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The information provided in this article is information only and is no substitute for legal advice. If you would like advice about your situation, you should consult a lawyer.
Australia has two sources of law: legislation and common law. Legislation is made by parliaments and is available in documents called acts. Common law is made by judges in court decisions and covers areas that have not been legislated. In other words, if parliament has not made a written law about something, judges must decide cases based on earlier court decisions. Earlier court decisions serve as precedents.
The common law system has been developed by judges on a case-by-case basis and, bit by bit, building upon the precedent and interpretation of the court’s earlier decisions, created a wide body of law.
Historically, the common law system emerged in England in the Middle Ages before written laws came into being as a way to apply local customs to resolve disputes. A core principle of this system was that disputes must be resolved based on what occurred in similar cases. When Australia was colonised, this legal system was brought over and applied here. Over time, outdated common laws have been replaced by legislation or reinterpreted by judges to reflect changing societal values and circumstances.
Legislation always has priority over precedent, which means if the court hands down a precedent on a certain matter parliament can make laws that override that precedent for future cases. This is often seen in matters where there has been high public outrage over a decision by a court. In such circumstances, although the new legislation cannot apply retrospectively to the case that caused public outrage, politicians will often promote the new legislation as safeguarding the community against similar crimes occurring in the future.
Current legislation is relatively easy to find through websites created specifically for each state, territory or the Commonwealth. For example, the current version of the Crimes Act 1900 (NSW) is available on the NSW Government legislation website, while the current version of the Crimes Act 1958 (VIC) is available on the Victorian Government legislation website. The reference to “1900” or “1958” in the name of these acts is the year the act was passed as law in parliament. This does not mean the law is outdated. Acts are amended as required by parliaments to keep them current.
While legislation can also be found from other online sources – for example, Austlii – the best and most accurate source for current legislation is always state and government websites.
QLD, TAS, WA, ACT and NT are commonly referred to as having codified criminal laws, meaning that the laws are found (to a greater extent) in legislation. This should make it easier to find and understand exactly what is or is not an offence. However, criminal laws in one jurisdiction may be located across various acts and so may be difficult to locate. For example, criminal laws in Queensland may be found in the Criminal Code Act 1899 (Qld), the Drugs Misuse Act 1987 (Qld) and the Regulatory Offences Act 1985 (Qld).
Australia has two sources of law: legislation and common law. Legislation is made by parliaments and is available in documents called acts. Common law is made by judges in court decisions and covers areas that have not been legislated. In other words, if parliament has not made a written law about something, judges must decide cases based on earlier court decisions. Earlier court decisions serve as precedents.
The common law system has been developed by judges on a case-by-case basis and, bit by bit, building upon the precedent and interpretation of the court’s earlier decisions, created a wide body of law.
Historically, the common law system emerged in England in the Middle Ages before written laws came into being as a way to apply local customs to resolve disputes. A core principle of this system was that disputes must be resolved based on what occurred in similar cases. When Australia was colonised, this legal system was brought over and applied here. Over time, outdated common laws have been replaced by legislation or reinterpreted by judges to reflect changing societal values and circumstances.
Legislation always has priority over precedent, which means if the court hands down a precedent on a certain matter parliament can make laws that override that precedent for future cases. This is often seen in matters where there has been high public outrage over a decision by a court. In such circumstances, although the new legislation cannot apply retrospectively to the case that caused public outrage, politicians will often promote the new legislation as safeguarding the community against similar crimes occurring in the future.
Current legislation is relatively easy to find through websites created specifically for each state, territory or the Commonwealth. For example, the current version of the Crimes Act 1900 (NSW) is available on the NSW Government legislation website, while the current version of the Crimes Act 1958 (VIC) is available on the Victorian Government legislation website. The reference to “1900” or “1958” in the name of these acts is the year the act was passed as law in parliament. This does not mean the law is outdated. Acts are amended as required by parliaments to keep them current.
While legislation can also be found from other online sources – for example, Austlii – the best and most accurate source for current legislation is always state and government websites.
QLD, TAS, WA, ACT and NT are commonly referred to as having codified criminal laws, meaning that the laws are found (to a greater extent) in legislation. This should make it easier to find and understand exactly what is or is not an offence. However, criminal laws in one jurisdiction may be located across various acts and so may be difficult to locate. For example, criminal laws in Queensland may be found in the Criminal Code Act 1899 (Qld), the Drugs Misuse Act 1987 (Qld) and the Regulatory Offences Act 1985 (Qld).
