Legal Studies - Laws and the Judicial System

( from https://alison.com/courses/Legal-Studies-1/ )

COURSE DESCRIPTION
This free online law course presents the learner with a basic
introduction to the world of legal studies. The lessons explore the
definition of law and the role it plays in society, the nuanced differences
between civil and criminal law and how various laws evolve over time. The
course is an ideal study-aid for law students or for those who wish to
acquaint themselves with the fundamentals of legal systems.
CERTIFICATION
To qualify for your official ALISON Diploma, Certificate or PDF you
must study and complete all modules and score 80% or more in each of
the course assessments. A link to your Diploma certificate will then appear
under the My Certificates heading of your My Account page.
LEARNING OUTCOMES
On completion of this course you will understand the different
characteristics of law such as fairness, access, time, values, effectiveness,
resolution of disputes and the mechanisms in the dispute resolution
framework.You will know the different classifications of civil and criminal
law. You will be able to identify who is responsible for changing the law and
the reasons laws need to changed for an effective legal system. You will
understand the roles of the judge, parliament and courts and the meaning
of the doctrine of precedent. You will be more aware of the relationships
between law-making bodies including their strengths and weaknesses.

Contents
Legal Studies - Laws and the Judicial System...........................................................1
Chapter 1. Characteristics of effective laws...........................................................3
1.1. Fairness, Access, Time and Values...............................................................3
1.2. Elements or Characteristics of Effectiveness...............................................4
1.3. The Element of Fairness............................................................................... 4
1.4. The Principle of Access................................................................................. 5
1.5. The Resolution of Disputes...........................................................................7
1.6. The Legal System......................................................................................... 7
1.7. Various Mechanisms in the Dispute Resolution Framework..........................7
1.8. Mechanisms in the Dispute Resolution Framework......................................8
Chapter 2. CIVIL AND CRIMINAL LAW.....................................................................9
2.1. Classification of Laws................................................................................... 9
2.2. Civil and criminal law................................................................................... 9
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Chapter 3. How the Law Changes: Introduction...................................................10

3.1. How the Law Changes: Introduction...........................................................10
3.2. Parliament.................................................................................................. 10
3.3. Delegated Bodies....................................................................................... 10
3.4. Courts......................................................................................................... 11
3.5. Why the Law Changes................................................................................ 11
3.6. Social Developments.................................................................................. 11
3.7. Changing Technology................................................................................. 12
3.8. Changing Values......................................................................................... 12
3.9. Methods used in Changing the Law............................................................12
3.10. Examples of Factors causing Changes in the Law....................................12
3.11. Role of a Law Reform Body.......................................................................14
3.12. Role of Courts in Changing the Law..........................................................14
Chapter 4. How do judges make laws...................................................................14
4.1. Role of Parliament and the Courts..............................................................14
4.2. The Doctrine of Precedent..........................................................................15
4.3. Interpretation of Past Decisions..................................................................16
4.4. Role of Courts............................................................................................. 17
4.6. Effect of the Interpretation of Legislation...................................................18
Chapter 5. Relationships between law-making bodies.........................................19
5.1. Parliament, Delegated Authorities and the Courts.....................................19
5.2. Similarities between Parliament and the Courts.........................................19
5.3. Differences between Parliament and the Courts........................................20
5.4. Strengths of Law-making by Parliament.....................................................20
5.5. Weaknesses of Law-making by Parliament.................................................21
5.6. Strengths of Law-making by Courts...........................................................21
5.7. Weaknesses of Law-making by Courts.......................................................21
5.8. Strengths and Advantages of Delegated Legislation..................................22
5.9. Weaknesses/Disadvantages of Delegated Legislation................................22

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Chapter 1. Characteristics of effective laws

