Kara Sears
Australia's legal system is a common-law jurisdiction, with its roots in English common law. The Australian legal system has multiple facets, including a written constitution, unwritten conventions, statutes, regulations, and judicially determined common law. The common law in Australia is derived from the English legal system, which was introduced during colonisation, superseding Indigenous Australian customary law. The country's common law is uniform across states and territories, and it refers to precedents and authority set by previous judicial decisions, court rulings, and administrative legal findings.
| Characteristics | Values |
|---|---|
| Origin of common law in Australia | English law |
| Current status of common law in Australia | Common law is one of the two dominant forms of law in the country |
| Basis of common law | Precedents and authority set by previous judicial decisions, court rulings, and administrative legal findings |
| Common law in the Australian Constitution | The Australian Constitution does not contain a bill of rights |
| Common law and statutory law | Common law and statutory law are integrated but when a decision has to be made, statutory law prevails over common law |
| Common law and human rights | Common law courts have the power to provide significant protection of human rights principles |
| Common law and Indigenous Australians | Indigenous Australian customary law has been recognised to a limited degree by Australian courts |
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What You'll Learn
Common law's history in Australia
Australia's common law system originated in the UK and was introduced to the country through colonisation. The laws of England had evolved over centuries, with common law emerging in the 13th century.
During the colonisation of Australia, the British ignored the existing Indigenous systems of law, which varied between language groups, clans, and regions. Instead, they imposed the English legal system on the continent. 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 deal with all criminal and civil matters. Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests. The Australian Courts Act 1828 ensured that all English common and statute law up to 28 July 1828 would be in effect in New South Wales and Tasmania, and later Victoria and Queensland. The reception of English law in Western Australia and South Australia was later deemed by statute to have occurred on 1 June 1829 and 28 December 1836, respectively.
Despite the presence of Indigenous inhabitants, Australia was determined to be "settled" rather than "conquered". This meant that English law was applied to the colony, rather than recognising Indigenous laws. Indigenous people became subject to colonial laws and the general law of Australia. Indigenous Australian customary law, which governed areas such as marriage and family, distribution of property, dispute settlement, and criminal justice, was only recognised by Australian courts to a limited degree in the post-colonial era.
In the second half of the nineteenth century, colonial parliaments introduced certain reforms such as secret ballots and female suffrage, which did not occur in Britain until much later. However, Acts of the United Kingdom Parliament extending to the colonies could override contrary colonial legislation. New doctrines of English common law continued to be treated as representing the common law of Australia. For example, the doctrine of the famous case of Donoghue v Stevenson, from which modern negligence law is derived, was treated as being latent within the common law at the time of reception.
Today, Australia's common law remains similar to that of the UK, and UK common law decisions continue to influence Australian courts. However, there are also substantial divergences between the two systems.
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How common law is created
Australia's legal system is derived from the English legal system, which superseded Indigenous Australian customary law during colonisation. The Australian common law is the same across all states and territories.
Common law is separate from statute law and does not rely on there being any Act of Parliament underpinning it. While statute law takes precedence and is the main source of law in Australia, common law is a vital and developing part of the legal system. Common law relies on the principle of precedent, meaning that courts are guided by previous decisions or 'precedents' of courts, particularly those of higher authority. When using common law, judges interpret legislation in the case of disputes over the meaning or application of an Act, and these interpretations then become part of the common law.
Common law also recognises rights and provides significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this. Common law recognition of rights generally lacks provisions contained in human rights treaties for obligations on governments to actively promote and protect human rights. However, common law principles do contain concepts intended to provide protection for children and people with disabilities in some areas.
In the context of environmental law, common law causes of action include private nuisance, public nuisance, riparian user rights, negligence, and trespass.
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Common law vs statutory law
Australia's legal system includes a written constitution, unwritten constitutional conventions, statutes, regulations, and a judicially determined common law system. The country's common law is uniform across states and territories and is derived from the English legal system, which superseded Indigenous Australian customary law during colonisation.
Common law, also known as case law, is uncodified and is not written out in statutes or books. It is based on precedent, relying on past judicial rulings from federal, state, or local courts to set standards for future legal decisions. This means that common law is interpretive and evolves through court decisions, allowing judges to reinterpret the law.
In contrast, statutory law is codified and written down, formally passed by a legislative body at the local, state, or federal level. It is applied as written and is more rigid, with judges interpreting and applying the law without relying on past cases. Statutory law can be amended, overturned, modified, or updated by lawmakers, especially if it is found to be unconstitutional.
