Keith Mack
Common law in Australia is a dynamic and evolving part of the legal system, developed by judges as they decide cases and refer to previous rulings for guidance. This principle, known as precedent, guides courts in their decision-making, and common law can be changed through new judicial decisions that set precedents for future cases. While statute law, made by Parliament, is the primary source of law in Australia, common law remains essential, filling in gaps where statute law does not apply and adapting to societal changes and evolving dispute types.
| Characteristics | Values |
|---|---|
| Common law is made by | Judges in a court |
| Common law is based on | Precedent (past decisions made in similar cases) |
| Common law is applied when | No statute law applies to a particular situation |
| Common law is overridden by | Statute law |
| Common law is separate from | Statute law |
| Common law does not rely on | Acts of Parliament |
| Common law is guided by | Previous decisions of higher authority courts |
| Common law is influenced by | International law |
| Common law is changed | When different types of disputes and customs evolve |
| Common law is reviewed by | Australian Law Reform Commission |
| Common law is changed by | Bills introduced by any member of Parliament |
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What You'll Learn
Common law is made by judges, not Parliament
In Australia, common law is made and developed by judges in a court and not by Parliament. Judges use previous rulings, or precedents, to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for future similar cases. If no statute law, or law made by Parliament, applies to cover a particular situation, common law will apply. However, statute law always overrides common law.
The Australian Constitution outlines how laws are shared between the Federal Parliament and Victorian Parliament. The Australian Electoral Commission (AEC) is responsible for conducting federal elections and referendums and maintaining the Commonwealth electoral roll. The Australian Law Reform Commission is a federal agency that reviews Australia's laws and provides recommendations to Parliament and the Government to implement changes.
The courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. In Australian courts, it is presumed that Parliament does not intend to limit fundamental rights unless it indicates this intention clearly. This is known as the "principle of legality".
The role of judges in making common law in Australia is, therefore, a critical aspect of the country's legal system, allowing for the interpretation of legislation, filling gaps in legislation, and developing the common law when there is no legislation.
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Common law is based on precedent
The common law system in Australia operates alongside the statutory process, which involves laws made by Parliament. While common law is created by judges, it can be overridden by statute law. This means that if a statute law covers a specific situation, it takes precedence over common law. However, in the absence of applicable statute law, common law will be applied. For example, in the absence of a specific statute law, a judge would rely on past common law decisions to determine the outcome of a case involving freedom from slavery, as it is a recognised common law freedom.
The role of precedent in common law is crucial. When a judge is presented with a case, they will look to past similar cases and the decisions made by higher courts to guide their ruling. This ensures consistency and predictability in the law. However, if a case presents unique circumstances that differ from past cases, a new decision will be made, creating a new precedent for future similar cases. This process allows common law to adapt and change over time as new situations arise and society's morals and values evolve.
While common law is based on precedent, it is not static. The principle of precedent allows for the evolution of the law as judges interpret and apply past decisions to new situations. This interpretation can lead to changes in how the law is understood and applied, and it gives judges the flexibility to adapt the law to fit the needs of a changing society. For instance, international law influences Australian law, and judges must consider international obligations when interpreting common law.
In conclusion, common law in Australia is based on the principle of precedent, where past decisions guide future rulings. This system ensures consistency and adaptability in the law, allowing it to evolve as society changes. While common law is separate from statute law, the two systems work together to form the legal framework of the country, with statute law taking precedence when there is a conflict between the two.
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Statute law overrides common law
In Australia, common law is made by judges in a court, who use past decisions in similar cases to inform their rulings. This is known as using precedent. If no past cases with similar circumstances exist, a new decision is made, which then becomes a precedent for future similar cases.
Common law is applied in situations not covered by statute law (law made by Parliament). However, statute law always overrides common law. An Act of Parliament will overrule common law if both apply in the same area. In some cases, an Act of Parliament may replace common law entirely.
In Australia, the power to make laws is shared between the Commonwealth Parliament and each state parliament. The Australian Constitution, federal legislation, Victorian legislation, and common law are all sources of law in Victoria.
While common law courts in Australia have the power to protect human rights principles, this power can be overridden by legislation. A key principle of statutory interpretation in Australian courts is that Parliament is not presumed to intend to limit fundamental rights unless it is clearly stated. This presumption, that legislation is intended to be consistent with fundamental rights, constitutes a substantial level of protection for the "principle of legality".
Common law principles do contain concepts intended to provide protection for children and people with disabilities. However, in some instances, this has led to further breaches of human rights due to relevant statutory provisions and a lack of appropriate administrative and policy settings.
