the courts must simply interpret and enforce all parliamentary statutes. But all common law countries have the same approach - where parliament has power to make a law, then that law must be followed even if the law contradicts previous court decisions or long-standing concepts of the common law.

The common law has relatively few rules about relations between parliament and the executive. This is partly due to the differences in the executive in many common law countries (eg. there are significant differences in how the executive is chosen and what powers it has in the UK and the USA). However there are common law concepts about the relationship between courts and the executive, and courts and the parliament. Under the com­mon law, the courts will avoid considering issues (these issues are seen as 'non justiciable') where:

the law clearly gives the responsibility to another arm of government (eg. executive, parliament); or there are few rules guiding the government's action - it is a matter for policy or political process.

Examples of matters that the common law considers 'non justiciable' include the executive's decisions and actions in making treaties, declaring war, dissolving parliament, or mobilising the armed forces.

The common law has no specified court structure that it requires. Where there are no constitutional requirements, the gov­ernment (parliament or executive) can determine what courts exist, their relationship and jurisdictions. Because the common law has no required structure, the government can abolish courts and create new ones in their place. The usual situation is that the judges from the old court will be appointed as judges of the new court. But if a statute creates a different situation (eg. not reappointing judges), the common law does not prevent this.

1.4 Inherent rights
In can be seen, then, that common law rules and concepts create rights even where they are not contained in constitution or stat­ute. These rights become inherent in the common law system. This offers considerable protection, but inherent rights depend on the court system to work. So where courts or judges are not independent, the common law is unlikely to be of much use. The common law is often slow in responding to changes because modi­fication of the common law needs to come from the highest court (because of the precedent system). A further difficulty is caused by the common law's constant potential to develop, causing uncertainty as to the permanence of various principles. And even where a principle may be established, it has to be drawn from court decisions, so it can be difficult to find or define.

The common law's inherent rights are also weak because they can be changed by statute. In contrast, constitutional rights can't be ignored except by amending the constitution (which may or may not be easy). But common law rights can simply be changed by parliament - courts MUST follow a statute passed by parliament. This requires courts to recognise and enforce statutes even where they may breach human rights or other international recognised standards.

Even though the common law is able to be changed by statutory or constitutional provisions, any such change need not be perma­nent. Certainly, where a parliamentary or other law modifies the common law, that part of the common law no longer operates. However the general rule is that where a statute modifying the common law is repealed, the common law will revive.³

2 Outline of some of the basic common law concepts
Keeping in mind the basic workings of the common law explained above, it is now possible to examine some of the central common law concepts. The source of these 'rules' is from previous decisions (sometimes from very old cases) that have been repetitively followed or applied by courts which use the common law. Through this process, the rules become part of the common law and are applied by common law courts unless the rule is modified by con­stitution or parliamentary statutes or the country's highest appeal court.

There are a wide range of common law concepts. Some of them give the court power to grant orders or remedies, like injunctions (a court order preventing a person from doing something) or remedies against misuse of public power (eg. a manda­mus order requiring a government agency to fulfil its legal duty, or a certiorari order revoking a government decision that had been made improperly. Other common law concepts address evidentiary matters - how a party must prove matters in court, and what is acceptable and unacceptable evidence. The common law provides a trial by jury for more serious criminal cases - an accused has the right for a jury to decide factual issues in relation and also whether the accused is guilty of the charges. As noted earlier, the common law has no particular structure for courts. However the common law concept of 'inherent jurisdiction' dictates a superior court can decide any issue before it, unless excluded by statute.

3. Marshall v Smith (1907] HCA 33, decision of Australian High Court, available at <www.austlii.edu.au/au/cases/cth/HCA/1907/33.html>, accessed 14 December 2006.

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