Both common law and statutory law are essential to the functioning of the legal system and play a role in setting standards of acceptable behaviour and justice for citizens and the government. In criminal cases, understanding both types of law is vital, as the nature of the crime and the defence attorney's strategy may determine whether a case is governed more by statutory or common law.
While Australia's common law system originated from English common law, there are now substantial divergences between the two systems. Australia does not have a Constitutional Charter or Bill of Rights, and its High Court is no longer bound by decisions of the Judicial Committee of the Privy Council.
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Indigenous Australian customary law
Australia's common law system originated in the UK and was introduced to the country through colonisation, superseding Indigenous Australian customary law. Indigenous Australian customary law, or lore, refers to the varied systems of law that existed in Australia before colonisation. These systems differed between language groups, clans, and regions and were passed down orally through generations, often incorporated within cultural works such as songlines, stories, and dance.
Lore dictates the rules on how to interact with the land, kinship, and community. It is intertwined with cultural customs, practices, and stories from the Dreamtime. While there are no codified versions of Indigenous customary lore, a report by the Australian Government in 1986 acknowledged its existence.
Despite the willingness of some administrators and judges to take account of Aboriginal traditions and customary laws, the prevailing attitude during colonisation was one of non-recognition, and lore was explicitly ignored by Australian courts. In the post-colonial era, Indigenous Australian customary law has only been recognised to a limited degree.
In recent times, legislative bodies have investigated the concept of incorporating Indigenous laws more formally into post-colonial legal systems. For example, in the Northern Territory, some statutes and courts make explicit reference to customary law when identifying relationships and social expectations. On 17 July 2020, the Queensland Government introduced a bill to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020. Additionally, in 1992, post-colonial law recognised Indigenous lore as giving rise to a valid legal claim in the Mabo decision, discarding the legal fiction of terra nullius. Indigenous customary claims to land are now regulated by the Native Title Act 1993.
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Common law and human rights
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and a judicially determined common law system. The country's common law is uniform across its states and territories and is derived from the common law system of English law, which superseded Indigenous Australian customary law during colonisation.
Australia is a common-law jurisdiction, with its court system originating in the common law system of English law. Common law, often called 'judge-made' law, is distinct from laws made in Parliament. While Australia's common law was inherited from the United Kingdom, there are now substantial divergences between each system. Notably, in 1978, the High Court of Australia declared that it was no longer bound by the decisions of the Judicial Committee of the Privy Council.
Despite lacking a Constitutional Charter or Bill of Rights, Australia is founded on the rule of law and has a strong tradition of respecting the rights and freedoms of every individual. Human rights are recognised and protected across Australia through various means, including federal and state laws, the Australian Constitution, and the common law. The Australian Government is committed to protecting and promoting traditional rights and freedoms, such as freedom of speech, opinion, religion, association, and movement.
Common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, unless specific legislation overrides this power. A fundamental principle of statutory interpretation in Australian courts is that Parliament is presumed not to intend to limit fundamental rights unless it clearly expresses this intention. This presumption constitutes a substantial level of protection for the "principle of legality".
While common law recognition of rights generally lacks the explicit provisions contained in human rights treaties, it does include concepts intended to provide protection for children and people with disabilities. Additionally, common law principles uphold the right to privacy, including intimate behaviour between consenting adults, as confirmed by the UN Human Rights Committee in Toonen v Australia. Freedom of association also appears to be included in common law, as indicated by the Full Federal Court in Dr Haneef's case.
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Frequently asked questions
Common law in Australia refers to precedents and authority set by previous judicial decisions, court rulings, and administrative legal findings. It is a body of law created and defined by the courts.
Australia inherited its common law system from the English legal system during colonisation. While the two systems shared similarities initially, they have since diverged. Australia's High Court declared in 1978 that it was no longer bound by decisions of the Judicial Committee of the Privy Council.
Common law in Australia is developed by judges. When settling legal disputes, judges and magistrates must decide cases along the lines of earlier decisions made in similar cases. This is known as the doctrine of precedent, which provides an important constraint on judicial decision-making.
While statutory law provides rules to govern the whole of society, common law fills in the gaps where statutory law is unclear or inadequate. Common law and statutory law do not exist independently but rather interact directly and indirectly within an integrated system under the constitution.
If a judge's decision is not consistent with established precedent, they must state their reasoning. This creates a new legal precedent for future judges to follow.
