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Student book answers14.1 Reasons for law reformPages 474–481

14.1 Check your learning

Define and explain

1 a Why is it necessary for a society’s legal system to reflect the values of that society?

Laws that reflect values of society are important as people will be reluctant to abide by laws which they do not agree with.

b Using two current examples, explain how changes in beliefs, values and attitudes over time can influence the need for law reform.

Views towards cannabis have changed over time: from traditionally seeing it as a drug that can negatively impact on health to now recognising its uses to treat certain types of severe illnesses. This change has meant that medicinal cannabis use has been legalised in Victoria in certain circumstances.

The harms associated with smoking were not evident to society until the last couple of decades. Now, the negative effects of smoking, and passive smoking, on individuals are widely accepted. Laws have changed as a result, restricting smoking in certain places.

2 Why have advances in technology brought about the need to change the law? Provide a recent example of a law that has changed to accommodate changes in technology.

Advances in technology create situations and potential offences that have never been considered before. With the advent of smart phones and the internet, the concepts of cyber-bullying, cyber-stalking, identity theft, online scams and increased invasions of privacy were created and posed a new threat to society. As such, laws needed to be changed to accommodate behaviour that can occur online, such as changes to laws in relation to ‘sexting’.

3 Explain two other reasons why laws need to change, and give an example of a recent change in the law for each

Student answers will vary but may include:

• Changes in social, economic and political conditions can require law reform, such as the changes to food information packaging as a response to the obesity crisis facing Australia.

• There could be a greater need for protection of the community in order to protect vulnerable people from harm. For example, an increase in carjacking and home invasions resulted in law reform to introduce more severe penalties for offenders.

• The fight for equality for a number of minority groups has been growing over the last few decades and so the law must be changed to recognise the rights of these people, such as the changes to the Victorian law to prevent religious schools from discriminating against prospective employees on the grounds of religion.

© Oxford University Press 2018 1Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

• As people become aware of the infringement of their rights, the access to resolving the breach needs to increase and, as such, the introduction of the Koori Court is an example of increasing access to the legal system for Indigenous offenders.

• The law needs to change to encourage changes in society’s values in some cases, such as domestic violence. Sometimes the law needs to change first to ensure that society realises the behaviour is wrong and unacceptable.

• Laws need to be understood by all those who have to abide by them and this means the law has to be changed to clarify, simplify or expand the law. An example of this was the Uniform Law Rules implemented in Victoria and New South Wales to ensure lawyers explain to their clients the estimated cost and consequence of legal action taken.

Synthesise and apply

4 Read the example ‘A person “of character concern’’’, about the Migration Act amendments.

a How often has Section 5C been changed?

Section 5C has been changed three times.

b Why do you think the government introduced the definition in Section 5C in 2004?

Student answers will vary, but include the following response.

Since the terrorist attacks in the United States in 2001, there has been a political and global shift to focus on anti-terrorism measures.

c Do you think the reforms made in 2014 and 2017 will be effective in making the Australian community safer? Justify your response.

Student answers will vary based on their individual opinion but the justification should include specific links between each of the legislative changes and the characteristics of an effective law. The characteristics are:

• to be known by the community

• to be easily understood

• to be able to be changed

• to be enforceable

• to be acceptable to individuals within society and to society as a whole.

d Suggest two other reforms that you believe would provide greater protection to our community and make society safer. Give reasons for your suggestions and suggest any problems associated with your ideas.

Student answers will vary, but two potential reforms could be:

• reforms to laws relating to gang-related crimes to increase the penalties for those offences

• reforms to laws pertaining to betting in sport with regulations about when television advertisements promoting gambling can be shown.


e Why is it necessary for laws to be accepted in society? Would the Australian community accept the law reforms you suggested? Explain.

It is necessary for laws to be accepted in society so that people feel obliged to abide by them. If a law is unjust or overly harsh and does not reflect society’s values, people may be inclined to ignore or break it.

Student answers will vary regarding the suggested law reforms.

Analyse and evaluate

5 Research two media resources related to a proposed change in the law and suggest reasons for the proposed change in the law.

Student answers will vary.

6 Should the government introduce law reform with the aim of encouraging a change in community views? Discuss.

Student answers will vary, but should include one or more of the following points:

• Yes, one role of government is to generate changes in society to further advance society.

• Government has played a key role in educating the community about rights and tolerance towards others while promoting diversity (for example, through its efforts to change community attitudes/perceptions towards domestic violence).

• Government has a requirement to reflect the views of the majority (representative government).

• Sometimes the government is required to take a stand on controversial issues to increase debate and awareness that can lead to a change in community views.


14.2 Individuals influencing law reform through petitionsPages 482–485


Define and explain

1 What is an e-petition?

An e-petition is a digital petition collected online and signed with either email addresses or digital signatures. A petition is a formal written request to the parliament for action in relation to a particular law that needs reforming.

2 Provide two examples of petitions submitted to either the Victorian Parliament or the Commonwealth Parliament.

A petition to ban single-use plastic bags with over 11 000 signatures was presented to the Victorian Parliament in 2016.

A petition to ban live animal exports was tabled in the Commonwealth Parliament in 2016 with 6000 signatures.

3 Where does a petition get tabled, and how?

A petition gets presented to parliament by a member of parliament. The petition must be forwarded to a local member of parliament who will present it at the next sitting of parliament.


4 Briefly explain how to submit an e-petition in the House of Representatives. For information, go to the Parliament of Australia website on your obook assess. Select Petitions from the Parliamentary Business menu. Under the heading ‘House of Representatives’ select ‘Sign an e-petition’ and then select ‘How do I sign an e-petition?’

To submit an e-petition, you can request a new e-petition on the Australian Parliament website. You are required to complete all the relevant information, including the terms of the petition and explaining your reasons. You will then go through a short authentication process.

5 Investigate a petition on the internet. You could go to the Parliament of Australia or Parliament of Victoria websites. A link is provided on your obook assess. At the Parliament of Victoria website, select Hansard from the main menu. Select Quick Search and type in ‘petitions’. Choose a petition and explain what you think the government’s response to that petition should be.



6 Evaluate two strengths associated with starting a petition to influence a change in the law.

Student answers will vary but a sample evaluation is provided below:


One of the strengths of petitions is that they must always be tabled in parliament. This is advantageous because it ensures that all members of parliament are aware of the request for change in the law. However, a significant number of petitions are submitted and tabled in parliament and this makes it difficult for an issue to stand out and grab the attention needed for change to occur. Furthermore, there is no obligation on parliament to act on a petition tabled so the push for change may not advance.

A second strength of petitions is that they provide an avenue through which the community is able to show their support for a change in the law. This is demonstrated through a large number of signatures on the petition. It can put pressure on parliament to respond to the needs of the people if they wish to remain representative. However, getting enough signatures to show strong support for an issue can be difficult and other methods are needed to make a significant push for law reform. These days, e-petitions are making it easier to gather a large number of signatures in a timely manner and from a wider range of people in the community. In this way, parliament can gauge the true extent of community’s views on the need for law reform and respond to the will of the people.


14.3 Individuals influencing law reform through demonstrationsPages 486–488


Define and explain

1 Using an example, define the term ‘demonstration’.

A demonstration is a gathering of people to protest or express concern with an existing law with the purpose of trying to influence law reform, such as the demonstrations that occur each year on Australia Day to protest against celebrating the day of British colonisation as the day for Australians and to push law reform with respect to Indigenous Australians.

2 Describe two recent demonstrations that have taken place in Melbourne, and describe what they were demonstrating about.

Student answers will vary but may include the following responses.

Taxi drivers protested in February 2017 against proposed deregulation of the industry, including legalising the ride-sharing service Uber. They were also protesting against the removal of the taxi licence scheme, which costs many of them hundreds of thousands of dollars, arguing that it would destroy their businesses.

In March 2017, union workers from certain industries demonstrated against a change in penalty rates on Sundays. The proposed changes removed Sunday penalty rates and many were affected by this as they rely on the penalty rates to survive.

3 How do demonstrations influence law reform?

Demonstrations generate public interest and awareness into certain issues. This can influence how people vote in an election and therefore can increase pressure on the parliament to make changes that are popular with the people. If enough media attention is given to the demonstration, it can create a ‘movement’ for law reform in the particular issue that is being demonstrated about.


4 Conduct some online research to investigate a demonstration that has taken place recently.

a Describe the approximate size of the demonstration, its location and any other relevant information.


b What type of change in the law is the demonstration trying to influence?


c How far could the influence of the demonstration spread? Explain why you think this might be a local issue or a global issue.




5 To what extent do you think a demonstration is likely to be a successful method of influencing law reform? Discuss.



14.4 Individuals influencing law reform through the courtsPages 489–491


Define and explain

1 Explain how an individual can influence law reform through the courts.

An individual can influence law reform through the courts by bringing an individual claim. In deciding that claim, the court can change or make law; therefore, the individual has indirectly assisted in bringing about law reform.

2 Provide two examples of individuals seeking to reform the law by using the courts.

One example of an individual seeking law reform through the courts is in the case of NSW Registrar of Births, Deaths and Marriage v Norrie (2014). In this case, Norrie sought for the ability to register as being of ‘non-specific’ sex on their birth certificate. As an outcome of this case, the Victorian Parliament introduced a Bill seeking to allow people who do not identify as either male or female, to be able to change the sex on their birth certificate with fewer requirements. The Bill was unsuccessful but it demonstrates how the actions of one individual undertaking court action can influence law reform.

A second example is evident in the case of Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) (20017) which sought to end the placement of children into adult prisons. Through this action, a breach in human rights was rectified.


3 In the following scenarios, should the person initiate a claim in court to change the law? Refer to a case you have studied.

a Andrew has been imprisoned for various offences. He has been transferred from Loddon Prison to Barwon Prison and is amongst the most serious offenders. He believes this is a breach of his rights.