1.1. Fairness, Access, Time and Values

This resource explores the characteristics of effective laws as well as
mechanisms within the dispute resolution framework.
The characteristics of an effective law are those of an
effective legal system:
fairness and unbiased legal procedures and hearings
access to mechanisms for dispute-resolution
timely resolution of disputes
values and rights recognised
Effective laws are characterised by any or all of these
features.
Hence an effective law may be one that produces the right outcome,
a correct court decision or jury verdict, or the proper use of sentencing
laws by a court. This broad definition suggests the concept of an effective
law is open to a degree of interpretation. Precision in a definition of
effectiveness is therefore difficult as the perspective of effectiveness may
vary depending on the status of the viewer, i.e. perspectives of
effectiveness can differ depending on the extent to which they affect
particular individuals.
For example, in criminal cases, the legal system often needs to
reconcile conflict between the protection of individual civil liberties, whilst
maintaining mechanisms for the suppression of crime and retribution on
behalf of victims and society as a whole. In this instance, a convicted
offender may see a jury verdict as effective, whereas a victim of crime
may see the same verdict as ineffective. In addition, the legal system and
convicted individuals may have different versions of the effectiveness of
procedures used in a criminal case. However, it must be noted that
society's perspective of the law's effectiveness is often more important
than an individual's because in certain cases it represents the majority
view in a democratic legal system.

Procedural justice.
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Substantive justice.
Two types of effective justice exist: 'procedural' and 'substantive'
justice. Procedural justice refers to the processes for reaching an outcome
or decision or verdict (eg the criminal trial procedure in the Supreme Court
before a judge and jury); whereas substantive justice refers to the actual
outcome or decision or verdict within the legal system (e.g. guilty and
imprisonment for 28 years). In this way, an outcome may be argued as
being procedurally just but substantively unjust if the processes for
reaching the final decision were fair and unbiased, but the final decision
raises doubts on questions of law, is wrong on the facts or against the
weight of the evidence.
1.2. Elements or Characteristics of Effectiveness
The explanation of the characteristics of effectiveness must be
explained by reference to the elements for achieving effectiveness under
the law.
1.3. The Element of Fairness
Fairness refers to the notion that legal processes and procedures are
not prejudicial to parties involved in them and will be demonstrably
unbiased in reaching an outcome. Fairness under the law is achieved
through various means, including:
Pre-trial procedures

right to remain silent

right to apply for bail
right to legal representation and legal aid
restrictions on questioning and detention time by law enforcement
agencies
certain restrictions on the power of arrest
rights to refuse ID parades and searches (subject to court order)
right to committal proceedings in indictable offences
Trial procedures
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 court hierarchy and specialised courts for particular legal disputes

right to legal representation and legal aid
presumption of innocence
burden and standard of proof
independent judiciary and magistracy
rules of evidence and procedure
right to trial by jury for indictable offences
public verdict
consistent sentencing laws
open courtrooms, court reporting and media coverage
Post-trial procedures

right of appeal
appropriate correctional procedures
right of pardon/executive intervention (e.g. Royal Commission into
conviction - Chamberlain Case 1982)
1.4. The Principle of Access
Legal mechanisms are those institutions and processes used in the
appropriate and just resolution of disputes, according to the law and the
principles of natural justice (i.e. equality and fairness). This aspect of
effectiveness refers to access to the mechanisms which constitute the
framework for dispute resolution within the legal system. The mechanisms
fulfilling this role may be characterised as informal, semi-formal or formal
in structure and operation. Whilst there is a range of mechanisms for
dispute resolution, most disputes are in fact resolved outside of the
traditional court hierarchy.

The law aims to achieve just outcomes in disputes which are

inevitable in society.

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Mechanisms for dispute resolution are required to minimise disorder

