Topic 1: Overview of the Common Law System in Australia
Understanding the Australian Legal System
Classification of Laws
Primary basis is division between public law and private law.
Public law deals with areas of law where the interests of the public are the overriding factor (e.g. administrative law, constitutional law, criminal law, industrial law, taxation law).
Private law deals with individual rights and the relationships between private citizens (e.g. law of contract, law of torts, law of property).
There is overlapping between private and public law (e.g. a battery is a crime (public law) and a tort (private law)).
Administrative Law
Within administrative law, the parliament makes the law and the executive (the government) carries out the laws. Parliament can delegate its law-making powers (e.g. to civil servants, councils or other government bodies). Courts are able to review the actions of those with power.
Constitutional Law
Constitutional law involves the study and practice of the laws and procedures of the Constitutions of countries and states. Australia has a written constitution which establishes the Commonwealth of Australia. It regulates the legislative powers of the Parliaments of the Commonwealth and States.
Criminal Law
Crime is a wrong against society. It may be a wrong against the morality of the community, or may threaten the peace and order of the community, or may conflict with established policy of the governing body of the community.
The normal breach of criminal law results in a fine or a jail sentence.
Industrial Law
Industrial law has a private and public component, and covers the industrial relationship between employers and employees, workers’ compensation and industrial safety regulation.
Taxation Law
Individual cases may be private law, but taxation law is an area of public law.
The Common Law
As a System of Law
The Australian system of law is a common law system (along with England, Wales, USA, Canada, New Zealand, India and Singapore). It depends on an adversarial system and legal precedent, and is a mixture of customary law, judge-made law and parliamentary law.
The other systems of law are Islamic Law, Civil Law and Roman Law. In the civil system, the judge plays a more active role (inquisitorial) and codes are used.
As a Source of Law
The common law may also be used to say where our law comes from. It consists of the rules of common law and the principles of equity. This distinguishes it from other areas of law (e.g. statute law, delegated legislation and international law).
As a Division of Law
The common law may also be viewed as an area of law with its own rules, remedies and procedures.
It is different from other substantive areas of law. The two other divisions of law are the principles of equity and statute law.
Topic 2: Development of the Common Law in England
Customary Law in Pre-Norman England
Customary law refers to law that develops from the customs within a particular society or within a group in a particular society. It has the following characteristics:
- It arises through, and is enforced by, its recognition and general acceptance
- It is not based on written law and is passed down through spoken law
- It was essential for everyday existence, and directly related to survival (covered areas such as personal protection and personal property rights)
Customary law varied significantly across the various pre-Norman kingdoms in England, since it varied with the different habits and attitudes across the kingdom.
Roman Britain
Prior to the Roman invasion in AD 43 (withdrew in AD 410), the Celts ruled Britain. Celtic religion and customs were not written down, but were recognised, accepted and passed onto future generations.
This Celtic customary law may be contrasted to the codified system of Roman law that developed during the period of the Roman Republic.
Despite Roman occupation, the Celts used their own customary law (the Roman law only applied to the Romans).
The Anglo-Saxons
Anglos, Saxons and Jutes
In two centuries after Roman withdrawal, Britain was invaded by the Angles, the Saxons and the Jutes. The Celtic tribes were pushed west (Wales and southern Scotland).
The Anglo-Saxons and Jutes bough their own customary laws (Anglo-Saxon law also differed between its tribes), which also differed from the Celtic law. Anglo-Saxon law was applied through general meetings of members of the tribe, rather than any formalised court proceedings.
A common law in England did not start to develop until after the Norman Conquest (1066).
The Dooms
Following the Danish invasion (9th century), King Alfred attempted to unify the customary laws of the different Anglo-Saxon Kingdoms. The Dooms of Alfred contained laws covering officials, revenue collection, methods of proof and the administration of justice, and details on punishments and fines.
Although The Dooms were not a codification of Anglo-Saxon customary law, they did form part of the process of unification of the kingdom.
They did not have any significant influence on the development of common law because centralisation of the administration of justice was yet to be achieved.
Following the Norman Conquest
The Conquest
William, Duke of Normandy, defeated King Harold in the Battle of Hastings in 1066, to become the first Norman King of England.
