An introduction to the common law in Australia

by The FindLaw Team

Regular visitors to FindLaw have probably encountered the expression, “common law”, in some capacity, and some readers may be thinking to themselves: ‘What on earth is common law?’ Well, it’s a good question, and it’s worth exploring the meaning behind the expression.

The origin of common law in Australia

Australia’s common law has a basis in the common law of England, and the word ‘common’ is an indication that the rules applied to everyone. However, it’s probably better to get the lowdown of the origins of common law from Chief Justice Gleeson in his Honour’s book, The Rule of Law and the Constitution. Gleeson CJ said the following in relation to the origin of common law:

 “The common law of Australia was based upon the common law of England. We inherited it at the time of European settlement. The word “common” was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places. The rules of the common law are judge-made. They were developed and refined by English, and later, Australian courts, originally at a time when parliaments were less active in the area of law-making than they are today.”[1]   

The source of common law in Australia

While the common law in Australia has a basis in England, we can turn to the High Court to find out the source of the common law where Gaudron, Gummow and Hayne JJ in Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207 said (at 505; 18-19; 217 [44]) said:

“The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.”

Their Honours further remarked (at 507; 20; 219 [50]):

“This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country.”

Changes to the common law is the domain of the legislature where there is no logical or analogical relation to existing common law rules, or as a reflection of changing social conditions, as Gaudron and McHugh JJ noted in Breen v Williams (1996) 186 CLR 71; 138 ALR 25( (at 115; 290-291):

“In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the “new” rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.”

Common law offences

Some common law offences that still exist in Australia include contempt, false imprisonment, conspiracy to defraud, and in New South Wales and Victoria, kidnapping. However, what’s more interesting are some of the common law offences that have been abolished, which include being a common nightwalker (a person who sleeps by day, and walks by night; the offence is not related to prostitution), being a common scold (a person who habitually argues with neighbours), being a common barrator (frivolous litigator), and keeping a bawdy house are just some of the common law offences which are no longer in existence. Although it must be said, some of those former common law offences do sound fun!        

 

[1] Gleeson CJ, The Rule of Law and the Constitution [Boyer Lecture 2000] (ABC Books, Sydney, 2000) p 6.



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