features of the relationship between the courts and parliament in law-making

Question 1

What is the supremacy of Parliament?

Answer 1

• Parliament, as the supreme law-making body, can make and change any law within its constitutional power.
• can pass legislation to abrogate (cancel) law made by courts (except for High Court decisions on constitutional matters) and codify common law.
• Parliament is also responsible for passing legislation to create most courts and determine their jurisdictional power
• While parliament is the supreme law-making body, the High Court can resolve disputes involving the Australian Constitution and may declare legislation made beyond the parliament’s law-making power invalid, and alter the division of law-making power between the Commonwealth Parliament and state parliaments.

Question 2

What is the relationship between the courts and parliament?

Answer 2

Courts can indirectly influence parliament to make and change the law:

• judges may make comments when handing down judgments that inspire or encourage parliament to initiate law reform
• parliament can be influenced to change the law if a lower court, bound by precedent, makes a decision that creates an injustice, or if a court acts in accordance with the principle of judicial conservatism and is unwilling to overrule or reverse a previous precedent that is considered by the community to be bad law
• a court’s decision may also highlight a problem or even cause public outcry that can lead to the parliament changing the law.

Question 3

What is codification of common law?

Answer 3

Parliament has the power to pass an Act of Parliament that assembles (or pulls together) all the relevant law in a particular area - common law and statute law - in an attempt to create one all-encompassing law. This is called codification.

Question 4

What does codification of common law allow the Parliament to do?

Answer 4

also allows the parliament to:
* pass legislation that reinforces or endorses the principles established in court rulings

• to clarify, expand on or reform the relevant area of law.

Question 5

What is abrogation of common law?

Answer 5

abrogates (or cancels) decisions made through the courts (common law), except High Court decisions in constitutional matters.

Question 6

When does abrogation of common law become neccesary?

Answer 6

• may be necessary in situations where the parliament believes the courts have
  interpreted the meaning of a statute in a way that was not the intention of parliament, or in a way that does not reflect its current
  meaning.
• Courts could potentially interpret the common law in a way that is no longer considered
  appropriate.