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Common Law and the Australian Legal System


For any established complex and dynamic society to correctly function there is the necessity to have in place a legal structure under which all are equal and applies without favor or discrimination regardless of their cultural, economic, political, racial, gender or any other definitive trait. In Australia, the Australian Legal System creates that essential and indispensable structure and regulates the various ways in which citizens and non citizens, corporations and organizations, and government’s behavior.

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The country’s legal system ensures the society can work effectively without some people or organizations using their power, money, or un-rivaled strength to take advantage of others. The system also ensures every individual understands his/her rights and obligations and the rights and obligations of others.

The British settled in Australia as part of setting a colony in the new lands and the process, the Australian legal system was created and established. The legal system in Australia has thus borrowed heavily from the British system. The Australia’s legal system started becoming independent with the adoption of the Australian Constitution in 1901 and since then, the legal system has remained constant and has had a great influence on the country’s society.

As a member of the Australian community then all are involved in the legal system in one way or the other, directly or indirectly. This is because any member of the society’s actions and endeavors are regulated by the laws, which are made by those put in power by the same society (Gifford, 1997).

The legal system in Australia has various subdivisions. The commonwealth government, which is responsible for passing laws binding on the whole federation, State or territory government, which is also mandated with the responsibility of passing laws that only apply in the given territory or state and the Local government, which is responsible for passing by-laws. The main key players in the legal system are the federal, state and territorial parliaments, various courts and diverse tribunals, departments contained in structured government, government ministers, the police force and lawyers.

David’s Case

David’s actions have caused an accident through obstruction on the road. Therefore, he has automatically broken the law under the section 5 of the Public Safety Act. The Act has clearly stated that any individual shall be deemed guilty if the individual’s actions result to obstruction of footpath or road of which David has done.

However, in a democratic system, a suspect is deemed innocent until proven guilty and there is a chance offered to individuals to defend their actions no matter the level of evidence presented. In democratic societies, justice is not only supposed to be done but has also to be seen to be done and served to all and satisfy both parties, accuser and accused, in the best way possible without contravening the law.

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David’s actions were spontaneous with no prior premeditation and thus less severe. This is natural for human beings to act in a reflex sometimes-unconscious manner when faced with a certain difficult situation. David had good intentions in helping his friend; he had no intention of obstructing and thus was not fully responsible for the accident.

Intentions of an act matter very much in a court of law and this can be best explained taking the case of murder and manslaughter. Murder is where an individual’s premeditated actions are to cause harm to another individual in the process killing while manslaughter, there is no prior premeditation nor intention of causing injurious harm despite causing death.

In David’s case, he had not set out to obstruct the road nor cause the accident and cannot be fully held responsible for the accident. The final decision in deciding a case rests with the judge but in most cases the evidence presented or testimonies influence greatly the outcome of a case. In this case, it is evident Cindy, David’s friend was bogged up, and thus in much need of help.

Like a true friend and a normal functioning human being, David came to the aid of his friend; little did he know the rope would cause an accident. Ethically, there is no way good intentions in executing a morally good action can result in a morally evil act. The accident could thus be termed as collateral damage that was brought by the circumstances of events.

David should, therefore, not be prosecuted. However, laws are established to govern all and to be non-discriminatory. An accident occurred because of David’s actions. Irrespective of the intentions of the act, it resulted in an accident and likewise in a civilized, modern and democratic society, people must be held accountable for their actions.

Lack of accountability, effectiveness and vagueness results to anarchy and chaos in a community since individuals commit offences and are never held accountable for their actions there by promoting impunity. David should at least be fined a reasonable amount instead of the five hundred dollar fine, if and only if the law allows for it. If the law only proposes a fine of five hundred dollars, then David should be acquitted and no charges pressed against him. Further, still his actions show how responsible he is in caring for others and could not have been reckless.

Linda‘s Case

Linda being a responsible citizen and diligent mother offers to help at her son’s kindergarten. Helping others is a noble thing but does not mean that such a person is law abiding. Helping others is a personal choice and is not a requirement of the law.