Legislation is specific to the jurisdiction in which it is created. For instance, legislation created in NSW Parliament is specific for offences committed in NSW. Likewise, legislation created in the South Australian Parliament is specific to offences committed in South Australia.
The Commonwealth Parliament also creates laws for certain types of offences. A breach of these offences will result in charges under the federal legislation no matter which Australian state or territory the crime is alleged to have been committed in. For example, importing a border-controlled drug into Australia is considered a federal
offence and will result in charges under the Commonwealth Criminal Code 1995 (Cth).
Common law is more difficult than legislation to locate because it only exists in court judgments. Therefore, to find specific common law, one must know which case is the most relevant case providing that law. This can involve lengthy searches through case law databases and, if inexperienced at researching common law, is more prone to error with respect to finding current and relevant precedent.
Criminal laws in NSW, VIC and SA are found across legislation and common law. While the legislation confirms the different types of offences, common law is often relied upon to properly define the offence. Common law created in one jurisdiction may (depending on various factors) assist in defining law in another jurisdiction.
For example, section 26 of the Crimes Act 1900 (NSW) confirms that conspiracy to murder is illegal. It says, “Whoever conspires and agrees to murder any person … shall be liable to imprisonment for 25 years.” This law goes no further to describe what the term “conspires” means, and so the common law is left to provide this definition. The case of R v Rogerson (1992) 174 CLR 268 provides a definition for “conspire”, finding that conspiracy requires evidence of an agreement and an intention to commit the unlawful act and that the unlawful act need not be completed.
It is important to note that the extent to which common law can be codified varies between states. For example, unlike in NSW, conspiracy in Victoria is codified in legislation – in s 321 of the Crimes Act 1958 (VIC), which sets out the way in which a conspiracy might be committed in Victoria.
Principles of access to justice in Australia provide people the right to access the law. However, as shown above, it can be complex. Please contact your lawyer or community legal centre to understand how legislation or common law may apply to your case.
Legislation is specific to the jurisdiction in which it is created. For instance, legislation created in NSW Parliament is specific for offences committed in NSW. Likewise, legislation created in the South Australian Parliament is specific to offences committed in South Australia.
The Commonwealth Parliament also creates laws for certain types of offences. A breach of these offences will result in charges under the federal legislation no matter which Australian state or territory the crime is alleged to have been committed in. For example, importing a border-controlled drug into Australia is considered a federal
offence and will result in charges under the Commonwealth Criminal Code 1995 (Cth).
Common law is more difficult than legislation to locate because it only exists in court judgments. Therefore, to find specific common law, one must know which case is the most relevant case providing that law. This can involve lengthy searches through case law databases and, if inexperienced at researching common law, is more prone to error with respect to finding current and relevant precedent.
Criminal laws in NSW, VIC and SA are found across legislation and common law. While the legislation confirms the different types of offences, common law is often relied upon to properly define the offence. Common law created in one jurisdiction may (depending on various factors) assist in defining law in another jurisdiction.
For example, section 26 of the Crimes Act 1900 (NSW) confirms that conspiracy to murder is illegal. It says, “Whoever conspires and agrees to murder any person … shall be liable to imprisonment for 25 years.” This law goes no further to describe what the term “conspires” means, and so the common law is left to provide this definition. The case of R v Rogerson (1992) 174 CLR 268 provides a definition for “conspire”, finding that conspiracy requires evidence of an agreement and an intention to commit the unlawful act and that the unlawful act need not be completed.
It is important to note that the extent to which common law can be codified varies between states. For example, unlike in NSW, conspiracy in Victoria is codified in legislation – in s 321 of the Crimes Act 1958 (VIC), which sets out the way in which a conspiracy might be committed in Victoria.
Principles of access to justice in Australia provide people the right to access the law. However, as shown above, it can be complex. Please contact your lawyer or community legal centre to understand how legislation or common law may apply to your case.
Through these articles, we provide information on relevant areas of law. This first article provides basic information to make it easier for family and friends to support you. There are differences in the ways the systems operate depending on where you’re located (VIC, NSW, ACT or TAS), so we hope this is useful and relevant to where you are.
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The federal election is coming up. It happens about every three years. It’s for electing the government for the whole country – the federal government.
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