The relationship between parliament and the courts

The Trigwell Case

Mr and Mrs Trigwell were injured when a vehicle collided with their car after hitting two sheep. They sued the driver of the other car and the owner of the sheep for damages. The High Court decided to follow the old common law that the landowner did not owe a duty of care for their stock straying off from their land and onto the highway. This followed an old common law principle inherited from Britain that allowed animals to roam free.

The Trigwell Case

Justice Mason said:

even though there have been changes in conditions and circumstances, there are powerful reasons for the court to be reluctant to engage in changing the rule; such law-making should be left to parliament.

The Victorian Parliament decided to follow the suggestion made by Justice Mason. It passed the Wrongs (Animals Straying on Highways) Act 1984 (Vic.) that abolished the common-law immunity and made owners of land liable for damage negligently caused by their animals straying on highways.

0Parliament is the SUPREME LAW MAKING AUTHORITY answerable only to the people.

0Parliament can pass laws to OVERRIDE the common law made by the courts

Whereas

0The courts can only declare legislation ultra vires when it exceeds the law-making authority set out in the Constitution.

1. Parliament passes legislation to create the structure and jurisdiction of courtsThrough the passage of legislation, parliament establishes courts, and their structures, jurisdictions and procedures. (eg: the Magistrates’ Court Act 1989 (Vic.))

Also, parliament can pass legislation to alter the courts (incl their jurisdictions and processes)

2. Courts apply and interpret legislation created by parliamentCourts must apply the case before them to any relevant legislation made by parliament. This can sometimes involve statutory interpretation.

The impact of statutory interpretation is that the legislation and the precedent created by the court’s interpretation

3. Parliament can change laws created by courtsCourts make laws via precedent and statutory interpretation. The supremacy of parliament means that it can override or abrogate any court made law through the passage of legislation

eg The Trigwell Case

4. Parliament can codify laws made by courtsParliament can pass law that incorporates common law principles; this process is known as codification– making common law into statutes or codes, and thus strengthening the law. Eg The Mabo Case

5. Statements made by the courts can influence parliament

In the process of hearing and deciding cases, judges may make statements that reflect their feelings on a law or its application. This may signify to parliament that there is a need to change the law

eg: the Trigwell Case