William I: 1066-87
Anglo-Saxon Law
William did not attempt to make any significant changes to Anglo-Saxon law:
- He promised people could live under the Anglo-Saxon law in place at the time of Edward
- He realised it would be difficult to replace Anglo-Saxon law with Normal Law
The Normans did apply their own land law (Continental feudalism), so disputes over large areas of land were brought before the King’s courts for determination. The decisions of these courts started to be followed in later trials (precedent).
It was important to develop a body of land law that could be applied consistently to disputes concerning land wherever that land was situated across England.
Early land law was an important influence over the development of a common law in England.
Centralisation of Government
Following the conquest, William I introduced a ‘strong central government’. The strong central government provided the basis for a centralised system for the administration of justice in England. It created the basis for the unification of laws.
This provided the basis for a centralised system for the administration of justice in England, but did not create common law. This is because the villages were rural and still relied on local customary laws to provide certainty and stability.
Latin and the Hybrid Anglo-Norman Language
During the Conquest, Latin was introduced as the official language of England (and the Anglo-Norman language received recognition). This had two effects:
- Latin introduced technical terms which were used as part of the developing legal language, contributing to the formation of the new system of centralised justice
- Anglo-Norman then provided necessary flexibility with legal terminology to enable the development of the common law within the centralised system of justice
Ecclesiastical Courts
William promised to create separate ecclesiastical and secular courts, resulting in cannon law (church law) being enforced in ecclesiastical courts.
Feudal Tenure
The introduction of feudal tenure following the Norman Conquest produced a fundamental change in both the economic basis of English society and the administration of government and justice.
Feudalism developed as a mechanism of protection from invaders, whereby local people sought protection and subsistence from the local lords and, in return, the local people provided services to the lord.
To maintain law and order, the King sent is warriors throughout England. In addition to having rights over the land and the local people, the chief lords were responsible for governing and protecting the local people (subinfeudation).
Feudalism operated as a system of administration based on land tenure and was effective in maintaining law and order in England.
Henry II: 1154-89
Centralisation of the Administration of Justice
The centralisation of the administration of criminal and civil justice through the use of royal judges during the reign of Henry II was a significant factor in the future development of a common law in England.
The emergence of a common law would not have been possible without this because:
- It was necessary to proved the institutional structure through which royal judges could develop a systematic body of rules (which would eventually become the common law)
- The development of a common law depended on recognised court proceedings such as the writ system
Itinerant Justices
The King sent out royal officials to counties to investigate the conduct of local officials. The itinerant justices had civil, criminal and administrative jurisdiction (called the General Eyre).
The Emerging English Legal System
King Henry II created the platform of the emergence of the English legal system, which provided the basis for the development of a common law in England. This system was formed by:
- Trial by jury
- Creation of central courts
- The writ system
The Jury
Background
They were seen as a ‘body of neighbours’ who are ‘summoned by some public officer to give upon oath a true answer to some question’. Prior to the trial by jury, other processes were in place:
- The Ordeals
- Wager of law
- Trial by battle
Trial by Jury
By the mid 13th century, there were two types of juries at trials:
- The presenting jury – provided the court with information
- The petty jury – determined the innocence or guilt of the person
Central Courts
Central courts did not exist prior to the Norman Conquest, but central administrative institutions did exist in Anglo-Saxon times. There were two types of central administrative institutions:
- The royal household – used by Anglo-Saxon Kings to take advice on day-to-day administrative matters from government officials
- The national assembly – they would meet when important issues of government arose
Curia Regis (The King’s Court)
The Curia Regis consisted of the king, royal officials and tenants-in-chief who, in return for holding land from the king under the feudal system, had a responsibility to provide the kings with advice on important matters of government.
At this time, travelling itinerant justices became common. The General Eyre (later known as Justices in Eyre) extended the work of the Curia Regis across the country. They effectively spread the jurisdiction of the Curia Regis across England (this had an important impact on the development of a common law).
Henry II realised that some centralisation of the civil jurisdiction of the Justices of Eyre was necessary to achieve uniformity. New courts were developed, called the Court of Common Pleas (The Bench).
Court of the King’s Bench
The King’s Bench was principally concerned with the preservation of the king’s peace, but also had some concurrent civil jurisdiction with the Court of Common Pleas. It also dealt with breach of the peace and criminal cases.
