1. Relationship between the courts and parliament in law-making

2. Recap strengths and weaknesses of courts as lawmakers – fill in blank side with corresponding strength/weakness. Add case examples
Strength
Weakness
Allows flexibility through overruling, distinguishing, reversing, disapproving
No guarantee of predictability/consistency as no two cases are ever the same – may be a number of conflicting binding precedents
Distinguishing allows lower court judges to avoid binding precedents
Courts are not bound by political scrutiny or influence as they are not elected. Not populist view, rather they focus on the law at hand – Abortion

3. KEY CONCEPT
Parliament and courts work together to provide a system for law-making and dispute resolution.
Whilst parliament generally makes the laws and courts settle disputes, at times the courts must participate in law-making to support or challenge the laws made by parliament.

4. It is important to remember that parliament has a sovereignty or supremacy over other law-makers.
Parliament is the supreme law-making body, which means that it is able to make laws on any issue (provided it has the constitutional power to do so) without being constrained by existing laws it has made (like Precedent for courts)
Sovereignty also means that parliament can abrogate any laws made by courts or subordinate authorities

5. Role of parliament in the relationship – what does parliament do for the courts?

6. 1.) Parliament passes legislation to create the structure and jurisdiction of courts
Through the passage of legislation, parliament establishes courts, and their structures, jurisdictions and procedures.
For example, the Magistrates’ Court Act 1989 (Vic) established the structure and jurisdiction of the modern day Magistrates Court, replacing previous laws
Parliament may amend the legislation at any time to alter the court

7. The Magistrates’ Court Act has been amended in every year since it was enacted, with some major changes including the establishment of the Koori Court and Drug Court Divisions in 2002, the Family Violence Division in 2005

8. 2.) Parliament empowers the courts
The powers and jurisdiction of the courts are determined by the relevant parliaments. For example, sentences imposed by Victorian courts for criminal offences are determined under the Sentencing Act 1991.
The powers, structure and jurisdiction of the Supreme Court are governed by the Supreme Court Act Parliament will sometimes act to increase minimum or maximum sentences in response to changes in community attitudes and can legislate to change the nature of particular offences, as well as defences to those offences.

9. 3.) Appointment of judges
The appointment of judges is part of the role of the executive arm of government, therefore parliament appoints the judges.
At federal level, appointments are made by the Governor-General, acting on the advice of the government of the day. At the state level, the state governor makes the appointment, also acting on the advice of the government.
In practical terms, this means that appointments are effectively made by the Cabinet at each level, usually on the recommendation of the minister responsible for justice and the legal system. In both the High Court and Victorian Supreme Court, judges are appointed for life, but are expected to retire at the age of 70.

10. 4.) Parliament can override (abrogate) or codify (instate) decisions of the courts
In both state and federal jurisdictions, parliament is the supreme law-making authority. It can override decisions made under the common law by courts (such as in the De Salles v. Ingrilles case where the parliament overrode an old precedent that meant widows of a “re-marriageable status” incurred a discount on money for negligent death of their partners.)
The exception, of course, are cases decided in the High Court on constitutional matters.
It can also confirm decisions made in courts by codifying them, such as with the legalisation of abortion in 2008.

11. ABORTION — LEGAL OR ILLEGAL?
In Australia, abortion laws vary from state to state, and stem from laws that are no longer used in Britain.
A landmark case in 1969 resulted in a precedent that effectively allowed an abortion to take place when there was a serious risk to a woman's mental or physical health. The case was R v. Davidson (1969) VR 667, often referred to as the ‘Menhennitt ruling’ after the presiding judge. In this case, a doctor was charged under the Crimes Act with having performed an abortion. Justice Menhennitt looked closely at the wording of the Act, especially the term ‘unlawfully administers’.
He advised the jury that any person who performs a prohibited act on a woman to procure a miscarriage does so lawfully if there are reasonable grounds that the woman's mental or physical health is in danger and, hence, cannot be prosecuted. The jury acquitted the accused and there have been no prosecutions for abortion since.
Therefore, even though performing abortions was still illegal under the legislation, common law had effectively changed this to enable abortions to be carried out lawfully. A precedent had been established. The Menhennitt ruling, however, did not comment on how far into a pregnancy an abortion can be performed.

