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Focus question 2: What are the sources of Australian law?

Teaching and learning activities

Activity 1: Using cases from the past ESL Activity 1
Activity 2: Interpreting the law ESL Activity 2
Activity 3: The place of customary law ESL Activity 3

Introduction

The laws of the Babylonian and Jewish societies you examined in Focus question 1, Activity 4 were supported by sets of principles. The laws of our Australian society today are often supported by many of the same principles.

The two direct sources of our law today are common law (law made by judges in courts), and statute law (law made by parliaments).

Common law: law made by courts

Australian law has its origins in what is called the ‘common law’ of England.

Saxon customs

A thousand years ago, England was peopled by the Saxons who lived in many small communities. As the fastest means of transportation was the horse, most people did not move far outside their own area. Each local community had its own customs, with the main local landowner acting as the judge in disputes. This meant that every community had different laws.

Conquest by Normans

In 1066 England was invaded by a group of French warriors called Normans because they came from Normandy in France. Their leader, William the Conqueror, defeated the Saxons and took control of the country.

The Normans kept the Saxon system of local laws for over a century until King Henry II began to use a group of travelling judges to deal with disputes in all parts of the land. When the judges returned, they would discuss the cases they had tried, and compare their decisions. Gradually, they settled on similar decisions for similar cases in whatever part of England the case was heard. These decisions, gradually common to all England, marked the development of what is called common law - decisions made by judges in particular cases which are then applied to similar cases brought to court anywhere in England.

How common law works

Common law works according to ‘precedent’. If a matter before the court is similar to a matter in the past and if the circumstances are similar, the decision in the new case should follow the previous decision. If the circumstances are different, then the decision may be different, with the new decision becoming a precedent for the next similar case.

Common law in Australia

In Australia, from the beginning of European settlement judges applied English common law to Australian conditions. For a long time they had to follow English common law in making judgements. Since an Australian government decision of 1986, judges no longer have to follow English common law though they may still take it as a guide. They are also guided by the common law of other countries, such as the United States, that use a system of common law.

Activity 1: Using cases from the past

To understand the system of precedent, think about these school incidents.

Situation

Case 1: You arrive late to school because you slept in. Your teacher gives you detention.

Case 2: Your friend arrives late to school because she slept in. The teacher uses case 1 as a precedent.

Case 3: Your friend arrives late the next day because the school bus broke down.

Case 4: You and your friend arrive late because you thought the bus was still broken down (but it had been fixed), so you just took your time to get there.

Case 5: You leave school early because you are bored with school.

1a In Case 2, should your friend get a detention? Discuss and decide.

1b In Case 3, should the teacher use Case 1 and Case 2 as precedents and give a detention?
Discuss and decide.

1c In Case 4, are Cases 1, 2 or 3 precedents for this situation? Should you get a detention?
Discuss and decide.

1d In Case 5, can Case 1 be used as a precedent for deciding whether or not to give you a detention? Discuss and decide.

Here are the decisions one group made on each of these situations:

1a: These are the same circumstances, so the decision should be consistent. Give a detention.

1b: This is different because it was not the student’s fault. Cases 1 and 2 are not precedents for Case 3. No detention.

1c: Cases 1 and 2 are precedents because being late was your fault. Detention.

1d: Case 1 is a precedent, because it and this case are both about your not being at school through your own fault. It does not matter that Case 1 is about arriving late and Case 5 is about leaving early as the principle is the same. Detention.

This is what judges do in common law. Among other things, judges look at cases from the past that are similar in facts or principle to make decisions about penalty. A judge in a theft case today might make a decision based on a case that happened hundreds of years ago. Alternatively, although the facts are similar - for example, both cases might involve stealing a loaf of bread - the judge may decide that different conditions in society then and now mean that today’s case should not be decided in the same way.

Common law is the law developed by judges over time, based on decisions in previous cases. These decisions are recorded in special law report books to which lawyers can refer to argue their cases and judges can refer to make their decisions. It is only the decisions of the highest and most important courts that are recorded and referred to in this way.

Statute law: laws made by parliaments

Australian law today is based not only on common law but also on statutes (laws made by parliaments). The word ‘parliament’ comes from the French ‘parler’, meaning to talk. A parliament today meets and talks, and it also passes laws that apply to us all. How did this come about?

