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COURTS VS PARLIAMENT. 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

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Presentation Transcript

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


Statute common law1

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

STATUTE & COMMON LAW


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

EXPECTATIONS OF LAW MAKING INSTITUTIONS


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

DIFFERING ROLES OF LAW MAKING INSTITUTIONS


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

BLURRING ROLES BETWEEN LAW MAKING INSTITUTIONS


Relationship of statute and common law
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 law1
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 law2
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.


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