As Andrew is an adult and one of the most serious offenders, it is unlikely that his petition to initiate a claim will be accepted as he is the type of person Barwon is intended for, as distinguished from the Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children (No 2) case where the plaintiffs were children.

b Ursula wants to be registered in Victoria as neither male or female, but this has been rejected.

Ursula’s petition is likely to be accepted given the decision in the NSW Registrar of Births, Deaths and Marriages v Norrie case, where it was found the NSW Registrar could register someone as gender neutral. Furthermore, the recent attempt to change the law suggests that it could be an important test case for the current law.



4 Using one example to support your response, discuss the effectiveness of challenging a law in the courts to bring about a change in the law.


Strengths of challenging a law in the courts (which increases the effectiveness):

Weaknesses of challenging a law in the courts (which decreases the effectiveness):

• Judges have the ability to declare a law as ultra vires (made outside of the parliament’s legislative power) and therefore invalid.

• Vague or unclear laws can be clarified by challenging the existing law in a higher court.

• Parliament can be encouraged to change an existing law through the decisions of judges and comments they make in court.

• Judges are not elected and are therefore independent and unbiased in the decisions that they make, which results in cases being determined on the merits of the legal arguments rather than electoral consequences.

• A court challenge can increase community awareness by attracting greater media attention so even if the case is unsuccessful it can generate further pressure for a change in the law.

• Because judges are not elected, their comments and decisions may not reflect the views and values of the community.

• Judge-made law can be abrogated by parliament (with the exception of the High Court on constitutional matters).

• Individuals may be reluctant to challenge an issue through the courts due to the costs and time involved, especially when the desired outcome cannot be guaranteed.

• Courts are limited to cases that come before them and the specific issues that are relevant to that case.

• Courts are limited because they must wait for a party with standing to challenge the existing law before they can declare a law is ultra vires.


14.5 The role of the media in law reformPages 492–497


Define and explain

1 Define the terms ‘traditional media’ and ‘social media’.

Traditional media refers to print (newspapers), television and radio.

Social media refers to the communication of information through internet tools such as Facebook, Twitter, Instagram and Snapchat.

2 Explain how social media can be used to influence a change in the law. Provide two examples to support your response.

Social media can be used to influence law reform by providing an avenue through which individuals and groups can share their views and opinions on an issue, generating discussion and promoting awareness in the wider community. As a result, there can be an increase in community voice regarding the need for law reform.

Social media provides a free platform for individuals to create online petitions and form groups to push for legislative change. Social media allows for a diverse audience to be reached where people can voice their opinions without having to battle the political alliances that can be present in more traditional media sources. One example of the use of social media to influence law reform was the use of Facebook to show widespread community support for changes to marriage law to allow same-sex couples to marry.

Social media also allows for direct access to a political party or local member of parliament via their social media account, ensuring members remain accountable to their electorate for their actions. This can increase the pressure put on parliament to implement legislative reform on an issue. An example of this was the use of social media to influence law reform regarding asylum seekers. Through Facebook pages and Twitter accounts, individuals were encouraged to take further action to press for law reform that included signing an online petition on the need for change.

3 Explain three ways the traditional media can be used to influence the government to initiate a change in the law. Provide examples to support each of the three ways.

Traditional media can investigate problems in our community and inform the public of injustices and the need for reform. These programs can help governments determine if there is enough support to warrant a change in the law. This occurred in 2016 when Four Corners reported on the treatment of youth in detention centres in the Northern Territory. The report brought the injustices to the attention of the public, and a police task force was established to investigate the allegations.

Traditional media can influence law reform by broadcasting the opinion of the public. The letters and emails from the public can generate discussion and give the government an idea of what areas of the law need changing. This occurred in 2016 where a member of the Victorian Parliament posted a letter in the Herald Sun objecting to proposed changes in abortion laws. The letters in response indicated a variety of views on the matter.


Traditional media can influence law reform through their bias, and this is a negative form of influence. By showing their bias, the media can influence how voters vote, and this in turn can affect law reform. For example, in the lead up to the 2016 election, News Corporation newspapers wanted to discredit the Labor Party and Bill Shorten and portrayed him as Pinocchio for allegedly telling deliberate lies to gain power.


4 Select one law reform that you believe the Victorian or federal government should introduce.

a Describe the law reform and give reasons why you think it should be introduced.


b Outline possible objections to the proposed law reform.


c Imagine you had to design a campaign to increase community awareness, and support for the proposed law reform. What would you do? What methods would you use to influence a change in the law?


d Write an email to the editor of a daily Victorian newspaper to convince other readers to support the proposed law reform. Your email cannot be more than 300 words.


5 Talkback radio programs are a popular forum for discussion about legal issues and law reform. Using the internet, find one Melbourne talk back radio program. Describe two recent or possible changes to the law that have been discussed on the program you select.


6 Prepare a list of the strengths and weaknesses associated with using the traditional media to gain support for their law reform.

Strengths:

• Traditional media investigate and report on injustices that the broader public are not aware of.

• They can publish the views of the people to inform the government of a consensus view.

• They can fully inform voters on proposed changes in the law.

Weaknesses:

• Traditional media can use their bias to negatively impact on political decisions and leave voters not fully informed.

• They can edit footage or manipulate news to show a certain perspective.

• They can refuse to report on certain events if they do not like what they indicate.



7 Select one political party that exists in Australia, or one parliamentarian, and investigate how they use the media to win electoral support or support for their party’s suggested law reforms. A list of registered political parties is available on the Australian Electoral Commission website. A link is provided on your obook assess.


8 Discuss the ability of the Australian media to influence public views and attitudes towards law reform. Provide two recent examples to support your view.


Strengths of the media influencing public views and attitudes towards law reform:

Weaknesses of the media influencing public views and attitudes towards law reform:

• The media provides a platform to generate awareness, encourage debate and gain community support for the law reform.

• Use of the media allows government and parliament to gauge public opinion on a law reform issue.

• Various media platforms (such as Twitter) allow law-makers to communicate and influence the public regarding a law reform issue.

• Media encompasses a range of avenues (newspapers, television, radio as well as a wide range of social media platforms) that can allow for a broader range of community members to be targeted when looking to influence views on a law reform issue.

• The visual manner in which the media (especially social media) display issues can result in the oversimplification of complex issues, resulting in individuals lacking a true understanding of the issue.

• Social media platforms can often evoke emotional responses that are based on limited understanding of the facts and basic knowledge regarding the issue.

• Social media posts lack the ability to be authenticated (as they are when reported through traditional means such as newspapers and television current affair shows) and may not be accurate.

• Excessive exposure to the visual methods used by the media to gain audience attention may result in increased desensitisation to social, political and legal injustices.

9 Select one current law reform issue and follow its progress. What methods are those who are agitating for change using to gain support? How often is the proposed law reform being mentioned in both the traditional and social media? Is media coverage positive or negative?

You may wish to examine proposed law reform to relating to criminal offences, procedures or sanctions; puppy factories; global warming; marriage equality; euthanasia; abortion; safe injection rooms; illicit drugs; children in detention centres or asylum seekers.



14.6 The Victorian Law Reform CommissionPages 498–505


Define and explain

1 When and how was the VLRC established?

The VLRC was established in 2001. The Victorian Parliament passed a statute to establish the VLRC.

2 Describe the role of the VLRC.

The VLRC aims to assist the Victorian Government in continuing to provide a fair, inclusive and accessible legal system by investigating the need for change in Victorian laws and providing the government with impartial advice and recommendations for change. It does this by wide consultation with the public and expert groups about the proposed changes.


3 Read the case study ‘Investigating Victoria’s adoption laws’.

a Suggest why the Victorian Government may have asked the VLRC to investigate changes to Victoria’s adoption laws.

The provisions relating to allowing single people to adopt a child are somewhat out of kilter with current society’s values as it is no longer considered the norm to have a nuclear family with two parents.

b Describe three specific areas the VLRC was required to examine during their investigations.

One area the VLRC was asked to examine was the way a child’s identity is revealed on their birth certificate. When a child is adopted, a new birth certificate is issued that shows the child’s date of birth, states the child’s new name and identifies the people who adopted them as the child’s parents. However, this does not represent the complete picture in regard to the adopted child’s birth or their birth parents.

A second area looked specifically at the process used in assessing prospective adoption applications. This involves a number of assessment requirements, including providing extensive personal and financial details and undergoing medical and criminal checks. These processes are spread out across a range of sources, some of which are not current.

A third area the VLRC examined was the requirement of special circumstances to allow a single person to adopt a child and whether there should be eligibility criteria allowing a single person to adopt on the same basis as a couple.

c What type of instructions are included in a terms of reference?

The terms of reference are clear, specific instructions that are provided to the VLRC by the Attorney-General to define the precise scope and purpose of the inquiry. These instructions include the specific issues that the inquiry needs to make recommendations on and can also include clarification about what


the inquiry is not to focus on. The terms also provide the date when the final report must be completed and submitted to the Attorney-General for tabling in parliament.

4 Go to the VLRC website. A link is provided on your obook assess. View or download a copy of the VRLC’s Medicinal Cannabis Report (available under the ‘completed projects’ menu).

a Briefly explain the main areas the VRLC was required to examine during their investigations into medicinal cannabis.

The issues paper identified two areas of investigation:

• How to define the exceptional circumstances in which a person should be allowed to use medicinal cannabis

• How the law could be amended to enable patients to obtain medicinal cannabis while continuing to prevent unauthorised access.

b How long did the VLRC take to complete its investigation into medicinal cannabis?

The VLRC took nine months to complete its investigation, with the terms of reference issued in December 2014 and the final report due in August 2015.

c State how many written submissions the VRLC received during their investigations and identify the names of five individuals or organisations that gave submissions.

The VLRC received 98 written submissions during their investigations.

