The role of parliament and courts in lawmaking: VCE Legal Studies
“The role of parliament and courts in lawmaking, and the relationship between them”
Parliament makes statute law (the supreme source); courts make law through statutory interpretation and common-law development under the doctrine of precedent. Parliament and the courts engage in a dialogue through codification (parliament adopting court-made rules) and abrogation (parliament reversing court decisions).
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In the current study design (Units 3 and 4 from 2024) the roles of parliament and the courts in law-making are part of Unit 4, Area of Study 1 (The people and the law-makers). This page keeps its original web address.
What this dot point is asking
VCAA wants you to know how parliament and the courts each make law and how their relationship works in practice. Expect a 5-7 mark medium response item.
The answer
Parliament
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.
A bill becomes an Act after passage by both houses (or one house in Queensland), royal assent, and commencement. The Victorian Parliament can also pass delegated legislation, which is rules made by an executive body under a parent Act (e.g. regulations made by the Governor in Council under s 28 of the Subordinate Legislation Act 1994 (Vic)).
Courts
Courts make law in two ways:
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.
2. Common-law development. 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.
The doctrine of precedent
Decisions of higher courts in a hierarchy bind lower courts in the same hierarchy (stare decisis). The Australian hierarchy:
- High Court of Australia (binds all Australian courts);
- Federal Court, Supreme Courts of states and territories (bind their respective lower courts);
- District / County Courts and intermediate courts;
- Local / Magistrates' Courts.
Same-level courts are persuaded but not bound by each other's decisions. The High Court is the only court that can overrule its own previous decisions, and it does so cautiously (Australian Agricultural Co v Federal Court of Australia (2002) 209 CLR 285 set out the principles).
Lower courts can:
- distinguish a precedent (find the facts materially different);
- reverse it on appeal (where the appellate court reverses the lower court);
- overrule it (where a higher court rejects the precedent in a different case).
The relationship: codification and abrogation
Parliament and courts engage in a dialogue.
Codification is the parliamentary adoption of a common-law rule into statute. Example: the Native Title Act 1993 (Cth) codified the common-law recognition of native title in Mabo v Queensland (No 2) (1992) 175 CLR 1.
Abrogation is the parliamentary reversal of a court decision. Example: following Trigwell v State Government Insurance Commission (1979) 142 CLR 617 (where the High Court declined to abolish the immunity of livestock owners for damage on roads), the Victorian Parliament passed the Wrongs (Animals Straying on Highways) Act 1984 (Vic) to abolish the rule.
Strengths and limitations of each
- Parliament strengths
- Democratic mandate; can address policy systematically; can change the law prospectively; can codify.
- Parliament limitations
- Slow process; can be politically driven; limited expertise in particular subject matter; cannot anticipate every fact pattern.
- Courts strengths
- Apply law to specific facts; develop law incrementally to reflect community values; not bound by election cycles.
- Courts limitations
- Wait for cases to come; bound by precedent (no power to legislate prospectively); limited democratic mandate; conservative by training.
Why the relationship is described as a dialogue
The interaction is not one-directional. Parliament sets the broad legal framework through statute; courts fill gaps, interpret ambiguous provisions and develop the common law where parliament is silent; parliament then responds by codifying interpretations it accepts or abrogating those it rejects. Judges sometimes use their reasons to flag a problem in the law that only parliament can fix, in effect inviting legislation. Because each body can react to the other, the modern description is a dialogue model of lawmaking, sitting on top of the underlying rule that, where they conflict, the supremacy of parliament means statute prevails over common law.
Question: A County Court judge interprets an ambiguous word in a state Act in a way the government dislikes. The government wants the law to operate differently. Explain the steps in the lawmaking relationship this scenario illustrates.
Step 1: The court makes law by interpreting the statute
Faced with ambiguous statutory words applied to specific facts, the court must give the words a meaning to decide the case. Applying the purposive approach (Interpretation of Legislation Act 1984 (Vic) s 35), the court settles a meaning, which binds lower courts as precedent.
Step 2: The interpretation becomes part of the law
The interpreted meaning operates alongside the Act, so the statute is now read in light of the court's interpretation. This is courts making law as a by-product of resolving a dispute.
Step 3: Parliament evaluates the interpretation
Because parliament is the supreme law-maker, it can review the outcome. If it accepts the meaning, it may do nothing or codify it. If it disagrees, it can act.
Step 4: Parliament abrogates by amending the Act
The government has the relevant statute amended to state the meaning it intends, overriding the court's interpretation for the future. This abrogation shows the supremacy of parliament: statute prevails, and the dialogue continues if a fresh case later tests the amended words.
- Saying courts cannot make law
- Courts make law through statutory interpretation and common-law development; they just cannot legislate proactively like parliament.
- Confusing codification and abrogation
- Codification confirms a court-made rule by putting it into statute; abrogation overrides a court decision by passing a contrary statute.
- Forgetting parliamentary supremacy
- Where statute and common law conflict, the statute prevails. Courts cannot defeat a clear, valid Act.
- Treating the relationship as one-way
- It is a dialogue: courts interpret and develop, parliament responds, and courts then apply the amended law.
Exam-style questions
Questions in the style of VCAA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
2025 VCAA-style7 marksParliament and courts are both important law-making institutions in the Australian legal system. Analyse the relationship between these bodies in law-making.Show worked answer →
A 7-mark analyse response should explain how each body makes law and then examine the several ways their roles interact, using correct terminology.
- Each body's role
- Parliament is the supreme law-maker: it passes statutes (Acts) and can make law on any matter within its power, including in anticipation of need. Courts make law as a by-product of resolving disputes, by setting precedents through the doctrine of precedent and by interpreting the words of statutes.
- Relationship 1: courts interpret the statutes parliament makes
- When the meaning of an Act is unclear, courts apply statutory interpretation; the meaning given to the words becomes binding precedent and forms part of the law alongside the Act.
- Relationship 2: parliament can codify or abrogate common law
- Parliament can confirm a court-made principle by passing it into statute (codification) or override a precedent it disagrees with by passing a contrary Act (abrogation). Parliament's law prevails over common law.
- Relationship 3: courts can influence parliament
- Judges may comment on gaps or problems in the law and effectively invite parliament to legislate, and a controversial decision can prompt parliament to act.
- Limits and balance
- Courts cannot change a clear statute and must wait for a case to come before them, whereas parliament can act proactively. The relationship is therefore one of supremacy of parliament combined with mutual influence.
Markers reward both roles, at least two clear interactions (interpretation, codification or abrogation, judicial influence) and an analytical conclusion about the balance, with the term 'supremacy of parliament'.
Practice4 marksExplain how a court can make law through statutory interpretation, and explain one way parliament can respond to a court's interpretation.Show worked answer →
A 4-mark explain item rewards the interpretation mechanism plus a parliamentary response.
Courts make law through statutory interpretation when the words of an Act are ambiguous or do not clearly cover the facts of a case. To resolve the dispute, the court must give the words a meaning. Under the Interpretation of Legislation Act 1984 (Vic) s 35, courts use a purposive approach, reading the words in light of the Act's purpose. The meaning the court gives becomes binding precedent and forms part of the law alongside the statute.
Parliament can respond in two main ways. If it agrees with the interpretation, it may leave the Act unchanged or codify the meaning into the statute. If it disagrees, it can abrogate (override) the interpretation by amending the Act to state the meaning it intends, because parliament is the supreme law-maker and its statute prevails over court-made law.
Markers reward (1) the interpretation arising from ambiguous words being applied to facts, (2) the purposive approach or precedent created, and (3) at least one parliamentary response (codification or abrogation/amendment).