Sources Of Contemporary Australian Law
Sources of Contemporary Australian law
Common law
British origins, including:
Development of common law
The Australian legal system developed from the legal system of Britain, which was brought to Australia as part of the process of Britain setting up a colony in Australia, beginning in the year 1788 with the arrival of the First Fleet.
Therefore, in order to determine the nature and development of the Australian legal system, it is necessary to investigate its British origins.
The common law system of law making came before the parliamentary system. It began in England in the 11th century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes.
The centuries-old tradition of English law is that judges decide each case as it comes to court, and give reasons for their decisions. These reasons, or judgments, are published in books called law reports (and now also on the internet). The accumulation of judges’ decisions over many years is what is called the common law – law made by judges in deciding common disputes. NSW inherited the English common law, and from early in the 19th century judges in NSW have been developing the common law in Australia. The key to the law being “common” is its consistency of application.
It is called common because it established one law – the common law – for the whole kingdom.
Definitions:
Binding precedent – a precedent or binding rule that courts are bound to follow in similar circumstances
Persuasive precedent – a precedent that is persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts, but not finding
Ratio decidendi – the principles of law or reason on which the judge decides a court case
Obiter dictum – a judge’s expression of opinion uttered in court or in a written
Common law
British origins, including:
Development of common law
The Australian legal system developed from the legal system of Britain, which was brought to Australia as part of the process of Britain setting up a colony in Australia, beginning in the year 1788 with the arrival of the First Fleet.
Therefore, in order to determine the nature and development of the Australian legal system, it is necessary to investigate its British origins.
The common law system of law making came before the parliamentary system. It began in England in the 11th century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes.
The centuries-old tradition of English law is that judges decide each case as it comes to court, and give reasons for their decisions. These reasons, or judgments, are published in books called law reports (and now also on the internet). The accumulation of judges’ decisions over many years is what is called the common law – law made by judges in deciding common disputes. NSW inherited the English common law, and from early in the 19th century judges in NSW have been developing the common law in Australia. The key to the law being “common” is its consistency of application.
It is called common because it established one law – the common law – for the whole kingdom.
Definitions:
Binding precedent – a precedent or binding rule that courts are bound to follow in similar circumstances
Persuasive precedent – a precedent that is persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts, but not finding
Ratio decidendi – the principles of law or reason on which the judge decides a court case
Obiter dictum – a judge’s expression of opinion uttered in court or in a written