Student answers will vary regarding the identity of the individuals and organisations that gave submissions but may include one or more of the following:

• Dr Robert Kaldawi

• Cannabis Social Club Australia

• Drug Policy Modelling Program

• Emeritus Professor David Penington AC

• MS Australia & MS Research Australia

• Family Voice Australia

• Mullaways Medical Cannabis Pty Ltd

• Dr Andrew Katelaris

• Aaron Johnson & Kelli Russell

• Christian Business Men Australia, Macedon Ranges Group

• The Australian Lawful Use of Cannabis Alliance

• Victoria Police


• Victorian Alcohol & Drug Association

• The Royal Australian College of Physicians

• Cancer Action Victoria Inc

• One World Cannabis Ltd

• Cannabis Science Australia Pty Ltd

• Australian Nursing & Midwifery Federation (Victorian Branch)

• Aboriginal Embassy Victoria(For full list of submissions, see: medicinal cannabis received submissions on the Victorian Law Reform Commission website)

d Explain two other ways the VLRC gained input from members of the community about their views on the changing the laws relating to the use of medicinal cannabis.

Two other ways are identified below. Students would need to then expand to clarify, providing further detail to fully ‘explain’ each point:

• The VLRC held meetings in Melbourne and a number of regional centres to discuss views on the legislation of medicinal cannabis.

• Advisory committees were established with experts as members.

e Describe three of the main recommendations made by the VLRC.

There were 42 recommendations all up. Below are some of the main ones that students could describe:

• The law needed be changed to allow people to be treated with medicinal cannabis in exceptional circumstances.

• The eligibility to be treated with medicinal cannabis in exceptional circumstances should be determined by the person’s condition, and specified in the regulations.

• Eligibility should initially be based on a list of specific conditions, including symptoms resulting from multiple sclerosis, severe pain arising from cancer, HIV or AIDS, severe seizures resulting from epileptic conditions and severe chronic pain.

f Do you support or oppose the law reform that allowed for some individuals to use medicinal cannabis products in exceptional circumstances from 2017? Give reasons for your response.


5 Visit the VLRC website. A link is provided on your obook assess. Click on the ‘All Projects’ menu. Complete the following tasks:

a Investigate one current project being undertaken by the VLRC and prepare summary that:

• identifies the name of, and date the Commission received, the reference


• outlines the areas or matters under review

• identifies and describes the stage which the Commission is currently working on in terms of the progress of the reference.


b Investigate and prepare a summary of one completed project. Your summary should include identifying details (names, dates, three recommendations made, names of three interested parties, three recommendations adopted by the government, whether you agree with the recommendations and changes).



6 Using one recent example, evaluate the VLRC in light of its ability to influence parliament to change the law.


Strengths Weaknesses

• The government requests the VLRC to undertake investigations and therefore is interested to hear the recommendations and more likely to take action on these.

• The VLRC has the ability to measure and represent the community views in their recommendations through holding consultations and receiving submissions from the public.

• The VLRC is independent of the Victorian Parliament and this ensures it remains objective and unbiased in the recommendations it makes.

• The VLRC has the ability to undertake investigations into minor areas of community law reform without waiting for a reference from the Attorney-General.

• The VLRC can recommend to the Attorney-General issues that should be investigated through a terms of reference.

• The VLRC provides comprehensive investigation into a law reform issue and this enables the Victorian Parliament to pass laws to cover an entire area of law.

• Statistics support the influential nature of the VLRC with recommendations being adopted by the Victoria Parliament in around 70% of cases.

• VLRC investigations can be time-consuming and costly and therefore parliament may not seek these investigations too often.

• There is no obligation for parliament to act on the recommendations made by the VLRC.

• The VLRC is limited to investigating issues referred to it by the government or to minor community law reform issues.

• The VLRC is constrained by the specifics of the terms of reference provided by the Attorney-General, which will often provide limitations on the scope of investigations and recommendations that can be made.

• The VLRC has limited resources and this impacts on the types of community issues they can investigate because they are limited to those that do not require a significant amount of resources to be used.


14.7 Parliamentary committeesPages 506–513


Define and explain

1 What are parliamentary committees?

A parliamentary committee is a small group of government and non-government members who are given the task of considering and reporting on one single subject and make recommendations, if any, on law reform.

2 Distinguish between standing and select parliament committees.

A standing committee is appointed for the life of the parliament and reports on a range of issues related to one specific subject matter. In contrast, a select parliamentary committee is appointed to investigate a specific issue when the need arises.

3 Describe three benefits of parliamentary committees.

Student answers will vary but students may describe three of the following benefits:

• Committees can investigate a range of issues and report their concerns and findings for law reform back to the parliament.

• They can examine issues efficiently by working in smaller groups, rather than getting the entire parliament involved.

• They allow members of parliament to be involved in investigations and increase their expertise in an area of law reform.

• Committees provide a way for members of the community to give input into issues being investigated by accepting submissions and holding formal public hearings.

• The final reports submitted enable the parliament to be more informed before voting on a bill.

4 Provide one similarity and one difference between the VLRC and a parliamentary committee.

The VLRC and parliamentary committees are similar in that they investigate and report on issues and present their findings in a final report.

The VLRC and parliamentary committees are different in that parliamentary committees are made up of government members, whereas the VLRC is an independent external organisation.


5 Explain what is meant by the statement ‘Parliamentary committees help support a democratic parliamentary system’.


In investigating and reporting on an issue, the parliamentary committees consult the public for their views. This allows the parliament to consider the community’s views in their decision-making process. In turn, this contributes to a democratic parliamentary system as the views of the public are directly affecting law reform. In addition, parliamentary members themselves are appointed by the public, which is a feature of a democratic system.

6 Prepare a flow chart that describes the basic process followed by a parliamentary committee when undertaking a specific inquiry.

Student answers will vary, but the general process is outlined briefly in the figure below.

7 Visit the Victorian Parliament website. A link is provided on your obook assess. List the names of three bills that have recently been investigated by the Scrutiny of Acts and Regulations Committee. Select one of these investigations and prepare a brief summary that outlines the proposed change in the law and the findings and recommendations of the Committee.



8 Conduct research into one other current Victorian state or Commonwealth parliamentary committee.

a Describe the role of the committee and discuss the ability of this committee to influence a change in the law.


b Briefly describe one inquiry the committee has recently undertaken.


c Explain at least one recommendation for law reform made by the parliamentary committee.


d In your view, is this committee more or less effective in making this recommendation than a formal law reform body such as the VLRC? Give reasons.


Step 1Committee is given terms of reference

Step 2Committee advertises investigations and seeks input through the media

Step 3Committee holds formal public hearings

Step 4Committee prepares written report

14.8 Royal commissionsPages 514–519


Define and explain

1 What is a royal commission?

Royal Commissions are major public inquiries established by the government to investigate matters of public concern. They are conducted by a commissioner, as well as his or her staff, who is given powers by the government to investigate and report on the matter.

2 Explain why royal commissions are considered the most serious and important types of inquiry into matters of public interest or concern.

Royal commissions are considered the most serious as they are a public inquiry. They are also given special investigatory powers, including the power to summon people to attend hearings, give evidence under oath and be subjected to cross-examination.

3 Describe two differences between a royal commission and a parliamentary committee.

Royal commissions are created by the head of state through the Queen’s representatives and are set up by an executive branch of government, whereas parliamentary committees are set up by the legislative branch of government.

Royal commissions are given special investigatory powers that parliamentary committees do not have. These include the powers to compel a person to give evidence.


4 Prepare a chart that describes the main processes followed by a royal commission.

Student answers will vary, but the main processes are briefly outlined in the figure below.


Step 1Letters patent is issued by Queen's representative

Step 2Commission prepares an issues paper outlining the matter or concern being investigated

Step 3Commission conducted consultation sessions to gain input from a number of key stakeholders

Step 4Commission holds public hearings to gain evidence

Step 5Commission prepare report on findings and make recommendations


5 Go to the Commonwealth Parliament’s website. A link is provided on your obook assess. Enter the term ‘royal commissions’ in the search engine. Once you arrive at the ‘Royal Commissions and Commissions of Inquiry’ page, complete the following tasks:

a Select and investigate one royal commission that has been undertaken within the last four years and prepare a summary that:

• states the name and length of the royal commission and outlines the areas or matters of public interest that are under review

• identifies five individuals or organisations that made written submissions to the commission and five individuals or organisations that gave evidence at public hearings

• provides three recommendations for law reform suggested by the royal commission. Explain whether or not you agree with each recommendation.


6 Using one recent example, evaluate the ability of royal commissions to influence a change in the law.

Student answers will vary depending on the royal commission cited, but should include one or more of the following points:


• The government asks the royal commission to undertake an investigation and therefore is more likely to act on the recommendations made.

• Royal commissions can measure and represent the community views through consultations and receiving submissions from the public.

• Royal commissions provide comprehensive investigation into a law reform issue and this enables parliament to pass laws to cover an entire area of law.

• Royal commissions have the authority to call any person to appear and give evidence.

• Royal commissions are independent of parliament and more likely to remain objective and unbiased when making their recommendations.

• Parliament is not obligated to act on the recommendations made by a royal commission.

• Investigations are time-consuming and costly.

• The degree of influence of a royal commission is dependent on a range of factors including the subject matter and the degree of bipartisan support for the reform.

• The degree of influence is impacted by the scope of terms of reference and the timing of its report.

• Royal commissions can be used as a means to delay action in difficult areas requiring legislation, as well as being used as a political tool.


14.9 The ability of parliament and the courts to respond to the need for law reformPages 520–527


Define and explain

1 Explain how being an elected and representative body can assist the ability of the parliament to respond to the need for law reform.

As an elected and representative body, the parliament has an ability and responsibility to change laws to reflect the changes in society’s views and values. This generally means that they will change the law as attitudes change in order to ensure they are re-elected.

