COURTS VS PARLIAMENT

STATUTE & COMMON LAW PARLIAMENT’S LAWS Binding on whole community Ultimate legislative authority Broad areas of law General terms (in the broad) In futuro (prospective) COURTS’ LAWS Binding only on parties to the dispute Subordinate to parliament (except High Court constitutional judgements) Specific to the case Ex post facto (retrospective)

STATUTE & COMMON LAW COURTS’ LAWS PARLIAMENT’S LAWS May delegate power to other authorities but reserves right to hold delegated authority accountable Can abrogate common laws of the courts COURTS’ LAWS Check parliament and delegated authorities do not act ultra vires Courts cannot delegate their judicial power – parliament may do this for them – creating tribunals etc

EXPECTATIONS OF LAW MAKING INSTITUTIONS PARLIAMENT Participatory & responsive Representative of majority will Equitable Accountable Dynamic COURTS Independent and not subject to whims of community or parliament Authoritative & consistent – based on established principles Equitable

DIFFERING ROLES OF LAW MAKING INSTITUTIONS PARLIAMENT Deal with “matters of policy” Debating and formulating change / policy in response to community All valid opinions aired No formal legal qualifications Declare the law generally COURTS Deal with “matters of judgement” Adjudication of disputes Apply law to specific cases Authoritative adjudication requires extensive legal knowledge / qualifications Declare the law specifically

BLURRING ROLES BETWEEN LAW MAKING INSTITUTIONS PARLIAMENT Parliamentary privilege grants immunity from courts Can try members and citizens who break parliaments rules COURTS High Court can “legislate” in Constitutional cases such as Mabo 1992 without abrogation Statutory interpretation

Relationship of statute and common law Why do we need both as separation of powers would suggest only parliament should make laws? In pairs, list three reasons why need both.

Relationship of statute and common law Fills in statutory gaps Allows flexibility through statutory interpretation Courts can ensure parliament does not act ultra vires or unconstitutionally. Courts can tackle controversial issues i.e. Mabo One is accountable to the people, the other sticks to rule of law.

Relationship of statute and common law Judges provide legal expertise Parliament the will of the people Parliament can override in the end anyway. Overall, both forms of law-making are needed for an effective political and legal system.