12. In 2000, a 40-year-old Victorian woman became suicidal when her unborn child was diagnosed with dwarfism. An abortion was performed at 32 weeks. Five years later, a complaint was filed against the hospital for carrying out the late-term abortion.
In 2008 the Victorian Parliament re-opened the debate in the area of abortion. The first step was when parliament asked the Victorian Law Reform Commission for legislative advice on the decriminalisation of terminations of pregnancy.
The result was the Abortion Law Reform Act which came into effect on 22 October The new legislation removed abortion from the Crimes Act 1958 (Vic.) and, among other things, allows any woman up to 24 weeks pregnant to obtain an abortion from a qualified medical practitioner.

13. Role of the courts in the relationship

14. 1.) Courts apply and interpret legislation
When adjudicating a dispute, courts need to apply the case before them to any relevant legislation made by parliament
In doing so they are often required to interpret the meaning of words or phrases within the legislation – statutory interpretation
The impact of Statutory interpretation is that the legislation and the precedent created by the courts interpretation are read together to form the law
This interpretation may have the effect of broadening or narrowing the meaning of the original legislation

15. Statements made by the courts can influence Parliament
In the process of hearing and deciding cases, judges my make statements that reflect their feelings on a law or its application (what might this be called?)
These statements may signify to parliament that there is a need for a change in the law
Eg – in the De Salles V. Ingrilles Case

16. R V. Cavic, Athanasi & Clarke (2007)
Murder case: regarding the ability of the Juries Commissioner to make enquiries of jury pool members as to availability for long trials, Justice Coldrey stated in his judgement
“it seems to me what is urgently required is legislation which clearly sets out the object sought to be achieved and the powers which may be exercised in order to obtain it.’

17. The Victorian parliament then passed the Courts Legislation Amendment (Juries and Other Matters) Act 2008 (Vic) clarifying the issue and citing Justice Coldrey’s comments in the Second Reading speech

18. 3.) Courts fill in gaps in legislation
Changing circumstances or community values can make the provisions of some legislation outdated or redundant.
Courts can often adapt the law to deal with changes in society, while the relevant legislation remains unchanged. When an issue is controversial or contentious, parliament will sometimes remain silent and rely on the courts to develop legal principles through the application of precedent.

19. Parliament is then able to ‘catch up’ and formulate legislation that best reflects prevailing community values and the ways in which these have been applied through the courts. The legalising of abortion in Victoria provides an example of parliament leaving the development of law to the courts, but then stepping in to legislate to provide clarity and certainty.

20. Example…
Abortion law reform in Victoria.

21. Describe one relationship that exists between courts and parliament in the lawmaking process (2 mark)

22. Answer
Parliament is our supreme lawmaker, however, relationships exist between the courts and parliament in the lawmaking process. One such relationship is that parliament establishes courts through legislation, giving them their jurisdiction and further empowering them to be able to, for example, give sentences to offenders through the sentencing act One such court established by parliament is the Magistrates Court, created through the Magistrates’ court act 1989.

23. TEST your understanding
State whether the following statements are true or false and provide a reason for your answer.
The High Court is the only court in Australia not created by an Act of parliament.
A court can change the words of a statute.
Courts are unable to influence the laws made by parliament.
Parliament is the supreme law-making body.
APPLY your understanding

Courts are better at responding to community concerns regarding legal issues. Do you agree? Present an argument in support of your response.
‘Courts can only apply the laws in existence at the time. If they disagree with a law they are unable to do anything about the situation.’ Respond to this statement, either agreeing or disagreeing, providing reasons for your response.
It was not until the decision in the Mabo Case that parliament saw any need to legislate on the issue of native title. What does this case, and the ensuing Wik Case, tell us about the relationship between the courts and parliament?