SOURCE OF CONTEMPORARY AUSTRALIAN LAW

Lesson 6

SOURCES OF LAW
!

Prior to the European colonisation, traditional Aboriginal law was used, and passed on by word of mouth. ! The First Fleet brought the English system to Australia. This is why our laws are so similar to those of England. Settlers increasingly demanded their rights under English law.

COMMON LAW
Lesson 6

WHAT IS COMMON LAW?

"Judge-made law"! The legal system adopted by Australia, which in corporates a collection of legal principle and rules derived from decision made by judges in higher courts.! Remember: Statute law is law made by parliament.

COMMON LAW AND EQUITY LAW

Create a timeline outlining a brief historical overview of the origins of common law and equity (Refer to page 18-19) ! Complete Review questions1-5! Write an extended response outlining the difference between common law and equity. (1 page max).

Pre-11th century - Anglo-Saxon England - decisions based on local customs, including trial by ordeal, and trial by combat

11th century - Norman Invasion of England! William the Conqueror sends judges around the country to ensure similar rulings.! Precedent decisions developed

1154-1189 - reign of Henry II! People begin appealing to the King - Ofce of Chancellor growing in power - keeper of the Kings conscience

1258 - Provisions of Oxford drawn up.This reduced exibility in common law and formally introduced the concept of precedent. More and more people turned to the King due to the inexibility of common law and for cases with no precedent.

Court of Chancery established to administer laws of equity, with wider legal remedies.! This led to 2 types of law - common law and equity law. 1620 - King James I attempted to overcome conict between common law and equity law by stating that equity prevails over common law.

1873 - Judicature Act 1873 - combines common law and equity law.

PRECEDENT

Precedent is a judgement made by a court that establishes a point of law. The doctrine of precedent is also known as stare decisis - Latin for the decision stands.! Why is precedent so important for achieving justice?

PRECEDENT (CONTINUED)
Ratio decendi refers to the essential legal reason that a particular decision has been made. ! Obiter dicta refers to other remarks the judge has made regarding the case. These might relate to the credibility of a witness and are not part of the ruling that forms precedent.! If the case is signicantly different from a previous one, ratio decendi does not need to be followed.

PRECEDENT (CONTINUED)
Binding precedent: Lower courts are bound to follow decisions of superior courts. e.g. the NSW Local Courts must follow decisions of the NSW Supreme Court.! Persuasive precedent: Superior courts do not need to follow decisions of a lower court, but may choose to take them into account when making a decision.