Ruqayyah Snyder
Australia's legal system is a common law system inherited from England during the colonisation of Australia by the British. Judge-made law, also known as common law, is law that has been developed from judgments handed down in court. It is often used to make decisions about areas that are not included in Acts of parliament. When using common law, judges decide cases along the lines of earlier decisions made in similar cases, which are referred to as 'precedents'.
| Characteristics | Values |
|---|---|
| Type of Law | Common law |
| Other Names | Judge-made law |
| Definition | Law that has developed from judgments handed down in court |
| Purpose | Used to make decisions about areas that are not included in Acts of parliament |
| Basis of Decisions | Judges decide cases along the lines of earlier decisions made in similar cases ('precedents') |
| Interpretation | Judges interpret legislation in case of disputes |
| Interpretation as Precedent | Interpretations become part of the common law |
| Exceptions | Federal laws prevail in the event of a collision with state laws |
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What You'll Learn
Judge-made law, also known as common law
Australia's legal system is a common law system inherited from England during the colonisation of Australia. Judge-made law, also known as common law, is law that has been developed from judgments handed down in court. It is often used to make decisions about areas that are not included in Acts of parliament. When applying common law, judges decide cases along the lines of earlier decisions made in similar cases, or 'precedents'. Judges are also required to interpret legislation if there is a dispute about the meaning or how to apply an Act in a case. These interpretations then become part of the common law.
The Australian 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. 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 two major sources of Australian law are cases (decisions made by judges in courts) and legislation (legal rules made by parliament and by those to whom parliament has delegated authority). When laws are brought before a court, judges are not bound to select an interpretation offered by one of the parties. Instead, their role is to seek an objective interpretation of the law.
The process of creating a statute involves a Bill being drafted, usually by Parliamentary Counsel. The Bill is then read, debated, and sometimes amended in both houses of parliament before being approved. Once a bill has been passed, it must be assented to by the representative of the sovereign. Legislation may also be delegated to local councils, statutory authorities, or government departments, usually for minor statute laws such as road rules.
Prior to colonisation, the only systems of law in Australia were the varied systems of customary law belonging to Indigenous Australians. Indigenous Australian customary law varied between language groups, clans, and regions, and developed over time from accepted norms within indigenous societies. These laws regulated human behaviour and relationships, mandated sanctions for misdeeds, and connected people with the land and each other through a system of relationships.
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Common law fills in the gaps not covered by Acts of parliament
Australia's legal system is a common-law jurisdiction, derived from the English legal system, which superseded Indigenous Australian customary law during colonisation. Common law, also known as judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It fills in the gaps not covered by Acts of parliament, which are primary legislation or supreme law.
Acts of parliament, also known as statute law, are created when a bill is approved by both houses of parliament and given Royal Assent by the reigning monarch. The process of creating a statute involves a bill being drafted, usually by Parliamentary Counsel, before being read, debated, and sometimes amended in both houses of parliament. Once a bill has been passed, it must be assented to by the representative of the sovereign.
In Australia, the process of colonisation saw the introduction of the English common and statute law, which was enforced in New South Wales and Tasmania, and later Victoria and Queensland, by the Australian Courts Act 1828. This ensured that all English common and statute law up to 28 July 1828 was to be applied in these regions. The reception of English law in Western Australia and South Australia was later deemed to have occurred in 1829 and 1836, respectively.
Common law is used to make decisions about areas that are not included in Acts of parliament. Judges decide cases along the lines of earlier decisions made in similar cases, creating precedents that become part of the common law. For example, the UK has long had a common-law offence of "outraging public decency". In recent times, this ancient common law has been used to prosecute a new intrusive activity called "upskirting". In 2019, the UK Parliament passed the Voyeurism (Offences) Act, which officially made upskirting a crime.
In summary, common law fills in the gaps not covered by Acts of parliament by providing judges with precedents to guide their decisions in areas not specifically addressed by legislation.
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Judges interpret legislation in case of disputes
Australia's legal system is a common law system inherited from England during the colonisation of Australia. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Common law, or judge-made law, refers to the law that has developed from judgments handed down in court. When using common law, judges decide cases along the lines of earlier decisions made in similar cases, creating precedents.
