The Courts (VCE SSCE Legal Studies): Revision Notes
The Relationship Between Parliament and the Courts
Overview
Parliament and the courts have an interconnected relationship in law-making. Both institutions must work together to ensure the law remains flexible and applicable to all situations. While parliament is the supreme law-making body, courts play a complementary role by resolving disputes, interpreting statutes, and developing law where gaps exist.
Key Functions of Courts in Law-Making:
Courts perform several essential functions that complement parliament's law-making power:
- Judges interpret statutes made by parliament to clarify their meaning and apply them to specific disputes
- Through interpretation, judges can broaden or narrow the meaning of legislation
- The High Court of Australia has constitutional authority to interpret the Australian Constitution, which can alter the division of law-making power between the Commonwealth Parliament and state parliaments
Parliament, as the supreme law-making body, has the power to confirm, add to, or change common law. It can override court decisions, except those involving constitutional matters resolved by the High Court. This creates a dynamic relationship where each institution influences the other.
Four Main Characteristics of Parliament-Court Relationship:
The relationship between parliament and courts features four interconnected characteristics that define how these institutions interact:
- The supremacy of parliament
- The ability of courts to influence parliament
- The codification of common law
- The abrogation of common law
Understanding each characteristic is essential for comprehending how law develops in Australia.
The supremacy of parliament
Supremacy of parliament means that parliament is the supreme law-making body with the ability to make and change any law within its constitutional power. This supremacy gives parliament several important powers over the courts.
Parliament's power to confirm or cancel court decisions
Parliament can pass legislation to either confirm or abrogate (cancel) decisions made by courts or common law. However, this power has one critical exception: parliament cannot override High Court decisions on constitutional matters. This limitation protects the separation of powers outlined in the Australian Constitution.
Constitutional Exception to Parliamentary Supremacy
While parliament has extensive power to override court decisions, it faces one absolute limit: parliament cannot abrogate High Court decisions on constitutional matters. This exception ensures the High Court maintains its role as the ultimate interpreter of the Constitution and protects the separation of powers fundamental to Australia's constitutional framework.
Creating and controlling courts
Parliament is responsible for passing legislation to create courts and determine their jurisdictional power (their power to hear cases). For example, the Victorian Parliament passed the Magistrates' Court Act 1989 (Vic) to establish the Magistrates' Court and define its divisions and powers. While this Act replaced an earlier statute that originally established the court, it demonstrates parliament's ongoing control over court structure.
Parliament can also pass legislation to change court jurisdiction, altering the types and severity of cases a court can hear. The Magistrates' Court Act has been amended multiple times to create specialist lists such as the Sexual Offences List. It has also established divisions including:
- The Koori Court Division (a sentencing court for First Nations people in certain circumstances)
- The Drug Court Division
- The Family Violence Court Division
More recently, the Justice Legislation Amendment (Drug Court and Other Matters) Act 2020 (Vic) amended the County Court Act 1958 (Vic) and the Sentencing Act 1991 (Vic) to create the Drug and Alcohol Treatment Court as a new division of the County Court of Victoria.
Restricting court decision-making
Parliament can pass Acts that restrict the ability of courts to make decisions on certain matters. However, under the principle of separation of powers outlined in the Australian Constitution, parliament must ensure courts remain independent and retain the power to determine whether parliament has passed laws beyond its law-making authority.
Courts are often restricted in the sentences they can impose by maximum sentences prescribed in legislation. Parliament can also impose minimum sentences, limiting judicial discretion further.
Mandatory Minimum Sentences for Emergency Worker Injuries
In September 2018, the Victorian Government passed the Justice Legislation Miscellaneous Amendment Act 2018 (Vic). This Act restricted judges' ability when sentencing offenders who injured emergency workers (including police, paramedics, firefighters, doctors, nurses delivering emergency care, and prison officers).
The Legislative Requirements:
- The legislation mandated that judges must impose a term of imprisonment (a custodial sentence) on convicted offenders
- Judges could not impose non-custodial sanctions, such as community correction orders, unless special circumstances existed (for example, where the offender had a mental impairment)
Court Response:
Mandatory sentencing legislation is controversial because it removes judicial discretion to consider various factors when imposing sentences. In July 2022, the Victorian Court of Appeal ruled that the mandatory sentencing provisions had 'compelled' a judge to sentence a young offender to a minimum of 3 years' imprisonment. Evidence showed the offender was immature and would be vulnerable in prison.
In its decision, the Court stated that 'mandatory minimum sentences are wrong in principle' and that 'sentencing courts are much better equipped, and much better placed, than legislators to determine what type and length of sentence will satisfy the sentencing objectives in a particular case'.
Exam Tip: Constitutional Exception
When discussing supremacy of parliament, always mention the exception for High Court constitutional decisions. This demonstrates understanding of the limits on parliamentary power and shows sophisticated legal analysis.
