create laws the rep the views and values of majority
  • And respond to our needs

Is our Parl representing the people?

• +
  • On the whole, effective, creates laws that rep our views and values
  • Parliamentarians are given mandate to fulfil key principles
  • Laws may evolve/change
  • Example
    • Decrim of Abortion 2008 demonstrated parl willing to create laws that uphold democratic values of our community
  • Laws that rep our views and values achieved by voicing them through formal and informal means
  • Example
    • Petitions and VLRC, directly inform Parl of comm. Views and desire for change.
    • Jane Ashton, 20,000 abrogation of Provocation 2005
• –
  • May be unwilling or unable to rep view and values in leg
  • May be restricted by vocal minorities who utilise informal means (media) to reduce chance of change
  • Example
    • Gina Rhinehard, mining tax quashed
  • May not rep as are voted along party lines and not conscience vote
• Evenso, creates good laws that rep people, are supported by comm.

Create laws that respond to Commonwealth needs?

• +
  • Can create laws ‘in futuro’ (for future) and also retrospectively.
  • Vic parl introduced Upskirting Act 2007 to guarantee that the law was overcoming loop holes and protecting privacy from infringement
  • Can create new laws or amend ineffective ones, codify good precedent.
• –
  • Unwilling or unable to respond
  • If laws not up to date, create legal uncertainty
  • IVF was not legislated until 1982 (2 years after first IVF child)
  • Controversial suggestions may be rejected for fear of voter backlash.
  • Example
    •  Silent on abortion until 2008, had to rely on R v. Davidson 1969 to provide guidance
  • Even though formal bodies exist (VLRC) no guarantee of change.
  • Therefore may not respond to comm. Needs.
  • Limited further by no. of sitting days 2011 vic parl sat for only 54 days, unable to deal with quantity of legislation.

IS Parl effective due to its process?

• One positive, Constitution provides detailed legal framework
• Bicameral structure ensures extensive debate and review
• As gov rarely controls both houses this is effective, in cases that gov does becomes rubber stamp. (ie Howard and Work Choices)

 

I hope this can give you a little help in your studies,

Regards,

JB

Doctrine of Precedence – a little bit of revision

Hi All,

As promised Ill try to consistently post some questions that I find. Its been a little while since a DOP question so here goes!

Outline the operation of the doctrine of precedent.

The courts are able to establish common law through application of the doctrine of precedent. The doctrine of precedent operates on the principle of stare decisis (to stand by a previous decision). This means that a similar outcome is applied to cases of similar facts. New precedents are created through novel cases (where no legislation exists) and also through statutory interpretation (where the meaning of legislation is unclear).

The nature of precedents depends upon which court it was established in. Binding precedents are created in superior courts of record and must be adhered to by all lower courts. In contrast persuasive precedents do not have to be followed but exist to provide legal guidance, these precedents comprise of the ratio decidendi (legal reasoning) of lower courts, courts of equal standings, from other state hierarchies (NSW), from other common law countries (South Africa) and also of obiter dictum (things said along the way) which act to provide insight and guidance from learned judges on hypothetical situations. The doctrine ensures consistency and fairness between like cases. Precedents are found in law reports that include the facts of the case, the decision, the ratio decidendi (legal reasoning) and obiter dicta.

Furthermore, the doctrine of precedent provides a number of means of flexibility to enable evolution in common law and prevent any miscarriages of justice. Distinguishing has been the most effective means to aid in evolution as it establishes new common law if it is deemed the facts of a case are sufficiently different that an injustice would occur through the application of the precedent. In addition the method of reversing was demonstrated in the Studded Belt Case 1993 where the case was heard on appeal and the judge in the Supreme court determined that the case had been wrongfully decided in the magistrates court and according ‘reversed’ the previous decision replacing the old ratio decidendi with the new legal reasoning. Finally, the means of overruling and disapproving also aid in the flexibility of the doctrine of precedent.

(judging by length its a big 6 marker but also too small for an 8)

Keep Studying Hard!

JB