Cases to use for Outcome 3, Unit 3
The following article highlights the strengths of the parliament as a law-maker, in that parliament can respond to urgent need to change the law; in this case, the dire state of the Australian cricket team!:
http://www.theage.com.au/sport/cricket/ahmed-bill-enters-parliament-20130530-2nd2a.html
Use the McBain (Leesa Meldrum) case or theMalaysiaSolutioncase (2011) for the relationship between the parliament and courts where the courtsdeclarelegislationto be ultra vires. This, of course, can lead to furtherparliamentaryaction, which is a key aspect of the relationship.
TheMalaysia casehighlightshow the courts candeclareinvalid anexecutivedecision(delegatedlegislation) where it isinconsistentwith a statute, in this case the Migration Act Cwlth.
Of course, this led to further legislative action by the Cwlth on the basis that the High Court ruling denied thegovernmenta key plank of its asylum seeker policy.
Seehttp://www.abc.net.au/news/2013-05-16/parliament-excises-mainland-from-migration-zone/4693940
One of the strengths of the courts as a law-maker in that the HCA can issue a ruling that has national effect, thus adding certainty to the application of legal principles.
The R v L (1991) judgment on rape in marriage is thedefinitivestatement of law in this area. Itclarifiesany existing uncertainty across all states and territories whether marriage is available as a defence to rape. Given that rape as part of criminal law is a residual power, and therefore laws can differ from state to state, the HCA offers a high degree of certainty and consistency when it comes to theavailabilityand application of common law defences.
Use Mabo asan example of development of the common law and Re Kevin for statutory interpretation. Both cases also have excellent links back to the deficiencies of parliament, especially with the Native Title example, where the 1993 legislation was silent on some very major issues such as whether pastoral leases could be claimed by indigenous people.
Just to clarify the place of the House of Lords in creating precedent for Australia in 1932.Originally the highest courts in England were considered to be part of the Australian Court hierarchy. This is because Australian court decisions could be appealed to the UK Privy Council. This situation prevailed until the 1980s.
Have a look at the High Court website link below:
http://www.hcourt.gov.au/about/history
You will see the following paragraph:
Appeals to the Privy Council from decisions of the High Court were effectively ended by the combined effects of the Privy Council (Limitation of Appeals) Act 1968 and the Privy Council (Appeals from the High Court) Act 1975. However, a right of appeal to the Privy Council remained from State courts, in matters governed by State law, until the passage of the Australia Acts, both State and Federal, in the 1980s.
So Donoghue v Stephenson would be persuasive if it happened again today but back then was binding on Australian courts.