The relationship between courts and parliament (SACE Stage 2 Legal Studies)

What this dot point is asking

You must explain how each body makes law, the ways they influence and limit each other, and why parliament is supreme.

The two law-makers

Statute law is made by parliament; common law is made by courts through decided cases. Neither works in isolation, and most areas of law involve both.

• Parliament can make law on any subject within its constitutional power, in advance and on a wide scale.
• Courts make law only when a case comes before them, developing principles through the doctrine of precedent and by interpreting statutes.

How parliament influences courts

Parliament shapes the work of courts in several ways.

• It passes statutes that courts must apply, which can replace or modify common law.
• It can codify the common law, gathering case-made principles into a single statute to provide certainty.
• It can abrogate an unwelcome court decision by legislating to change the law.
• It creates and structures the courts themselves through legislation.

How courts influence parliament

Courts also shape the law parliament makes.

• Through statutory interpretation, courts decide what the words of an Act actually mean, which can reveal gaps or ambiguities that prompt parliament to amend the law.
• Through precedent, courts develop principles that parliament may later adopt into statute.
• By highlighting injustice or uncertainty in their judgments, courts can effectively invite parliament to reform the law.

Why parliament is supreme

Although both make law, parliament is the supreme law-maker. Statute prevails over common law, so where the two conflict, the statute wins. Parliament can change or abolish common law principles, but courts cannot override a valid statute. Courts can only interpret statutes and, at the constitutional level, declare a law invalid if it breaches the Constitution, which is a limited check rather than general supremacy.

A complementary relationship

The relationship is best described as complementary. Parliament makes broad law efficiently and democratically; courts fill gaps, resolve disputes and adapt principles to new situations through precedent and interpretation. Each responds to the other, producing a legal system that combines democratic law-making with judicial refinement.

A worked example of the relationship in action

The interaction is clearest in a sequence such as the recognition of native title. The High Court in Mabo (1992) made new common law by rejecting terra nullius, an example of courts developing law where parliament had not acted. Parliament then responded with the Native Title Act 1993 (Cth), codifying and adjusting the principle into statute and creating a national process for claims. This single example shows both directions of influence at once: courts prompting parliament by highlighting an injustice and developing principle, and parliament responding by turning that principle into comprehensive, prospective statute that now governs the area. It also confirms parliament's supremacy, because the statute, not the original judgment, is the operative law.

Connection to the rest of the course

This dot point ties together the legislative process, precedent, statutory interpretation and delegated legislation. It also connects to constitutional government, because the High Court's power to invalidate unconstitutional laws is the one situation where a court can override parliament.