Development of parliament

In Saxon England most laws were made by the local main landowners. Occasionally, however, the various Saxon kings would meet together to make some decisions which applied to everybody. This was the earliest form of parliament as a decision-making body to make laws for the whole nation.

When the Normans conquered England they had just one king, William, who ruled the whole country. Gradually, however, the power of the monarch to make laws began to be challenged as parliaments developed.

In Norman England the parliament was originally a gathering of local leaders from whom the monarch (king or queen) wanted to get money. The monarch would call these leaders together, explain the purpose of the meeting, and get financial support.

Over time, the parliament began to demand something from the monarch in return for these donations, or ‘taxes’. Gradually also, the parliament began to make binding agreements or laws, called ‘statutes’, which the monarch would approve. The first recorded law made by a ‘parliament’ dates from 1235.

In 1688 the parliament began to become stronger than the monarch. In that year parliament supported the claim of the Dutch William of Orange to the English throne, as long as he gave up many of the monarch’s traditional law-making powers in exchange.

Statute law in Australia

In 1788 when the First Fleet sailed to Australia (then called New South Wales), the Governor brought the statute laws of England with him to the new settlement, the colony being governed by England. He soon began to make Australian laws which were added to the English statute law. From 1828 new English statute law no longer automatically applied in Australia and Australian law making became more important.

As more free settlers arrived in Australia they were not content to leave law making to the Governor; they wanted to have a say in making their own laws. So parliaments were set up in each of the colonies of Australia.

In 1901 the six separate colonies - New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia - joined together to create the Commonwealth of Australia. A new Commonwealth Parliament was created which could pass Acts of Parliament applying to all Australians, wherever they lived. The Commonwealth Parliament and the parliaments of each of the six States (as the former colonies were now called) could all make statute law.

Statute law and common law

In some matters, parliaments have not made any laws about particular situations, so court cases are decided according to common law. In matters on which parliaments have made any laws, judges must follow those laws, although they may have to interpret the statute (decide what its meaning is if it is not clear). If statute (parliament-made) law conflicts with common (judge-made) law, then statute law takes precedence.

Activity 2: Interpreting the law

Imagine there is a law made by a State or Territory parliament that states:

‘No person may enter another person’s property.’

This seems clear - but what happens in real life? Situations arise that may not be clear-cut. In such cases, the case may go to a court to be settled, and for the meaning of the law to be interpreted and made clear.

Suppose that you are a judge, and the following cases based on that Act of Parliament come to your court. Discuss each situation, and make your decision, giving your reasons in each case.

Situation 1

X kicks a ball over Y’s fence.

Y invites X in to get it back.

Y then says, ‘You broke the law’ and takes the ‘trespasser’, X, to court.

Has X broken the law? To make a decision in this case, you need to ask three questions:

2a Discuss Situation 1, and the three questions, and make your decision.

In most cases the court would decide that, even though the law said X could not enter, the makers of the law did not intend it to apply to an invitation. The neighbour invited X in, so X did not really break the law. So the law becomes: ‘No person may enter another person’s property (law made by parliament) unless invited to do so (court decision).’

If this situation happened again, the law would be clear. The court case over Situation 1 would be used as a precedent (a past example to be followed in later cases).

Situation 2

A running hose is about to spray water inside P’s open window where a valuable carpet would be ruined.

Q, walking along the street and seeing this possibility, jumps over P’s fence to turn the tap off.

P takes Q to court for trespassing.

Has Q broken the law? To make a decision in this case, again ask the three questions:

2b Discuss Situation 2, and the three questions, and make your decision.

It is likely that the court would decide that Q was not breaking the law in entering the property, because Q did it to save P’s property. So the law would become: ‘No person may enter another person’s property (law made by parliament) unless invited (court decision) or is doing so for the protection of the person’s property (another court decision).’

A different judge, however, might give a different decision. A court might decide, for instance, that Q did break the law because there was no danger to a person. After that decision the law would become: ‘No person may enter another person’s property (law made by parliament) unless invited (court decision) or doing so to protect a person’s safety (another court decision).’

Situation 3

E enters F’s property to recover her mower which F had borrowed.

Has E broken the law?

2c Discuss Situation 3, ask the three questions as before, and make your decision. Restate the law as it would then stand.