The King’s Bench initially had five judges, but decisions were not made solely by them. They would refer matters to the king and his council of royal advisors.
The Exchequer developed its jurisdiction as a revenue court.
The Court of Common Pleas developed into a court that dealt with the emerging common law forms of action.
The Writ System
A writ is a command to a person from a sovereign directing the person to do something or to refrain from doing something. A common law action could not be commenced without obtaining the appropriate writ. If a writ did not exist that covered the particular circumstances of the dispute, no action could be commenced without the consent of the landholder.
The writs were issued by the Chancellor (the King’s secretary).
The Register of Writs
The early writs were placed on a register. The development of the common law through the writ system produced a strict, inflexible body of rules. This provided the basis for the emergence of a separate body of law, the principles of equity.
Rise of Constitutional Law in England
Magna Carta, Rule of Law and Due Process
Magna Carta, 1215
The reign of King Henry II was followed by his sons Richard I and John.
John’s reign created much instability, and the Barons and Knights rose up against the King.
A meeting between King John and the barons and knights took place in 1215 and a verbal agreement was reached on many issues concerning the role of the crown. This was recorded in the Magna Carta.
Rule of Law and Due Process
Chapters 39 and 40 of the Magna Carta provide the basis for two essential aspects of the rule of law.
- No person can be charged with a criminal offence or deprived of civil rights or possessions except through the due process of the law
- The Crown is subject to the law
These are fundamental aspects of the rule of law that still exist today.
Emergence of Parliament
The word ‘parliament’ was not used in Norman England until the 13th century. The early parliaments were just an extension of Curia Regis and were used to obtain royal revenue. This is because there was no real sense of nationhood which was essential for Parliament.
Feudalism did not encourage trade between different parts of the country; however, with the development of the wool trade, a greater sense of nationhood could be detected.
Provisions of Oxford 1258
The domestic and foreign policies became subject to criticism from barons and nobles.
Civil unrest grew, and cumulated in the Provisions of Oxford 1258, which provided for a 24 member parliament (half chosen by King and half chosen by baronial council).
This effectively placed the machinery of government under the joint control of the king and the baronial council. This was a significant step in the establishment of a representative parliament in England.
Model Parliament 1295
As a means of raising the necessary funds for war, King Edward I called a parliament consisting of clergy, barons, two knights from each county and two elected representatives from each county.
This provided a model for future parliaments. It was unicameral, but it did form the basic structure of future parliaments (with both commoners and lords).
The Glorious Revolution of 1688
It played a critical role in the rise of constitutional law in England, because three fundamental principles flowed from it:
- Liberty
- Constitutional monarchy
- Parliamentary supremacy
It took place when King James II fled England in 1688 and was replaced by William of Orange and his wife Mary.
Constitutional Monarchy
The settlement changed the relationship between the Crown and Parliament, giving both of the m roles in the functioning of government. The relationship formed a constitutional monarchy (the functioning of the Crown was subject to the parliament to a greater extent then before the Revolution).
Parliamentary Supremacy
The Crown’s prerogative powers (common law powers) were subject to the statute law enacted by Parliament. It also meant that the common law was subject to, and could be changed by, statutes.
Equity
Emergence of Equity
The Provisions of Oxford prevented the Chancellor from issuing any new common law writs.
People who were dissatisfied with the lack of relief available at common law petitioned the King in Council for relief, and the King would refer the petitions to the Chancellor (formalised by King Edward in 1349).
The practise was further formalised into the Court of Chancery in the 15th century. The jurisdiction was exercised on the basis of conscience (‘based in theory on universal and natural justice rather than the private opinion or conscience of the Chancellor’).
The Judicature Acts
Separate Common Law and Equity Courts
Common law actions were heard in common law courts and proceedings for relief in equity were heard in separate courts of equity.
Equity was a supplementary jurisdiction (only available where the common law did not provide an adequate remedy).
The Acts
The Judicature Acts of 18377 and 1875 provided the solution to this problem by creating a Supreme Court of Judicature with both common law jurisdiction and equitable jurisdiction.
Common Law, Equity and Statute Law
Where there is conflict between the principles of equity and common law, the principles of equity prevail (s249 of Supreme Court Act 1995).