Law Making Through The Courts And Relationship With Parliament Flashcards
5 Strengths of law making through the courts
Quick Gapfill Consistency Depressurised Flexibility
Quickly
The courts are able to forego the lengthy legislative process as they are able to make law when necessary, creating an immediate law that may be binding as well as persuasive. In this way Courts can make a quick decision that can resolve a dispute for the parties in the case before the courts, and create precedent to be followed by the courts and others in the community in the future.
LINKS WITH RESTRICTIONS
Gapfill
Parliament can make laws about a whole range of issues but may not cover every set of circumstances that could arise. The courts can fill in the gaps left by parliament, which is essential because new situations are constantly arising. Through statutory interpretation the courts are able to clarify the meaning of laws passed by Parliament so that they have practical application.
LINKS WITH SLOW
Consistency
Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how a court will decide a particular case. Precedent provides some protection and guidance for judges, in that they can refer back to previous cases and decide accordingly. However, it can be difficult to locate the common law relevant to a particular situation because of the many cases that may be decided in the relevant area of law.
LINKS WITH DIFFICULT
Depressurised
Judges are appointed, rather than elected, so they are not subject to the same political pressure experienced by members of parliament. Their independent and unbiased status allows them to make more objective assessments of the case and the law before them and of the need for change in the law. However, judges do not always reflect current community values when making a decision.
LINKS WITH UNELECTED
5 weaknesses of law making through the courts
Restricted Slow Difficult Unelected Flexibility
Restrictions
Courts must wait until a case is brought before them before they can create precedent. Further, they can only make laws relating to the points of law brought up in the case. Parties may be unable to afford the cost and time of taking a matter to court to rectify an unjust situation. People cannot bring a case to court unless they have standing (that is, they are directly affected by the issue).
Slow
The courts can change the law immediately when a case is before them, but changes in a particular area of law through the courts can be slow to develop, such as the law of negligence, which continues to broaden its scope. Changing the law depends on litigants (a person who takes a matter to court is a litigant) taking a relevant case to court.
Difficult
Finding the relevant precedents can be time-consuming. Identifying the ratio decidendi for the particular cases may be difficult, as there could be multiple judgements from different judges. If this occurs, the judge needs to decide which precedent is most appropriate to the set of circumstances before the court.
Unelected
Members of parliament are elected by the people to make laws on behalf of the people. Judges are not elected. At times the courts are called on to make laws when deciding on a new issue or interpreting Acts of parliament. The laws made by courts form part of the law as a whole to be followed in the future.
Relationship between courts and parliament in law making
Courts and parliaments interact in the law-making process. They work together so that the law is flexible applies to any situation that might arise. Common law existed before any statutes had been passed, which have confirmed, added to and altered common law. Courts depend on parliament to make the bulk of the law. Parliament depends on courts to apply the law made by parliament and to establish new law on situations that have arisen for the first time.
Parliament passes legislation to create the structure and jurisdiction of the courts.
For example the magistrates court act 1989 (vic) established the structure and jurisdiction of the modern magistrates court replacing the original acts and has been amended every year since to incorporate new jurisdictions such as the Koori court, the family violence court and neighbourhood justice division.
Parliaments can change laws created by the courts.
Courts create laws through the creation of precedent (statutory interpretation or when a novel set of facts comes before the courts). As parliament is the supreme law making body it can override or abrogate any law created by the courts.
Change laws created by the courts example
Mr and Mrs Trigwell were injured when a vehicle collided with their car after hitting two sheep. They sued the driver of the other car and the owner of the sheep. The High Court decided to follow the old common law where the landowner did not owe a duty of care for their stock straying from their land onto the highway. The vic parliament passed an act which abolished the common-law immunity and made owners of land liable for damage negligently caused by their animals straying on highways.
Courts apply and interpret legislation created by parliament.
When deciding on disputes, courts apply an act of parliament to the case before them and in doing so are often required to interpret the meanings of the words in the legislation. When a statute is interpreted, a precedent is created and is read together to form a new law which may broaden or narrow the meaning of the legislation.
