FIGURE3 The decision in the Mabo case was ‘codified’ when the government passed the Native Title Act 1993 .
Meriam People were recognised as owners of Murray Island in the Torres Strait.
Precedent was established by the recognition of traditional ownership of lands by Indigenous Peoples.
Decision was codified when the Commonwealth Government passed the Native Title Act 1993 .
Ruling in Mabo case was made in 1992.
18.5.4 Abrogation of common law Courts cannot ask parliament for advice when they are interpreting statutes and on occasions may make decisions that do not reflect the way parliament intended the law to operate, or that the parliament does not agree with. Nor can courts seek input from the community when deciding cases, and may make decisions that do not reflect the values of society. Parliament may become aware that a ruling made by courts needs to be changed as it is outdated or does not reflect the views of the people. As parliament is the supreme lawmaking body, it can abrogate , and change laws made by the courts. 18.5.5 Courts influencing parliament to change the law In 2002, parliament repealed an old law known as the widow’s discount. Under this old common law, compensation payable to a women whose husband died in a work-related accident was determined by the women’s age, appearance and prospects of remarrying. Following public outcry, parliament abrogated this discriminatory law. The court’s role in lawmaking is secondary to its role in hearing cases and settling disputes. This means that judges are sometimes reluctant to change the law and think that the law should be changed by parliament. In Trigwell’s case ( FIGURE4 ), the court followed an old legal principle; however, as part of the decision, the judge’s opinion was that parliament needed to change the law.
SkillBuilder discussion Evaluating democratic institutions and systems 1. Why do you think the court ruled the landowner was not responsible for the harm caused by the sheep? 2. Do you think the judge should have reached a different conclusion? Why? 3. How have the courts influenced a change in the law?
FIGURE4 Trigwell’s case, a landmark ruling in Australian tort law, revolved around escaped sheep causing an accident on the highway. The court, in keeping to an old common law principle, determined the landowner was not liable for the damages, prompting the judge to urge parliament to modernise the outdated law.
TOPIC18 Laws and citizens 541
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