R.ship between Parliament and the Courts

[filipo]

Hi, I was wondering if anyone had an answer to a question that may be on the exam for the relationship between parliament and the courts? Thanks.

[chrisjb]

1. how could we answer a question without knowing what it is?
2. we're not going to give you a word for word answer. We're going to help you make one yourself.

what type of question were you thinking of? just to discuss the relationship?

[ezst]

1. how could we answer a question without knowing what it is?
2. we're not going to give you a word for word answer. We're going to help you make one yourself.

what type of question were you thinking of? just to discuss the relationship?

Exactly along the lines of what I was about to post haha... Although i think what he is trying to say is "if" their is a question on the exam about this topic, how can it be answered.
If you want is to assist you please be more specific.

-Basically 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 may arise.
-Parliament is the supreme law-making body. Its main role is to make laws. The courts, however are responsible for settling disputes; as a secondary role
 can also initiate laws. ----> This is done through interpretation of the law made through parliament. Parliament can confirm or change law made by courts. Court decisions can influence changes in law through parliament.

As well as I am aware there as been a question on this topic nearly every year, you'd be best off studying on the courts v parliament law-making relationship from your legal studies textbook.

[fredholland]

- Parliament passed the Acts Interpretation Act which tells courts how to interpret statutes from parliament

- Courts often have to interpret statutes when the wording isn't clear/is ambiguous

- Courts can declare laws made by parliament to be 'ultra vires' - meaning the law is outside of parliaments constitutional authority so they cannot legislate in that area

[lara2707]

·   Courts apply and interpret the laws made by parliament
·   Courts can declare legislation ultra vires (beyond the power) if parliament has exceeded its constitutional authority.
·   Parliament can change or codify (common law → legislation) common law, which happens when parliament includes all the precedents that have been established by courts on a particular matter in one statute, making it easier to find the law on a particular matter. The Goods Act 1958 (Vic), for example, is a consumer protection statute that codified the law relating to the buying and selling of goods. It is unusual for parliament to codify an entire area of common law.
·   Court decisions can influence changes in the law by parliament because courts may be too conservative. While the courts are unable to change laws made by parliament, statements within a court decision may influence change. A progressive decision reached by the courts could also alert parliament to the need for a major change in the law.

[Spreadbury]

I cam across a question that said "Explain one circumstance in which parliament can override law made by the courts" and it sort of stumped me for a little because I was thinking "parliament can do whatever it likes to laws made by the courts,"

I ended up talking about codifying and the Mabo case. what would other people mention?

[chrisjb]

I cam across a question that said "Explain one circumstance in which parliament can override law made by the courts" and it sort of stumped me for a little because I was thinking "parliament can do whatever it likes to laws made by the courts,"

I ended up talking about codifying and the Mabo case. what would other people mention?

That's probably how I would do it... Maybe if there is a case about parliament abrogating a court decision (is abrogate the correct term?) perhaps trigwell might work (parliament changes old outdated common law). But you're right, parliament can do whatever the hell they want.

[claire92]

I cam across a question that said "Explain one circumstance in which parliament can override law made by the courts" and it sort of stumped me for a little because I was thinking "parliament can do whatever it likes to laws made by the courts,"

I ended up talking about codifying and the Mabo case. what would other people mention?

That's probably how I would do it... Maybe if there is a case about parliament abrogating a court decision (is abrogate the correct term?) perhaps trigwell might work (parliament changes old outdated common law). But you're right, parliament can do whatever the hell they want.

Yes its abrogate, I would mention as my keywords, supreme law maker, if they do not agree they can ABROGATE, I think that would be essential, an example being mabo or trigwell, and then perhaps a reason why parliament would need to change common law. I'm guessng this question would be 4 marks, so thats how I would break it down.

[saaaaaam]

I cam across a question that said "Explain one circumstance in which parliament can override law made by the courts" and it sort of stumped me for a little because I was thinking "parliament can do whatever it likes to laws made by the courts,"

I ended up talking about codifying and the Mabo case. what would other people mention?

Is this from the 2006 sample exam? I answered it today.

I had the same thought as you, that Parliament can override the courts in any situation, really.

So my answer began by saying that Parliament is the supreme law making body. Then I spoke about the rape in marriage case, in which the judge was bound to follow an old common law that said rape was permitted in marriage. Of course, the community was outraged and Parliament quickly made it illegal. I think I said something about the decision of the court not reflecting community values therefore parliament needed to change it.

[filipo]

Sorry for the late reply and thank's for the response. After I read my initial post, I realised that it was abit ambigious.. Sorry.

