The Relationship Between Judge-Made Law & Statutes

Question 1

What are the differences between legislation and case law?

Answer 1

• legislative bodies can be proactive
• legislative bodies deal with nearly unlimited range of matters (many constraints in practice)
• legislative rules usually prospective in operation; case law works retrospectively and has prospective effect
• legislative rules are expressed in fixed form

Question 2

What happens when earlier legislation and later legislation on the same topic are inconsistent?

Answer 2

Earlier legislation is repealed to the extent of the inconsistency. Repeal may be express or by implication.

Question 3

When there are statutes and subordinate laws on the same matter, which of the two takes precedence?

Answer 3

Act/statute takes precedence over subordinate laws on the same topic unless the Parliament specifically provides a clause to the contrary.

Question 4

In a situation where there is state Parliament-made legislation and Commonwealth Parliament-made legislation on the same topic, which prevails?

Answer 4

Legislation made by Commonwealth Parliament prevails.

Question 5

In a circumstance where there is inconsistency between legislation and cases, which takes precedence?

Answer 5

Legislation

Question 6

True or False: Courts are subordinate to legislation.

Answer 6

False.
The fact that legislation takes precedence over case law/courts, does not necessarily imply that courts are subordinate. Courts resolve disputes about meaning of words in legislation and must ensure that legislation is made on topics within constitutional power.