Parliament and the courts: Reforming the law
19 August 2022
Last month we hosted a professional learning panel in conjunction with the Victoria Law Foundation. The panel consisted of Justice Quigley, Supreme Court Judge and President of VCAT, Brad Rowswell MP (Member for Sandringham), and Andrew Young, Clerk of the Legislative Council and Clerk of the Parliaments.
The panel discussed the role of parliament in making laws and the role of the courts in interpreting the law, as well as the relationship between parliament and the courts in reforming the law. For instance, the panel members outlined the various mechanism available to the courts for providing feedback to parliament and the parliamentary process available to judges when interpreting the law. These processes are discussed in more detail below.
Changing the law
It is the role of the parliament to make law and the role of courts to interpret it. But there is a relationship between the two powers.
Responding to community sentiment
When a court makes a decision that may not necessarily be in accordance with broad community sentiment, there may be an opportunity for parliament to review that piece of law and consider reforms that align the law to more closely reflect community expectations.
When a case is brought before the court, be it a prosecution or a civil matter, and the interpretation of what the legislation says and what's adjudicated does not meet contemporary community standards, the judge must apply the law as it is. There is nothing more a judge can do about that, and it then becomes a matter for the parliament to address. The members of parliament are there to represent the views of the community, which are ever-changing; if the needs of our community are ever changing, then the laws of the state need to reflect that.
An example of this is Lynette’s Law, or the Crimes Legislation Amendment Bill 2022 (passed the Legislative Assembly as of July 2022), named after one of the officers killed on the Eastern Freeway in 2020. It was clear from the advocacy role of several community members that the application of the law in relation to certain aspects of the crime, for example sharing the crash on social media, did not meet expectations. The Attorney General responded by proposing an amendment to the Crimes Legislation Act, and the amending bill received bipartisan support in the Legislative Assembly.
Addressing the need for urgent reforms
There are procedures in both houses, which are rarely used, where bills can be declared urgent and can therefore potentially pass through both houses in a day. Generally, there are two situations when a bill might fall into this category.
The first is where members of parliament consider that the application of the law in relation to a particular case, for example, parole for someone serving time for murder, doesn’t meet with community expectations. An example of a bill to pass both houses in a short amount of time is the Justice Legislation Amendment (Parole Reform and Other Matters) Bill 2016 that was commended to the Legislative Assembly on 6/12/2016 and passed on 7/12/2016. It was then introduced into the Legislative Council on the 8/12/2016 and passed the same day, receiving Royal Assent on the 13/12/2016.
The second example can occur when the Parliament of Victoria steps in, for various reasons, to dissolve a local council. This is usually in relation to accountability and oversight issues, such as allegations of overspending, corruption, or toxic culture. Recent examples include City of Casey, South Gippsland Shire Council and City of Whittlesea. For example, the Local Government (Whittlesea City Council) Bill 2020 was introduced to the Legislative Assembly on 17/03/10 and was passed to the Legislative Council the same day. It then passed in the Legislative Council on 19/03/2020 and was given Royal Assent on 20/03/2020.
In the very early days of a new piece of legislation there may be areas that are uncertain or not as clear. In such cases, the judge interpreting the legislation will follow the principles for interpretation that are set out. For instance, the starting point is the ordinary natural meaning of the words, as written in the context of the act. However, there are times—usually in a first-of-a-kind case, for example, a case related to the Voluntary Assisted Dying Act 2017—where the judge may have to go beyond the meaning of the words in context because there are competing interpretations. In these situations, judges will go to the extraneous material to consider the intentions of parliament in the interpretation.
There are established parliamentary processes that aid this, and a judge may interrogate the official record of debates (Hansard) as the bill moves through these processes. For example, the debate that takes place during the committee stage can be used by the judiciary to help them understand the intentions of the parliament and inform their interpretation of the law.
The initial language of a bill is drafted by people who are experts in the language of legislation. Members of parliament, on the other hand, are trained in policy and the politics of representing the Victorian people. Therefore, sometimes amending the language of a bill is how is what enables it to pass the houses, but it is also where ambiguity in the language becomes possible.
Sometimes words, such as ‘ordinary’, ‘reasonable’, adequate’ are put into legislation as a matter of compromise. For instance, from 2014 to 2018, of the 271 bills that passed Upper House, 69 of them were amended. In the 59th parliament, of the 182 bills (as of July 2022) that have passed the Upper House, 30 of them have been amended. It is then up to the courts to interpret that language and the intention of the legislation.
The interpretation of the Voluntary Assisted Dying Act is a good example of seemingly straightforward language needing to be interpreted by referring to the explanatory report and the parliamentary debates. For instance, there were competing interpretations of the term ‘residency’, so the explanatory memorandum and the parliamentary debates were used, first to clarify the intention of the word ‘residency’ and secondly to clarify how someone might meet the eligibility requirement of Victorian residency. For instance, what if your main home is Victoria but you have been travelling for the last few years? Referring to the debate can help the courts interpret and apply the law in the manner it was intended.