Australian Parliament and Courts Relationship PDF

1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making VCAA Study Design 2024 - 2028  relationship in law-making BACKGROUND – PARLIAMENT & GOVERNMENT Australia’s system of Government Australia’s P...

1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making VCAA Study Design 2024 - 2028  relationship in law-making BACKGROUND – PARLIAMENT & GOVERNMENT Australia’s system of Government Australia’s Parliamentary system  At Federation in 1901 (see next slide) Australia  Australia adopted the British parliamentary system adopted a Federal system of government from also known as the Westminster system. the US (England has a unitary system).  The Westminster System is a bicameral system of  Under a Federal System law-making power is parliament (Plt) because it consists of 2 houses – divided between: the Upper and Lower Houses, and the sovereign –  A central authority (Commonwealth Parliament) the Crown. with the power to make laws that effect the  Parliament is the ultimate law-making body. whole country (e.g. defence, currency, trade and postal services).  There are 9 Parliaments in Australia: 1 Commonwealth Plt; 6 State Plts; 2 Territory  State parliaments who have the power to make Parliaments. laws that apply to their state or region (e.g. transport, power, water and education). 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making BACKGROUND - FEDERATION  “Federation” occurred in 1901:  The Commonwealth Constitution was passed. It came into effect on 1 January 1901.  The Constitution forms the guidelines for a federation and sets out the structure and powers of Commonwealth Parliament and the States to make laws.  A central law-making authority was established – The Federal Parliament of Australia (also known as the Commonwealth Parliament).  The colonies became known as States.  The High Court was established as the highest Australian court of appeal (appeals could still be made to British courts).  parliament and the courts and their relationship in law-making BACKGROUND – THE CONSTITUTION The Constitution  Outlines the principles, power and authority of the government and parliament.  Divides law making power between the Commonwealth and State Parliaments – this is known as the division of power.  Commonwealth and State powers fall into four categories:  “specific”  “exclusive”  “concurrent”  “residual” 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making BACKGROUND – LAW-MAKING POWER Specific Powers Exclusive Powers The power of the Commonwealth Parliament to make Some of the “specific” powers listed in the laws is limited to matters that are specifically Constitution can only be used by Commonwealth mentioned in the Constitution. Parliament. These “specific powers” are set out in sections 51 These powers are known as “exclusive powers”. and 52 of the Constitution. Examples include laws relating to: printing money, Examples include: foreign trade; taxation; defence. defence and immigration. States can also make use of some (but not all) of these specific powers. Residual Powers Concurrent Powers After Federation, each state retained its own Some powers listed in the Constitution are shared constitution and some power to make laws. between the Commonwealth and State parliaments. Any power not specifically given to the Both the Commonwealth and State parliaments can Commonwealth in the Constitution remains a state make laws in these matters. law-making power (also known as “residual power”). Examples of concurrent powers are education and Examples include: criminal and civil law, health and taxation. education. If a law made by the Commonwealth and a State Parliament is inconsistent then the Commonwealth law prevails (s.109 of the Constitution). Workbook Activity  Complete Q1 on p.15-16 of your workbook. and the courts and their relationship in law-making BACKGROUND – STRUCTURE OF CTH PARLIAMENT Governor-General The Crown’s Representative The House of Representatives The Senate The Lower House of parliament The Upper House of parliament Made up of 151 members – each representing an Made up of 76 Senators – with 12 Senators elected electorate of around 80,000 voters. Therefore, the from each state and 2 from each territory. Thus, states physical size of electorates varies from state to state have equal representation, regardless of their e.g. Victoria 37 electorates vs WA 15 electorates population (s.7 of the Constitution) (minimum of 5 members of House of Representatives Senators are elected for a 6-year term using a from each state) proportional system of voting, providing stability and Members are elected for a 3-year term using ongoing membership a preferential system of voting making BACKGROUND – STRUCTURE OF VIC PARLIAMENT Governor The Crown’s Representative The Legislative Assembly The Legislative Council The lower house of parliament The upper house of parliament Made up of 88 members Made up of 40 members – with 8 regions (each made Each electoral district elects one member to represent up of 11 electoral districts) them in the Victorian Parliament Each region elects 5 members Members elected for a 4-year term using a Members elected for a 4-year term using a preferential voting system. proportional representation system.  relationship in law-making BACKGROUND – PARLIAMENT vs GOVERNMENT Parliament vs Government… They are not the same thing!  Parliament – all elected members of both houses of parliament, plus the Crown’s representative (at both state and Federal levels). Parliament is the sovereign (the supreme law-making body).  