The Relationship Between Courts and Parliament in Law-Making
Features of the Relationship Between Courts and Parliament
Courts and Parliament must work together to ensure that the law is flexible and can be applied to any situation that may arise.
Parliament is recognized as the supreme or sovereign law-maker, but courts also play a crucial role in developing the law.
Parliament has the authority to confirm, expand upon (add to), or change laws that have been created by the courts.
The Supremacy of Parliament
Parliament is the supreme law-making body and has the power to make or change any law as long as it acts within its Constitutional power.
Control over Common Law: Parliament can pass legislation to either confirm or cancel decisions made by the courts that create common law. The only exception to this power is High Court decisions regarding Constitutional matters.
Creation of the Court System: Parliament passes the legislation required to create courts and explicitly outlines their specific jurisdictions.
Interpretation and Enforcement: While Parliament makes the majority of laws, the courts are responsible for interpreting and enforcing those laws.
Inconsistency Rules: If there is an inconsistency between legislation (statute law) and common law, courts are legally bound to follow the legislation first.
The Ability of Courts to Influence Parliament
Judges have the capacity to influence the government and parliament through their rulings and statements made during a case.
Ratio Decidendi and Obiter Dictum: Judges may make comments in their reasoning (ratio decidendi) or as remarks made "by the way" (obiter dictum) that compel the government to consider legislative changes.
Trigwell Case: This case serves as a named example where court influence was exerted on the government.
Disapproval of Precedent: The government can be influenced if a lower court, which is legally bound by a precedent, expresses its explicit disapproval of that precedent.
Highlighting Issues: A court decision can highlight a specific problem or gap in existing law, prompting the government to respond by passing new legislation.
Case Study: Homsi v Homsi :
The Context: A mother sued the estate of her late son for psychological trauma after he died in a vehicle accident caused by his own reckless driving.
The Legal Question: The court had to determine if a driver owes a duty of care to their own mother to not cause themselves injury.
The Ruling: Justice J. Forrest explicitly refused to extend common law to cover this specific situation.
The Reasoning: Justice J. Forrest ruled that deciding whether a relative can sue for a victim's self-inflicted injuries "is better left to Parliament than taken by the courts." He stated that Parliament acts as the best arbiter of public interest in such socially sensitive fields.
The Codification of Common Law
Definition: Parliament has the power to pass legislation to "codify" a particular area of law. This involves assembling and pulling together all relevant laws—both common law and statute law—to create a single, all-encompassing statute.
Reinforcing Rulings: Codification allows Parliament to pass legislation that reinforces or endorses existing court rulings.
Clarification and Reform: The process allows Parliament to clarify, expand, or reform specific areas of Law.
Examples of Codified Law: Areas including taxation law, consumer law, and negligence law have been codified.
Criminal Law Example (Self-Defence): Until the year , self-defence laws were primarily contained within common law. The Victorian Parliament changed the Crimes Act to codify self-defence laws, and in doing so, abolished the previous common law. Now, self-defence laws are fully contained within statute law.
The Abrogation of Common Law
Definition: Parliament has the authority to pass legislation that cancels or abrogates common law rules.
Limitations: Parliament cannot abrogate High Court decisions involving Constitutional matters.
Rationales for Abrogation:
Courts have interpreted legislation in a way that Parliament never intended.
The court's interpretation does not reflect the current meaning or objective of the Act.
The common law rule is no longer considered appropriate by society or the legislature.
Key Skills and Analytical Frameworks
Required Skills for Outcome :
Define and use legal terminology accurately.
Discuss, interpret, and analyse legal principles and information.
Analyse the specific relationship between Parliament and courts.
Synthesise and apply legal principles to actual or hypothetical scenarios.
Command Terms: To "analyse" means to break a concept down into its constituent parts and show how they relate to one another.
Folio of Exercises for Unit :
Students must be able to explain key features including: Codification, Judicial Conservatism, Judicial Activism, Supremacy of Parliament, Ability of courts to influence Parliament, and Abrogation.
Questions & Discussion
Practice Question: Analyse two features of the relationship between parliament and the courts ().
Instructional Note: Students are encouraged to watch the provided video in the News Forum to enhance their understanding of the relationship between these two law-making bodies.