Relationship Between Courts And Parliament

Courts and parliaments interact in the law-making process. They need to work together so that the law is flexible and can apply to any situation that might arise.

The courts are responsible for settling disputes. Many disputes are settled by the courts by interpreting the words in an Act of parliament. As a secondary role, the courts also occasionally make laws.Parliament is the supreme law-making body. This is also referred to as sovereignty of parliament. Parliament’s main role is to make laws. As a supreme law-making body, parliament can make laws that either confirm or reject laws made by courts, although the Commonwealth Parliament cannot override High Court interpretations of the Commonwealth Constitution. Courts depend on parliament to make the bulk of the law. Parliament depends on courts to apply the law made by parliament and to establish new law on situations that have arisen for the first time.

For a court to exist there must be an Act of parliament that establishes the court and sets out its jurisdiction. For example, the Victorian Parliament passed the Supreme Court Act 1986 (Vic.) to establish the Supreme Court. Likewise the Magistrates’ Court Act was passed in 1989. Both the Supreme Court Act and the Magistrates’ Court Act replaced previous Acts that originally established these courts.Parliament can pass legislation that changes the jurisdiction of courts so that the types and severity of cases heard by the court can be changed. For example, the Magistrates’ Court Act 1989 (Vic.) has been amended nearly every year since it was passed. Parliament has passed amendments to create the specialist lists (for example the Sexual Offences List) and specialist divisions of the Magistrates’ Court (such as the Koori Court Division, the Drug Court Division and the Family Violence Division).

For legislation to be effective, the courts must apply the statutes, or delegated legislation, to the cases before them. To do this, it is sometimes necessary for a court to interpret the meaning of the words in an Act or piece of delegated legislation. Delegated legislation is made by bodies that have been given their law-making power by parliament through an Act of parliament. Decisions about the meaning of the words in statutes form precedents that become part of the law to be followed in the future. For example, the interpretation of the words ‘external affairs’ by the High Court in the Tasmanian Dam case set a precedent to be followed in the future. The High Court has played an important role in interpreting the words in the Commonwealth of Australia Constitution Act 1900 (UK). In this way the High Court has helped to define the division of power between the Commonwealth Parliament and the state parliaments. For the courts to be able to interpret the meaning of the words of an Act of parliament, an individual or group must take the matter to a court. This can be an expensive exercise. To help provide greater access to the courts, parliaments have passed laws setting up bodies that provide legal assistance; for example, the Legal Aid Act 1978 (Vic.) established Victoria Legal Aid for this purpose.

Parliament can change the law to override (or abrogate) a decision made through the courts (other than High Court interpretations of the Constitution). On occasion, the courts interpret the meaning of the words in a statute in a way that was not the intention of parliament, or in a way that does not reflect the current meaning of the Act.Courts also sometimes interpret the common law (made up of precedents set in the past) in a conservative way that no longer reflects current values in the community.Following the decision in Trigwell’s case (see earlier in this chapter), the Victorian Parliament passed the Wrongs (Animals Straying on Highways) Act 1984 (Vic.), which abrogated or abolished the common-law rule. The law was changed by parliament so now stock owners are liable for the damage caused by their straying animals.

Parliament is the supreme law-making body within its jurisdiction and can make law that confirms a precedent set in a court by passing an Act of parliament that reinforces the principles established by the court. For example, the Commonwealth Parliament codified (made into legislation) the principles of Mabo & Ors v. State of Queensland in the Native Title Act 1983 (Cth).

Courts can influence changes in the law by parliament through their comments made during court cases. Parliament can also be influenced to change the law if a court is bound by previous precedent and makes a decision that creates an injustice.A progressive decision reached by the courts could alert the parliament to the need for a major change in the law.

• Courts may indicate in a judgment that they think the law should be changed by parliament (courts being conservative). Courts may be reluctant to change the law because there is a need for the type of investigation that parliament can carry out on a whole area of law, but statements made by a judge (obiter dictum) within a court decision may influence parliament to change the law. In the Trigwell case, State Government Insurance Commission v. Trigwell & Ors (1978) 142 CLR 617, the court was reluctant to set a new precedent, but stated that the law should be changed by parliament.

• Courts’ decisions highlight problems and can lead to a public outcry. The Crimes Amendment (Bullying) Act 2011 (Vic.) was influenced by the tragic death of Brodie Panlock. This Act became known as ‘Brodie’s law’. Brodie Panlock was a 19-year-old waitress who tragically ended her life after being subjected to ‘persistent and vicious’ workplace bullying at Cafe Vamp in Hawthorn, Victoria. Brodie’s parents wanted a change in the law because the perpetrators of the workplace bullying of Brodie escaped with fines rather than a jail sentence. The five defendants in this case pleaded guilty in court to workplace offences under the Occupational Health and Safety Act 2004 (Vic.) and were fined a total of $335 000. There were many complaints in the media about the inadequacy of this punishment. The amendment to the Crimes Amendment (Bullying) Act provides for up to 10 years’ imprisonment for bullying.

• Creativity by courts may alert the parliament to an area of law where new laws made by parliament are needed. The Mabo decision was an example of the High Court breaking new ground. According to common law, Australia was an empty land when it was taken over by the British. This is the concept of terra nullius. In the Mabo case, the High Court overturned the concept of terra nullius and stated that Mabo and the Meriam people had the right to their land under native title.

• Lenient sentences can lead to changes in the law. There was a public outcry in late 2013 and early 2014 following the lenient sentences that were handed down to a series of one-punch (also called coward’s punch) assaults in a number of states of Australia. One case was that of Daniel Christie, who was punched in Kings Cross on New Year’s Eve 2013 and died in hospital two weeks later. The New South Wales parliament passed the Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW) in a one-day and all-night sitting of parliament. The Act includes a mandatory eight-year minimum prison sentence for anyone who kills someone with a single punch while intoxicated or on drugs.