Judges interpret legislation in the case of disputes, which then becomes part of the common law. When laws are brought before a court, judges are not bound to select an interpretation offered by one of the parties. Instead, their role is to seek an objective interpretation of the law. This occurs when there is a dispute about the meaning or application of an Act in a case.
The Australian legal system has multiple facets. It includes six states (New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia) and three self-governing territories (Australian Capital Territory, Northern Territory, and Norfolk Island). Each state has its own system of courts and parliaments and is vested with plenary power. The High Court is Australia's apex court, with the final say on the judicial determination of all legal matters.
The two major sources of Australian law are cases (the decisions made by judges in the courts) and legislation (the legal rules made by parliament and by those to whom parliament has delegated authority). Most statutes are applied by administrative decision-makers rather than judges.
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Common law is based on precedents
Australia's legal system is a common law system inherited from England during the colonisation of Australia. The common law, also known as judge-made law, is based on precedents set by previous court decisions. This means that when using common law, judges decide cases by following the decisions made in similar past cases. These precedents guide judges in interpreting legislation and resolving disputes over the meaning or application of laws.
The common law system in Australia is uniform across all states and territories, despite each state having its own court system and parliament with plenary power. The Australian Constitution establishes a federal system of government, with a national legislature empowered to pass overriding laws on specific topics. The High Court of Australia is the apex court with the final say on all legal matters and hears appeals from all other courts in the country.
The process of creating statutes in Australia typically involves drafting a Bill, which is then debated and may be amended in both houses of parliament before being approved. Once passed, the bill receives assent from the sovereign's representative. While most statutes are applied by administrative decision-makers, when laws are brought before a court, judges interpret them objectively rather than selecting a party's interpretation.
The Australian legal system also recognises Indigenous Australian customary law, which existed before colonisation. However, during colonisation, these laws were largely ignored, and in the post-colonial era, they have only been partially recognised by Australian courts. Indigenous Australian customary law varied across language groups, clans, and regions, regulating human behaviour and relationships and connecting people to the land and each other.
In summary, the common law system in Australia, inherited from England, relies on precedents set by judges' interpretations of legislation and previous court decisions. This system operates within the framework of a federal government and an apex High Court, alongside Indigenous Australian customary law, which has been partially incorporated into the legal system.
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Indigenous Australian customary law
Judge-made law, also known as common law, is a legal concept that has been adopted in Australia from the English legal system. It refers to laws that have been established based on previous court rulings and precedents, filling in gaps in Acts of parliament.
Now, turning to the topic of Indigenous Australian customary law, it is important to note that prior to colonisation, the only legal systems in Australia were the diverse customary laws of Indigenous Australians. These laws were distinct from those imposed during colonisation and have their own unique characteristics.
Despite the richness and complexity of these legal systems, they were deliberately ignored during colonisation, when Australia was deemed terra nullius, or empty land. This resulted in the imposition of English common law, effectively superseding Indigenous legal systems.
In the post-colonial era, Australian courts have only partially recognised the legal importance of Indigenous Australian customary law. Efforts have been made to incorporate these laws more formally, and some statutes and courts in the Northern Territory explicitly refer to them. However, these changes have sometimes been controversial, particularly when customary law conflicts with human rights or is perceived as imprecise.
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Frequently asked questions
Judge-made law, also known as common law, is law that has developed from previous judgments in court. It is often used to make decisions about areas that are not covered in Acts of parliament.
Common law is one of the two major sources of Australian law, the other being legislation. It is the law that has emerged from the judgments and decisions made by judges in court.
When using common law, judges will decide cases in line with previous decisions made in similar cases, known as 'precedents'. Judges may also need to interpret legislation if there is a dispute about the meaning or how to apply an Act to a case. These interpretations then become part of the common law.
The Australian legal system, including common law, was inherited from England during the colonisation of Australia by the British. The laws of England had evolved over centuries, with common law emerging after the 1200s. By 1824, a court system based on the English model was established in Australia through Acts of the British Parliament.
The High Court is Australia's apex court and has the final say on all legal matters. It hears appeals from all other courts in the country.
