1. COURTS VS PARLIAMENT

2. 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)

3. 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

4. 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

5. 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

6. 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

7. 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.

8. 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.

9. 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.