Government – the political party (or parties in a coalition) with the majority of seats in the Lower House of Parliament which are called to form a government, by the Governor-general.  the leader of this party becomes known as the Prime Minister  the Prime Minister recommends other members of the majority party to the Governor-general to appoint as ministers of state  a Minister is responsible and answerable to the parliament for the actions of a government department  each Minister has a portfolio (a special area of responsibility) e.g. Minister for Transport, Education etc.  the minority party or parties form the opposition Workbook Activity  Complete Q2 on p.16-17 of your workbook. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law- making THE ROLE OF PARLIAMENT  The term Parliamentary supremacy means parliament is the supreme law-making body. Parliament can make law on any issue, at any time as long as it has the constitutional power to do so.  The main role of the Commonwealth Parliament is:  to make laws for the peace, order and good government of Australia (laws made by Parliament are called ‘legislation’ or ‘statute’)  to represent the people of Australia in the laws that it makes, ensuring that laws passed reflect the social, moral, political and economic values of society.  to check the laws made by bodies to which they have delegated law-making powers (we will look at this further when we cover sources of law, however Parliament has the power to delegate its law-making power in certain areas to other bodies who may have more expertise in a certain area e.g. VicRoads. parliament and the courts and their relationship in law-making THE VICTORIAN COURT HIERARCHY  Our courts are arranged in a hierarchy, meaning that they are ordered in terms of their superiority or importance. A diagram of the Victorian Court Hierarchy is below…. High Court Superior Courts Supreme Court, Court of Appeal Supreme Court Inferior County Court Courts Magistrate’s Court 1.1.4 Overview of the roles of parliament and the courts and their relationship in law- making THE ROLE OF THE COURTS  Unlike Parliament, judges cannot make law as an immediate response to a community demand. Courts can act only to declare that legal principles apply to the facts of a case that is brought before them. Sometimes when courts do this, they create law, which is known as common law, or precedent (we will look at this in more detail in our next key knowledge point).  The Courts’ main role is to apply legislation to resolve disputes before them.​  Each court that exists was created by an Act of parliament. For example, The Family Law Act 1975 created the Family Court of Australia.​  The High Court is the custodian of the Constitution and does have the power to rule a law made by Parliament as “ultra vires” – which means it is outside Parliament’s law-making power as stated in the Constitution (specific powers). 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING There are six main features of the relationship between parliament and courts: 1. Parliaments establish courts through creating Acts of Parliament (legislation). Main features 2. The interpretation of statutes by courts of the (statutory Interpretation) 3. The codification of common law (codify by relationship parliament) 4. The abrogation of common law (abrogate by parliament) 5. The ability of courts to influence parliament 6. The invalidation of statute law 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING 1. Establish Each court that exists was established through an Act of Parliament. Courts Each of these Acts establishes a particular court and sets out its jurisdiction (the types of cases it is responsible for through Acts resolving). Parliament can change these Acts at any time, and add to or take away from a particular court’s of Parliament jurisdiction. Example: The County Court Act 1958 (Vic) is an act of parliament which establishes the County Court of Victoria. In Section 4 – Establishment of the County Court it states: “A court shall be held in and for the State of Victoria styled ‘The County Court’ for the trial of offences and the trial and determination of all appeals, applications, claims disputes and other proceedings both criminal and civil both at law and in equity as are by this or any other Act enacted to fall into and be within the jurisdiction of the court.” 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING Statutory interpretation is the courts interpreting and giving meaning to the words in legislation when resolving disputes. Courts may need to do this because:  Sections of a statute are drafted in broad terms and need to be applied to a specific fact scenario 2. Statutory  The meaning of some words may change over time Interpretation  As Parliament makes law ‘in future’ they may be unable to forsee a situation arising so the court must clarify the law to apply it to a case before them When interpreting statute, courts must uphold the intentions of Parliament at the time of creating it. Example: In Deing v Tarola 2 VR 163 the Supreme Court was required to decide on appeal whether wearing a studded belt could be interpreted as carrying a weapon (see workbook activity p.17-18). 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING The effects of statutory interpretation is that judges give 2. Statutory meaning to the words in legislation and are able to resolve disputes in the cases before them. The Interpretation interpretation of legislation may also have broader implications including:  Development of an area of law through the creation of precedent (we will look at this in more detail when we look at sources of law)  Broadening the operation of a statute  Narrowing the operation of a statute  Legislation being passed that abrogates courts’ interpretation of a statute Workbook Activity  Complete the case study on Deing v Tarola 2 VR 163, in your workbook – Q3 on p.17-18. