You are on page 1of 2

Common v.

Statute law

As law developed, the source of law is divided into two; common law and statute law.

(i) Statute law

Statute law is based on acts of parliament. As Parliament made law expressed in an Act, statute law is
passed by empowerment of Commonwealth (Federal). Statutes (a) bring new law into existence; (b) repeal
old laws created either by earlier statutes, or by decisions od the courts, which have ceased to be
appropriate to present social needs; (c) codify the law (include not only previous statutory provisions but
also common law principles derived from decisions of the courts).

The making of law (statute) is started with draft of act (Bill). A Bill must pass through parliament and receive
approval by the governor-general before it becomes an Act. It is not necessarily active as soon as approved,
commencement of Act will be vary from one to another based on specified time given.

Statute law as enacted law enable law to be passed from legislative body by declaring a new statutory law
after the law had been approved; which afterwards will be announced to public. Therefore, enacted law is
made by Parliament and is known as statute law legislation or Acts of Parliament.

(ii) Common Law

Common law refers to law developed by looking into acts and statues. Common law can also be called as
case law, in which decisions are made and refined by judges based on precedent (past, relevant) cases in
the court; which depends on constant flow of reported cases. Doctrine of binding precedent (or stare
decisis) requires that the decision of a court in a decided case bind judges lower in the same court
hierarchy in deciding cases of similar nature.

e.g.: a decision of High Court of Australia on a particular issue is binding on State Supreme
Courts and the Federal Court should they have to decide the same issue in later cases.

Cases decided in one hierarchy are not strictly binding on the court of another, but will be of persuasive
authority only. It only appies on same court hieararchy of lower in the same state.

-Full Supreme Court of New South Wales ≠ Full Supreme Court of Victoria

Source of (common) law is not based on stare decisis alone, the legal reason of decision will also hung into
ratio decidendi of a case (often shortened as ratio). This is expressed by reasons for judgement to which a
majority of the participating judges assent, is the law. A statement of principle made in the earlier case
which was not strictly necessary for the decision is not binding. It is merely persuasive (a reference, not
central to the decision). It is important for a lower court to determine precisely what was the ratio of the
higher court which is binding.
The term “common law” is in fact used in numner of different ways... (a) the law as declared by judges as
distinct from statutory law (laws made by Parliament); (b) common law as distinct from equity (product of
judicial decisions; (c) common law as distinct from civil law.

Common law includes civil law (people vs people) and criminal law (government or state vs people) which
are exercised differently in the Hierarchy of Court (State and Federal). Civil law is that law that law under
which a person (the plaintiff) may sue another (the defendant) to obtain redress for a wrong commited by
the defendant. The criminal law define offences against the State (against public) and provides punishment
for their commission. Crimes are defined by statute, delegated legislation or the common law and are
prosecuted in the name of the Crown on behalf of the State.

By its nature, common law had always look to the past for its authority. Remedy (compensation) given by a
defendant (a person against whom a lawsuit is brought) for the plaintiff (an injured party - those bringing
lawsuits) depends on the level of damage incurred.

The usual purpose of a civil action is to obtain monetary compensation called damages for the loss suffered
by the plaintiff as a result of the defendant's wrongful act. In some cases damages is inadequate remedy
and the plaintiff might seek specific performance of contract, or an injuction to restrain some unlawful act
or threatened act. Where a wrongful act is both a crime and a tort, the State may prosecute the offender
who commited the crime, and the victim may bring a civil action against such person for the harm or loss
suffered.

The distinction between civil law and criminal law, is that, because of different procedures, different
standards of proof and different remedies apply.

(iii) Statute vs Common law

Statute law refers to the laws that have been passed by the legislature and have been written down and
codified for use. Common law refers to the laws that are more or less - that's the way it has always been
done. Common law relies upon the body of history and prior cases to establish what the rules are.

Statute law and Common law affect each other. Acts and other legislation are sometimes drafted in very
broad terms. Courts must often decide their meaning, and the court’s interpretation becomes part of the
common law in that area. For example, the law on families is found not only in the Commonwealth Family
Law Act, but also in the decisions courts have made on matters controlled by the Act.

If an Act and a common law rule apply to the same area, and they are inconsistent, the Act overrides the
common law. If, for example, the common law creates a new principle, parliament can overrule it or vary it
with an Act. The High Court decision in the Mabo case, and the subsequent Native Title Act 1993 (Cth), is an
example of this.