Kara Sears
Australia's legal system is a common-law jurisdiction, with a court system that originated in the common law system of English law. The country's common law is the same across states and territories, and it was introduced during the colonisation of Australia by the British. The common law system of law-making began in England in the 11th century, with the establishment of the King's Courts by William the Conqueror. The courts applied local customs to decide local disputes, and over time, these customs became rules that formed the basis for later courts' decisions. The common law in Australia is created by judges in courts, who use precedent and previous decisions of courts with higher authority to guide their rulings. This is in contrast to statute law, which is the main source of law in Australia and prevails over common law in the event of conflict.
| Characteristics | Values |
|---|---|
| Basis | Common law in Australia is based on the common law system of English law. |
| History | The common law system was introduced to Australia through colonisation by the British. |
| Judicial determination | Common law is developed by judges as they decide cases and refer to previous decisions for guidance. |
| Supremacy | Parliaments are the supreme law-making body, with the doctrine of parliamentary supremacy taking priority over common law. |
| Federal system | Australia has a federal system of government, with a national legislature that can pass laws on express topics. |
| State power | Each state has its own system of courts and parliaments and is vested with plenary power. |
| Indigenous law | Indigenous Australian customary law was superseded during colonisation and has been largely ignored by the colonial legal system. |
| Human rights | Common law courts have the power to provide significant protection of human rights principles, except where legislation specifically overrides this power. |
| International law | Australian law increasingly reflects international law, and courts favour interpretations that accord with Australia's international obligations. |
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What You'll Learn
Common law's origins in Australia
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's legal institutions and traditions are substantially derived from English law, which superseded Indigenous Australian customary law during colonisation.
The common law system of law-making was established in England in the 11th century by William the Conqueror, King of England, with the founding of the King's Courts. These courts applied local customs to decide local disputes, and over time, these customs became rules that formed the basis for later courts to make decisions on similar disputes. The common law evolved as different types of disputes and customs emerged.
The English common law system was introduced to Australia through colonisation by the British. By 1824, a court system based on the English model had been established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to handle all criminal and civil matters, and inferior courts were also set up. The Australian Courts Act 1828 confirmed that all English common and statute law up to 28 July 1828 was to be effective in New South Wales and Tasmania, and later in Victoria and Queensland. The reception of English law in Western Australia and South Australia was later deemed to have occurred on 1 June 1829 and 28 December 1836, respectively.
In Australia, common law is developed by judges as they decide cases and refer to previous decisions for guidance. Common law relies on the principle of precedent, meaning that courts are guided by previous decisions of courts, particularly those with higher authority. While statute law always prevails over common law in conflicts, common law remains a vital and developing part of Australia's legal system.
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The role of judges in common law
The Australian legal system is a common-law jurisdiction, with its court system originating in the common-law system of English law. The country's common law is the same across states and territories. The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws on a number of express topics.
The role of judges in the Australian common law system is to decide on cases brought before the court by interpreting and applying the law. This involves applying the Commonwealth and State Constitutions, legislation enacted by Commonwealth, State, and Territory Parliaments, regulations made by the Commonwealth, State, and Territory Executives, and previous decisions of the courts, or 'common law'.
Judges are appointed by the Governor-General at the federal level, having been selected by Cabinet on the advice of the Attorney-General. In the states and territories, judges are appointed by the Governor or Administrator, following a similar selection process. Persons appointed as judges are required to have legal qualifications and experience suitable for the position. They take an oath promising to "do right to all manner of people according to law without fear or favour, affection or ill will".
The High Court is Australia's apex court and has the final say on the judicial determination of all legal matters. It hears appeals from all other courts in the country and is vested with original jurisdiction.
Common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. For example, common law recognises the right to privacy, including intimate behaviour between consenting adults.
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Common law vs statute law
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common-law system. The country's common law is the same across all states and territories, and it was inherited from the British legal system during colonisation, which superseded Indigenous Australian customary law.
Common Law
Common law, also known as case law or judge-made law, is made when judges make decisions in court. Judges use past decisions, or precedents, to guide their rulings. If no previous cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases in the future. Common law is applied when no statute law covers a particular situation. However, statute law always takes precedence over common law. Common law principles contain concepts intended to provide protections for children and people with disabilities in some areas.
Statute Law
Statute law, also known as legislation, is made by parliament. It is created when parliament agrees on a bill, which is a proposal for a new law or a change to an existing one. In Australia, a bill becomes a law after it passes a majority vote by the House of Representatives and the Senate and receives Royal Assent from the Governor-General. Statute law always overrides common law. A well-established principle of statutory interpretation in Australian courts is that parliament is not presumed to have intended to limit fundamental rights unless it is clearly stated.
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The impact of colonisation
Prior to colonisation, the only systems of law in Australia were the varied systems of customary law belonging to Indigenous Australians, which were developed over time from accepted norms within Indigenous societies. These laws were intertwined with cultural customs, stories, and practices, and were passed down through oral tradition. However, during colonisation, these Indigenous legal structures were ignored and superseded by English law.
The British declared possession of Australia based on the doctrine of 'terra nullius', which translates to ''empty land'. This doctrine asserted that the land belonged to no one and was uninhabited at the time of colonisation, despite the presence of Indigenous inhabitants. The notion of 'terra nullius' has since been overturned, with the High Court case Mabo (No 2) in 1992 recognising the past and continuing connection of Indigenous people to the land.
The introduction of English law during colonisation had a significant impact on the Indigenous population. While there was initially some uncertainty about the application of English law to Indigenous people, court cases such as R v Murrel implicitly upheld the sovereignty of English law. Additionally, Governor Bourke proclaimed in 1835 that Indigenous Australians could not sell or assign land, further dispossessing them of their rights.
The colonisation of Australia also brought diseases and illnesses such as smallpox, influenza, and measles, which had devastating effects on the Indigenous population due to their lack of resistance. The spread of these diseases, along with random killings, punitive expeditions, and organised massacres, contributed to a drastic decline in the Indigenous population during the colonial era.
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The future of common law
Australia's legal system is a mix of written and unwritten laws, including a constitution, statutes, regulations, and a common law system. Common law in Australia originates from English law, which was introduced during colonisation and has since evolved to suit the country's unique context.
One key aspect of the future of common law in Australia is the increasing recognition of Indigenous Australian customary law. Prior to colonisation, Indigenous Australians had their own varied systems of law, which were deliberately ignored by the colonial legal system. In the post-colonial era, Australian courts have gradually recognised the legal importance of these customary laws, albeit to a limited extent. Further steps towards reconciliation and the recognition of Indigenous rights could shape the future of common law in the country.
Another factor influencing the future of common law in Australia is the country's commitment to international law and human rights. While common law in Australia does not include explicit provisions for human rights, courts interpret statutes and subordinate legislation in a way that aligns with Australia's obligations under international treaties and conventions. This ensures that the country's laws remain consistent with international human rights standards.
Additionally, the future of common law in Australia may be shaped by the ongoing dialogue surrounding the implementation of a Constitutional Charter or Bill of Rights. Unlike other common-law countries, Australia does not have a written document outlining fundamental rights and freedoms. However, common law courts have the power to protect human rights principles and interpret legislation in a way that upholds these rights unless explicitly overridden. The dynamic nature of common law allows for the evolution of these protections over time.
In conclusion, the future of common law in Australia is expected to build upon the existing framework, incorporating influences from Indigenous legal traditions, international law, and ongoing debates about human rights protections. The adaptability and responsiveness of common law ensure that Australia's legal system can continue to serve the diverse needs of its population.
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