STRENGTHS AND WEAKNESSES OF LAW MAKING THROUGH COURTS
Argument
1. Consistency and certainty
What 3 key points were raised in this
section?
(i)
Define the doctrine of precedent
(ii)
How it provides people with
certainty by looking back
(iii)
How it provides judges with
protection by looking back
Answer
A strength in law making through courts is
that they create precedent that provides a
sense of consistency and certainty in the way
they handle cases before them.
(i)
The doctrine of Precedent
ensures that cases that come
before the courts are treated in
the same way as previous cases.
(ii)
People in general can therefore
look back on the way courts
treated cases, thus providing
elements of certainty and
consistency.
(iii)
By relying on the doctrine of
precedent judges can decide
cases without the influence of
political pressures.
2. Fill gaps in legislation
(i)
(ii)
(iii)
What is the problem with
parliament making laws - not
covering every circumstance
What does fill in the gap mean?
Example case study – see page
209 (Surrogacy) or (Marriage Act
not defining man or woman) or
(frozen embryo)
Another strength in law making through
courts is that courts are able to fill in gaps in
legislation left out by parliament.
3. Flexibility
(i)
(ii)
(iii)
What can court do if law is
outdated?
Explain options courts have if law
becomes too static or rigid?
Explain when distinguished,
overruled and reversed would be
used. See also page 188 to 189
Furthermore courts can provide flexibility in
the law making process.
4. Change the law quickly
(i)
(ii)
(iii)
Law making through parliament
can be slow
How are courts able to make laws
so quickly?
Who does it apply to?
5. judges not subjected to political
influence
(i)
(ii)
Why are judges not subjected to
political pressures?
How is being independent and
unbiased an advantage?
6. Courts can develop areas of laws
(i)
(ii)
When do courts develop laws?
Example – explain how law of
negligence was established
WEAKNESSES OF LAW MAKING THROUGH THE COURTS
ARGUEMENT
1. Restricted to cases before the courts
(i)
(ii)
(iii)
Only make laws in relation to
points of law before them
People not aware of their rights
Unable to afford cost
2. Changes can be slow
(i)
(ii)
(iii)
Slow to develop
Law of negligence took a long
time to develop
Development depends on
litigants bringing matter to court
3. Difficulty in finding precedent
(i)
(ii)
Precedent process inefficient
Finding relevant precedent can
be disadvantage – why?
4. Ex post facto
(i)
(ii)
Define retrospectively
Example – Grant v Australian
Knitting Mills
5. Bound by previous decision
(i)
How is doctrine of precedent
restrictive?
ANSWER
6. Courts are not elected body
(i)
How does this differ from
members of Parliament
7. Court not able to investigate an area
of the law as a whole
(i)
(ii)
How does parliament use
parliamentary committees
What do judges use as guide?
8. Courts cannot seek public opinion
about changes in the law
(i)
(ii)
Judges do not always reflect
public opinion see page 221
Explain R v David Norman
9. Reluctance of courts to change the
law
(i)
(ii)
(iii)
Explain how judges can be
conservative
What happens when judges apply
outdated decisions?
What is parliamentary
sovereignty? See page 221
Question: ANALYSE THE RELATIONSHIP BETWEEN COURTS AND PARLIAMENT IN LAW
MAKING.
(The best way to answer this question is to use the format of what is presented in the textbook on pages 221
to 225)
Introduction



Explain how parliament and courts work together
Primary roles of Parliament and courts
Courts dependent of parliament to make bulk of laws while Parliament depends on courts to apply
law and establish new laws on situations that have arisen for the first time
The relationship can be described in the following ways
1. Parliament pass acts to establish courts
Key words:
 Establish
 Exist
 Jurisdiction
 Examples
2. Court apply and interpret the law
Key words
 Apply
 Interpret
 Example – Franklin dam
 Access – taking matters to court
 Example – legal aid
3. Parliament can change or confirm law made by courts
Key words
 Supreme law making body
 Parliament can override
 Courts conservative
 Example – rape in marriage case
4. Court decisions influencing change in the law by parliament
Key words
 Progressive decisions influence parliament
 Conservatism – reluctance to change – Trigwell
 Courts highlight problem – Julian Knight letters to victims and Leniency in
sentence
 Creativity by courts – new area – Mabo and Native Title Act