Courts apply the laws of parliament

The main and most common role of courts is to apply laws made by parliament, particularly when such laws are broken.

Courts interpret Acts of parliament

Sometimes the meaning of words in a certain Act is unclear. When a relevant case comes before them, courts can give meaning to these words.

• e.g. Deing v Tarola (studded belt case).

Abrogation

If a court makes a law deemed to be inappropriate, parliament may pass law overriding (abrogating) the court made-law

• e.g. After a Victorian court, in 1985, was forced to uphold an old precedent stating that a husband could legally rape his wife, parliament changed the law to make rape in marriage an offence through the Crimes (Amendment) Act 1985.

Codification

Parliament can confirm (codify) common law principles. Perhaps adding to them or slightly amending them, when putting such principles into statute form. When confirming such principles parliament will pass a “codifying Act”

• e.g. After the Mabo decision in the High Court, Federal Parliament passed the Native Title Act (1993).

High Court can increase Commonwealth Parliament’s law-making power

For example, the Franklin Dam Case increased the Commonwealth’s power in the area of external affairs.

Courts can hear challenges to the laws of parliament

For example, R. v Brislan challenged the law stating that a person must have a license to use a wireless radio.

Parliament can pass Acts establishing courts and their jurisdictions

For examples, parliaments passed the Magistrates’ Court Act 1989 and the Family Law Act 1975.

Courts can fill in the gaps left by parliament

Donoghue v. Stevens began the development of the law of negligence in England.

Court decisions can influence parliament

e.g. Knight v. Anderson¹ : The Victorian Supreme Court allowed Julian Knight, also known as the Hoddle street killer, to seek an injunction that would allow him to write to one of his victims’ families. This led people to complain about the inadequacy of the law in such situations. In response, Victorian Parliament introduced a new law to give prison governors the power to intercept or sensor letters sent by prisoners if the letter content may be distressing or traumatic.

See also:

The Courts

Statutory Interpretation 

High Court interpretation of the Constitution

Strengths and weaknesses of law-making through the courts

1. Knight v Anderson [2007] VSC 278 ↩