Common Law

The court system plays a critical role in upholding common law principles by interpreting statutes and precedents established by earlier cases. As a result, judges have the authority to make rulings that not only resolve individual disputes but also set important legal standards that guide future cases.

The three roles of the court system are:
- Apply and interpret law
- Resolve disputes
- Make law through judgments (precedent)

Common Law

Common Law: law created when a judge makes a ruling about a case not covered by statutory laws.
Precedent: a law or legal decision made by a Judge in a courtroom that all lower courts must follow.

Law in Australia

There are two ways to create law in Australia:
- Statutory law made by Parliament.
- Common law made by the Courts, also called judge-made law.

Judge-Made Law

A judge’s role is to interpret laws and apply them to individual cases.
Not all cases are simple – new or unusual instances arise, and law can be unclear.
In this case, a judge will make a decision on how to resolve the issue in a just way. This decision is a precedent.
All courts below this must adhere to this precedent.
A judge in a similar court can use the precedent to assist but is not bound by the decision.

Precedent - Instances where a judge makes common law:

Creating new common law - When there is no statute law in place for deciding whether an action is lawful or not. A judge will rule on the matter based on the facts and circumstances
Creating new application of the law - A judge may need to interpret the meaning of existing legislation – clarifying this can help clear up the meaning/intent.
New clarification can be added to a law - Filling gaps in legislation where there may not be specific information to help apply the law.

Why is common law important in our legal system?

Parliamentary laws (statutes) do not cover every possible legal issue. Common law helps fill these gaps.
Judges often rely on past decisions to interpret and apply legislation - precedents clarify how laws should be understood and applied in specific contexts. Essentially, it helps Judges remain:
- Consistent
- Predictable
- Fair
Common law is flexible and evolves through new court decisions. This allows the legal system to adapt to changing societal values and new circumstances.