and disruption.
Disputes are inevitable in society and one primary way the law helps
to achieve just outcomes is by establishing institutions and processes to
resolve disputes. Mechanisms for effective and just dispute resolution are
required by the legal system because society demands that conflict and
disagreements be resolved in an orderly manner. That is, mechanisms for
dispute resolution are required to minimise social disorder and division,
and to avoid possible retaliation.
Mechanism for effective and just dispute
resolution are required by the legal system because
society demands that conflict and disagreements be
resolved in an orderly manner.
Dispute resolution
A large complex democratic society contains a wide range of
conflicting values, beliefs, arguments and views that require management
and resolution in order to prevent the breakdown of law and order.
Where such a breakdown occurs, the rights of all citizens in the legal
system are at risk (e.g. Los Angeles riots April 1992, following the acquittal
of police officers charged with the assault of taxi driver Rodney King). As
there is a diversity of views in a democratic legal system, there are a
variety of different types of disputes requiring resolution.
In this way, the legal system provides a range of mechanisms to
resolve the different disputes that arise. The traditional mechanisms used
for dispute resolution are the courts (eg Supreme Court, Magistrates'
Court); however, in the contemporary legal system, more alternative types
of dispute resolution mechanisms have developed. As such, today, there
are options for dispute resolution which progress beyond the traditional
court hierarchy and adversarial system of justice.

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Society demands that disputes be settled peacefully and in a just and

consistent manner.
1.5. The Resolution of Disputes
Society demands that disputes be settled peacefully and in a just and
consistent manner. Unresolved and uncontrolled conflict threatens the
smooth functioning of the legal system and society as a whole. All
adjudicating and enforcement mechanisms have a role to play in the
ensuring that society's basic fabric is not damaged by such conflict. The
emphasis here for the dispute resolution mechanisms is that of resolution
and prevention.
1.6. The Legal System
To be effective, the legal system must seek to resolve disputes in a
timely and appropriate manner. Unnecessary delay or obstruction in the
resolution of disputes results in justice not being achieved.
Delays often force potential litigants to abandon or forfeit litigation or
a defence to a criminal prosecution, due to lack of financial resources or
disruption to their personal and/or professional lives. As well, delays can
create problems in trial procedures.
The quality of evidence may be undermined over time as witnesses'
memories fade about critical incidents, facts and perceptions. Overall, the
appropriate time periods and without undue delay or interference to their
lives. The timely resloution of disputes is important to the legal system's
effectiveness.
1.7. Various Mechanisms in the Dispute Resolution Framework
Example of the links between various mechanisms in the dispute
resolution framework:
1.7.1. Parliament

main mechanism responsible for formally making laws/rules

enables potential future disputes to be prevented or minimised in
advance
operates by creating new laws or amending existing laws, in
accordance with jurisdictional limitations and as a result of social input in
a democratic process
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1.7.2. Police and law enforcement agencies

authority is conferred by law-maker

major role is to discover crime, deterrence, apprehension of
offenders and bring them before the courts
presence and existence helps to prevent disputes and disruptive
conduct before it occurs
1.7.3. Courts
The traditional court hierarchy is the major forum for dispute
resolution within the legal system, and is often used when other
(alternative) methods of dispute resolution fail or are inadequate for the
purposes of justice. Each court in the traditional hierarchy has its own
particular jurisdiction (e.g. the High Court of Australia (HCA) is the only
court that resolves constitutional disputes).
The courts are the mechanisms where: (1) accusations of wrongful
conduct (civil wrongs) and (2) alleged law-breakers (criminal) are legally
processed. They are presided over by qualified and skilled personnel who
have considerable expertise in the law.
The traditional courts are arranged in a hierarchy which makes the
dispute-settling process more efficient by offering degrees of specialisation
in the resolution of particular types of disputes, allowing a system of
appeals to operate, and facilitating the use of the doctrine of precedent in
law-making. The courts' main function is to resolve disputes by punishing
wrongdoers, enforcing obligations and protecting individual rights.
1.8. Mechanisms in the Dispute Resolution Framework
1.8.1. Specialised courts and tribunals
Specialised courts and tribunals (SCATs) make a contribution to the
efficient dispute resolution process by offering expertise in recurring areas
of dispute resolution, reducing delays and costs in disputes and being
generally more accessible mechanisms for citizens to use.
1.8.2. Adversary trial process
Including pre-trial, trial and post-trial stages (see 'Equality' and
'Fairness'):