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Linda knowingly helps with the cleaning and decides to take home all the paint containers and cleaning fluid receptacles containing inflammable materials and consciously without being forced places them in the recycling bin. Due to the hot weather, the materials cause fire that damages a neighbor’s car. The law is clear that any individual, who leaves inflammable materials or matter in a public shed or place, shall be guilty of an offence. Linda left the garbage in a nature strip near a building.

Although no person was in the car, Linda should be prosecuted because of the following reasons. Solvents are clearly labeled and being the responsible citizen she is, she should have read the instructions very carefully and if she did, which I doubt, she should have sought a better way of disposing the specific containers rather than wrapping them together with other materials.

She was responsible in offering them for recycling instead of destroying them but should have made sure she put them in a safe place away from anything that could make them burn, and then should have personally handed them to the collecting trucks or agents. It is always advocated that instructions should be read carefully before using or disposing off materials. She seems to have ignored those common and basic rules that every responsible citizen should do and thus was negligent. She should be prosecuted accordingly to act as a lesson to other people who do not take caution.

The cause of the fire was natural and thus was beyond Linda’s control. However, humankind has the power to use nature to benefit those of a kind instead of causing more harm and damage. The nature of humans to correctly, predict the future makes the biggest difference in deciding the course a nation should take.

Lack of correct prediction results to unforeseen dangers and calamities that are a drawback to progress and at times lives are lost. Linda, has been living in that area is assumed was already accustomed to the weather patterns. She should thus have been able to fathom that such kind of weather was capable of causing fire.

Australia is known for its rampant bush and forest fires. These forest fires cost a lot of money to extinguish and are highly publicized. Living in a country in which fires occur out of natural causes, she should have taken extra caution but failed. She was negligent and thus should be prosecuted.

In law, ignorance has no defense. Of all the actions Linda undertook, she did out of her own free will and thus cannot be said to have acted out of external pressure. Unlike in the case of David where it was necessary to help Cindy because she was in need, Linda was not acting out of emergency rather she was executing normal duties.

If people were to engage in actions without thinking of possible consequences then the country would be in crisis because of actions that have not considered future outcomes. Even if Linda might talk of the fire being caused by means beyond her control, it is not enough because the fire could not have occurred if she would not have placed the flammable substances in the bin.

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Legal System operations

The Australian legal system depends on various set principles that guide its operations. People’s trust on the system is vested on the strict adherence to these principles by the system. In cases like the ones discussed above, the parties involved are guaranteed justice. Such principles of the system include fairness.

Fairness ensures that every case is decided based on the already established laws known by all and generally deemed to be endorsed by all. Transparency is also guaranteed in that, the conduct of cases will be in such a way that all understand, including the public who can thus make sound and critical judgment of the proceedings.

Freedom from bias is also maintained in that the judge is not supposed to favor any side and should remain neutral at all times. Therefore, judges are not supposed to be involved in cases where close relative or personal interest is at play. This is also referred to as impartiality. Right to be heard has also been assured by the system.

All are presumed innocent until proven guilty and have a right to be heard, have a lawyer overseeing the case on behalf of the accused and thus the judgment is made after the judge or the jury has listened to all sides. Having such a system ensures justice is served to the people (Hinchy, 2008).

Methods of interpreting a statute, concern of judges and the concept of value-laden

The process of objectively interpreting and effectively applying legislations is called statutory interpretation. Parliament is the branch of government responsible for making and amending legislations but the courts are left to apply. Many people have the notion that legislations passed by parliament are self explanatory and the judge’s work is only to read as spelt out.

This is not the case as judges have the enormous task of making their interpretation and judgment served. Judges have to make clear interpretation of the laws since there could be ambiguities and uncertainties that in many occasions arise because of language dynamism and multidimensional nature. The judges duty is thus to come up with the actual meaning.

