the role of parliament and courts in lawmaking, and the relationship between them

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.