Finally motivated myself to do some more Legal questions!
Would it be better if I put corresponding strengths and weaknesses in one paragraph, or should I make a separate paragraph for each strength and each weakness?
1. A member of parliament recently declared that parliament has no weaknesses and should be the only lawmaker in Australia.
Critically evaluate parliament as a law-maker. In your answer describe one aspect of the relationship
between parliament and courts in law-making. (10 marks)
A reason that parliament is an effective law-maker is because its primary role is to make laws. This means that it has been able to develop a process to do so (which includes debates, three reading stages, and the consideration-in-detail), ensuring that changes to the law are informed and just. It also allows for laws to be scrutinised, and amendments made where necessary.
However, parliament can be an ineffective law-maker because this process can be slow. As such, law-reform may not always be consistent with society's values, especially when the upper house blocks bills (known as a hostile upper house). Conversely, the same party being in control of both houses will also make law-making inefficient - the upper house will become a "rubber stamp" in that it will merely approve legislation without adequate review, scrutiny, and consideration of the new law's impact on society. An example of this occurred in August 2007 - in a week, Howard's National/Liberal coalition passed 500 pages of law altering the lives of the Northern Territory's indigenous communities and controlling how $500 million was spent, thereby resulting in parliament not effectively reviewing laws.
Secondly, parliament is effective because it is democratically elected and therefore representative of the majority of voters. It is answerable to the public, as any government that does not uphold the values of the majority is likely to be voted out of office at the next election. Public opinion is able to be conveyed through a variety of methods, including petitions and rallies. For example, the SLAM rally on the 23rd of February 2010 provided an opportunity for the public to express their concerns about liquor licensing laws at live music venues. This was beneficial as it informed parliament that their bills may not have been consistent with public opinion.
Despite this, parliament is not always representative, as it may fear vocal minorities, particularly in controversial issues such as euthanasia and gay marriage. Parliament may fail to act at all if there are many varying opinions, and it is difficult to make laws that match the entire society's values. Moreover, ministers will generally vote along party lines (with their party's best interests in mind), rather than representing their electorate, thus limiting parliament's ability to represent society.
A third reason why parliament is effective at law-making is that it has resources which enable it to assess the need for change in the law and recommend changes. These include formal law-reform bodies such as the VLRC, as well as parliamentary committees and government departments. For instance, the VLRC conducted an investigation into abortion and a survey in 2005 found that 81% of the population believed that a woman should be able to decide whether or not she had an abortion. This meant that legislation prohibiting abortion was inconsistent with society's values, leading to parliament removing abortion from the Crimes Act in 2008 after receiving recommendations from the VLRC.
A limitation to this is that researching areas of law can be expensive and time-consuming. Law-making can be slowed drastically, and parliament may be unable to keep up with society's changing values. For example, research into IVF laws lasted for four years. Additionally, when a final report is submitted to parliament, parliament is under no obligation to follow the advice included - this means that when parliament does not act, time and money are wasted, and parliament's use of resources is not very effective.
Another reason that parliament is an effective law-maker is because it is the supreme law-making body. Parliament is able to make laws whenever it wishes, and can override laws made by courts or previous acts of parliament. One aspect of the relationship between parliament and courts in law-making is that parliament can abrogate court-made (or common) law. This was demonstrated in the rape in marriage case when the court followed an outdated precedent, inciting public uproar. Parliament then passed a law that was consistent with society's values, which is a strength because such laws are more likely to be accepted and followed.
However, parliament's effectiveness is restricted as its sovereignty is limited by the Australian Constitution. The Constitution prevents both the Commonwealth and the state parliaments from legislating on matters outside of their jurisdictions. For example, the Victorian Parliament may wish to coin their own separate currency, but they are unable to do so due to section 115 of the Constitution, which reserves this ability for the Commonwealth Parliament.
Lastly, parliament is an effective law-maker because it can make laws in futuro (in anticipation of society's future needs). For example, the carbon tax was imposed in August 2009. It aimed to avoid the issue of climate change by aiming for 20% of Australia's energy to come from renewable energy sources by 2020. Consequently, parliament's ability to make laws in futuro means it is able to divert potential problems before they can affect society.
It is also an ineffective law-maker in some respects, as parliament cannot predict everything. Some of society's issues may take parliament unawares - for instance, parliament did not foresee the possibility of a person changing their gender, which became an issue in the Kevin and Jennifer case. Parliament's effectiveness is therefore limited, as it did not predict that advances in technology would make this possible.
2. Distinguish between exclusive and residual powers. (2 marks)
Exclusive powers are the law-making powers granted to the Commonwealth in section 51 of the Constitution and are given only to the Commonwealth through other sections of the Constitution, whereas residual powers are the law-making powers of the states and are not included in the Constitution.
(Is that enough for 2 marks, or do I need to I provide examples?)
3. In Australia, methods and processes exist to enable a change to the division of law-making powers between the State and Commonwealth Parliaments.
Identify one method of changing constitutional power and analyse its impact on the division of law-making powers. (5 marks)
A referendum (a compulsory yes/no vote on a proposal) is a method of changing constitutional power, and the process is outlined in section 128 of the Constitution.
The impact that referendums have on the division of law-making powers between the State and Commonwealth Parliaments is limited. Only 8 out of 44 referendums have succeeded, as the double majority provision is very difficult to achieve. Of these, only 2 have concerned altering the division of law-making powers. Also, the referendum process in section 128 requires widespread support, which can often be difficult to achieve.
In spite of this, 8 out of 44 referendums have succeeded in changing the division of law-making powers. The difficulty of attaining the double majority provides for a more stable system as it prevents the government from changing the Constitution to benefit themselves, unless they have popular support. Referendums are also democratic, meaning that changes to the system cannot be implemented without the approval of those who it affects.
Overall, referendums are able to alter the division of law-making powers, but their ability to do so is limited.
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