2 Explain how the composition of parliament can limit its ability to respond to the need for law reform.

If there is a hostile upper house, this can negatively impact on parliament’s ability to respond to the need for law reform as the opposition or those members that have the balance of power in the upper house may reject legitimate bills that respond to the need for law reform.

However, if there is a government majority in the upper house, the government can easily pass laws that respond to the need for law reform as the members voting along party lines will approve bills in the upper house.

Furthermore, private members who have introduced bills which generate law reform are unlikely to be successful as the composition of the parliament is such that the government members in the lower house will not likely vote in favour of the bill.

3 Describe three ways the courts can respond to the need for law reform.

Student answers will vary but students may describe three of the following ways:

• The courts can make law in cases where none exists.

• They can interpret statutes in accordance with today’s values and attitudes.

• They can declare legislation invalid if it has been made beyond the law-making powers of the parliament.

• They can highlight a problem that raises community awareness about the need for laws to be changed.

4 Explain two limitations on the ability of the courts to respond to the community’s need and desire for law change.

Student answers will vary but students may explain two of the following:

• Judges may prefer to leave changing the law to parliament and avoid overruling precedent.


• Judges can only make law when a case is brought before them and in relation to the parties in that case.

• The ability to make law is reliant on a party having the time and costs to pursue a case.

• Judges are not elected by the people and therefore may not make decisions that reflect the views and values of society.

• Some judges adopt a conservative approach, rather an activist one, and therefore prefer to avoid controversial or major law changes.

• Parliament can cancel any common law created by judges.


5 In what ways does parliament have access to expert information and public opinion? How can this assist in the law-making process?

Parliament has access to expert information and public opinion through its committees and royal commissions. This can assist in the law-making process by informing the parliament of recommendations based on expert and public opinion for law reform.

Parliaments also are able to refer matters of law reform to bodies such as the VLRC or the ALRC who can consult with experts and the public, and then report to the parliament about law reform. This can help inform the parliament better about expert opinions and the public’s views on the matter, enabling parliament to make robust laws which have the support of the public.

6 Prepare a table that summarises the main ways in which both the parliament and the courts can respond to the need for law change and their limitations.


Parliaments Courts

How they can respond• can make and change laws as the need

arises to reflect changing needs and views of the community

• as an elected representative of the people, parliament holds the power to make and change any law in their jurisdiction

• can use bodies such as the VLRC and establish parliamentary committees and royal commissions to investigate the need for change

• hold the power to abrogate any court-made law (excluding constitutional matters heard in the High Court)

• respond more quickly as compared to the courts because they do not have to wait for a conflict to arise and therefore can make changes in future cases

How they can respond• provide meaning for unclear or ambiguous

legislation to apply to a case before them• can create law where none exists• decisions and comments made by judges

can influence parliament to change the law where needed

• judges are not elected and therefore make independent unbiased decisions absent from political influence

• able to declare legislation ultra vires• a decision can highlight an issue with the

law and raise community awareness for the need for law reform

Limitations• must wait for a case to come before them

that looks at the area of law in need of reform


Limitations• parliament is restricted to making or

changing laws within their area of law-making power

• controversial issues may make parliamentarians reluctant to legislate for fear of losing the support of the voting public

• can be time-consuming given the legislative process as well as the limited number of sitting days

• may abrogate a common law to gain political advantage that may not be in the best interests of, or aligned with, the views of the community

• if the government does not hold a majority in the upper house or does not have the support of the crossbench (when a minority government) then legislation may not pass

• their decisions can be abrogated by parliament

• conservative decisions can narrowly interpret legislation where a broader interpretation could lead to reform in a controversial area

• superior court judges may be reluctant to overrule or reverse a precedent, preferring to leave this to parliament

• judges are not elected and therefore the decisions they make which change an area of law may not reflect the needs or views of the community


7 Discuss how delegating its law-making powers can enable parliament to more effectively respond to the need for law reform.

Through delegating some of its law-making powers to subordinate authorities, parliament is more effectively able to respond to the need for law reform. This is because the subordinate bodies can pass legislation in a much more timely manner and do not have to undertake the lengthy legislative process that parliament does when passing a statute.

However, subordinate authorities are generally not elected by the people and therefore may not feel compelled to listen to, or consult with, the community when undertaking reform in an area of law that may result in laws the community do not support.

That being said, local councils can pass delegated legislation and, as an elected body, are able to respond to the needs of their community. Local councils have easier and more frequent access to community members than parliament does and are in a better position to understand the specific needs of their area and have this reflected in the delegated legislation made.

Furthermore, delegated legislation results in needed law reform occurring in a more timely manner because it alleviates the pressure on parliament to pass such laws. As parliament has a limited number of sitting days, this allows for more legislation to be passed, thus increasing the ability of parliament to effectively respond to the need for law reform.

However, there are a number of subordinate bodies that are empowered to make delegated legislation. As a result, there can be a number of authorities making laws that are confusing for the public and it is hard to keep up to date with law reform as the changes occur.

Parliament does have the ability to scrutinise the work of subordinate authorities and check the laws made to ensure they remain in the best interests of the community.


Moreover, delegated legislation allows for law reform to be made by experts in the particular field of interest. This ensures that legislation is clearer and more comprehensive, avoiding the need for future amendments to clarify concepts of the law.

8 Evaluate the extent to which parliament is able to respond to the need to change the law. Use two examples to illustrate your response.



• can make and change laws as the need arises to reflect changing needs and views of the community

• as an elected representative of the people, parliament holds the power to make and change any law in their jurisdiction

• can use bodies such as the VLRC and establish parliamentary committees and royal commissions to investigate the need for change

• holds the power to abrogate any court-made law (excluding constitutional matters heard in the High Court)

• responds more quickly than the courts because they do not have to wait for a conflict to arise and therefore can make changes in future

• parliament is restricted to making or changing laws within their area of law-making power

• controversial issues may make parliamentarians reluctant to legislate for fear of losing the support of the voting public

• can be time-consuming given the legislative process as well as the limited number of sitting days

• may abrogate a common law to gain political advantage that may not be in the best interests of, or aligned with, the views of the community

• if the government does not hold a majority in the upper house or does not have the support of the crossbench (when a minority government) then legislation may not pass

9 To what extent are judges able to respond to the community’s desire for law reform? Discuss.



• provide meaning to unclear or ambiguous legislation to apply to a case before them

• can create law where none exists• decisions and comments made by judges

can influence parliament to change the law where needed

• judges are not elected and therefore make independent unbiased decisions without political influence

• able to declare legislation ultra vires• a decision can highlight an issue with the

law and raise community awareness for the need for law reform

• must wait for a case to come before them that looks at the area of law in need of reform

• their decisions can be abrogated by parliament

• conservative decisions can narrowly interpret legislation where a broader interpretation could lead to reform in a controversial area

• superior court judges may be reluctant to overrule or reverse a precedent, preferring to leave this to parliament

• judges are not elected so the decisions they make which change an area of law may not reflect the needs or views of the


community


Student book answersChapter 14 ReviewPages 528‒529

Revision questions1 Using one recent example, define the term ‘petition’.

[2 marks]

A petition is a formal written request to the parliament to take some action or implement law reform. It usually has a collection of signatures, such as the petition to ban plastic bags in Victoria in 2016 that had 11 000 signatures on it. A petition is presented to a local member of parliament who will table the petition in parliament for discussion.

2 Describe how social media can be used to influence a change in the law.

[3 marks]

Social media allow individuals, pressure groups, parliamentarians and the traditional media to communicate their opinions to a broader audience and with greater speed than traditional media. This can be used to generate interest in, and awareness of, legal and political issues and the need for reform. It can create a global audience and allows users to directly contact their representatives.

3 Explain two reasons for law reform. Provide one example of a recent change for each reason to support your response.

[6 marks]

Student answers will vary but may include:

• Law reform is needed when there is a change in beliefs, values and attitudes. The law must remain relevant to a majority of people and therefore must change to reflect updated views. An example of this is the legislation of medicinal cannabis as attitudes around its usage have changed.

• Law reform is needed when there are changes in social, economic and political conditions. Dealing with population growth, technological breakthroughs and international conflict means the law will need to change to reflect changing methods of coping with these issues. An example of this is the requirement for fast food restaurants to publicly display the kilojoule content of each item in accordance with attitudes towards the obesity crisis.

• Technology is advancing rapidly and the law must be changed to keep up with these advancements. An example of this was the advent of the internet and the ability to pass on private information over the internet. Privacy laws were updated to reflect this new method of information sharing.

• Law reform endeavours to make sure individuals and different groups within society are protected and feel safe. There may be increased need to protect vulnerable individuals in society. An example of this was the introduction of carjacking and home invasion laws after there was a dramatic increase in these crimes.


• Law reform is needed as society becomes more aware of the need to protect certain rights. Changes to the equal opportunity laws in 2016, which attempted to remove the exemption that allowed religious organisations to discriminate against prospective employees on the basis of religion, was rejected. This confirmed the right to hire only religious teachers in schools.

• There may be a greater need to improve access to the law as people become educated on their legal rights. The introduction of the Koori Court for the sentencing of Indigenous offenders improves access to the legal system and assists in reducing the number of Indigenous people in custody.

• Law reform is sometimes needed to encourage a change in society’s values. This occurs when the parliament wants society to take notice of a certain offence or attitude. Changes to domestic violence laws have been passed to change attitudes towards domestic violence.

• Law reform is needed to change laws that cannot be understood by all members of the community. When laws are complex or hard to understand, they need to be rewritten into plain English. Recently, changes were made to the Legal Profession Uniform Laws in Victoria and New South Wales to ensure more consistency across the legal profession between the two states.

