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Relationship between the courts and parliament in law-makin Relationship between the courts and parliament in law-makin

Relationship between the courts and parliament in law-makin - PowerPoint Presentation

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Relationship between the courts and parliament in law-makin - PPT Presentation

Recap strengths and weaknesses of courts as lawmakers fill in blank side with corresponding strengthweakness Add case examples Strength Weakness Allows flexibility through overruling distinguishing ID: 578167

courts parliament court law parliament courts law court legislation abortion act case laws supreme judges relationship making state victorian

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Slide1

Relationship between the courts and parliament in law-makingSlide2

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 Slide3

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.Slide4

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 Slide5

Role of parliament in the relationship –

what does parliament do for the courts?Slide6

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 Slide7

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

2005Slide8

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 1986

. 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. Slide9

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.Slide10

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.)

T

he

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.Slide11

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.Slide12

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 2008. 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.Slide13

Role of the courts in the relationshipSlide14

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 legislationSlide15

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 Slide16

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.’Slide17

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 Slide18

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.Slide19

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.Slide20

Example…

Abortion law reform in Victoria. Slide21

Describe one relationship that exists between courts and parliament in the lawmaking process (2 mark)Slide22

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 1991. One such court established by parliament is the Magistrates Court, created through the Magistrates’ court act 1989. Slide23

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?