2d How is your law looking now? Write it out, taking into account the changes needing to be made as a result of the precedents above. Compare your final statement of the law with that of other students.

Other students may have come to different decisions in some or all the cases - which is what happens in Australian courts. Different judges can make different decisions. If parliament does not like the way the law is developing, it can amend the Act of Parliament.

Aboriginal customary law

When the British came to Australia they brought common law and statute law, thinking that was the only law that was going to exist in Australia. However, there were hundreds of Aboriginal communities throughout Australia, each with their own laws and customs. There were rules of behaviour which came from The Dreaming, and had been passed to humans by legendary figures.

The rules had developed over thousands of years, handed down through stories and ceremonies from generation to generation. These rules included how people should behave towards one another, which group could marry which other groups and how they should treat the land, animals and plants. They also had punishments if the laws were broken.

Terra nullius

In 1788 the First Fleet from Britain landed in Australia. The new Governor, Arthur Phillip, knew that Aborigines occupied the land the new settlers wanted. The law of the day said that a treaty should be made with the local people. However, if there was no individual or group recognised as the owners of the land, then the land was considered terra nullius - ‘nobody’s land’. Phillip claimed the land under terra nullius for ‘the Crown’, meaning for Britain. Gradually, the new settlers took control of the land, often very brutally.

The 1992 Mabo decision of the High Court changed the view of Australia as ‘terra nullius’ in its decision that Aboriginal people and Torres Strait Islander people still own land in some places in Australia. This decision was put into practice by an Act of Parliament. (The Mabo decision is explored further in Focus question 4, Activity 4.)

Aboriginal law remains in force

Aboriginal society and law still survive in some areas of Australia, particularly in areas of Western Australia, the Northern Territory, South Australia and far northern Queensland. In some communities, traditional Aboriginal laws still exist and govern relations among Indigenous people. In some parts of Australia, judges have allowed traditional laws to be applied to Aboriginal people or Torres Strait Islander people when cases have been brought to court.

Activity 3: The place of customary law

Here are the facts of a case. Look at this situation and decide whether you would apply modern Australian law or traditional Aboriginal law.

Situation

An Aboriginal man aged 28, a member of a strongly traditional Aboriginal community, killed his nephew. The attacker had tried to stab his nephew in the leg during an argument, but instead stabbed him in the stomach, killing him.

The man was held in gaol for 20 months until his trial. At his trial he pleaded guilty, telling the court how sorry he was for the crime. He was sentenced to four years’ imprisonment.

He asked to be allowed to return to his community where there would be a ‘payback’ punishment given to him by members of the victim’s family. This would involve being speared in both legs many times, and being beaten with clubs. If an artery were cut by a spear, he could die. This traditional punishment would be supervised by an elder of the community.

The man wanted to face his victim’s family in order to show his sorrow and regret for his crime, and to gain their forgiveness. Traditionally, a ‘payback’ results in the criminal being quickly accepted back into the community, and social harmony being restored.

Issues

Spearing and bashing another person is a crime under Australian law, even if the person being assaulted in this way agrees to it.

Many Aboriginal people held in gaol have attempted suicide, because of separation from their communities.

Being held in gaol, and then subsequently receiving payback, would mean that a person was receiving two punishments for the one crime.

To allow traditional Aboriginal punishment would be to treat some members of our community differently from others. Non-Aboriginal people would not have the same choice of alternative punishment available to them.

3a Discuss this case and make a decision from these three choices:

3b Draw up a table to summarise the arguments raised in your discussion. One example has been done to help you.

Should we have special laws for traditional Aboriginal communities in Australia?

For
Traditional Aboriginal communities want to have their own customs recognised by the official legal system.
Against Some activities would be legal for some people in Australia, but illegal for others.

In the actual case, the judge who tried the man after his 20 months held in gaol awaiting the trial, released him on probation to go back and face the traditional payback. The offender was speared in the legs 16 times and beaten several times with clubs by his victim’s relatives. He needed to be taken to hospital and was unable to walk for two weeks. When he began to recover he returned to his community where he was welcomed back as having been properly punished and having expressed his sorrow appropriately.

3c Do you think the decision in this case was a good one? Explain your reasons.

You might invite Aboriginal speakers to your class to help you think about the issues further.

ESL activities

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