What I was asking (and some of use have already answered) was if there is a question like this one (copied from a previous thread) "A legal writer recently said 'courts are innefective law makers, all law making should be left to the parliament" Discuss the court's ability to make law and compare this to the parliament's law making ability. To what extent do you agree with the statement?

Then it would just require a discussion on strenghts and weaknesses of both as lawmakers? So a strength of the parliament would be a weakness of the courts and vice versa, correct? That is what my teacher explained for us to do anyway.

But, what my initial question was referring to, was if there was to be a question something along the lines of " Both Parliament and the Courts participate in the Law making process " Discuss this statement, in your answer include the relationship between the two in making laws.

Then would the answer require the points listed by Lara?
·   Courts apply and interpret the laws made by parliament
·   Courts can declare legislation ultra vires (beyond the power) if parliament has exceeded its constitutional authority.
·   Parliament can change or codify (common law → legislation) common law, which happens when parliament includes all the precedents that have been established by courts on a particular matter in one statute, making it easier to find the law on a particular matter. The Goods Act 1958 (Vic), for example, is a consumer protection statute that codified the law relating to the buying and selling of goods. It is unusual for parliament to codify an entire area of common law.
·   Court decisions can influence changes in the law by parliament because courts may be too conservative. While the courts are unable to change laws made by parliament, statements within a court decision may influence change. A progressive decision reached by the courts could also alert parliament to the need for a major change in the law.


Thanks for any help.

[filipo]

Also, how is the Mabo case relevant to parliament codifying laws?

[chrisjb]

what my initial question was referring to, was if there was to be a question something along the lines of " Both Parliament and the Courts participate in the Law making process " Discuss this statement, in your answer include the relationship between the two in making laws.

Then would the answer require the points listed by Lara?
·   Courts apply and interpret the laws made by parliament
·   Courts can declare legislation ultra vires (beyond the power) if parliament has exceeded its constitutional authority.
·   Parliament can change or codify (common law → legislation) common law, which happens when parliament includes all the precedents that have been established by courts on a particular matter in one statute, making it easier to find the law on a particular matter. The Goods Act 1958 (Vic), for example, is a consumer protection statute that codified the law relating to the buying and selling of goods. It is unusual for parliament to codify an entire area of common law.
·   Court decisions can influence changes in the law by parliament because courts may be too conservative. While the courts are unable to change laws made by parliament, statements within a court decision may influence change. A progressive decision reached by the courts could also alert parliament to the need for a major change in the law.

Yes, that is what I would write about (with lots of case studies to pad it out a little if it's ten marks). This is why I don't want the final question to be solely on relationship between courts and parliament, there's not actualy that much to talk about. Hopefully it has something about strenghts and weaknesses of both too.

Then it would just require a discussion on strenghts and weaknesses of both as lawmakers? So a strength of the parliament would be a weakness of the courts and vice versa, correct? That is what my teacher explained for us to do anyway.

Yes, most of the time, but not nessicarily. For example, the fact that parliament is not always sitting is a weakness of parlaiment, but the opposite is not true of the courts- i.e. that the courts are not always sitting too. But you're right, most of the time a court strength is a parliament positive and vice versa.

Also, how is the Mabo case relevant to parliament codifying laws?

Mabo upset about not owning land -> Take matter to court, argue terra nullius non existant -> court agree, native title established in common law -> Parliament just got owned a little bit by the courts so they passed Native Title act = Parliament codifying common law.

[filipo]

Thankyou for explaining that all to me.

[zomgSEAN]

Also, how is the Mabo case relevant to parliament codifying laws?

Mabo upset about not owning land -> Take matter to court, argue terra nullius non existant -> court agree, native title established in common law -> Parliament just got owned a little bit by the courts so they passed Native Title act = Parliament codifying common law.

Dude, i could never get my head around that case; my teacher was bad at explaining it.
Now, i finally understand.
Thankyou.

[mikee65]

Also, how is the Mabo case relevant to parliament codifying laws?

After the Mabo ruling in 92 established the existence of native title in the legal system this ruling evoked controversy as courts can only make decisions on the basis of material facts before them not wide ranging broad principals as parliament does, therefore other manufacturers feared that a native title may exist on their lands( Nabalco v Malirripum decision by J blackburn overturned), because of this praliament had to codify the courts ruling keeping in mind the ratio, further on down the track, even though parliaments make law in futuro they failed to address the issue of pastoral leases in the 1993 statute (native title act), the courts ruled in the Wik case that both native title and pastoral leases could coexist and this lead the parliament to codify the decision through amending the native title act. Hope this helpos..