12.5 The Relationship Between Parliament and Courts

codify

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

features of the court parliament relationship

• the supremacy of parliament

• ability of courts to influence parliament

• codification of common law

• the abrogation of common law

Supremacy of Parliament in relationship with courts

• supreme law-making power with the ability to make and change any within its constitutional power

• can confirm or abrogate common law with the exeption of High Court decions on constitutional matters

• also responsible for passing legislation to create the courts and determine their jurisdictional power

Ability of courts to influence parliament

• courts can indirectly influence parliament to make and change the law

• judges may make comments when handing down judgements that inspire or encourage parliament to intiate law reform

• can be influenced to change law if a lower court bound by precedent makes a decision that creates an injustice

• if a court acts in accordance with judicial conservatism and is unwilling to overrule or reverse a precedent that is considered to be bad by the community

• court’s decision may also highlight a problem or cause public outcry that can lead parliament to change law

Codification of Common Law

• parliament can create a new act of parliament that gathers all the rules in a certain area into one big, complete law

• lets parliament confirm or support the legal principles that judges have already decided in cases

Example of Codification of Common Law

after the Mabo case, parliament passed the Native Title Act which took the ideas from the court decision and turned them into a clear, written law

Abrogation of Common Law

• parliament can pass a law that overrides or overrules a common law rule

• only exception is High Court decisions about the constitution

Reasons parliament may abrogate common law

courts have interpreted a law in a way that;

• wasn’t what parliament meant

• doesn’t match what the law currently means, or

• is no longer appropriate for society