Features of Parliament - Court law-making relationship - Coggle Diagram
Features of Parliament - Court law-making relationship
A) SUPREMACY OF THE PARLIAMENT
Parliament passes legislation to establish and empower the courts and can pass new legislation to change the jurisdiction of the courts. (Examples include the creation of the supreme court)
Parliament can also restrict court power to hear certain matters. However, I.A.W. the separation of powers, Parliament should keep the courts independent
Can pass legislation to codify (confirm) or abrogate (cancel) common law decisions/precedents created by courts (Excluding Constitutional matters)
B) Ability of Courts to influence Parliament
A court may apply the principle of Judicial conservatism and may be unwilling to overrule or reverse previous precedents, preferring Parliament to investigate and initiate law change.
A court’s decision may highlight an issue or cause an extremely negative public reaction – for example, minimum 10-year sentences in Victoria for fatal one-punch attacks were introduced after a series of such cases, such as DPP v Closter (2014), attracted much lighter sentences
Courts apply precedents that are outdated or create unjust outcomes. Parliament therefore can be influenced to change the law in this instance.
Judicial activism in areas such as native title rights and asylum seeker rights can prompt parliament to review and change laws
Judges may make comments when handing down judgments, either as part of the reasons for their decision or as obiter dictum, that inspire or encourage Parliament to initiate law reform
C) Interpretation of Statutes by Courts
When courts apply statutes to the disputes they are resolving, they sometimes need to interpret the meaning of the statutes or secondary legislation. Secondary legislation involves regulations made by statutory authorities, local councils and government departments.
The High Court has an especially important role here as it is the only court that can interpret the words in the Constitution. In doing so, it can alter the division of law-making power between the Commonwealth and States.
Courts can only interpret statutes when a case is brought to them (requirement of standing principle).
In this way, judges clarify the meaning of words in statutes and may also either narrow or broaden the meaning of such words. Such interpretation forms a precedent that becomes part of the common law.
Statutory Interpretation can be, however, very expensive, time-consuming and stressful exercise.
D/E) CODIFICATION/ABROGATION OF COMMON LAW
No Parliament can abrogate a high court decision of constitutional matters
Abrogation can occur if parliament feels the court is being stupido and misinterpreting parliaments will from legislation. And thus the common law is being applied not in line with community values
Opposite of codification, parliament overrides precedent/common law
Parliament does this by passing legislation that reinforces the principle established by court
Illustrated when the commonwealth passed the Native Title Act which codified Indigenous land rights.
Involves incorporating common law principles within legislation. That is; Parliament confirms a precedent created by courts