The Relationship B etween C ourts and Parliament in Law-Making

1. The Relationship Between Courts and Parliament in Law-Making

2. Relationship Parliament passes legislation to create the structure and jurisdiction of courts Courts apply and interpret legislation created by parliament Parliament can change laws created by courts Statements made by the courts can influence parliament Parliament can codify laws made by courts

3. Parliament passes legislation to create the structure and jurisdiction of courts • The court system was created through Parliament. Parliament can: • Establish the court and its processes • Set out the jurisdiction of the courts • Alter the processes and jurisdiction • Examples: • Supreme Court Act 1986 (Vic) • Magistrates’ Court Act 1989 (Vic)

4. Courts apply and interpret legislation created by Parliament Courts must apply cases to any relevant and existing legislation created by Parliament. If the intention or the wording of an Act created by Parliament is unclear, courts may need to interpret it in order to apply it to the case correctly. The reason given for the statutory interpretation forms a precedent.

5. Parliament can change laws created by courts • If Parliament doesn’t approve of any laws created by the courts through precedent or statutory interpretation, they can: • Pass an Act to override the common law • Abrogate common law – abolish • Examples: • The Trigwell Case – animals straying onto highways • Rape in marriage case

6. Parliament can codify laws made by courts • If Parliament agrees with law made by the courts, they can pass law that incorporates the common law. This process, known as codification, turns common law into legislation, therefore strengthening the law. • Example: • Mabo Case

7. Statements made by the courts can influence parliament • Parliament may be influenced by court decisions or obiter dictums, as they reflect the judge’s feelings on a law and therefore may indicate a need to change the law. • Examples: • The Trigwell Case • Eddie Mabo Case