specific pre-trial procedures are required (e.g. civil - exchange of

documents)
enables both parties to know issues in dispute (civil) and assist outof-court settlement
enables decision about whether sufficient evidence to support
conviction exists (committal - criminal)
independent judiciary/magistracy
rules of evidence and procedure assists disputes to be settled fairly,
with both parties provided opportunity to prepare and present cases
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 legal aid allows parties otherwise undefended to undertake legal

proceedings
system of appeals allows dissatisfied litigants chance of redress
1.8.3. Legal profession

major role-players in resolution of clients' disputes before the courts

knowledge of the law and legal procedures enables fair trial to occur
and assists litigants to reach more informed decisions about the
conduct/presentation of court cases (to their advantage)
Roles:
1. Provision of advice for prospective litigants regarding rights,
duties, legal status.
2. Representation in court and assist in resolution of disputes.
1.8.4. Prisons and Corrections

authority conferred by parliament

mechanisms of lawful detention where offenders are detained for
disruptive or criminal conduct
essential to proper functioning of legal system and just outcomes so
as to make criminal law effective and enforceable
Chapter 2. CIVIL AND CRIMINAL LAW

2.1. Classification of Laws

In November 1999 designer Bettina Liano won a Federal Court

injunction to stop another company from copying her styles.
There are many different types of law that can be categorised in a
number of different ways. Laws can be classified according to their
purpose, area of regulation, origin and public or private nature. Generally,
classifications focus on the area of regulation or control provided by
different branches of the law.

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2.2. Civil and criminal law

Criminal law is made up of offences against the state. These offences
represent violations of established legal rules about expected patterns of
conduct in society. These violations are prosecuted in the courts and are
subject to sanction when a person is convicted. Criminal law involves
offences such as murder, kidnapping, conspiracy, armed robbery and tax
evasion. However, criminal law can be further categorised into the two
main types of offence: indictable offences and summary offences. An
indictable offence is a serious criminal offence such as rape, which is tried
before a judge and jury in a superior court such as the County Court. A
summary offence is a less serious offence such as speeding, which is tried
without a jury before a magistrate in the Magistrates' Court.
Civil law is the area of law regulating relationships between
individuals and groups and providing for compensation where an
individual's rights are infringed by others. The purpose of the civil law is to
obtain a remedy for a party who claims to have had their rights infringed
and who has subsequently suffered loss or injury in some way. As a
general rule, any legal dispute not involving a crime is classified as coming
within the civil law. Civil law can be divided into many parts including:
law of torts
law of contract
family law
company law
administrative law
property law
consumer law
discrimination law
It should be noted that not the entire area of each of the above is
considered civil law. For example, certain criminal offences related to child
abuse and domestic violence within the broad area of 'family law' are
clearly criminal law matters.
Chapter 3. How the Law Changes: Introduction

3.1. How the Law Changes: Introduction

The law is made or changed in three ways:
parliament (enacting legislation)
delegated or subordinate bodies (passing regulations, local laws,
statutory rules etc)
courts (establishing case law or precedent)
3.2. Parliament

creates, amends, repeals, consolidates and codifies legislation

passes bills through various stages of a set procedure in both
houses
Royal Assent is given by Monarch's representative
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 process of law-making is open and democratic

3.3. Delegated Bodies
Categories of delegated body include:

statutory authorities
government departments
local councils
executive council(s)
Delegated bodies create, amend, and repeal delegated legislation
called variously regulations, local laws, statutory rules, proclamations and
ordinances.
Delegated legislation passes through an essentially administrative
procedure rather than the formal legislative parliamentary steps.
Delegated legislation is generally subject to parliamentary scrutiny.
3.4. Courts
Courts make law in three ways:

creating new principles of law where none exist

adapting or modifying existing common law principles to new cases
interpreting legislation
Law-making through the courts is a secondary role; the major function
of the courts is to resolve disputes.
Law-making is a closed, judge-made process.
3.5. Why the Law Changes