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Common law protects human rights
In Australia, common law is created by judges in court, who use past rulings on similar cases to inform their decisions. This inherited system of common law applies to everyone in society. While Australia does not have a Bill of Rights, its common law courts have the power to provide significant protection of human rights principles, including the rule of law.
Common law recognises fundamental rights, such as freedom from slavery and forced labour, as seen in Somersett v Stewart (1772). The right to personal liberty, which naturally encompasses freedom from slavery and human trafficking, is another example of a common law freedom. The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission, which is responsible for monitoring and promoting human rights protection.
The Australian Constitution also plays a role in safeguarding human rights. It outlines five explicit individual rights, and the High Court has found that additional rights may be implied by the language and structure of the Constitution. For example, in 1992, the Court decided that Australia's form of parliamentary democracy necessitates a certain level of freedom for individuals to discuss and debate political issues.
Common law principles contain concepts intended to provide protection for children and people with disabilities in some areas. For instance, the right to privacy under the ICCPR includes a right to private life, including intimate behaviour between consenting adults. Freedom of association is another right that appears to be included in common law, as seen in Dr Haneef's case.
In conclusion, common law in Australia provides a robust framework for protecting human rights. It recognises fundamental freedoms, such as freedom from slavery and the right to personal liberty, while also addressing specific concerns like privacy and freedom of association. The Australian Constitution and the work of the Australian Human Rights Commission further strengthen these protections, ensuring that the rights and freedoms of individuals are upheld and promoted.
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Common law is separate from statute law
In Australia, common law is separate from statute law. Common law is primarily developed through judicial decisions rather than statutes, and is deeply rooted in stare decisis, which means "to stand by things decided". In other words, common law is based on precedent, or previous rulings made in similar cases. When no precedent exists, judges are empowered to resolve the issue and establish a new precedent. Statute law, on the other hand, refers to written laws passed by a legislature, such as Parliament. These laws are collected in a single source and can be located and read by the public in a law library or online. While statute law always overrides common law, common law courts in Australia have the power to provide significant protection of human rights principles, unless legislation specifically overrides this power.
Common law, also known as "judge-made law", is derived from judicial decisions rather than from statutes or constitutions. It is considered a major advantage of the common law system that judges have the independence and ability to respond to what is happening in society. This allows the law to evolve as society evolves, filling in gaps that could not have been anticipated when the federal and state constitutions were written. For example, in 1789 there were no laws prohibiting people from operating motor vehicles while intoxicated because motor vehicles did not exist yet.
In Australia, common law was inherited from Britain and is one of several sources of law, alongside the Australian Constitution, federal legislation, and state legislation. While common law is not collected in a single source, it can be found by reviewing judicial rulings. This can make it less user-friendly than statute law, which is easily accessible to the public. However, common law provides a substantial level of protection for fundamental rights and freedoms, such as freedom from slavery and trafficking in persons.
The distinction between common law and statute law can be seen in the example of employment law in Canada. Under the common law, employers must provide "reasonable notice" to terminated employees, which typically ranges from a minimum of three months to a maximum of two years, depending on the years of service. In contrast, Ontario's Employment Standards Act, which is a form of statute law, states that employers only owe terminated employees one week per year of service, up to eight weeks. In this case, the common law requirement of "reasonable notice" takes precedence over the statute law, demonstrating how common law can interact with and override statute law in certain situations.
While common law and statute law are separate, they also interact and can create confusion when they offer different conclusions. For example, in the context of human rights, there is a presumption that legislation is intended to be consistent with fundamental rights and international law obligations. However, this presumption can be overridden by clear wording in the statute indicating an intention to limit these rights. As such, the interaction between common law and statute law is complex, and the precedence of one over the other may depend on the specific circumstances and the jurisdiction in question.
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Frequently asked questions
Common law is made by judges in a court, using precedent – decisions made in previous similar cases – to decide how they will judge a case before them. If no past cases with similar circumstances exist, a new decision is made, which would then become a precedent for a future similar case.
Statute law is made by the Parliament and does not rely on there being any Act of Parliament underpinning it. Statute law always overrides common law.
Common law changes and develops as different types of disputes and customs evolve.
The power to make laws is shared between the Commonwealth Parliament and each state parliament. Any member of Parliament can initiate a bill, but many are introduced by Ministers of the government. A bill can be introduced into either the Legislative Assembly or the Legislative Council. A bill must pass both to become a law.
The principle of precedent in common law means that courts are guided by previous decisions of courts, particularly those with higher authority. This means that common law is found in the decisions of courts rather than in a single piece of legislation.
