Sorry to bump up this thread!
But could someone please skim over my extended response?
Thanks so much!
-Also, for this Q, I was a bit confused about what stance to take, so I'm essentially saying that Parliament > courts in law making...is there a better approach I could take?
"Parliament is more effective than courts when it comes to making laws. Therefore, law-making should be left to Parliament only and the courts should focus on resolving disputes, not making laws"Discuss the statement above, indicating the extent to which you agree or disagree. In your answer, include a critical evaluation of the law making processes of Parliament and courts. As the supreme and sovereign law-making body, Parliament is more well-suited to making laws than the courts, who only have a secondary and often ineffective role in law making.
Firstly, Parliament can make laws at any time as the need arises or in response to changes in society which may require prompt and urgent changes in the law. E.g. when there were concerns about the monitoring of released sex offenders after release, Parliament was able to quickly pass the Serious Sex Offenders Monitoring Amendment 2009 (Vic.) to allow a lower standard than the courts had interpreted for the monitoring of these offenders. Due to the urgent need of such legislation to protect society, the bill was passed through both houses of Parliament within just 3 days. On the other hand, courts must wait for an appropriate test case to come before them, before they can legislate. This is often time consuming as potential litigants are mostly hesitant to bring forth their case to court, due to high costs and delays. Thus, the court is somewhat limited and restricted in their law-making as unlike Parliament, courts cannot make laws at any time.
Also, Parliament has various resources and tools, such as Parliamentary committees and formal law reform bodies such as the Victorian Law Reform Commission, to assist the Parliament in undertaking complete investigations to enable more effective changes in the law that reflect the changing views and values of society. However, Courts only have their own resources at their disposal when attempting to make laws and cannot access law reform bodies to assist them in changing the law. Thus, changes in the law through courts also may not represent the wider views and values of the community.
In addition, Parliament is a more effective law-maker as it legislates "in futuro" (with future circumstances in mind). Parliament is able to foresee a potential problem which may arise in the future, and they can legislate to counter the problem. Unlike Parliament however, courts can only ever make laws "ex post facto" (after the fact), meaning that the court can only legislate after the problem or dispute has taken place - and it cannot legislate to prevent future problems from arising.
Furthermore, Parliament is more efficient in law making as members of Parliament are elected by the people - this means that elected members will have a responsibility towards their electorate and will create laws which are reflective of the common values and views of thee community. Conversely, judges in courts are appointed, not elected, meaning that law which develops through the courts may not be totally reflective of the wider values held by the community. Also, many groups in society, such as migrants, Indigenous people, and women feel as though their views are under-represented in courts.
Finally, law-making through Parliament is subject to extreme scrutiny and review as bills must be passed through both the lower and upper house, which would act as the 'House of review' and analyse and make amends to errors in the bill. This would help to ensure that any potential flaws in the bill are addressed and rectified and that the eventual legislation is suitable for the society which it is to serve. On the other hand, courts do not have such rigorous checks and scrutiny for common law, and so it is possible that judges may make flawed laws that may ultimately be ineffective and cause future problems in terms of interpretation and application to future cases.
Ultimately, although the courts do have a secondary role as law-makers, Parliament's supremacy and sovereignty in law-making through its greater access to law-making resources, better representation of societal values, ability to legislate for future circumstances, and its capacity to legislate at any time in response to society's needs, undoubtedly enables it to create more efficient and effective laws for society and thus allows it to be a more effective law-maker than the courts.