Relationship between Courts and Parliament
Discuss the relationship between the law-making bodies using the Abortion Law Reform case as an example – 10 marks
Parliament Creates Courts
Parliament is the supreme law making body in Australia, and they create courts through passing ‘Acts’. Parliament and courts work together to provide a system for law-making and dispute resolution, and one cannot operate properly without the other. Parliament generally makes laws, leaving the courts to primarily settle disputes, but - the courts often make law as well. In order to settle disputes, courts apply and interpret law made by Parliament – they make law through setting precedent, or interpreting statutes. Parliament can confirm or change the law made by courts. Court decisions can also influence Parliament to change the law, as evidenced by the Abortion Law Reform case.
They influence each other to change the law
Even though Parliament and courts may not ‘consciously’ work together (as there are usually long periods of time between when a legislation is passed and when the courts apply the legislation), they influence each other when making law. In the Crimes Act 1958 (Vic), section 65 prohibited the unlawful termination of pregnancy and listed it as a crime. However, eleven years later in 1969, Justice Menhennitt outlined the circumstances in which an abortion would be ‘lawful’ – if it was necessary to preserve a woman’s physical or mental health. The court ‘worked with’ Parliament’s legislation and interpreted it to allow abortion under certain circumstances. As a result, no one had been charged for illegal abortion in Victoria in the last 21 years. In 2008, the Victorian Parliament eventually felt the pressure to clarify and change the Abortion laws in the Crimes Act.
Courts can interpret the law
Parliament is responsible for creating courts, and as a result, courts can interpret the law. With the sole exception of the High Court, all other courts in Victoria were created by an Act of Parliament, and thus can also be disbanded this way. Over periods of time, Parliament identify areas in which the court system can improve and thus create special divisions of courts, such as the Koori Court under the ‘County Court Amendment Act 2008’. When resolving a dispute, courts need to apply the case before them to relevant legislation by Parliament. In the 1969 Abortion case, Justice Menhennitt interpreted the Crimes Act 1958, a piece of legislation by Parliament, to allow for a ‘lawful abortion’ under certain circumstances. He was required to interpret the meaning of the word ‘unlawful’, and chose to broaden the meaning of the original legislation by Parliament.
Parliament can override or codify decisions
Furthermore, Parliament can override or codify decisions made by the courts. If a court upholds and applies a law that is outdate and no longer reflective of community views, Parliament can legislate to change the law so those decisions can no longer be made. This is evidenced by the 1995 case in which a Judge decided that it was lawful for a husband to rape his wife – Parliament subsequently changed Crimes Act to make it a crime. As the supreme law making body, Parliament can also codify (bringing different statutes and precedents together into one Act of Parliament).
Parliament was influenced by the courts when..
Although Parliament did not codify Justice Menhenitt’s ruling of ‘lawful’ abortion, they were influenced to decriminalise it after many years of legal uncertainty with abortions, and referred the issue to the VLRC. In the process of hearing and deciding the Abortion case in 1969, Justice Menhennit may have made statements that reflect his own feelings on a law or its application, signifying to Parliament that there needs to be a change in the law. Creativity by the courts, such as his interpretation of the word ‘unlawful’, may also alert Parliament to an area of law where new laws are necessary.
Parliament can support courts
Parliament can support courts. When courts are called to settle criminal disputes, they are required to sanction those found guilty and prescribe suitable punishments, ideally reflect society’s views and values. Where penalties and punishments no longer reflect society’s views, the Parliament can act to change the minimum and maximum penalties. For example in 2008, a drunk driver caused the death of an individual and was sentenced to six years’ imprisonment. However the community protested as they considered the sentence to be too lenient – as a result, Parliament changed the law to increase the penalty to 10 years imprisonment.
Courts can support Parliament
Courts also confirm the laws made by Parliament. Sometimes the courts could be asked to confirm whether or not a law passed by Parliament is ‘ultra vires’, meaning that the Parliament has gone outside its jurisdiction. For example the $900 handout (Tax Bonus for Working Australians Act 2009) in 2009 to stimulate the Australian economy was challenged by Bryan Pape in the High Court. He argued that the Government did not have the power to do so under the Constitution – however the High Court eventually held that the Government was allowed to, under sections 81 and 83.
They work together
The Parliament and the Courts work together, with the Parliament’s primary role as a lawmaker and the Court’s primary role as a place to settle disputes. However the courts often acts as a lawmaker as well, through setting precedent and interpreting statute laws.
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