DP10 Features of the relationship between the courts and parliament in law-making Flashcards
What are the 3 features?
The supremacy of parliament, the ability of the courts to influence parliament to make and change laws and statutory interpretation
What is the supremacy of parliament?
Parliament is the supreme law-making body and can create and amend any laws within its law-making powers. Parliament can abrogate or override laws and decisions made by the courts. Furthermore, if a statute and common law principle is in conflict, statute law prevails. Parliament also establishes and defines the power of the courts (other than the High Court. For example, the VSC is govern its jurisdiction through the Supreme Court Act (Vic).
How can courts influence parliament?
Statements and decisions made by judges may influence parliament to make and amend laws. For example, disapproval of precedent in a judges’ obiter dicta may lead to the abrogation of the precedent, or the passing of new legislation in that area. For example, in the Trigwell 1979 case, the judge was reluctant to change the law and disapproved of old precedent, leading to legislative change by parliament.
What is codification?
A process where parliament confirms precedent by passing an act of parliament that reinforces principles established by the courts. Such legislation reinforces the legal principles, such as the concept of ‘native title’ in the Mabo case, leading to the Native Title Act.
What is abrogation?
A process where parliament cancels or overrides precedent by passing an Act that abolishes or changes the principles established by court. This was seen in the Trigwell case where duty of care of livestock wandering on the road was abrogated, so the farmers would not be considered negligent (to an extent).
How does statutory interpretation show this relationship?
When courts apply statutes to disputes, they are required to interpret the meaning of statutes or secondary legislation. Thus, the courts may give meaning to legislation and define terms to apply them to the cases before them. This ensures that the laws are applied in the way that parliament intended. Therefore, statutory interpretation shows the complimentary relationship between the courts and parliament.
