Relationship Between The Courts and Parliament in Law

Relationship Between The Courts and Parliament in Law Making

Five Main Features of the Relationship Between Parliament and the Courts • The supremacy of parliament • The ability of courts to influence parliament • The interpretation of statutes by courts • The codification of common law • The abrogation of common law

The supremacy of Parliament üCan make and change law within its constitutional power. üHas the ability to pass legislation to either confirm or override (abrogate) decisions made through the courts (with the exception of the high court on constitutional matters. ) üResponsible for passing legislation that establishes the courts and states the power they have to hear cases. üCan also pass legislation to alter the jurisdiction of courts eg Magistrates Act amended to create specialist (sexual offences list) and divisions (Koori Court, Drug Court and Family Violence Court) X Separation of Powers – must ensure courts remain independent and retains the power to determine if Parliament has made laws beyond its law-making authority.

The Ability of Courts to Influence Parliament • Judges can make comments when handing down judgement in ratio decidendi or obiter dictum that inspire parliament to initiate law reform. • Parliament can also be influenced to change law • • If court bound by previous precedent but decision creates injustice Court acts with judicial conservatism (eg Trigwell) Court acts with judicial activism (eg Mabo) Courts decision may highlight an issue or lead to public uproar (eg abortion law)

The Interpretation of Statutes by Courts • For legislation to be effective the courts must apply legislations to the cases that come before them. • To do this courts must sometimes interpret the meaning to the words of phrases of the Act.

Codification vc Abrogation Codification • Parliament may decide to bring common law principles within statute law. • This means that the common law is restated in Acts and becomes statute law. Abrogation • Parliament may abolish common law principles it disagrees with.

Summary • Where statute law and common law conflict, statute law prevails. This is because parliament is the supreme lawmaking authority. • Courts give meaning to the terms used in Acts in order to apply them to specific cases. • The decisions made by courts about the meaning of terms used in an Act form a precedent for future cases. Parliament may legislate to abrogate or codify the decisions made by a court.