5.2.1 Modern Australian Law

Date Published

Overview

Modern Australian law can broadly be described as derived from 2 sources:

  • Statute law – Acts of parliament; and
  • Case law (sometimes called ‘common law’) – decisions made by courts in deciding disputes.

Statute law (legislation)

Statute law, Acts of parliament, are usually made in response to a perceived or actual deficiency in the case law.

Statute law is made up of two main types:

  • Legislation –  that is, Acts (such as the Patents Act 1990); and
  • Delegated legislation – for example, regulations (such as the Patents Regulations 1991), rules, ordinances.

Case law (common law)

Australia is a ‘common law country’, having inherited this system from England in its early years as a colony. Other common law countries are Canada, the United States, New Zealand, Ireland, Kenya, India, Israel, and Malaysia. The law is different in each common law country because it is governed by local customs and local views of justice.

Judges have been deciding cases for hundreds of years. Their decisions have developed a body of legal principles known as 'common law' or 'case law'.

When a case comes before a court, the parties on each side present evidence to support their case. The judge listens to the evidence, decides what evidence is relevant and what facts have been proved, decides what law is relevant, and applies that law to the facts in making a decision. This decision is binding on the parties.

The kind of case that a particular court decides depends on the jurisdiction of that court, that is, its authority to determine particular issues. The courts are arranged in a hierarchy, based on the kinds of issues being decided, with appeals from lower courts going to a higher court.

A party to a case who is not satisfied with the court's decision may appeal to a higher court for a reconsideration of the decision. If an appeal is not made within the time allowed, the matter is finalised and the case usually cannot be reopened. If it is made within time, the higher court hearing the appeal can affirm or reverse, also called overrule, the lower court's decision.

The law declared by the judge in the reasons for the court's decision directly affects the parties to the case. That law will also affect, indirectly, people bringing actions involving similar legal principles before other courts in that jurisdiction. This is because of the doctrine of precedent.

The common law system generates the common law when judges analyse the principles from a series of cases on an issue when judging a case. Common law is not codified, that is, there is no central document that states what the common law is. Instead, each statement of law by a judge has an effect on the way similar cases are treated at a later date. In this way judges develop or alter the common law.

Broadly speaking, judges make decisions to resolve specific disputes rather than to prevent them. They cannot make rules to help prevent future disputes, although the case law they develop may indirectly have this effect. Most court cases arise due to the need to interpret or enforce either statute or common law.

Common law develops slowly, as it can only change when a case happens to arise and goes to court.

Interaction between legislation and case law

Legislation takes precedence over case law. This is because of the doctrine of parliamentary supremacy over the courts, which was the outcome of the constitutional struggle between the Stuart monarchy and the House of Commons in England in the 17th century.

As a result, parliaments can always pass legislation to change rules derived from case law that they consider undesirable. Courts, on the other hand, have the task of resolving disputes over the meaning of words in legislation.