Law is an essential facet of any society, influencing the lives of its citizens and their way of seeking justice.
Countries around the world have varying methods for legal systems, often combining aspects of different legal aspects to craft a suitable structure for them.
Australia’s legal system has a key emphasis on common law.
Australia’s legal system is a unique combination of statutes and common law.
Statutes set out the legislative requirements for governing the country, while common law offers a wealth of knowledge through judicial opinions and established legal practices.
To get a full appreciation of Australia’s legal landscape, an understanding of the concept of common law is imperative.
This blog post seeks to uncover the intricate details of common law in Australia.
We will look at the origin, essential features, and influence on Australia’s legal system.
We will explore how common law has developed across time, its correlation with enacted statutes, and how judicial rulings have served to construct the framework underlying it.
By illuminating the various aspects of common law, we aim to generate an understanding of its essential role in Australia’s legal sphere and its significance for legal practitioners and the public.
Origins of Common Law
The Australian legal system is built upon the principles of common law, a body of law that has been handed down over time and rests on judicial precedent and tradition rather than statutory legislation.
This system was established in England and brought to Australia by British colonists during the 1700s.
The common law is founded on the notion of stare decisis, a concept which implies that courts must adhere to the judgments of prior courts in comparable cases.
This ensures that rulings are applied uniformly and predictably and can be trusted upon by individuals and businesses alike.
Throughout its development, Australia has tailored common law to meet our distinct needs.
Yet it still adheres to the fundamental principles that form its core. Common law is an essential part of our legal system, safeguarding our rights and freedoms.
Types of Common Law
In Australia, common law takes two forms: case law and legislation.
Case law entails judicial precedent; the decision of a court which must be adhered to by future courts in comparable scenarios.
Legislation on the other hand, is created by Parliament and depicted through statutes or statutory instruments.
Common law is established as time passes due to decisions taken by the courts, and is impacted by changes in socio-economic factors and politics.
In Australia, this process has been significantly influenced by the Westminster system of government, alongside the concept of parliamentary sovereignty.
The development of common law in Australia has often been referred to as a ‘Slow Revolution’.
This is due to the length of time it takes for an idea to become part of the law through decisions made by courts, and for that law to be implemented into public consciousness.
Although progress can be slow, it is continuous and incremental.
Major Areas Covered by Australian Common Law
The Australian common law stretches across a variety of matters, such as:
· Tort law covers civil wrongs committed against an individual, which cause harm.
Examples of torts include negligence, trespass, and defamation.
· Contracts are covered by contract law, which concerns itself with the creation, implementation and enforcement of agreements.
This branch of law looks at all aspects of contractual arrangements between parties.
· Property law manages the rules related to ownership, possession, and utilization of property.
It concerns itself with questions of who has the right to possess and utilize particular items.
· Family law is focused on the legal matters related to the formation, termination, and upkeep of families.
It covers a wide range of issues such as marriage, divorce, child custody and support, guardianship and adoption.
· Criminal law encompasses the definitions of crimes, and the penalties for those who break them.
It is an important field of law which addresses the repercussions of unlawful actions.
· Constitutional law is all about the Australian constitution, how it defines the powers of federal and state governments.
· Administrative law is all about the authority and rules that govern government agencies.
· Public law focuses on the interaction between individuals and the government.
It encompasses laws governing the relationship between citizens and their government.
The Australian common law has changed over time, as new legal cases are settled and laws are enacted.
Despite this, the fundamental aspects of the common law have remained consistent throughout the ages.
Benefits and Drawbacks of Common Law
Common law is a type of legal system that relies on the precedents set by past court decisions rather than being outlined in legislation.
This system of laws is employed in many countries such as the UK, USA, Canada, and Australia.
Using a common law system can be advantageous, as it is flexible and often responds to current issues.
Additionally, common law promotes impartiality in the judicial system, with everyone subject to equal rules and precedents.
However, common law can be slow to evolve, especially when those advantaged by the current state are resistant.
Australia’s recognition of Indigenous land rights, known as native title, is a case in point – it required many years due to the stance taken by the government and mining entities.
In addition, common law may prove difficult to comprehend and access, as it is not usually found in legislation or simply available online or in libraries.
Impact of Customary and Indigenous Laws on Common Law
The influence of customary and indigenous laws on the common law in Australia is undeniable.
They have played a major role in the evolution of the common law, and remain an important factor today.
Indigenous laws refer to the body of accepted rules and regulations that are followed by Aboriginal and Torres Strait Islander societies.
Such laws are rooted in ancient customs, traditions, and values which have been passed down through generations.
These encompass a variety of matters, from connections with land and water to familial duties and judgments.
Customary laws are an unwritten form of law that is traditionally-based.
In Australia, they are generally referred to as the “common law” and can be applied in certain cases to either supplement or supersede statutory law.
The impact of customary and indigenous laws on common law in Australia has been substantial.
In the seminal case Mabo v Queensland (No 2), the High Court of Australia accepted that Aboriginal and Torres Strait Islander people are the traditional owners of Australia, thereby overturning the previously held doctrine of terra nullius (“land belonging to no one”).
The ruling in Mabo v Queensland (No 2) has had a sweeping effect on land rights and Native Title in Australia.
In Williams v Commonwealth (2011), the High Court acknowledged the traditional customary laws regulating Aboriginal people’s association with land, thus determining that Aboriginal people can have legally protected rights and interests in it.
Customary and indigenous laws have been a huge influence on the development of common law in Australia.
They have been instrumental in recognizing Native Title and establishing legal ties between Aboriginal people and their land, thus playing a major role in shaping the evolution of Australian common law.
Conclusion
In conclusion, common law is a crucial part of Australia’s legal system.
It safeguards those not fully covered by current laws and lets judges assess cases according to their own judgement, which ensures each individual is given fair and impartial justice.
The roots of certain principles may be unclear but its importance has been recognised more and more as people better understand how it defends against injustice.
FAQs
1. What is common law in Australia?
In Australia, common law is based on English law and Australian legal traditions.
This system of law functions as the foundation of the courts, with judges obligated to follow judicial precedents.
2. What caused the formation of common law in Australia?
Common law in Australia originated from English common law.
As the colony of New South Wales grew, so did the demand for a structured legal system and this was seen with the establishment of courts in 1824.
These courts based their rulings on English common law principles when dealing with civil and criminal cases inside the colony.
3. What makes Australian common law distinctive? What are some of its main characteristics?
Australian common law is characterised by the doctrine of precedent, where court decisions are seen as authority for later cases; and the principle of stare decisis, which requires following prior decisions in similar matters.
Further features include judicial independence, malleability and Codification.
4. What are the implications of codifying common law in Australia?
Generally, codification does not replace common law altogether. Often, it only alters certain aspects of the law such as contract or tort Law.
The majority of Australian case Law is still driven by common law principles.
Nevertheless, there are a few areas where codification has had a major influence on the law in Australia.
5. What roles do judges and legislatures have in the common law system?
Judges are a vital factor in the common law system, responsible for analyzing and enforcing laws when judging cases.
They must evaluate rulings made in similar circumstances, according to precedent.
Conversely, legislatures in charge of constructing legislation and establishing policy objectives based on both public sentiment and political motivations.