As society changes so does the law

As society changes, so must the law. If the law is not changed, it
becomes irrelevant and redundant. Further, the inability to respond
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appropriately to current issues may lead to ineffectiveness in the legal

system.
Therefore, change in the law occurs due to:

social developments
changing technology
changing values
3.6. Social Developments
Social developments that produce legal change can arise from:
disputes not being prevented
new patterns of conduct emerging
particular social incident/controversy
conflicting social or political attitudes about an issue
3.7. Changing Technology

IVF technology
speed cameras
automatic teller machines
intellectual property - computers, copyright
white collar crime
3.8. Changing Values

moral values: medical treatment laws/euthanasia

social values: mandatory reporting of child abuse
economic values: introduction of tax file numbers/GST agreed in
1999
political values: dangerous offenders legislation in 1990s
3.9. Methods used in Changing the Law
There are a variety of factors or causes that produce pressure for
legal change and reform, including groups, institutions, individuals,
circumstances and social events. These sources or factors occur both
within and outside the formal law-making institution, parliament,
establishing pressure for change:
WITHIN PARLIAMENT
government party policy

Cabinet

ministers

government departments

opposition party policy

shadow cabinet

shadow ministers

private members' bills

OUTSIDE PARLIAMENT
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law reform commissions

royal commissions/inquiries

Statutory authorities

local councils

pressure groups

public/social opinion

The effectiveness of all the above factors depends upon the political
response to the factor or cause. If the government of the day essentially
supports the idea for law reform in a certain area, then new or amending
legislation usually results. If the political will for the change does not exist despite the merits of a proposal for law reform - then no change
occurs. Law reform is a political decision.
3.10. Examples of Factors causing Changes in the Law
Government party policy

agreed change to tax laws to introduce GST from 2000

changes to gun laws: Firearms (Amendment) Act 1996 (Vic.)

Government departments

introduction of tax file numbers in 1988-89

Private members' bills

Euthanasia Laws Act 1997 (Commonwealth) - the Andrews Bill

repealing the Northern Territory's Rights of the Terminally Ill Act 1996.
Law reform commissions

amendment to penalty for murder in Crimes Act 1958 (Vic.) - from

mandatory life imprisonment to a maximum of life imprisonment
Royal commissions/inquiries

creation of National Crime Authority (NCA) to investigate organised

crime arising out of the recommendations of the Costigan Royal
Commission 1980-84
Statutory authorities

Victorian Board of Studies: changes to VCE from 2000

Local councils

initiate changes to law in range of local matters

Pressure groups

generated pressure for the amendment to heritage law proclaiming

the Franklin Dam area as a world heritage site (World Heritage Properties
Conservation Act 1983) and the Tasmanian Dams Case before the High
Court in July 1983
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Public opinion

the amendments produced by the Family Law Reform Act

1997 (Commonwealth) concerning the more effective operation of the
original Act
In addition, there are a variety of methods used by the above factors,
people, groups and organisations to assist in generating pressure for
change including:
submissions to parliament

lobbying of politicians

protests and demonstrations

media coverage

test cases

industrial action

joining or starting a political

party

defiance of the law

petitions
private members' bills
As with the above factors, these methods enjoy varying degrees of
success depending upon the political response from the government or
parliament of the day.
3.11. Role of a Law Reform Body
There are a number of law reform bodies that can be examined
including:

law reform commissions

royal commissions
parliamentary committees
government inquiries
The emphasis here is on the law reform body's role in the process of
legal change.
3.12. Role of Courts in Changing the Law
The courts are able to change the law by establishing and adapting
new case law principles in giving decisions (i.e. precedents). This lawmaking or law-changing role of the courts is, however, a secondary
function to their dispute-resolution role. In this way, the courts are reactive
law-makers: they can only 'make' law when a case arises for decision, not
decide the timing of a case law change. Even then, it is effectively only the
superior courts which make law when a matter proceeds to appeal before
the courts higher in the hierarchy (e.g. Full Bench of the High Court of
Australia).
Courts have been very significant in the development of our law and
many branches of the law stem from case law principles established by
judges in court cases over time. These include:

tort law: manufacturers' liability for negligence

contract law: the elements of a valid contract
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 criminal law: the elements of murder as an indictable offence

constitutional law: the meaning of 'free trade' between the states of
Australia
Chapter 4. How do judges make laws