4 Compare the role of a parliamentary committee to that of a royal commission.

[5 marks]

Parliamentary committees are a group of members of parliament who investigate an issue and report back to the entire parliament, making recommendations for the parliament. A royal commission is a major public inquiry that investigates and reports on its findings, as well as makes recommendations.

Both parliamentary committees and royal commissions are given terms of reference that specifically define what they are to investigate or inquire into. Both consult with the public. Parliamentary committees conduct public hearings where they consult with individuals, business groups and other stakeholders to canvas the opinions of the public. Royal commissions hold consultation sessions to gather views and opinions from a number of individuals and groups that have an interest in the inquiry.

Both will submit a final report that makes recommendations to improve the law in the area they investigated.

5 Evaluate the effectiveness of petitions or demonstrations as a means used by individuals to try to influence law reform.

[6 marks]


Petitions


• simple, easy and inexpensive means of highlighting the need for law reform

• only require one signature to be valid• large number of signatures increases

effectiveness because this demonstrates significant community support; therefore more influential on members of parliament

• through gaining signatures, petitions can

• there is no obligation on parliament to act on a petition presented

• many petitions fail to gain media attention once tabled in parliament

• influence of the petition may depend on the degree of influence of the member tabling the petition in parliament

• people may be reluctant to sign a petition


generate public awareness and increase support for the need for law reform

• all petitions are required to be presented in parliament

• e-petitions make an easier avenue for community members to sign and show their support for the law reform issue

• e-petitions can reach a wider range of people in the community (and in a more timely manner)

because it requires them to include their name and address or email address

• parliament receives a large number of petitions in a year and does not have the time to act on them all

• opposing petitions can lower the impact of the petition

• a small number of signatures may misrepresent support for the issue in the community and make it less likely for parliament to act on the call for law reform

Demonstrations


• when they attract a large number of participants this can generate free positive media attention and show strong community support for the issue

• more effective when focused on an issue that can be directly changed because this is an achievable goal

• able to gain support from parliamentarians who wish to improve or boost their public profile by taking on a worthwhile cause

• can raise social awareness and generate further thought and discussion about the issue

• provide a very visual method of influencing law reform

• limited influence when they cause public inconvenience or become violent and this can decrease public support for their cause

• violent and problematic demonstrations can attract negative media attention, which reduces the credibility of the issue and may dissuade parliamentarians from taking action on the reform issue

• can be difficult and time-consuming to organise and attendance may be affected by external factors such as the weather, which will lead to a misperception of the degree of support for the law reform issue

• demonstrations are often a single, large event and without an ongoing presence it can be hard to generate support (and therefore influence) for law reform

6 ‘Without the Victorian Law Reform Commission, the Victorian Parliament would not be able make laws that reflect the views of the community.’ To what extent do you agree with this statement? Give reasons for your answer.

[7 marks]


• To gauge community views on an issue, the VLRC consults with the community by inviting written submissions, holding community forums and publishing draft reports for public comment.

• After consulting with experts and the community, the VLRC makes recommendations to the Victorian Parliament by way of a report.


• The VLRC can report to the Victorian Parliament (VP) on minor issues that affect the community without a reference.

• The VLRC can suggest a reference be provided by the Attorney-General on a major issue of law reform.

• The VP is an elected body and therefore should be representative of, and responsible to, the people when making laws. This includes gauging the views and values of their electorate to make laws that reflect the needs of the community.

• The VP can undertake comprehensive investigation of a topic when looking to introduce legislation.

• The VP may be reluctant to make changes in controversial areas due to fear of not being re-elected.

• The VP may not initiate laws on issues where there are strong conflicting values in society because there is no clear majority opinion.

• The VP can delegate some of its law-making powers to subordinate authorities that (aside from local councils) are not elected and may not reflect the views of the community.

• Delegated bodies, such as local councils, may be closer to the people and more in touch with the views and values held in the community so they can make laws that better reflect these views and values.

• The VP is open to public debate on issues and provides for parliamentary debate through the legislative process and this allows them to make laws that reflect the views of the community

• The VP can gauge public views and values through the submission of petitions, demonstrations and the media.

7 To what extent do you think that law-making through parliament is an effective method of changing the law? Discuss.

[8 marks]


Points which increase parliaments effectiveness at changing the law can include:

Points which limit parliaments effectiveness at changing the law can include:

• is an elected body and therefore acts to uphold and reflect the views of the majority when changing the law (principle of representative government)

• can undertake comprehensive investigation of the whole issue to determine what changes to the law can be made

• is a supreme law-making body whose primary role is to make new laws

• can abrogate common law thereby changing a law

• able to make laws quickly as the need

• has limited sitting time to debate and pass legislation

• the legislative process is time-consuming• if there is an opposition majority in the

upper house then legislation may be stalled

• parliament is not always in session and therefore cannot change the law at any given time

• parliament may not always be up to date with needs for change in society

• voting on party lines may limit the ability for


arises• can use investigative bodies such as the

VLRC to investigate the need for change through the terms of reference

• can delegate law-making powers to subordinate authorities

• can make laws in futuro• can pass laws swiftly when government

holds a clear majority in both houses

legislation to be passed• parliament is restricted by its jurisdiction

(the law-making powers set out under the Australian Constitution)

• conflicting views on an issue can prevent parliament from acting to initiate legislative change

• legislation may not pass due to political tactics

8 Discuss the ability of parliament to change the law. In your answer, refer to one recent example of an individual influencing legislative change.

[10 marks]


Strengths of parliament’s ability to change the law include the following:

Weaknesses of parliament’s ability to change the law include the following:

• is an elected body and as such can represent the values and views of the people through legislative change

• can undertake comprehensive investigation of the whole issue to determine what changes to the law can be made

• is a supreme law-making body whose primary role is to make new laws

• can abrogate common law thereby changing a law

• able to make laws quickly as the need arises

• can use investigative bodies such as the VLRC to investigate the need to change through the terms of reference

• can delegate law-making powers to subordinate authorities

• can make laws in futuro• can pass laws swiftly when government

holds a clear majority in both houses

• has limited sitting time to debate and pass legislation

• the legislative process is time-consuming• if there is an opposition majority in the

upper house then legislation may be stalled

• parliament is not always in session and therefore cannot change the law at any time

• parliament may not always be current with needs for change in society

• voting on party lines may limit the ability for legislation to be passed

• parliament is restricted by its jurisdiction (the law-making powers set out under the Australian Constitution)

• conflicting views on an issue can prevent the parliament from acting to initiate legislative change

• legislation may not pass due to political tactics


Practice assessment task questions1 Other than changes in technology, explain two reasons why a law may need to be changed. Provide

contemporary examples to illustrate your answer.

[4 marks]

Changes in community values is one reason why laws may need to change. Shifts in attitudes towards health policy sparked changes in Victoria in 2016 through the introduction of the ‘no jab, no play’ law. The launch of this law meant that children who have not been vaccinated will not be able to attend government-run kindergartens or childcare centres. When creating and amending laws, parliament must remain aware of society’s contemporary views and values. This is the key to representative government.

Another reason for the need for change is new and emerging local and global circumstances where public safety is at risk. There can be changes in people's daily lives that require parliament to take action. For example, in recent years, there has been a spike in home invasions and carjackings in Victoria. As a result, in 2016, the Victorian Parliament changed the Crimes Act and created two new offences – carjacking and home invasion – in order address the change in society’s circumstances. The Commonwealth has also created a series of anti-terror laws that are also designed to protect the public from harm.

2 Explain two ways the media can influence law reform.

[3 marks]

The media can influence law reform. Social media such Facebook and Twitter have the ability to raise awareness of an issue on a large, even a global, scale. Many individuals, organisations and pressure groups use social media to gain support from the community on a particular issue. Given the fact that it is free to establish a Facebook page, social media is the preferred option for small groups such as Victoria Street Drug Solutions (VSDS) that had limited funds. VSDS used social media successfully to persuade the Victorian government to agree to medically supervised drug-injecting facilities in North Richmond in 2017. Parliamentarians and political parties also have websites and social media accounts to help communicate with the public and help influence change.

Traditional media can also influence law reform by broadcasting or publishing public opinion. For example, many newspapers publish letters that they have received from members of the public. This allows parliament to see what issues the community are passionate about and want to see changed. Newspapers also write editorials where they try to influence the government on major issues such as refugees.

3 Using one recent example, explain the role of the Victorian Law Reform Commission.

[5 marks]

The Victorian Law Reform Commission (VLRC) is an independent, government-funded body which aims to investigate the need for change in Victorian laws. The VLRC is able to examine and report on law reform proposals when it has received a terms of reference from the Attorney-General. In 2014 the Attorney-General gave reference to the VLRC to examine whether the law should be changed to allow the use of medicinal cannabis in exceptional treatment circumstances. The main research occurred in 2015. When considering law reform, the VLRC will consult with the community and experts, and will produce a report with recommendations for law reform. In the case of medicinal cannabis, the VLRC received 99 submissions from the public and medical experts and nine community-based consultations were held.


The VLRC report was later tabled in parliament and 40 of the 42 recommendations made by the VLRC were accepted. This highlights the significance that the VLRC has on law reform. The VLRC can also make recommendations to the Attorney-General on areas of law reform by investigating minor legal issues that they believe is of concern within the community. This was seen in 2016 with the VLRC work on funeral and burial rights. The VLRC can also educate the community by undertaking educational programs and informing the community on any area of the law that is relevant to its investigations.

4 Evaluate the effectiveness of petitions or demonstrations as a method of influencing law reform.

[3 marks]

Generally, petitions are an effective means of influencing law reform. A petition is a written or digital request to parliament for an action to be made on a particular area of the law that needs to be changed. A petition will usually consist of a collection of signatures and names of the people who support the issue. There is a petitions committee in both the Victorian and the Commonwealth parliaments that receive petitions, which are later tabled. If a petition receives strong support from the community and has received many signatures, parliament is more likely to consider it for law reform due to their representative nature. In August 2016, a petition to ban single-use plastic bags was presented to the Legislative Council with around 11 000 signatures. It put pressure on the Andrews Government. The group also used Twitter and #BanTheBag became well known. Due to the overwhelming amount of support, from 2018, the Victorian government will ban single-use plastic bags.