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING Codification of common law occurs where Parliament agrees with a principle of common law established by judges from a particular case and creates legislation to 3. Codification ‘confirm’ it. It is therefore ‘codified’ – which means it is written into law to protect the legal principle established. of Codification clarifies the operation of the law for future. It Common Law enables Parliament, as the sovereign, to ensure that the new law will extend beyond the parties to the dispute in which the common law principle was established. Example: Mabo v Queensland (No.2) HCA 23 and the Native Title Act 1993 (Cth) (see the next slide). and the courts and their relationship in law- making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING Codification case study - Mabo v Queensland (No.2) HCA 23 & Native Title Act 1993 (Cth) At the time of European settlement, Australia was deemed to be ‘terra nullius’- the land of no-one and therefore was automatically owned by the British Crown. Mabo challenged this principle of law, claiming ownership of land in the Murray Islands in the Torres Strait. In 1992 the High Court held that ‘terra nullius’ was a legal fiction and that indigenous ownership of land in Australia (called ‘native title’) could exist if it could be proved that: There is a strong connection between the indigenous people and the land; and The land had not been bought/ sold in the time since European settlement (as this extinguished indigenous ownership rights). The Commonwealth Parliament codified this decision by passing the Native Title Act 1993 (Cth). Through this, they acknowledged Aboriginal land rights and expanded the principle of law that the High Court established, by also creating the Native Title Tribunal where claimants can pursue their land rights. Workbook Activity  Complete Q4 on p.18-19 of your Workbook. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING Abrogation of common law occurs when Parliament disagrees with a legal principle(s) established by a Court and ‘abolishes’ or ‘overrides’ the common law principle(s) by writing new law (legislation). 4. Abrogation of To ‘abrogate’ is to cancel or abolish a court made law, by passing a new Parliament Act. Parliament may decide to abrogate common law for a number of reasons: Common Law  the courts may interpret the meaning of the words in a statute in a way that was not the intention of parliament, or  in a way that does not reflect the current meaning of the act, or  courts may develop precedent in a way that the parliament does not agree with. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING As Parliament is the supreme law-making body it has 4. Abrogation of the ability to abrogate common law, with the exception of decisions made by the High Court relating to the Constitution. In some cases, a judge may indicate in their written Common Law judgement they believe the common law should be changed, however they leave this to parliament because some judges are reluctant to change a common law principle that has been in place for a long time. Example: Common law of Wilful Exposure (see the next slide). Also see State Government Insurance Commission v Trigwell HCA 40 and the Wrongs (Animals Straying on Highways) Act 1984. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING Workbook Activity  Use online research to confirm under which Act a new offence of sexual exposure was created. In what section of the Act are the elements of the offence described? There is space to record your answer in your workbook at Q.5 on p.19. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING  Through statutory interpretation judges may comment on whether particular legislation is appropriate to the cases being presented in the 5. Ability of courts, or difficult to apply. Courts to  A court may remark that a legal principle is confusing when interpreting or applying a statute. It influence may also remark a common law principle needs to be changed but leave it to Parliament to do it. Parliament  Example: State Government Insurance Commission v Trigwell HCA 40 and the Wrongs (Animals Straying on Highways) Act 1984 (see next slide). This case was also an example of abrogation. 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING 1.1.4 Overview of the roles of parliament and the courts and their relationship in law-making THE RELATIONSHIP BETWEEN PARLIAMENT & THE COURTS IN LAW MAKING  Courts enforce the division of law-making powers between the State and the Commonwealth Parliament. 6. Invalidation  The High Court can hear applications where a party of statute is claiming that a parliament has made a law that it is not in their power to make. For example:  Assume the Victorian Parliament made a law on a matter that is the responsibility of Commonwealth Parliament e.g. imposing a new tax on goods purchased from overseas.  It is unlawful for a state to make laws on this topic under the Constitution.  The High Court would declare that legislation invalid, and the High Court decision would be final, meaning that no Parliament could abrogate it because the High Court is established as the guardian of the Constitution in s.71 of the Constitution. Workbook Activity  Complete Q6-7 on p.19-20 of your Workbook