4.1. Role of Parliament and the Courts

Judges make law by deciding cases. The law made by judges is called
case law or common law. All courts can make new 'decisions' but in
practice it is the superior courts of record that establish case law. These
courts include both the original and appellate jurisdictions of the High
Court, Family Court, Federal Court and Supreme Court. Law made by
judges is contained in the law reports, held in law libraries for future
reference by judges, barristers and solicitors.
It is important to remember that judges have no formal authority to
make law. Law made by judges is a secondary consequence or by-product
of the dispute-settling role. Parliament's primary role is law-making. As
such, judges can only 'make' law if and when a case for dispute comes
before them for resolution. In resolving the case, a court may make a new
precedent, modify an existing precedent or interpret the meaning of words
in legislation in a new or novel way.
4.2. The Doctrine of Precedent

The doctrine of precedent involves following the decisions of previous

cases to resolve current ones.
4.2.3. Definition:
The legal practice of following decisions of previous cases to resolve
current cases (based on the notion of 'stare decisis' - to 'stand by things
already decided').
4.2.4. Types of precedent

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 binding precedent - a previous decision that must be followed. The

binding element of a precedent is known as the 'ratio decidendi' (reason
for the decision)
persuasive precedent - a previous decision that may be followed but
is not required to be followed. The binding element of a precedent is
known as the 'obiter dictum' (other matters addressed by the court in
reaching a decision, not part of the main reason for the court's decision)
4.2.5. Principles of precedent

superior courts bind inferior courts in the same hierarchy

equal courts do not bind each other
courts in other jurisdictions do not bind our courts
Old precedents should not necessarily be avoided or rejected.

4.2.6. Requirements of precedent

a hierarchy of courts (with superior and inferior courts)

a system of formal law-reporting (for future reference and
comparison)
a recognition by courts of the worthiness of the doctrine (i.e. that
precedents are worth following)
4.3. Interpretation of Past Decisions
Generally, courts will follow the decisions of previous courts in the
same hierarchy. This assists consistency and certainty in the law
pronounced by the courts. However, even where a decision appears to be
binding on a court, it may not necessarily be followed by virtue of
particular judicial approaches taken to the interpretation of past decisions.
These approaches include:

reversing a previous decision

overruling a previous decision
distinguishing a previous decision
disapproving a previous decision
4.3.1. Reversing
This involves a superior court in the hierarchy changing the decision
of a lower court in a case being heard on appeal. Reversing involves the
same case being heard on appeal.
4.3.2. Overruling
This involves a later, superior court in the hierarchy overriding a
decision of a lower court in a previous case, by saying the earlier case was
wrongly decided and no longer to be considered 'good' law. Overruling,
unlike reversing, involves two different cases altogether.
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4.3.3. Distinguishing
This involves a court stating a material difference exists between a
previous decision and the circumstances of the case presently before the
court. As such, the earlier case does not have to be followed.
4.3.4. Disapproving
This involves a court stating its belief that an earlier case was wrongly
decided. If the later court is inferior to the court that decided the previous
case, the precedent cannot be overruled but only disapproved. If the later
court is equal to the court deciding the previous case, the precedent also
cannot be overruled but may be disapproved, establishing two competing
precedents in this instance.
4.3.5. What problems exist in the usage of the doctrine of
precedent?
Whilst precedent has many strengths, a number of difficulties exist
with its usage including:

Volume of case law

The vast quantity of case law can make it difficult to know exactly
what precedents should be used in deciding a case

Age of case law

Many precedents are dated
contemporary legal system difficult

making

their

application

in

the

Distinguishing ratio from obiter

It can be extremely difficult to determine exactly what principles a
case stands for, i.e. working out the ratio decidendi from the obiter dictum
can be complex and uncertain.