The Golden Rule method is applied, in that the individual judge is supposed to make individual ruling after adhering to the common meaning of words especially in the context rather than the literal meaning as had been earlier exercised in the Literal Rule. The main weakness of this method is that it lacks consistency as judges make personal decisions, which could be at times erroneous. The Mischief Rule is another method employed by judges in the interpreting a statute.

This method mainly deals with focusing on the main purpose of the statute and the intention of the legislature rather than focusing on the words used in the construction of the statute. This method is also subject to disparity as judgment on the same case could differ based on the interpretation of the individual judge. The plain or literal meaning rule is also employed if the words are unambiguous and there is no possibility of there being more than one meaning (Meek, 2008).

The Purposive Rule method is used by judges in deducing the actual meaning intended by parliament even on occasions when the literature provided does not permit this. This method of interpretation has become the most preferred in interpreting statute. Judges in the process of trying to adhere to this method of interpretation have thus become very concerned in trying to understand the true intentions of parliament.

Studying the nature and history of certain legislations has thus become a necessity for judges, because it is the most appropriate in understanding a statute.

Etymology of certain legislations has also become a concern of judges since understanding the history of a law is the best way of understanding the circumstances that led to the creation of the law and the purpose intended by the same law. This way the intentions of parliament are better revealed, of which as noted, judges are very concerned with understanding the intentions of parliament like prescribed by the Purposive Rule (Cannon, 2008).

Judges also use the existing language guides and rules governing a certain language to remove the ambiguity of language as much as possible. If a general word is used in a specific sentence with other specific words, then the general word’s meaning and application will be used in interpreting the meanings.

For example, the judges may decide to use a certain brand of dictionary to guide them. This interpretation process is value-laden in that some general assumptions are sometimes used to make certain decisions that might not apply in all cases. Cases have their specific context of events unfolding and the use of outer contextual information could prove value-laden.

Australia needs a constitutional Bill of Rights

The Australian Constitution borrows heavily from both the British and the US constitutions. However, unlike the two, the Australian Constitution rejected the notion of a general bill of rights among other things. Australia should have its own constitutional Bill of Rights as the reliance treaties on the international human rights bill among other international bills does not duly serve the Australian people appropriately.

Furthermore, a survey has shown many Australians think the current state of affairs does not favor the observation of human rights and thus human rights are not appropriately observed in the country. Many are in support of the adoption of the human rights into the Australian constitution

Democracy is not a perfect system, as many people tend to portray it. If it were a perfect system based on firm premises, then there would be no use of bill of rights. Democracy entails the election of leaders by the majority to hold various offices and even at times there is one party rule in a democratic society.1

The rule of the majority does not necessarily mean the majority have overwhelming right to exercise their authority on others. Democracies that have an overwhelming majority tend to ignore the rights of the minorities and it is very easy for the basic rights of individuals to be compromised. This is what has resulted in some critics calling democracy the dictatorship of the majority. Australia, therefore, needs a bill of rights that guarantees the observation of various individual rights regardless of the time, regime, or the decisions of the majority.

Law is intertwined with politics and the judiciary being the third arm of government means has key part to play in politics though not party politics. An established bill of rights would ensure politics does not compromise basic rights of individuals by influencing other organs of government. Judges are human beings who have political party affiliations though not publicly. Therefore, if there is no established bill of rights and the court has been left with the mandate of ensuring individual rights are followed, then the court will be subject to bias especially where there are political figures involved.

Another reason for Australia to have a bill of rights is the dynamism of the society. At the inception of the Australian Constitution, the society was mainly monochromic and thus was easy to control and observe certain rules.2 However, the Australia of the modern times has become much diversified with multiculturalism being adopted. In a diverse society composed of all races, differences are inevitable and bill of rights is very essential in ensuring rights of individuals are observed at all times. All people irrespective of their race, political affiliation, gender, or age have the same basic needs and qualities, and are entitled to the same rights (Laster&Taylor, 1994).

