Q13
a)'Courts play an insignificant role in a modern legal system and all law-making should be left to the state and federal parliaments. The relationship between parliament and the court is becoming increasingly distant.'
Discuss the statement and indicate to what extent you agree or disagree with it. Critically evaluate the strengths and weaknesses of law making through parliament and the courts.
*Parliament according to chapter I of the constitution is the sovereign law-making body and is in charge of making laws. Courts on the other hand interpret the law and act as the judicial bodies according to chapter III of the constitution. Courts nontheless do play a role in law-making through creating precedents and statutory interpretation. However, is their(courts) role in modern legal system really insignificant?
Firstly, parliament is the ultimate law-making body which means it is the main legislature in charge of making laws. It is their primary role to pass laws for the good,peace and order of the community. Courts however, do not posses this role and thus are not capable of introducing as effective laws. It can be said that in modern society courts do not have a role in law-making.
This can be attributed to the fact that parliament is responsible and representative. Members of parliaments are elected to their position democratically and are answerable to parliament and to the community. Essentially, this allows for more effective legislation to be made that reflected community values.
Courts on the other hand are neither responsible nor are they representative. Judges are appointed to their position and do not have to answer to anyone. This demonstrates how insignificant the courts have become in the current system of law-making.
Also, parliament has access to a number of research committees and groups such as the Parliamentary committee. This means that i can provide for effective law through research being conducted to covercome controversial issues/areas.
Courts have no access to such committees or any sort of investigation and must make decisions once a case has come before them. There is little time for judges to consider their decisions impact on society and /or its implications. The insignificance of the courts can again be seen.
One other advantage of law-making through parliamnent is parliament's ability to make law in futuro. Parliament is able to legislate to accommodate for possible future issues so that they are overcome before they become apparent. Essentially, this makes legislation effective in preserving order and peace within society.
Judicial bodies however cannot do this and must make laws ex-post facto which can be known as 'dog made law.' Meaning the issues have to arise before the courts can act upon them as a case must first appear before a judge. Thus, it can be seen that the courts role in law-making is ineffective in keeping up with modern issues and values of the community.
Essentially, parliament also has the ability to cover a number of areas in one go. This could be seen in the Marriages Act (1975) where parliament covered divorce, marriage and child maintenance all in one Act. There is les delays as a result of this feature and a much more efficacious management of the law.
Courts on the other hand can only make law by interpreting specific leigslaiton or certain sections of legislation. This is neither effective nor is it efficient and it is not suitable for meeting the current demands of society, such as technological change and changes in marriage values.
In contrast, the courts may seem to be very useful in modern day society as they are essential for keeping a system that is fair and law that is coherent and reflects community values.
Firstly, courts provide a system where there is consistency, coherency and certainty. Especially in the 21st century, society needs a body where law-making is made so that it is fair and just. Individuals that seek court action will/may know the outcome of a case before it actually goes to court due to the operation of the doctrine of precedent and the ability of the courts to keep a consistent and fair system. This means that human and democratic rights are upheld which increases public confidence in the legal system and resolves disputes in quick and timely manner.
Parliament however can overtake previous legislation by bringing forth new ones without any strings attached and thus makes law making through parliament inconsistent and unpredictable.
Also, the suitability of the courts in todays society can be attributed to the fact that judges are not influenced by political parties, the media and lobbyist groups. They are able to make laws based on merits of cases and facts of current issues rather than be influenced by third parties.
Parliament on the other hand can be influenced by outside parties due to being responsible and representative of the community. This could be seen in 1993 when parliament was pressured by the public and media to introduce mandatory reporting of child abuse, which say the introduction of the children and young persons Act (1993).
Thus the statement that play an insignificant role in law-making is overshadows by the fact that it is an independant body who is coherent, well structured, meets community needs and provides for certainty and consistency.
However, the statment that 'the relationsghip between parliament and the courts is becoming increasingly distant' provedes for a number of logical fallacies. Firstly, the courts ensure that parlaiemtn does not exceed its legislative jursidcitional ability adnt hus can declare legislation 'ultra vires' if it does this.
Parliament along with the assistant of the governor/governor-general, appoint judges to their position, this has not changed overtime thus contradicts the notion that the two bodies are becoming distant from each other. Also, it is parliament that make the law in which judges interpret. Without legislation, the courts could not operate. The courts also help fill in legislative vacuums which could be seen in the Mabo case (1993) regarding the abolishment of the term terra nullius. The high court interpreted the term and alerted parliament to act in this area. All these factors establish that the relationshgip between parlaiment and the courts is not becoming distant but rather they work cohesively to provide for a stable and effective legal system.
Overall it can be said that courts do play a role in modern societies law-making due to their effectiveness of providing for a system where there is coherency, consistency, fairness and legislation interpreted to meet societies needs. Nonetheless the majority of legislation should be left to parliament as they are the ultimate law-making bodies and represent the community.
btw i would appreciate if anyone could read and make any changes to this and i know it would be draining reading all that. thanx. oh yes and this is worth 10 marks.
Also it took me roughly 28-30 mins. I know that it should've been completed within 20 mins, but my other questions took less than the 1=2mins rule so it consititued for the amount of time given to this question.
THANKYOU
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