1. Unit 3 AoS 3 Revision
DP 5: Strengths and weaknesses of law making through the courts
DP 6: The relationship between parliament and the courts in law making

2. What is an evaluation?
An evaluation of an issue involves considering the advantages or strengths of an issue as well as the disadvantages or weaknesses of the issue and a conclusion or judgment about the issue.

3. Question
Critically evaluate two strengths of courts as a law-makers. 6 marks.

4. Answer Strengths of law-making through the courts
Weaknesses of courts as law-makers
Courts are able to make law quickly when a relevant case is brought before them. Judges are required to rule on the cases that come before them, and in hearing the disputes they may create an immediate law relevant to the particular case, as well as precedent that is binding on the courts lower in the court hierarchy, or persuasive to other courts.
Courts must wait until an appropriate test case is brought before them before they can create or change the law. This relies on there being parties willing to bring a contest case (which can be expensive). Further, judges are limited in that they can only rule on the points of law in the case before them, whose scope could be quite narrow. Additionally, the court’s primary purpose if to resolve the disputes; law-making is a by-product of this.

5. Strengths
Weaknesses
Courts are able to develop and clarify law and fill in gaps left by parliament. Judges are able to create areas of law when cases come before them on issues on which the parliament has not previously legislated.
For those areas of law where parliament has legislated, the courts clarify and add detail to the legislation through interpreting and applying it to actual cases that arise.
Changes in the law can be slow to develop through the courts. They depend on people pursuing their case through the court system. Further, if a case is complicated, it may take a long time to hear.

6. Strengths
Weaknesses
The doctrine of precedent provides a level of consistency as the same legal principles should be applied in similar cases. This helps to bring about certainty for parties, as they (or their legal reps) are able to look back over past cases and determine how the court is likely to apply the law to their case. Additionally, consistency and certainty are enhanced by the fact that legal principle is being made by an experienced judges in the court system.
Access to precedent can be difficult. It can be hard to locate relevant cases and to understand the relevant parts of the judgment that form precedent. Finding the ratio decidendi can take further time and expertise and it is often written in language that is complex, which further complicates the process of finding precedent.

7. Strengths
Weaknesses
Judges are independent from parliament and government, so they are not subject to political pressures suffered by these two bodies. As they are appointed, rather than elected, judges are able to objectively review the more appropriate law for the case that they are adjudicating and are not subject to the pressures of the electorate.
As unelected law-makers, judges are not responsible to, or representative of, the community and so their decisions may not always represent society’s values. There may be concerns about the degree to which the judges are in touch with the needs, views and values of the community.

8. Strengths
Weaknesses
Judges are experienced legal professionals, who are experts in settling disputes and hearing cases. In their role of applying precedent and interpreting legislation, they have gathered the knowledge and skills to develop an area of law.
Courts have to rely on their own resources when investigating the need for change in the law and in developing new laws. They do not have the ability to research topics, gather evidence from specific experts or seek public opinion on a change in the law. In this way, case law may be limited to the expertise and experience of only a few people.

9. Strengths
Weaknesses
The appeals process allows for the review of decisions. If a party in a dispute appeals the case to a higher court, the decision made by a lower court is able to be checked by a higher court staffed by more experienced judges. If the trial court was incorrect in its decision, then the precedent created can be reversed by a higher court, ensuring that judge made law is rigorously scrutinised.
Law making by courts is only ever ex post facto – after the fact. Courts are unable to engage in law making until after they have settled a dispute. Thus they always act retrospectively, creating laws after the offence has been committed. Courts are unable to make laws for the future.
Precedent can be overridden at any time by parliament. As parliament is the supreme law-maker, which holds sovereignty over other law-making bodies, it is able to pass legislation at any time (provided that parliament is acting in its law-making powers) that overrides statements of law made by courts.

10. Question
Parliament is said to have many strengths as a law-making body. Identify and critically examine two of those strengths. 6 marks. VCAA 2007.

11. Exam question
Explain the process of law-making by the courts. In your answer, include an evaluation of two strengths and two weaknesses of this process. 10 marks (VCAA, 2004).

12. Can you… Explain the strengths of law making through the courts?
Explain the weaknesses of law-making through the courts?

13. DP6: Relationship between parliament and courts in law making
Parliament is a better law-maker than courts and should become our sole law-making body.’ Critically evaluate this statement, indicating the extent to which you agree with this view. 10 marks.

14. Relationship between parliament and the courts
Parliament passes legislation to create the structure and jurisdiction of courts. Explain and give and example.
Courts apply and interpret legislation created by parliament and subordinate authorities. Explain.
Parliament can change (override or abrogate) laws created by courts. Explain and give an example.
Parliament can codify laws made by courts. Explain.
Statements made by the courts can influence parliament. Explain.

15. Supreme law making body
What is meant by the statement ‘parliament is a supreme law making body’?

16. Question
Explain, using examples, the relationships that exist between parliament and courts in law-making.

17. Possible answer The main relationship includes:
Parliament passes legislation to create courts and to determine their jurisdiction.
Courts apply and interpret legislation created by parliament and subordinate authorities when hearing cases. Eg: Deing v. Tarola.
Parliament can change laws created by courts, by passing legislation that abrogates the common law principles established in a case.
Parliament can codify laws made by courts.
Parliament may be influenced to pass legislation in response to comments made by judges on an issue when deciding a case. 1 mark for each of the five relationships.

18. Question
Parliament and courts work together to create our body of laws. Discuss, with the use of at least one example. 8 marks.

19. Answer
See handout.

20. Can you… Explain the strengths of law making through the courts?
Explain the weaknesses of law-making through the courts?
Explain the strengths of law-making through parliament?
Explain the weaknesses of law-making through parliament?
Explain the relationship between parliament and the courts in law-making?