Parliament and the courts

What power do Parliament and courts have? 

In Australia, the power to make and manage law is divided between the Australian Parliament, the Executive – the Australian Government – and the Judiciary – the courts. This division is based on the principle of the 'separation of powers' and is outlined in the Australian Constitution:

• The Australian Parliament has the power to make laws for all Australians.
• The Judiciary – the High Court of Australia and other federal courts – has the power to interpret laws made by Parliament and judge if laws are consistent – valid – with the Constitution.
• The Executive come up with ideas for new laws or changes to existing laws and are responsible for putting laws into action. 

The relationship between Parliament and the courts 

Court hierarchy.

Parliamentary Education Office

Court hierarchy.

Parliamentary Education Office

Description

This diagram shows the hierarchy of courts in Australia. At the top is the High Court of Australia. Underneath this court are:

• State/territory courts
  • Supreme court
  • Intermediate courts (county/district courts)
  • Lower courts (local/magistrates court)
• Federal courts
  • Federal court/family court
• Federal magistrates court

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Parliament and the courts are independent of each other. For example:

• The Parliament can only create law; it cannot judge if the law has been broken.
• The Australian Parliament has the right to make, change or repeal – remove – any law within the limits of the Constitution. Courts cannot challenge or remove this right of the Australian Parliament.
• The power of the High Court cannot be changed by a decision of the Parliament.
• Parliament does not have the power to remove judges if they are unhappy with their decisions.
• The salary of High Court judges cannot be reduced by Parliament.

However, they are not completely separate; for example:

• The Australian Parliament can make laws which create Federal courts.
• The High Court can judge that a law made by the Parliament was inconsistent with the Australian Constitution and invalidate it – cancel it.

The decisions of judges, which act as binding precedents for later decisions, are known as common law. However, statute law – laws made by Parliament – overrides common law. This is called parliamentary supremacy.

The Parliament, Judiciary and Executive each contribute to the way laws are managed in Australia: 

Parliament	Judiciary	Executive
Makes and changes statute law – legislation	Makes and changes common law	Introduces ideas for statute law into Parliament
In some circumstances, gives law-making power to the Executive and government officials – delegated legislation	Interprets law and provides precedent to the way it will apply in certain cases (statutory interpretation)	Can be given law-making power by Parliament
Can create law which overrides common law – abrogation	The High Court decides whether a law is consistent with the Australian Constitution	Runs government departments that put laws into action

High Court cases

The High Court of Australia.

DPS Auspic

The High Court of Australia.

DPS Auspic

Description

A large semi circular desk atop a small raise at the end of the room. Seven figures in black (High Court judges) with papers in front of them sit at this long desk. In front of them on the floor is an opposite curved desk with many figures in black with many papers in front of them. Smaller desks sit in rows behind.

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Permission should be sought from DPS AUSPIC for third-party or commercial uses of this image. To contact DPS AUSPIC email: auspic@aph.gov.au or phone: 02 6277 3342.

The High Court of Australia interprets the Australian Constitution and settles disputes about its meaning. High Court judgements can have far reaching consequences, including for the Australian Parliament. The court can check Parliament’s powers and High Court decisions have expanded or confirmed Parliament’s powers to make laws in specific areas. Some significant High Court of Australia cases which have impacted the powers of the Australian Parliament are: 

• Victoria v Commonwealth (1926) (Roads Case)
• Mabo and others v Queensland (No 2) (1992)
• Graham v Minister for Immigration (2017)
• Love v Commonwealth; Thoms v Commonwealth (2020)