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Common Law in Australia

by adminMay 20, 2019


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Law is the body of official principles, rules and practices that govern all members of the population. It can be described as the glue that holds our society together, but how much do we really know about it?

Here is your guide to the common law system in Australia, one of two of the most dominant forms of law in the country.

What is common law?

Common law is law that “refers to precedents and authority set by previous judicial decisions, court rulings and administrative legal findings.” In plain terms it is law that is developed by judges. It derives from the word ‘common’ to indicate that the rules apply to everyone and there is no special allowance for high-ranking members of society, such as members of the clergy or government officials. Cases in law can be thought of as separate buildings blocks that when put together make a series of decisions dealing with the same general topic and in turn create a firm legal framework in the form of common law.

Common law vs. statutory law

In order to understand common law we must have a basic understanding of statute law so we can compare them. Statute law is simply legislation made by parliament.

While statutory law aims to provide rules to govern the whole of society, it is impossible for it to accommodate every possible situation. Judicial bodies will interpret the law and set precedent where statutory law is unclear or inadequate. This precedent creates common law for future judges to follow.

These two types of law do not exist independently of each other, rather they live together in one integrated system of laws under the constitution. They interact directly and indirectly, though when a decision has to be made, statue law will prevail over common law. That being said, statutes will be interpreted by the courts in accordance with common law principles in order to allow the two to align and co-exist.

Common law in Australia

Australia’s common law originates from the English who created the law under the centralisation of judicial administration in 1154. It came about in Australia through England’s constitutional rule which provided that, when Britain established a colony by settlement, the colony received on settlement as much of the common law and statute law of England as it was capable of applying it at the date of its settlement. Essentially on settlement, Australia received common law by operation of this common law rule of reception. Due to statutory provisions, some jurisdictions hold different dates of reception of this common law.

Initially Australia followed Britain’s common law religiously. However, over time Australia has become a nation of its own. We have since become independent from the British courts in making decisions on what Australia’s common rule laws should and should not include. The High Court case of Lipohar v The Queen discussed Australia’s position regarding the common law.

The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognized and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England, the doctrine precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual states is to ignore the central place which precedent has in both understanding the common law and explaining its basis.”

The Judges further held that the High Court is the final appellate court for the nation and that the reasoning handed down in High Court appeals will form part of the common law that “bind all courts in the country.”

The Doctrine of Precedent outlines the rules of authority in common law.

Doctrine of Precedent

The Doctrine of Precedent is a body of rules developed by the courts to guide them in their application of the common law.

The main principles of the doctrine are outlined below:

  • Each court is bound by decisions of courts higher in the hierarchy;
  • A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding;
  • Generally, a court will not consider itself bound by its own past decisions but will depart from them only with reluctance;
  • Only the ratio decidendi (the reason for the decision) of a past case is binding;
  • Obiter dicta (remarks in passing) are not binding but may be persuasive; and
  • Precedents do not lose their force by lapse of time.

The Judges decisions become common law, which future judges must follow. The justifications for adhering to such precedents like this are that similar cases should be treated with consistency, that there is a need for certainty in the law, that there is a need for predictability and that people should know what the law is in order to obey it.

Making of common law

An important aspect of common law is how it is actually made. There are three main aspects to this process.

  1. The courts will determine the content of a proposed common law rule based on the concept of the ratio decidendi (the reason for the decision).
  2. The courts will determine the value of a proposed common law rule based on the concept of net benefit.
  3. The courts will identify the source of authority of a proposed common law rule based on the concept of stare decisis (the Doctrine of Precedent).

Sources of common law

There are two main sources of common law:

1. Cases

In this instance, the authority of the common law comes from the fact that a judge has directly ruled on the common law in a case.

2. Textbooks

In this instance, authors obtain and re-write the common law into a rule that is more cohesive and fluent that better encompasses a rule of law.

Landmark common law case

A groundbreaking case in Australia’s common law history is the case of Mabo v Queensland [No 2]. It demonstrated a major development in the common law’s approach to land rights when it over turned the doctrine of terra nullius (territory that no one owns meaning the first nation to discover it is entitled to claim it) and recognised the traditional rights of the Meriam people to their islands in the eastern Torres Strait. This recognition of Indigenous Australian’s claim to the land overruled Captain Cook’s initial claim to it from his declaration of possession in 1770 and ruled that the Crown’s radical titled co-existed with a beneficial native title.

There were five key factors of importance to legal precedent that arose in the case for the recognition of Indigenous Australian’s rights in Australia.

  • Review of the implications of Australia’s settled status;
  • Application of the principle of non-discrimination in the enjoyment of property rights;
  • Explanation of the operation of the Crown’s sovereign radical title;
  • Recognition of native title and the source of rights in Indigenous laws and customs; and
  • Assertion of the power of the state to extinguish native title rights.

From this landmark case came the development of the Native Title Act 1993 (Cth) and the start of fairer land rights for Indigenous Australians.

Changing a Common Law Rule

Australian courts have the ability to change, amend, reformulate or abolish a common law rule, though they will be reluctant in doing so. The case of Breen v Williams ruled “from time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions.” Parliaments also have the power to modify common law rules through statute.

Development of Common Law in Australia

Throughout the years Australia has continued to develop its common law from when it was majorly based on British rulings. The former High Court Justice Brennan commented on the developing status of Australia’s common law saying:

The common law has been created by the courts and the genius of the common law system consists in the ability of the courts to mould the law to correspond with the contemporary values of society. Had the courts not kept the common law in serviceable condition throughout the centuries of its development, its rules would now be regarded as remnants of history which had escaped the shipwreck of time…”

Robertson v R

This case is an excellent demonstration of how the common law develops over time.

It involved three Justices of the New South Wales Court of Criminal Appeal overturning a precedent ruling regarding the sentencing of those involved in supplying large quantities of illegal drugs.

Prior to this case, the precedent ruled that a fulltime prison sentence must be imposed on those involved in drug trafficking of a substantial amount, unless ‘exceptional circumstances’ were shown.

The precedent sentence was established in R v Peter Michael Clark and had been confirmed by numerous court cases multiple times by both Supreme Courts and lower courts.

On appeal of the sentence, which was originally given in the Robertson v R case, Justice Simpson commented that while the Clark ruling may be used as a “yardstick” for sentencing judges, it provided no statutory requirement.

She said the precedent failed to establish what ‘substantial drug supply’ is as well as what constitutes ‘exceptional circumstances’.

Simpson and the other Justices of the court then altered the common law in respect to sentencing for significant drug supply and ruled that prison should be a last resort, illustrating that common law can change over time.

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