However, where petitions are less effective is when they do not receive much public support (signatures) or media attention. Without either of these two aspects, a petition is likely to fail. Parliament will not take action on an area that not many people care about. Although the parliament receives the petition, it requires ongoing pressure from the media to be successful. If this does not occur, the issue will fade away.

5 In a recent online article, a legal commentator recently stated ‘Neither the parliament or the courts have the ability to adequately respond to the need for law reform’. Discuss the extent to which you agree or disagree with this statement. Explain the role of one parliamentary committee in your response.

[10 marks]

I disagree with this statement to an extent. The courts and parliament both have the ‘ability to adequately’ respond to the need for change in the law (legislation in the case of the Commonwealth Parliament and common law in the case of the courts). However, both law-making bodies have things that restrict them from responding to the need for change.

Parliament is able to respond to the need for change through having access to law reform bodies, such as the Victorian Law Reform Commission (VLRC). The VLRC’s main role is to investigate different points of view on a proposed change, and then make recommendations to parliament on possible areas of reform. Through parliament’s use of law reform bodies, such as the VLRC, as well as parliamentary committees, they are able to be made aware of the opinions of experts and the public on certain areas of law reform. This will help assist them in determining whether to undertake law reform. This is because if the VLRC receives submissions from a large number of people, they are more likely to take action. This was seen in the case of medicinal cannabis, where the VLRC received 99 submissions from the public and medical experts and nine community-based consultations were held. Due to the high level of support, parliament responded to the need for law reform. This also upholds the principle of representative government.

However, parliament will generally not respond to the need for law reform when there are many opposing views. This is because they do not want to face voter backlash at an election. This desire to stay in power limits parliament's ability to respond to the need for law reform. On areas such as same-sex marriage, parliament has for the past decade been unwilling to engage in legislative change due to its controversial nature. © Oxford University Press 2018 33Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

Despite the main role of the courts being to hear and determine cases, they also have the ability to interpret the wording contained in statutes and make common law. Through the operation of the doctrine of precedent, the courts are able to make common law, also known as precedents. Once a case comes before the courts, they are able to respond quickly to the need for change in the law. This was seen with the recent decision of the High Court in interpreting the wording of Section 44 of the Constitution regarding dual citizenship of members of parliament. The matter was heard quickly due to the uncertainty over the law.

However, the court's ability to create law is affected since common law is made ex post facto, and therefore a judge must wait for a case to arise before they can act to develop and/or amend laws. This therefore limits the court's ability to respond to the need for law reform. Another factor that contributes to this is the operation of the doctrine of precedent. Since the lower courts are bound to a decision made by a high court in the same hierarchy for cases where the facts are materially similar, this limits the lower court's ability to respond to need for change when there is already an existing binding precedent.

The primary role of parliament is to make and amend laws. This enables parliament to make and change laws at any time and it can act quickly as the need arises. In areas of concern, parliament is able to respond quickly to meet the urgent needs of the people. This was seen by the Commonwealth’s fast response to the swine flu outbreak in terms of quarantine laws, and the changes to the bail laws in 2016 in response to a spate of carjackings and home invasions that caused great fear to the public. This fast response displayed how parliament is able to ‘adequately’ respond to the need for law reform when acting within its powers.

A very important parliamentary committee is the Victorian Standing Committee on Legal and Social Issues, which has undertaken important inquiries in areas such as end-of-life choices and whether there should be a medically supervised injecting centre (MSIC) for heroin users in North Richmond. In these inquiries, the committee investigates and considers the need for law reform in Victoria in response to the reference that has been made to the committee by the parliament. In the case of end-of-life choices, the committee was given one year to conduct its investigations and received over 1000 submissions from interested individuals and groups. The committee also conducted hearings at which experts (including health care professionals) and selected organisations presented evidence and answered questions. A similar process was undertaken in the MSIC inquiry, where the committee visited the streets of North Richmond and Abbotsford and spoke with residents and local traders, as well as health care professionals. The recommendations of the committee in both cases was vital in the development of the eventual legislation.

However, parliament has very few sitting days. In 2016, the House of Representatives sat for just 52 days; and the Senate, for only 41. This can therefore limit their ability to quickly respond to the need for change. A hostile upper house can also impact on parliament being able to enforce legislative change. A hostile upper house is where the government in power does not have majority, and therefore a bill may face unnecessary scrutiny due to the other house’s reluctance to pass the bill. This also means that parliament will not always be able to uphold their representative nature in regard to law-making and law reform as they will not be able to pass bills that the other house objects to.

Since judges are appointed, they are able to create laws on more controversial topics. The independence of the judiciary enables them to make laws based on its merits rather than electoral consequences. Therefore, the courts will enforce change that will benefit all Australians. Since the courts do not have any political pressure, they are more likely to respond to the need for change over more disputed topics, such as abortion (1969 Menhennitt ruling) and the Mabo ruling on native title (1992). In the Menhennitt ruling the Supreme Court issued a precedent to establish a common law defence of ‘therapeutic abortions’ which allowed abortions in certain circumstances.

However, since the judges are unelected, their decisions may not necessarily represent the views and values of society. Therefore, when making laws, they may not always act in the interest of the community. © Oxford University Press 2018 34Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

This was seen in the De Sales case where the marriageability of a woman was considered a relevant factor in an insurance payment for her deceased husband. This legal principle was abrogated by the Victorian Parliament in 2003, showing the supremacy of the parliament to override common law that is considered outdated.

Overall, both the courts and parliament are able to respond to the need for change. However, since the courts must wait for a case to arise and parliament has few sitting days, their ability to ‘adequately’ respond is restricted.


Unit 4 Assessment tasksPages 530–531

Unit 4 Area of Study 1 Practice assessment task

Practice assessment task questions

1 In law-making, identify one role played by:

a The House of Representatives

The House of Representatives is the lower house of the Commonwealth Parliament, and is the only house with the authority to initiate appropriation/money bills. This includes making bills relating to taxation.

Other roles that could have been included here are:

• The House of Representatives acts as a house of review for bills that were initiated in the upper house. The lower house can accept, amend or reject bills from the upper house.

• It is the seat of government, in that the party that wins the majority of the seats in the lower house has the right to form government.

b The Governor-General.

[2 marks]

One role of the Governor-General in regard to law-making is to give the royal assent to bills once they have been passed through the House of Representatives and the Senate. This is where the Queen's representative will sign the bill before it is proclaimed law.

2 Distinguish between exclusive powers and concurrent powers. In your answer, identify one example of each type of power.

[4 marks]

An exclusive power is one that is only held by the Commonwealth. Therefore, the states have no authority in areas of law-making that are exclusive to the Commonwealth. This includes areas such as currency. A power can be made exclusive for a number of reasons, such as the nature of the power (Section 52, where the Commonwealth makes law for its own public service) or by express provision (such as Section 114, which forbids the states from making law with regard to defence).

In contrast, concurrent powers are those which are shared between the state and Commonwealth Parliaments, such as for taxation and marriage. However, due to Section 109 of the Australian Constitution, when the state's law is inconsistent with the Commonwealth's law, the Commonwealth’s law will prevail to the extent of the inconsistency.

3 Explain what is meant by ‘double majority’ in the context of a referendum.

[4 marks]

In order for a referendum (a national vote of ‘yes’ or ‘no’ to change the wording of the Constitution) to be successful, it must receive a double majority under the requirements of Section 128. This involves the


proposal receiving the majority of votes in a majority of the states and the majority of the national vote. In order to win the majority of votes in the majority of states, at least 4 out of the 6 states must have more than 50% of people voting ‘yes’ to the change. In order to receive the national majority vote, more than 50% of people all across Australia must vote ‘yes’.

4 Describe two roles played by the Senate in law-making.

[4 marks]

The Senate is the upper house of the Commonwealth Parliament. Its primary role is to act as the ‘house of review’. This is because the Senate has the responsibility of scrutinising legislation passed by the lower house, and it has the authority to amend, pass or reject the bill.

Another role of the senate is to act as the ‘State's house’. The Senate consists of 76 members: 12 from each state and 2 from each territory. Therefore, when creating or passing a bill, the Senate must reflect the views and values of their state, rather than only the wishes of the party.

Another role of the Senate is to initiate legislation, with the exception of money bills, which can only be initiated in the lower house.

5 ‘The separation of powers offers important checks and balances on the operation of parliaments in Australia.’ Discuss this statement.

[5 marks]

There are three branches of government in Australia: the executive (government), the legislature (parliament) and judicial (courts). The legislative branch is responsible for making laws; the executive branch manages, implements and administers the law; and the judicial branch interprets and applies the laws.

These arms are generally kept independent from each other to prevent misuse of power, and it also provides for ‘checks and balances’ on the law-making process. The significance of the independence of the judicial branch was highlighted in the Malaysia Solution case (2011). In this case, the judiciary (the High Court) ruled against an executive decision by the Australian Government to send refugees to Malaysia. The High Court found that this conflicted with the Migration Act, which required that refugees be processed according to UN protocols, of which Malaysia was not a signatory. This decision signified the importance of having the separation of powers, as it showed the importance of the role of the judiciary in providing checks and balances on the law-making process.

However, no arm is completely separate from each other. This is because the prime minister and government ministers are members of both the executive and legislature, and when the government controls both houses of parliament, there is complete overlap between the branches. This then diminishes the effectiveness of the separation of powers as there will not be proper scrutiny between the branches. Also, since judges are appointed by the executive branch, there is overlap between the judiciary and executive. Therefore, the separation of powers does not always provide for proper checks and balances.

