Quick questions on The role of parliament and courts in lawmaking: VCE Legal Studies

The Commonwealth Parliament makes statute law under heads of power in the Constitution (principally s 51). The Victorian Parliament makes law under s 16 of the Constitution Act 1975 (Vic). Statute is the supreme source of law.

1. Statutory interpretation. Courts apply Acts to specific facts and, in doing so, interpret ambiguous or general statutory language. The Interpretation of Legislation Act 1984 (Vic) s 35 requires a purposive approach. Decided interpretations bind lower courts and create precedent.

Decisions of higher courts in a hierarchy bind lower courts in the same hierarchy (stare decisis). The Australian hierarchy:

Parliament and courts engage in a dialogue.

Parliament strengths. Democratic mandate; can address policy systematically; can change the law prospectively; can codify.

Courts apply Acts to specific facts and, in doing so, interpret ambiguous or general statutory language. The Interpretation of Legislation Act 1984 (Vic) s 35 requires a purposive approach. Decided interpretations bind lower courts and create precedent.

Where parliament has not legislated, the common-law courts may develop the law incrementally. Examples: the tort of negligence in Donoghue v Stevenson [1932] AC 562 (UK), adopted in Australian common law; the recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1.

Democratic mandate; can address policy systematically; can change the law prospectively; can codify.

Slow process; can be politically driven; limited expertise in particular subject matter; cannot anticipate every fact pattern.

Apply law to specific facts; develop law incrementally to reflect community values; not bound by election cycles.

Wait for cases to come; bound by precedent (no power to legislate prospectively); limited democratic mandate; conservative by training.