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Common Law refers to the body of law developed through judicial decisions by courts, as opposed to laws passed by the legislature (statutes). It is a system of law that is based on precedent, meaning that decisions made in earlier court cases guide the rulings in future cases with similar facts. This legal tradition has its origins in England and forms a key part of Australia’s legal system, which follows the Westminster system.

Key Features of Common Law in Australia:

  1. Precedent (Stare Decisis): Courts in Australia are generally bound to follow the decisions of higher courts (e.g., the High Court of Australia) in similar cases. This ensures consistency in the application of the law.
  2. Court Hierarchy: Lower courts (such as state or territory courts) follow decisions from higher courts, while higher courts, such as the High Court, have more freedom to develop the law and, at times, overturn or refine previous rulings.
  3. Statutory Interpretation: While much of Australian law is statutory (i.e., made by Parliament), courts play a key role in interpreting these statutes. Where statutes are unclear, judges may refer to common law principles to provide clarity.
  4. Development by Judges: Common law evolves as judges interpret legislation and decide cases. Courts make decisions that address gaps in statutory law or provide interpretations that refine the meaning of legal principles.
  5. Interaction with Statutory Law: Common law operates alongside statutory law. If a statute directly addresses an issue, the statutory law prevails. However, where statutes are silent, common law fills the gaps.
  6. Influence of English Common Law: Australia’s common law is historically derived from English common law, but it has since developed its own distinct principles, particularly since Australia became legally independent from the UK.

In Australia, areas such as contract law, tort law (including negligence), and property law are heavily influenced by common law principles. Judges apply and adapt these principles as societal norms and expectations evolve.