6 With reference to one case that you have studied this year, describe the significance of Section 109 of the Australian Constitution.

[5 marks]

Section 109 of the Australian Constitutions states that where the Commonwealth and states make law on one area and the laws are in conflict, the Commonwealth's law will prevail to the extent of the inconsistency. Section 109 has been significant in giving single women the ability to have access to IVF regardless of their state of residence. This was highlighted in 2000 in the case McBain v the State of Victoria. In this case, a section of the Victorian Infertility Treatment Act did not allow single women to © Oxford University Press 2018 37Justice & Outcomes VCE Legal Studies for Units 3 & 4 Teacher obook assess ISBN 9780190310394Permission has been granted for this page to be photocopied within the purchasing institution only.Version 2.0

access IVF. This was found to be inconsistent with the Commonwealth's Sex Discrimination Act, which made such discrimination illegal. The Victorian law prevented single infertile women from accessing IVF. Due to Section 109 of the Constitution, since the laws were in conflict, the Commonwealth's law prevailed to the extent of the inconsistency. Therefore, this changed the operation of Victoria’s Infertility Treatment Act to allow single infertile women to have access to IVF.

7 ‘The bicameral system is a vital means of providing a check on the operation of government in Australia.’

a To what extent do you agree with this statement?

[5 marks]

The Australian Parliament has a bicameral system, which involves two houses: upper and lower. This bicameral system is ‘vital’ as it offers opportunities for proper scrutiny to occur. This is especially true if the party in power, the government, does not have a majority in the upper house. However, the effectiveness of the bicameral system is diminished if the party in power has a majority in both the upper and lower houses.

b In circumstances where the federal government has a majority in the Senate, to what extent could it be argued that there are reduced checks on parliament as a law-maker? Justify your response.

[5 marks]

It is generally said when the federal government has a majority in the Senate, the passing of a bill is like a ‘rubber stamp’. This is because the bill will not face much scrutiny in either the House of Representatives or the Senate. This is because the party in power will pass their own bill without thoroughly reviewing all aspects of it. Therefore, this reduces the ‘checks’ on parliament as a law-maker.

8 ‘The role of the High Court in interpreting the Australian Constitution provides an effective system of checks and balances on law-making by parliament in Australia.’ Discuss the above statement with reference to the Lange, Wotton or Monis case.

(6 marks)

The response to this question is limited by the need to refer to a case relating to the implied right to freedom of political communication. The focus of the response needs to therefore be implied rights.

There is a range of ways in which having an independent High Court provides for checks and balances on law-making by parliaments in Australia. One of these is the ability of the High Court to establish implied rights.

An implied right is one that is not explicitly stated in the Constitution, but as a result of legal challenge before the High Court, has been inferred by an interpretation of the wording of the Constitution by the judges. There is only one established implied right: the freedom of political communication. This has been found to exist due to the wording of Sections 7 and 24 of the Australian Constitution, which state that members of parliament are to ‘be directly chosen by the people’. In the view of the judges, this gives people the right to be well informed on political issues, with freedom of speech in regard to the conduct of politicians, senior public servants and political debate. It was made clear that, due to the principle of a representative government, people have the right to be well informed on political issues. This also places checks and balances on the activities of law-makers because the public has the right to engage in robust debate about political conduct.

Under Sections 75 and 76 of the Australian Constitution, the High Court has been given the jurisdiction to interpret the constitution and to decide on cases that establish legal principles. They do this in order to apply a meaning to the Constitution that reflects the judges’ views of the contemporary meaning of those


words. With this, the High Court has the power to create implied rights, which are rights that are not expressly stated in the Constitution.

Freedom of political communication gives people the right to be well informed in political issues. This puts in place a system of checks and balances on the law-making of parliament. The implied right was used in the Lange case (1997), in which former New Zealand Prime Minister David Lange sued the ABC for defamation regarding negative comments about him on Four Corners. The High Court applied a two-stage test to determine whether a reasonable restriction should be placed on freedom of political communication by the legislature. The High Court found that, under some circumstances, it would be reasonable for the Commonwealth to limit the implied right. This test was later applied in the Monis Case (2014). The significance of the High Court's ruling that there was no absolute right to freedom of speech was seen in this case, where it was found that a NSW law that outlawed the sending of offensive political material by post was reasonable. The High Court found that this law did not interfere with the principle of representative government.

In all matters, the High Court must first wait for a case to arise before they can interpret the Constitution. This therefore limits their ability to effectively provide checks and balances on the law-making of parliament.

9 ‘The High Court has broadly interpreted the term “external affairs” and in doing so has given the Commonwealth Parliament too much power’. Discuss the extent to which you agree with this statement.

[10 marks]

Student answers will vary, but need to address multiple aspects of the question as follows:

• Reference made to the external affairs power of the Commonwealth under the Australian Constitution; section 51 (xxix).

• Students need to note that Australia is an active member of the international community and governments engage in agreements with other nations in key areas such as trade, environmental protection and human rights. Since the 1980s, the external affairs power has been largely used by the Commonwealth Parliament to pass legislation that reflects the contents of these international agreements (being international declarations and treaties) that Australia has entered into.

• Students need to define the term ‘international documents’ and explain how they affect law-making in Australia.

• The term ‘ratified’ needs to be defined and explained, especially in regard to the processes of ratification.

• The High Court’s interpretation of the Constitution is vital here in terms of how Australia being a signatory to UN documents has impacted on the application of key sections of the Constitution as they have been applied in cases. The question also requires students to refer to a specific case relevant to the external affairs power.

• The High Court has decided that the power to legislate with respect to ‘external affairs’ includes the signing of an international declaration and treaty. This gives the Commonwealth the ability to make laws on treaty topics that are not listed as powers in the Constitution.

• The example case here would most likely be the Tasmanian Dams case (1983). The High Court decided that as all aspects of Australia’s relationships with other countries are included under the external affairs power, and because the Franklin River area was covered by an international treaty, it


too came under the external affairs power. This decision interpreted the words ‘external affairs’ to include any area covered by an international treaty.

• In this case, the Commonwealth Parliament had maintained that it had a duty to prohibit work likely to damage or destroy Australia’s national heritage. The area covered by the proposed dam was nominated by the Australian Government in 1981 as an area to be placed on the World Heritage List. UNESCO included the area on the World Heritage List in 1982. According to UNESCO, the convention on which this listing was based (the Convention Concerning the Protection of the World Cultural and Natural Heritage) ‘links together in a single document the concepts of nature conservation and the preservation of cultural properties. The Convention recognises the way in which people interact with nature, and the fundamental need to preserve the balance between the two.

Total: 50 marks


Unit 4 Area of Study 2 Practice assessment task

Practice assessment task questions

1 What is a conscience vote? Do you think a conscience vote on an assisted dying bill would guarantee its success through the parliament?

[5 marks]

A conscience vote in parliament occurs when the members of parliament are able to vote on legislation according to their own personal views and values. Some members ask their local constituents for their views on the issue, while others act according to their own private conscience.

A conscience vote on the Voluntary Assisted Dying Bill (2017) would be likely to make it more difficult to pass the bill because the government, which has a majority in the Legislative Assembly, would not be able to guarantee support from its own party members. Indeed, when the bill was debated, Deputy Premier James Merlino voted against the legislation.

2 With reference to law reform to legalise assisted dying explain one reason why laws need to change.

[3 marks]

The law needed to change because of shifts in social values regarding the rights of individuals to make informed decisions about the manner and timing of their own death. This right was highlighted by the criminal prosecutions against people who had acted to take the life of a loved one who was suffering, with that act being regarded as loving and compassionate.

3 Choose either one parliamentary committee or one royal commission. Explain its role and how it assists the achievement of a representative government.

[5 marks]

In 2017, there was an inquiry by the Victorian Legal and Social Issues Committee into the Drugs, Poisons and Controlled Substances Amendment (Pilot Medically Supervised Injecting Centre) Bill 2017 (Vic). The bill was introduced into the Legislative Council as a private members’ bill by the leader of the Reason Party, Fiona Patten. The bill proposed to change the law to allow a medically supervised injecting centre (MSIC) to be opened in North Richmond, an inner-city suburb of Melbourne, on a trial basis for 18 months.

The role of the committee was to investigate specific areas of the bill to ensure it did not unduly trespass on rights and freedoms, and was compatible with the human rights set out in the Charter of Human Rights and Responsibilities. For example, the committee investigated whether the provision that children be excluded from the part of the injection centre where drugs would be administered or dispensed was compatible with the right of children to protection that is in his or her best interests.

The committee held public meetings and received oral and written submissions from interested parties, most notably local traders, health professionals and representatives from the group Victoria Street Drug Solutions. In this way, the committee upheld the principle of representative government by gathering information and advice from key stakeholders so that the parliament was aware of the views on such a complex matter.

4 Undertake some research to help you answer the following questions:

a Identify the name and main purpose of the Victorian bill to allow for assisted dying.


[2 marks]

The main purpose of the Voluntary Assisted Dying Bill (2017) was explained in the second reading speech by the responsible minister, Jill Hennessy, who is Minister for Health in the Victorian Government. She said the following, as quoted in Hansard: ‘The bill will provide a small number of people in very limited circumstances an additional choice about the timing and manner of their death. For many more people, just knowing this option is available if they are confronted with such circumstances will provide them with comfort. Some may choose to access voluntary assisted dying but ultimately not administer the substance because they feel a greater sense of control. The vast majority of Victorians will never want or choose to access voluntary assisted dying. It is important to recognise that most people at the end of their life will be cared for by our excellent palliative care services. In 2016–17 across Victoria 17 000 people and their families and carers were supported in their homes by specialist palliative care. Palliative care in Victoria is first class and palliative care services in Australia have been assessed as one of the world's best over many years. But we know that for some people at the end of their life palliative care cannot ease their pain and suffering. This bill focuses on providing genuine choice to this small number of people who are at the end of their life and who are suffering with no hope of recovery or relief.’

