Law Making Through The Courts And Relationship With Parliament Flashcards Preview

Legal Studies Units 3 & 4 > Law Making Through The Courts And Relationship With Parliament > Flashcards

Flashcards in Law Making Through The Courts And Relationship With Parliament Deck (22):

5 Strengths of law making through the courts




The courts are able to forego the lengthy legislative process as they are able to make law when necessary, creating an immediate law that may be binding as well as persuasive. In this way Courts can make a quick decision that can resolve a dispute for the parties in the case before the courts, and create precedent to be followed by the courts and others in the community in the future.




Parliament can make laws about a whole range of issues but may not cover every set of circumstances that could arise. The courts can fill in the gaps left by parliament, which is essential because new situations are constantly arising. Through statutory interpretation the courts are able to clarify the meaning of laws passed by Parliament so that they have practical application.




Similar cases are decided in a like manner to a previous case. People can look back to previous cases to give them some idea of how a court will decide a particular case. Precedent provides some protection and guidance for judges, in that they can refer back to previous cases and decide accordingly. However, it can be difficult to locate the common law relevant to a particular situation because of the many cases that may be decided in the relevant area of law.




Judges are appointed, rather than elected, so they are not subject to the same political pressure experienced by members of parliament. Their independent and unbiased status allows them to make more objective assessments of the case and the law before them and of the need for change in the law. However, judges do not always reflect current community values when making a decision.



5 weaknesses of law making through the courts




Courts must wait until a case is brought before them before they can create precedent. Further, they can only make laws relating to the points of law brought up in the case. Parties may be unable to afford the cost and time of taking a matter to court to rectify an unjust situation. People cannot bring a case to court unless they have standing (that is, they are directly affected by the issue).



The courts can change the law immediately when a case is before them, but changes in a particular area of law through the courts can be slow to develop, such as the law of negligence, which continues to broaden its scope. Changing the law depends on litigants (a person who takes a matter to court is a litigant) taking a relevant case to court.



Finding the relevant precedents can be time-consuming. Identifying the ratio decidendi for the particular cases may be difficult, as there could be multiple judgements from different judges. If this occurs, the judge needs to decide which precedent is most appropriate to the set of circumstances before the court.



Members of parliament are elected by the people to make laws on behalf of the people. Judges are not elected. At times the courts are called on to make laws when deciding on a new issue or interpreting Acts of parliament. The laws made by courts form part of the law as a whole to be followed in the future.


Relationship between courts and parliament in law making

Courts and parliaments interact in the law-making process. They work together so that the law is flexible applies to any situation that might arise. Common law existed before any statutes had been passed, which have confirmed, added to and altered common law. 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.


Parliament passes legislation to create the structure and jurisdiction of the courts.

For example the magistrates court act 1989 (vic) established the structure and jurisdiction of the modern magistrates court replacing the original acts and has been amended every year since to incorporate new jurisdictions such as the Koori court, the family violence court and neighbourhood justice division.


Parliaments can change laws created by the courts.

Courts create laws through the creation of precedent (statutory interpretation or when a novel set of facts comes before the courts). As parliament is the supreme law making body it can override or abrogate any law created by the courts.


Change laws created by the courts example

Mr and Mrs Trigwell were injured when a vehicle collided with their car after hitting two sheep. They sued the driver of the other car and the owner of the sheep. The High Court decided to follow the old common law where the landowner did not owe a duty of care for their stock straying from their land onto the highway. The vic parliament passed an act which abolished the common-law immunity and made owners of land liable for damage negligently caused by their animals straying on highways.


Courts apply and interpret legislation created by parliament.

When deciding on disputes, courts apply an act of parliament to the case before them and in doing so are often required to interpret the meanings of the words in the legislation. When a statute is interpreted, a precedent is created and is read together to form a new law which may broaden or narrow the meaning of the legislation.


Parliament can codify laws made by the courts.

Parliament can pass legislation to incorporate common law principles. This is known as codification. For example native title. The high court of Australia passed a decision that acknowledges native title and the commonwealth parliaments passed the native title act 1993 (Cth) which incorporated the common law legal principles of the high court's decision.


4 relationships between parliament and courts



4 reasons parliaments can be influenced by courts




Courts may indicate in a judgment that they think the law should be changed by parliament (Trigwell Case). 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.



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. She was a waitress who ended her life after workplace bullying. Brodie’s parents wanted a change in the law because the bullies escaped with fines. 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 (Tera 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 following the lenient sentences that were handed down to a series of one-punch assaults. The New South Wales parliament passed an act 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.

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