Chp 3.

11 - Common and Statute Law

Statue Law
 Laws that are written by the Parliament
 History:
o Based on the Magna Carta made in 1215 in England
o Promising to give all lords and some commoners a say in law making
o Made the House of Commoners and the House of Lords which the House of
Representatives and the Senate are based on
 Statute law is law made by elected representatives of federal, state and local governments,
who debate the details of proposed legislation in order to come up with the best possible
laws for the people of Australia
 Is a very long process as the law must go through readings in both the upper and lower
houses of Parliament.
 Laws are made by the Federal Parliament that effected the whole country and then states
make laws that effect only their state
 When laws made by the state contradict those of the Federal parliament then the laws of
Federal parliament overall the states.
 Statute law always succeeds over Common law
Australia is made up of both Common and Statute Law
Common Law
 Are laws that are developed by judges through the problems that they hear in court. It is
based on the decisions of the judges
 History:
o Inherited from the English (Westminster) legal system
o Started in England in 1154 with King Henry II where people could only prove their
innocence by trial by ordeal or combat.
o King Henry II decided that everyone should have the right for royal justice and the
Kings court travelled around England where the judgements were recorded.
o Then judges recorded these decisions and based their future decisions off them
 These types of laws rely on precedent, where judges make their decisions based on
previous decisions on similar crimes.
 Where no precedent has been made before then the judge must set the precedent and it is
then submitted into the “Law Reports” which holds all precedents made in court
 Precedent also occurs when a judge interprets a law. As laws use the complicated
language however certain words or phrases are first interpreted they then after that must
be followed in the same way.
 Lower courts must follow the precedent of supreme courts however higher courts do not
have to follow the precedent of lower courts
 Precedent is often used in criminal cases when sentencing and repayments in civil cases