Most school-going children in Australia are ignorant of the politics of the day and the constitution of the country, a survey has shown. Children are only interested in the pop culture and know their celebrities more than any other public figure. Creating a bill of rights and including it in the constitution would form a basis of educating the youngsters about the country’s observation of human rights and in the process, they will learn about the constitution.

This will create a sense of belonging and identity. The modern world is emphasizing more on globalization and the need for countries to have shared interests and common goals. Most of the countries in the world have endorsed the bill of rights in their respective constitutions and it would not be justifiable for Australia not to have one. Having a bill of rights in the Australian constitution would be to acknowledge that all human beings have similar basic rights. This is the first step towards globalization and assurance that a government has the best interest of its population.

Common Law and the dilemma of the modern society

In the contemporary modern society new events are happening every day of which some of the phenomena have not been witnessed before. Long before there were established elaborate parliamentary system; common law was the major source of legal rules. Common law is in some instances referred to as case law, was mainly developed by the judges and needed no approval from the legislature.

However, in the twentieth and twenty-first century, there have been increased government regulations and in fact legislation presented and implemented in various forms has replaced the specific cases as the main source of legal regulation and more importantly where Australia draws its laws.

In the past, judges had the freedom of deciding cases according to the nature and complexity of the case rather than relying on the already set standards. This way, judges were able to adjust to the societal setting of the particular time and space thus flexible. Common law cases were decided as per the expectation of the society and thus a similar case decided some years back differed totally with a case in a current setting. Common law supports the consideration of the society. Cases are therefore decided in a more accepted and generally agreed upon societal setting.

In the modern societies, common laws have been replaced with parliamentary systems manufactured laws that are agreed upon by the parliamentarians, laid down, and cannot be tampered with unless the same parliament makes the changes. Creating a law through a parliamentary system requires a majority in most cases.

The bill first passes through various stages until the time it becomes a law. Since creating a law through a parliamentary system is hard than the common laws, then amending the same law is equally hard. Parliamentary established laws are stiff and binding to all whether in agreement with the law or differing with the law failure to which will be breaking of the laws and thus punishable.

The modern society is constantly in a state of flux and new events happen every day. Information and technology have made cross cultural sharing possible and improved communication among the world population. The social networking has become part of the current generation. Parliamentarians cannot cope with the rate of the changing society and thus some of the laws have become outdated and old-fashioned. Common law application seems to be the most appropriate way of dealing with radicalism and dynamism of the society.

However, the constitution states clearly that the parliament is the main law making organ of government and thus a judges application of common laws will bring criticism of taking powers beyond the judge’s jurisdiction. If the judge decides to apply the stipulated laws in the constitution, there will be public uproar in some instances for the application of outdated legislations. The judge is thus thrown into a dilemma.

In the modern world, it has become essential to observe the rule of law no matter how outdated the laws might be and, therefore, the laws as provided by parliament are superior and more legally binding than laws of the judges or in other words the common laws.

Common laws are established in most cases to settle already existing disputes while the laws in the constitution serve to prevent offences and to pass judgment on already existing offenses. Common law study is very essential especially for law students and in understanding the foundation on which many laws have come to be based on (Barker, 2000).

Reference List

Barker, D. Essential Australian Law. New York: Routledge, 2000 pp. 34- 150.

Cannon J. Lessons from the Australian Constitution. Berlin: Lit Verlag, 2008 pp.35-45.

Gifford, J. Understanding the Australian Legal System. Sydney: Cavendish Publishing Limited, 1997.pp.5-7.

Hinchy, R. The Australian legal system: history, institutions, and method. Australia: Pearson Education, 2008. pp.302- 403.

Laster, K. and Taylor, V. Interpreters and the legal system. Sydney: The Federation Press, 1994. PP.57-99.

Meek, K. Australian Legal System. Sydney: Lawbook Co, 2008 pp.33-36.


  1. Democracy is the form of government in which the supreme power is vested in the people.
  2. Monochromic, the society consisted of a predominant single race.

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