the relationship between parliament and the courts

Question 1

introduction to the relationship between parliament and the courts

Answer 1

• Courts and parliaments have an interconnected role in law-making, working together to ensure the law is flexible and applicable to various situations.
• Parliament is the supreme law-making body, but courts complement this role by resolving disputes and interpreting statutes made by parliament.
• Judges interpret statutes to clarify, broaden, or narrow their meaning, enabling them to apply the law to specific disputes.
• The High Court of Australia can interpret the Constitution, affecting the division of law-making power between the Commonwealth and state parliaments.
• Parliament can confirm, modify, or override common law and court decisions, except for those involving constitutional matters resolved by the High Court.
• This interconnected relationship ensures that both courts and parliament contribute to the development and application of the law.

Question 2

The four main features of the relationship between courts and parliament in law-making are

Answer 2

• the supremacy of parliament
• the ability of courts to influence parliament
• the codification of common law
• the abrogation of common law

Question 3

The supremacy of parliament

Answer 3

• Parliament is the supreme law-making body with the power to create, modify, and cancel laws within its constitutional authority.
• It can pass legislation to confirm or abrogate court decisions and common law, except for High Court decisions on constitutional matters.
• Parliament establishes and defines the jurisdictional powers of courts through legislation, such as the Magistrates’ Court Act 1989 (Vic) and its amendments.
• It can amend laws to change court jurisdictions, such as creating specialist lists or divisions within the courts, e.g., the Drug and Alcohol Treatment Court.
• Parliament can pass laws that restrict court decisions, such as setting maximum sentences for offenders.
• Despite these powers, parliament must ensure it respects the principle of separation of powers, allowing courts to remain independent and review the legality of parliamentary laws.

Question 4

define Koori Court

Answer 4

a division of the Magistrates’ Court, Children’s Court and County Court that (in certain circumstances) operates as a
sentencing court for First Nations people

Question 5

The ability of courts to influence parliament

Answer 5

• Courts can indirectly influence law-making by making comments or obiter dicta that encourage parliament to initiate law reform.
• If a lower court decision creates injustice or if judicial conservatism prevents overturning outdated precedents, parliament may be motivated to change the law.
• Court decisions that highlight issues or provoke public outcry can lead to legislative changes. For example, the introduction of ‘one-punch’ laws in Victoria in 2014 responded to dissatisfaction with sentencing for fatal one-punch attacks.
• In 2019, public dissatisfaction with the Ristevski case sentence led to increased pressure on the Victorian Government to amend the law.
• Judicial activism, as seen in the Mabo case, can also influence parliament. The High Court’s decision to overturn the terra nullius principle led to the Commonwealth Parliament passing the Native Title Act to confirm the decision and establish procedures for native title claims.

Question 6

The codification of common law

Answer 6

• Parliament, as the supreme law-making body, can pass Acts to codify existing law by consolidating both common law and statute law into a single comprehensive statute.
• Codification allows parliament to reinforce, clarify, or reform principles established by courts, and create a unified legal framework.
• Areas of law that have been codified or partially codified by Australian parliaments include taxation law, consumer law, negligence law, and some criminal law.
• For example, self-defence law, previously governed by common law, was codified by the Victorian Parliament in 2005 through amendments to the Crimes Act 1958 (Vic), abolishing the common law in this area.

Question 7

define codify (codification)

Answer 7

to collect all law on one topic together into a single statute

Question 8

The abrogation of common law

Answer 8

• Parliament can pass legislation that abrogates (cancels) court decisions or common law, except for High Court decisions on constitutional matters.
• This power allows parliament to override judicial interpretations that it believes do not align with the original intention of the statute or current legislative meaning.
• Abrogation may be necessary if courts have interpreted common law in a way deemed inappropriate or outdated.
• There is a risk that this power could lead to unjust laws if parliament overrides well-established legal principles or decisions for short-term or populist reasons.

Question 9

Supremacy of parliament - summary

Answer 9

• Parliament, as the supreme law-making body, can make and change any law within its constitutional power, including:
  
  • Abrogating (canceling) court-made law (except High Court decisions on constitutional matters).
  • Codifying common law.
  • Creating courts and determining their jurisdictional power.
• The High Court can:
  
  • Resolve disputes involving the Australian Constitution.
  • Declare legislation invalid if it exceeds the parliament’s law-making power.
  • Alter the division of law-making power between the Commonwealth Parliament and state parliaments.

Question 10

The ability of courts to influence parliament - summary

Answer 10

• Courts can indirectly influence parliament to make and change the law by:
  
  • Making comments during judgments that inspire or encourage law reform.
  • Highlighting legal problems or causing public outcry that pressures parliament to change the law.
• Judges in superior courts can only influence the law through cases brought before them, relying on:
  
  • An aggrieved party having standing and the financial means to pursue a case.
  • The willingness of parties to engage in potentially lengthy and stressful litigation.
• The court’s influence is limited by the parliament’s supremacy and its willingness to change the law.

Question 11

The codification of common law - summary

Answer 11

• As the supreme law-making body, parliament can:
  
  • Pass legislation to codify common law, assembling all relevant law in a particular area into a single statute.
  • Endorse, clarify, or expand on principles established by courts.
• Areas of law that have been codified or partially codified may include both common law and statute law.
• Codification is limited by:
  
  • Parliament’s willingness to pass legislation for codification.
  • Factors that affect parliament’s ability to make law, such as its composition and other restrictions.

Question 12

The abrogation of
common law - summary

Answer 12

• Parliament has the power to pass legislation that abrogates (cancels) decisions made through the courts, except for decisions on constitutional matters.
• Abrogating common law could potentially lead to an unjust law if it overrides a valid legal principle established by experienced judges, potentially to suit a short-term or populist political agenda.
• The willingness of parliament to abrogate common law depends on its readiness to do so and may be limited or constrained, even when dealing with problematic laws.