The ability of courts to influence parliament
Courts can indirectly influence parliament to make and change law, even though they lack direct law-making power. This influence operates through several mechanisms.
Judicial comments and suggestions
Judges may make comments when handing down judgments that inspire or encourage parliament to initiate law reform. These comments can appear either as part of the reasons for the decision or as obiter dicta (statements made by the way, not essential to the decision).
Parliament may also be influenced to change the law when a lower court, bound by previous precedent, makes a decision that creates an injustice. Similarly, when a court acts according to judicial conservatism and refuses to overrule or reverse a previous precedent considered by the community to be bad law, parliament may step in to reform the law.
Public outcry and pressure
A court's decision may highlight a legal problem or cause public outcry that leads parliament to change the law. Community dissatisfaction with court decisions can create political pressure for legislative reform.
One-Punch Laws in Response to Community Concern
In 2014, responding to an increase in 'one-punch' killings in Victoria and perceived dissatisfaction with court sentences, the Victorian Parliament introduced 'one-punch' laws.
Legislative Response:
- These laws required offenders found guilty of a fatal one-punch attack to serve a minimum of 10 years in jail before becoming eligible for parole
- This demonstrated parliament's willingness to respond to community pressure and public outcry over perceived inadequate sentences
Sentencing Reform for Domestic Violence-Related Crime
In 2019, various community members, including victim support groups such as Domestic Violence Victoria and the state opposition, pressured the Victorian Government to reform sentencing laws for domestic violence-related offences.
The Catalyst:
This pressure followed a case where a 55-year-old man was sentenced to nine years' imprisonment with a minimum non-parole period of seven years after pleading guilty to the manslaughter of his wife. The Supreme Court of Appeal later increased the sentence to 13 years' imprisonment with a 10-year non-parole period. However, many individuals and community groups still perceived the sentence as inadequate, and pressure on the Government continued.
Parliament's Response:
In June 2020, the Victorian Parliament passed the Crimes Amendment (Manslaughter and Related Offences) Bill 2020 to increase the maximum penalty for manslaughter (including child homicide and workplace manslaughter) from 20 years' imprisonment to 25 years' imprisonment.
Judicial activism
Judicial activism can also influence parliament to change the law. When courts take an activist approach, they are more willing to develop or change existing law to reflect current values and circumstances.
Mabo and Native Title: Judicial Activism Leading to Legislation
The High Court took an activist approach when determining the Mabo case. It decided to overrule a long-established common law principle that Australia was terra nullius ('empty land') when colonised by the British. In doing so, it recognised the right of First Nations peoples to have native title over their traditional lands.
Parliament's Codifying Response:
Following the High Court's decision, the Commonwealth Parliament passed the Native Title Act to confirm and enshrine the decision in legislation and establish procedures for dealing with and settling native title claims. This demonstrates how judicial activism can prompt parliament to codify and expand upon court-established principles.
Limitations on court influence
The court's ability to influence parliament faces several limitations. Judges in superior courts can only make influential comments when a case is brought before them and only regarding issues involved in that case.
Practical Limitations on Court Influence
The court's ability to influence parliament relies on several practical factors:
- An aggrieved party having standing in the case
- The financial means to pursue a case
- The willingness to pursue a potentially lengthy and stressful case
Additionally, the court's ability to influence parliament is limited by parliament's supremacy and its willingness to change the law in response to court decisions or comments.
Exam Tip: Evaluating Court Influence
When evaluating the ability of courts to influence parliament, consider both the mechanisms through which influence occurs and the limitations on this influence. A balanced analysis demonstrates sophisticated understanding of this relationship.
The codification of common law
Codification means to collect all law on one topic together into a single statute. As the supreme law-making body, parliament has the power to pass Acts that assemble all relevant law in a particular area, both common law and statute law, to create one all-encompassing law.
Purpose and benefits of codification
Codification of common law allows parliament to pass legislation that reinforces or endorses principles established in court rulings. It also gives parliament the opportunity to:
- Clarify existing law
- Expand on established principles
- Reform the relevant area of law
Accessibility Benefits of Codification
By bringing together disparate legal principles into one statute, codification makes the law more accessible and easier to understand for legal practitioners and the public. Instead of searching through multiple court decisions and statutes, all relevant law can be found in a single, comprehensive piece of legislation.
Examples of codified law
Over the years, Australian federal, state, and territory parliaments have codified or partially codified several areas of law, including:
- Taxation law
- Consumer law
- Negligence law
- Some criminal law
Self-Defence: From Common Law to Codified Statute
Until 2005, the law relating to self-defence (a defence that accused people can use to defend certain offences) was contained in common law.
The Codification Process:
In 2005, the Victorian Parliament amended the Crimes Act 1958 (Vic) to codify the common law relating to self-defence. In doing so, it also abolished the common law on self-defence.
Result:
The laws relating to self-defence are now fully contained in statute law, making them more accessible and easier to apply consistently across cases.
