The Idea That The Judiciary Has No Law-Making Ability Is

813 WordsMay 8, 20174 Pages
The idea that the judiciary has no law-making ability is incorrect. Judges have previously denied the extent to which they are able to create law in order to protect parliamentary supremacy. Challenging the authority of Parliament was believed to be unconstitutional. Judges do have the ability to make law, but they are answerable to Parliament. The judiciary is unable interpret, or create law that is unfitting with the intent of Parliament. This is a restriction on judges law-making ability. The extent to which judges have law-making power is evident through common law, and the interpretation of legislation. These are important aspects of law, especially within the court. The common law system is influenced by the doctrine of precedent.…show more content…
This is outlined within the Constitution Act 1986. The legislature and the executive are prevented from having an adverse influence upon judges decisions, and interpretations. Parliamentary supremacy is restricted, allowing the judiciary to have autonomy. This protects the judiciary from political influence, and from the unconstitutional use of parliamentary supremacy. The Fitzgerald v. Muldoon case is evidence of the necessity of judicial independence, especially before the power of the Parliament. The judiciary is the third most powerful branch of government. Judges law-making ability is considered ‘second’ to legislation and statute. Judges are limited by Parliament when creating, and interpreting law. Legislation overrules precedent, and common law due to parliamentary supremacy. The decisions judges make within court, and the common law has to be fitting with Parliament’s mandate. Legislation has authority over judge made law. This is because Parliament is democratically elected. An example of Parliament repealing judge made law is the Foreshore and Seabed decision in 2004. The Foreshore and Seabed case showed Parliament responding to the pressure of the majority, and restricting judicial decisions. Judges interpret law rather than create it. Creating law is done by the legislature, and in turn the executive enforces it. This is in order to prevent the abuse of power, and arbitrary decision making. If judges begin to have a dominant role in law-making the
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