Multiple precedents
Where courts disapprove of previous decisions without overruling
them, conflicting precedents can then exist making it difficult for future
courts to make decisions with certainty about exactly what the law is on a
certain area.
4.4. Role of Courts

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The major role of the courts is the resolution of disputes.

The role of courts in the interpretation of legislation is to give effect to
the purpose of parliament in enacting the legislation, i.e. to put into effect
parliament's objective, goal or reason for passing the law. This is referred
to as the courts having a 'purposive' role, and this role is established by
Acts of parliament at both Commonwealth and state levels. Statutes
guiding courts about how to read statutes are called:

Acts Interpretation Act 1901(Commonwealth)

Interpretation of Legislation 1984 (Vic.)
4.4.1. How do courts interpret legislation?
A court may:

examine the statute (and other materials) and attempt to determine

the purpose
attempt to apply the purpose of the Act to the facts of a case
make a decision in the case with parliament's purpose in mind
To assist in determining parliament's purpose, the above Acts give
guidance for other materials courts can use. These other materials are
called 'extrinsic materials' and include:

reports of royal commissions, law reform commissions and

government inquiries
reports of parliamentary committees
treaties and international agreements
explanatory memorandum in an Act
second reading speech of a minister in parliament in introducing a
bill's purpose
any relevant document
These extrinsic materials help to clarify and explain parliament's
purpose in making law. The courts are not bound to use extrinsic
materials, but may do so in determining the purpose of legislation.
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4.5. Reasons for the Interpretation of Legislation

Legislation is required to be interpreted for many reasons including:
4.5.1. Drafting difficulties

original instructions may be unclear

legislation may be silent on a particular issue
legislation may be ambiguous
legislation may be unclear or confusing on a certain point/media
4.5.2. Difficulties in applying legislation in the future

In spite of anticipating future developments, not all events can be

foreseen, making it necessary to interpret the words in statutes in new
situations as they arise
4.5.3. Inconsistencies in legislation and other laws

Acts of parliament may be inconsistent with other acts of parliament

or delegated legislation and require clarification

4.6. Effect of the Interpretation of Legislation

The interpretation of legislation by courts gives 'life' to the statutes
passed by parliament. The effect of interpretation is to make the law 'real'
by giving definition and meaning to statutes. This function of the courts is
a by-product of the dispute-resolution role performed by courts. Courts,
therefore, make law by declaring what the law is, as contained in (mostly)
legislation and delegated legislation.
However, the interpretation of legislation only 'makes' law until either:

a superior court overrules a decision of a lower court, or

parliament changes or alters a court's decision with another act of
parliament
As such, law made by judges when interpreting legislation is not
established forever as 'the' law but subject to later change or
development.
In order to truly know what the law on a particular subject matter is
then, judges and legal practitioners must look at both:

the statute dealing with a particular area of the law, and

case law arising from that statute
and read them together, as if the decisions of judges had been written into
the statute itself.
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Chapter 5. Relationships between law-making bodies

5.1. Parliament, Delegated Authorities and the Courts

Both parliament (including delegated authorities) and the courts can
make law. However, parliament is democratically elected for that purpose
whereas the courts are created by parliament to resolve disputes by
applying law passed in parliament. Parliament, delegated authorities and
the courts are designed to achieve just outcomes in the legal system.
5.2. Similarities between Parliament and the Courts

One of the similarities between parliament and the courts is that both
can make laws for the future.
Both parliament and the courts:
Have a type of debate in law-making;

parliament - bill passes through both houses

courts - arguments presented during a case
Have a type of vote;
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 parliament - each state of a bill's passage

courts - appeal cases in which multiple benches conduct a 'vote' in
favour or against particular cases
Must adhere to particular law-making rules;

parliament - can only legislate according to constitutional powers

courts - obliged to follow the doctrine of precedent
Can make law for the future;

parliament - sets out rules for conduct in the future

courts - precedent has the effect of settling similar future disputes in
a similar manner
5.3. Differences between Parliament and the Courts
Parliament