There is also an Assisted Dying Review Board to review each approved request for assisted dying. Membership of the board includes a representative of End of Life Care Victoria, a doctor, a nurse, a legal professional and a community member.

b Provide two reasons for and two reasons against introducing legalisation which legalises assisted dying. You may wish to scan the Legal and Social Issues Committee’s Inquiry into end-of life choices Final Report (June 2016) to gain information on this issue.

[8 marks]

While there were a range of reasons put forward to the committee, some of the key arguments were as follows.

Reasons for:

• To allow patients the autonomy to make informed decisions as to their treatment, based on their competency to assess their level of pain and discomfort, weighed against their personal circumstances. On this point, there was a strong argument that individual patients should be able to make such decisions regarding their own quality of life.

• There are adequate protections in the legislation to ensure that decisions are properly scrutinised and reviewed to ensure that abuse of rights and/or process do not occur. For example, the Assisted Dying Review Board will play that role to protect the rights of all parties involved.

Reasons against:

• Some contributors to the debate spoke about the sanctity of life. For these people, allowing a person to make an end-of-life decision signalled that life was not precious.

• Some of the arguments also focused on the mental state of the patient and presented the view that while patients may choose to end their life, they make this decision in an environment where there is now greater availability of palliative care that the patient may not be aware that they can access. With increased palliative care, some people may not choose the option to end their life.

c Identify two pressure groups that support or oppose legalising assisted dying. Briefly explain how each of these groups attempts to influence the parliament to change or maintain the law.

[6 marks]


For this question, a range of groups could have been the focus of the response. Some of the key groups were as follows:

• Action for Life

• Alfred Health

• Australian Catholic Bishops Conference

• Dr Rodney Syme, who has been a prominent campaigner in this area.

5 Outline the basic facts of R v Klinkermann and explain whether you agree with the sentence imposed by Justice King. Give reasons for your response.

[5 marks]

The views expressed by students on this outcome will vary, depending on their views as to whether it is appropriate to imprison someone for the commission of such an offence. Given the age of the offender and their personal circumstances, many people would believe that a prison term would be excessive, especially where the act was considered one of love and compassion. The sample answer below is written from this standpoint.

In 2013, a 73-year-old man pleaded guilty to the attempted murder of his 84-year-old wife, after trying to ease her suffering and end both of their lives. He was spared imprisonment and ordered to serve an 18-month supervised community correction order. Supreme Court Justice Betty King showed mercy when imposing the sentence and accepted that the offender was acting out of love for his wife, who was suffering from dementia and Parkinson’s disease and was unable to orally accept food or adequately communicate.

When passing sentence, Justice King commented that, with Australia’s ageing population, the problems surrounding assisted dying would continue to increase. She emphasised, however, that, under the current law, individuals are not permitted to end the life of another person regardless of their personal views and circumstances. Justice King also commented that a suspended sentence would have been an appropriate sanction to be imposed on the accused, but they had just been abolished as a sentencing option in Victoria.

6 Discuss the extent to which the passing of legislation in relation to assisted dying and euthanasia in Australia highlights the strengths of parliament as a law-maker.

[6 marks]

The Australian and Victorian parliaments use a bicameral system, which involves two houses: upper and lower. The bicameral system ensures that there is effective debate and scrutiny of bills. In the case of assisted dying, the Voluntary Assisted Dying Bill (2017) received much scrutiny from the lower house and it passed the second reading stage in the upper house in November 2017. Having the two-house system ensures that all parties and members of parliament have the opportunity to voice their views and concerns for the bill. This helps to uphold parliament's representative nature as it allows for the people’s views and values to be reflected in the law-making process. Given that this was a conscience vote as well, members were free to voice their concerns over the legislation without the usual limitations of having to act according to the wishes of their political party.

However, where government does not have majority in the upper house, the opposing party will often give a government bill unnecessary scrutiny and be reluctant to pass it. This is known as a hostile upper house. In regard to the assisted dying legislation, the bill was reliant on five members of parliament from the opposing parties to vote for the bill for it to pass through the upper house. This reluctance for the opposition to show support for the government's bill in this case can add significant delays to the law-


making process. By the government allowing a conscience vote in this case, where members of the government voted against the bill, it was even more challenging to have the bill passed into law.

Another strength of parliament in regard to law-making is their use of independent investigation and expert law reform bodies. In the case of the assisted dying legislation, the Legislative Council’s Legal and Social Issues Committee undertook the inquiry. The committee’s functions are to inquire into and report on proposals involving areas such as community services, gaming, health, law and justice. The Legal and Social Issues Committee conducts public hearings and can report on any bills referred by the Legislative Council. During the inquiry the committee received 1037 submissions and conducted site visits and public hearings around Victoria between July 2015 and February 2016. The committee held 17 days of public hearings and heard from 154 witnesses. Through parliament using investigative bodies such as committees, it ensures that a wide range of opinions is brought forward to government; therefore, they are able to debate the proposed law based on the broad opinions of the public. This too enhances parliament’s representative nature.

However, parliamentary committees are time-consuming and expensive, with the inquiry in this case taking 10 months. Therefore, this is adding further delays to an already lengthy process. Due to the controversial nature of the assisted dying legislation, more detail was put into the investigation, which ultimately lengthened the amount of time before the bill could be debated and possibly put in place.

Overall, the passage of the Voluntary Assisted Dying Bill 2017 shows how the parliament can act to thoroughly research a complex issue and create legislation that is debated openly. This is the basis of representative government. The conscience vote also allowed members to vote on the bill according to their own views. The fact that members of parliament did not necessarily need to vote on the bill on the basis of the wishes of their local electorate could mean that representative government was not fully upheld.

7 With reference to the above case study, discuss the ability of the courts to influence a change in the law.

[10 marks]

The ability of the court to change law is reliant on many factors, such the doctrine of precedent, statutory interpretation and whether a case arises on which legal principles can be made. Unlike the parliament, the courts are not a proactive law-maker.

The primary role of the courts is to hear and determine cases; law-making is their secondary role. The operation of the doctrine of precedents is what allows the courts to establish common law. The doctrine of precedents dictates that lowers courts are bound to a decision made by a superior court in the same hierarchy when the facts of the case are materially similar. This provides consistency in law-making by the courts as it ensures that like cases will be treated the same.

This, however, limits the lower court's ability to make and change laws, especially when a precedent has already been established. This is because the lower courts would not be able to create their own precedent because they would be bound to the decision already made by the superior court for that set of facts.

The courts are also able to change the application of laws through the judge’s power of statutory interpretation. This is when a judge is able to give meaning to words contained within Acts of Parliament. This can either broaden or narrow the meanings of the words. The courts use both intrinsic (things contained within legislation) and extrinsic (things contained outside legislation) materials to assist them in their interpretation. This was seen in the Studded Belt case (1993), where the judge applied a narrow reading of the term ‘weapon’ in the Control of Weapons Act to limit what was considered a weapon. Prior to


the court’s reading and interpretation of the Act, articles of clothing such as a studded belt were considered weapons.

However, the greatest limitation on the court’s ability to change the law is that they must wait for a case to come before them. They are not able to proactively seek out cases; they must generally wait for a breach of rights to occur before they can interpret Acts of Parliament.

Factors such as overruling and reversing expand the law-making abilities of the courts. Overruling involves two separate cases, with the second, later case having the same or very similar facts to the earlier case that was heard in a lower court in the same hierarchy. In this instance a judge in a higher court can override a decision (precedent) made by a lower court in the same hierarchy. When this occurs the judge will create a new precedent that will overrule the previous decision made by the lower court, where the previous decision was only considered persuasive. Reversing is when a judge, hearing a case on appeal, overrides the decision by the lower, earlier court. The new precedent created will also override the previous one, which was also only persuasive. These options for changing of an earlier legal principle allow the superior courts to have a greater ability to make and amend laws.

Factors such as distinguishing can expand the lower court's ability to create law. This is because they may not always be bound to the decision from a higher court in the same hierarchy where they are able to find a material factual difference between the cases. This adds flexibility to the doctrine of precedent and the development of the common law.

In contrast, disapproving (when a judge does not follow the decision made by another judge on the same level in an earlier case where the facts are the same or very similar) can create inconsistencies in law-making by the courts. This is because two precedents will be created for the same set of facts and either precedent can be followed by the lower courts. This causes uncertainty that the doctrine of precedent is designed to overcome.

The courts can also have a major influence over law reform through decisions that they make in cases. This extends beyond the ratio decidendi of the case and includes statements made in obiter dictum, where the judge indicates that there is the need for law reform. When passing sentence in the R v Klinkermann case, Justice King commented on the law as it stood at that time, where individuals were not permitted to end the life of another person under any circumstances. It was clear in the sentencing of the offender that Justice King regarded the offence as not warranting imprisonment. The judge’s comments regarding the ‘vexed question’ of end-of-life decisions considering our ageing population was considered a factor in the Victorian Parliament developing policies in this area.

However, court decisions can also be overridden by parliament abrogating (abolishing) the legal principle established by the courts. In doing this, parliament passes legislation to ensure the common law principle created by the court will no longer apply. This was seen by the creation of the Wrongs (Remarriage Discount) Act 2003 to abolish the precedent set in the DeSales case (2002), which allowed a discount to be placed on the amount of compensation that a widow could receive based on marriageability. This case highlights the court’s limited ability to create laws due to the sovereignty of parliament.

Overall, the ability of the courts to make and/or amend laws is reliant on a case arising and the operation of the doctrine of precedent. In many areas, the courts have been influential in the development of law reform.

Total: 50 marks


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