Skip to 0 minutes and 4 secondsMELISSA CASTAN: So Australia is a common law system. And that means we rely a lot on judge-made law. And we inherited that law from English law. So the old judges would travel around and make decisions about problems and resolve conflict. And eventually, there became a common practice in their decisions, and so it became common law. Now when English people came to Australia and imposed their legal system here, we adopted that common law system. But it works in conjunction with parliamentary law and statutes. Even, for instance, Australia's common law system, we've got a combination between judge-made law and statute law that's made by parliaments. Now when we look at judge-made law, there is a system of precedent that operates there.
Skip to 0 minutes and 51 secondsAnd that means that lower courts are bound by decisions of higher courts on the same issue. So if we've got a case that's on substantially the same thing, that case in a lower court will be bound by the decision of the higher up judge. And that will go up the ladder or the hierarchy of the courts, right up in our case, to the high court, which will bind all the courts that are below it. So that system of precedent is very important because it makes the law that the judges make quite consistent because they're following the same patterns all the time.
Skip to 1 minute and 24 secondsSo an important aspect of a legal system is that it's consistent and coherent, so people understand what their legal obligations are and they understand what rights they have under the law. And they don't change too much, except really explicitly. So we understand what the changes of the law are. So one of the features of a common law system is that you have an interplay between the judge-made law and the parliamentary-made law, the statute law. Now in our system the statute law prevails over judges' decisions.
Skip to 1 minute and 52 secondsSo if parliament doesn't like the way judges have developed a certain area of law, whether it's contract law or law about property, the parliament can go ahead and make laws that change what the judges had said. And so we have a system where parliament is sovereign and parliament has a supreme lawmaking power. So usually the way laws are made is through Parliament. And that's a process where an individual member of Parliament or the political party that's in government decides to put forward a bill, which is an act before it's gone through the parliamentary process. And that bill will be debated in the lower house, in our situation.
Skip to 2 minutes and 29 secondsAnd then if it successfully passes the lower house, it'll go up to the upper house. They'll review it. And if it passes there, it gets approved by royal assent in our Australian situation. And that's an assent by the governor-general, the final approval for the law. So one of the fundamental principles that underlies our legal system is the idea of the rule of law. And that is that everybody is subject to the law, and the law applies equally to everybody. And that's a really important principle because it means that everybody is subject to the same legal system. And you can't be punished unless it's through the legal process itself.
Skip to 3 minutes and 9 secondsSo you can't have arbitrary punishments, and governments can't avoid the operational of law. And we see that as a really fundamental principle in our system. So another really important foundational principle in many legal systems is the idea of separation of powers. And that is that each of the main institutions of government operate separately and don't interfere with each other. So the judiciary adjudicates, the executive carries out the law, and the parliament legislates and makes the law. And those three broad categories of governmental institutions shouldn't tread on each other's areas. They should be kept separate. So lawyers love categories. And one of the things we're great at doing is shifting everything into categories.
Skip to 3 minutes and 52 secondsAnd one of the big categories we see in our legal system is the two categories of public law and private law. So public law is really that area of law that governs the relationships between governments. For instance, in our case between the federal government and the state government, and also governs the relationships between the government and the individual. For instance, we see that in criminal law, where the government puts in place rules that govern out particular behavior. Then when we turn to private law, that's the law that regulates people's relationships between each other. Now when I say people, that could be legal persons that might be governing relationships between corporations, or partnerships, or individuals.
Skip to 4 minutes and 35 secondsAnd those regulations or those rules, we've seen examples like contract law, or torts law, or intellectual property law which we sometimes call IP law. In those areas we're talking about laws that regulate the relationship between the legal persons.
Introduction to the law
Watch Melissa (Deputy Director, Castan Centre for Human Rights Law & Senior Lecturer, Faculty of Law) introduce the system of common law, and further describe how it functions to create a consistent and coherent legal system.
Within the Comments, consider sharing with other learners your thoughts on the following questions:
What are some of the features of your legal system(s) in your country?
Are there advantages to having separate lawmakers, decision-makers and enforcers of the law?
Have you ever had to find, read and use a statute law? If so, please share it with us.
Do you think that without laws could a society be safe, functional, and ultimately – work?
Don’t forget to contribute to the discussion by reviewing the comments made by other learners, making sure you provide constructive feedback and commentary. Remember you can also ‘like’ comments or follow other learners throughout the course.
Go to Downloads for a link to Origins of the common law system, a document that provides an outline of the early development of a common set of legal processes and principles, its working parts and law reform. You can then continue to make your way through the course.
It’s about the law, in your backyard
Remember, although we explore law through an Australian common law lens, you’ll have plenty of opportunities to apply the law from your jurisdiction to the case studies, discussions and tasks featured this week.
The underlying principles will be the same, but your society has amended, developed and shaped the law to reflect the values of your jurisdiction.
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