has sovereignty in law-making

law made is called legislation
laws are found in statutes or Acts
law-making is main role
can determine the occasion and speed of law-making
responds to social pressure in law-making
can delegate law-making role
laws generally bind all in the legal system
makes law 'in futuro' (for the future)
Courts

are inferior to parliament as a source of law

law made is called case law
laws are found in law reports
law-making is secondary role
must wait for a dispute to be litigated to set precedent
no external influences are imposed on courts
cannot delegated law-making role
decisions generally only effect two particular parties involved in a
dispute, but can be binding in future cases
makes law 'ex post facto' (after the event)
5.4. Strengths of Law-making by Parliament
Parliament

law

can deal with whole areas of law at one time

has sovereignty in law-making and can override all other forms of
has an open and democratic law-making process
is responsible and accountable to the voters in the legal system
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 makes law which reflect current social values and human rights
can delegate law-making authority in order for law-making to be
more efficient and expert in certain areas
establishes guidelines for social conduct
can determine the speed and occasion of law-making
5.5. Weaknesses of Law-making by Parliament
Parliament

does not change the law in politically difficult areas

does not sit continually, therefore cannot always react as needed to
new situations which arise
does not exercise effective supervision over delegated authorities
produces a large volume of law which is difficult to access and
understand
makes law under the influence of political lobbyists or sectional
interest groups in society to the disadvantage of others
lacks expertise in law-making
5.6. Strengths of Law-making by Courts
Courts

provide practical solutions to legal problems, which become

guidelines for future similar situations
use a closed law-making process, i.e. courts are not influenced by
political pressures but can decide the law without fear or favour
are experts in law-making
use an adaptable doctrine of precedent in establishing case law
principles, which also provides for consistency in the laws enforced in
courts
are organised in a hierarchy, which allows for particular courts to
deal with different types of cases
5.7. Weaknesses of Law-making by Courts
Courts

can only make law when a case arises for resolution

are often conservative rather than progressive in adapting the law
to meet new situation,: i.e. courts are often reluctant to adapt precedent
to new circumstances
often only make law when a case reaches the appellate level, yet
few litigants can afford the time or delay in a case reaching this far
are often too expensive and slow for a potential case to be litigated
by an aggrieved party
often make law 'ex post facto' (after the event), which may be unfair
to parties affected by their decisions
often produce lengthy and difficult to understand judgments
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 produce a large volume of case law, making it difficult to know

exactly what the law is in a certain area
do not make 'final' law, i.e. laws established by courts are subject to
overruling later by higher courts or by parliament in enacting overriding
legislation
cannot seek assistance from specialists or experts in designated
fields prior to establishing a new law
5.8. Strengths and Advantages of Delegated Legislation
The main reason for the system of delegated legislation is to increase
efficiency in the law-making process. The strengths of the system include:

Saving time in law-making

Parliament does not have sufficient time to enact all legislation
required for the legal system to function properly.

Expertise
MPs are not specialists in all areas of law-making and delegated
legislation allows them to concentrate on matters of broad policy whilst
leaving issues of detail and practice to more expert delegated authorities.

Flexibility
Delegated legislation can be made or amended more quickly than
legislation and does not undergo the same processes as law made by
parliament. As parliament does not sit all year long, delegated authorities
are better able to respond to social needs as they arise.

Participation
Delegated legislation allows for greater community participation in
the law-making process which, in a democracy, is a positive feature. Local
councils are comprised of local citizens elected to office and certain
government departments provide for citizen participation to present a
broad range of community and organisational views to the relevant
minister (e.g. on consumer matters).
5.9. Weaknesses/Disadvantages of Delegated Legislation
Criticisms of the system of delegated legislation include:

over-government - large volume of delegated legislation)

unelected law-makers - most delegated authorities are not elected
by voters
inaccessibility of delegated legislation - general public finds it
difficult to keep up with delegated legislation, where to locate it and how
to understand the often complex detail of regulations
lack of consultation and public debate - most delegated legislation is
made in a closed manner, i.e. little public debate or warning occurs when
delegated legislation is made
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 inconsistency - differences or overlap in delegated legislation

between various subordinate bodies

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