Evaluation of the relationship between courts and parliament in law-making
1. Responses will vary. However, students must respond to the question and suggest whether or not they agree with it. It is likely that students will agree with the statement. Evidence should be provided to support the student’s argument.
2. The task word ‘analyse’ used in the context of this question require students to examine a complex concept by demonstrating how the parts relate to one another – in this case, how parliament and the courts relate to each other.It may require both sides of the question to be addressed to some extent.
In their responses, students should refer to two of the following features of the relationship between parliament and courts in law-making:
- the supremacy of parliament
- the ability of courts to influence parliament
- the interpretation of statutes by courts
- the codification of common law
- the abrogation of common law
For example, in relation to the supremacy of parliament, students would point out that parliament is the supreme law-maker. This means its primary responsibility is to make law, it has the power to override law made by other arms of government, and no other arm of government can override law made by parliament that is within its jurisdiction. The Australian parliaments can make law virtually without limit, as long as it is within their powers: laws can be made prospectively or retrospectively, they can be made regarding things they are being lobbied on or things they decide themselves, and they can be on narrow issues or entire areas. However, the parliament will always be constrained by the Constitution and the division of powers. The High Court has the power to interpret these restrictions and enforce them. The parliaments can choose whether or not they agree with the laws created by other bodies including the courts, and can legislate to confirm or abrogate them. This means that the other bodies are not sovereign law-makers, and do not have the final say on their own laws. The High Court can invalidate law as being on a matter outside the jurisdiction of the parliament – for being unconstitutional or ultra vires. But they cannot override constitutional law that is intra vires.
3. The task word ‘discuss’ require students to consider both sides of something. In the case of this question, students also need to respond to the words, ‘To what extent is this statement true?’ – for example, to a small extent, to some extent or to a large extent. A ‘discussion’ related toparliament being unable to make laws on its own, without the role of the courts, requires students to write about relevant factors favouring parliament and relevant factors favouring courts.