Limitations of codification
Codification is limited by parliament's supremacy role and whether it is willing to pass legislation to codify law. The decision to codify depends on factors that limit or restrict parliament's ability to make law, such as the composition of parliament and political priorities.
Some areas of law have been only partially codified, meaning certain principles remain established by common law while others are contained in statute law. This can create complexity in understanding and applying the law.
Exam Tip: Use Precise Legal Terminology
When discussing codification, use the specific term 'codification' rather than general phrases like 'putting law into statute'. Precision in legal terminology demonstrates higher-level understanding and improves the quality of your analysis.
The abrogation of common law
Parliament has the power to pass legislation that abrogates (cancels) decisions made through the courts or common law. This power has one critical exception: parliament cannot abrogate High Court decisions made on constitutional matters.
When abrogation occurs
Abrogation may become necessary in several situations:
- Where parliament believes courts have interpreted the meaning of words or phrases in a statute in a way that was not parliament's intention
- Where court interpretation does not reflect the current meaning of an Act of Parliament
- Where courts have interpreted common law in a way that is no longer considered appropriate
Concerns about abrogation
Potential Problems with Abrogating Common Law
The power to abrogate common law (except High Court constitutional decisions) could potentially lead to unjust law. This could occur if parliament overrides a valid legal principle or court decision that has been:
- Established and considered by multiple independent judges
- Developed through considerable legal expertise
- Based on thorough legal reasoning
Such abrogation might serve short-term or populist political agendas rather than sound legal principles. This tension highlights the delicate balance between parliamentary supremacy and judicial independence.
Common Law Offence of Outraging Public Decency
In 2020, a horrific crash on a freeway resulted in the deaths of four police officers. After the incident, a person took and shared graphic photos, causing outrage in the community.
Parliament's Response:
In response, the Victorian Parliament passed legislation to introduce a new offence of engaging in conduct that is grossly offensive to community standards of behaviour. In doing so, it abolished the old common law offence of 'outraging public decency'.
Reasons for Abrogation:
The old offence was seen to be:
- Old-fashioned and unclear
- Without a clear maximum penalty
- Rarely used to charge offenders
Significance:
This example demonstrates how parliament can abrogate common law when it no longer serves its purpose or reflects contemporary community standards, replacing it with more appropriate statutory provisions.
Limitations of abrogation
The willingness of parliament to abrogate common law depends on parliament's political will and priorities. Parliament may be limited or unwilling to abrogate law, even when it is considered bad law by legal experts or the community.
Exam Tip: Balanced Analysis of Abrogation
When analysing abrogation, consider both its necessity (to update outdated law) and its potential problems (political override of sound legal principles). This balanced approach demonstrates sophisticated legal reasoning.
Key points about the relationship
| Feature | Key points |
|---|---|
| Supremacy of parliament | Parliament can make and change any law within its constitutional power. It can abrogate court decisions (except High Court constitutional matters) and codify common law. Parliament creates courts and determines their jurisdictional power. However, the High Court can declare legislation invalid if made beyond parliament's law-making power. |
| Ability of courts to influence parliament | Courts indirectly influence parliament through judicial comments, decisions highlighting legal problems, and public outcry. This influence is limited because judges can only comment when cases are brought before them, which requires parties with standing and financial means. The court's influence also depends on parliament's willingness to respond. |
| Codification of common law | Parliament can assemble all relevant law in an area into one comprehensive statute. This can endorse, clarify, or expand on court-established principles. Some areas remain only partially codified. Codification depends on parliament's willingness and ability to pass legislation. |
| Abrogation of common law | Parliament can cancel court decisions (except High Court constitutional matters). While this allows parliament to correct inappropriate interpretations, it could lead to unjust law if sound legal principles are overridden for political reasons. Parliament's willingness to abrogate determines whether this power is used. |
Remember!
Essential Takeaways: Parliament and Courts Relationship
Core Principles:
- Parliament is supreme in law-making but cannot override High Court decisions on constitutional matters
- Courts indirectly influence parliament through judicial comments, decisions highlighting problems, and public outcry
- Codification brings together all law on a topic into one statute, making law clearer and more accessible
- Abrogation allows parliament to cancel court decisions, but this power must be exercised carefully to avoid unjust outcomes
- The relationship between parliament and courts is interconnected and complementary – each institution has distinct roles but relies on the other for effective law-making
Key Terms to Remember:
- Supremacy of parliament: Parliament's ultimate law-making power within constitutional limits
- Codification: Collecting all law on one topic together into a single statute
- Abrogation: Cancelling or abolishing court decisions or common law
- Koori Court: A division of certain courts operating as a sentencing court for First Nations people
- Obiter dicta: Judicial comments made 'by the way', not essential to the decision
- Terra nullius: The now-overruled principle that Australia was 'empty land' when colonised
- Jurisdictional power: A court's power to hear certain types of cases