COMMON LAW VS STATUTE LAW Essay Example

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
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    2
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    1379

Common Law vs Statue Law

Common Law vs Statue Law

In the Australian context, common law and statute law differ in a variety of aspects. While judges declare the common law, the parliament makes statute laws. However, it is important to stress that legislation is the main source of law, and thus, all cases commence with the interpretation of legislations are made by the states and Commonwealth. Legislations is encompassed with acts or statutes and regulations. Also, other striking differences between common law and statute law is the way each is made, the law making procedures involved, and what each means for the utility of each as sources of environmental law. This current paper discusses these aspects, thereby revealing the main differences between the two laws.

There are differences in how the two laws are made. Common law is developed based on preceding rulings made by judges while statutory laws are mainly written and passed by the government and legislature (Bank, 2007). As the author asserts, statutory laws or legislations, are made by the Commonwealth parliament, the legislatures of the Northern Territory, the State parliaments, as well as the Australian Capital Territory and Norfolk Island. In addition, local governments are given certain powers by the parliament to make legislations. Statute law is made by a parliamentary process, which is involved in the passing of statutes that are also referred to as “Acts”, and deal with the regulation of various societal aspects (Bank, 2007). On the other hand, common law is quite separate from statute law primarily because it does not rely on any Act of Parliament to underpin it. However, statute law is the main source of Australian law, but the common law remains vital in the development of the legal system. In instances when there are conflicts, statute law will always prevail over the common law.

Statute law, as mentioned before, is passed by the parliament. Also, “legislations” and “statutes” are in many occasions used interchangeably. Each Australian State looks differently on governmental aspects, including roads, education, and hospitals among others, and that is the reason laws differ from one State to another (Parliament of Australia, n.d). For example, in the issuance of a driving license, the driver’s age and the period of the provisional license may vary State wise. However, it is important to state that whenever setting statute laws, those which are passed by the Australian Federal Parliament are applied in the entire country, and deals with aspects such as national health, trade, immigration, and defense. However, in the making of statute laws, which is very different from making common laws, the Federal Parliament has to be involved. However, an issue should be presented to the court, and whenever it decides to tackle the issue, a Bill is drafted, which is a proposal to make a new law or to amend an existing one (Parliament of Australia, n.d).

According to Bank (2007), the Bill is presented to the parliament by either a member the upper or the lower house who is primarily proposing that it becomes law, which is referred to as “tabling the law.” This happens in the first reading. It is then printed alongside an explanatory memorandum, which explains the aspects of the Bill, including its purpose, and how its sections are intended to operate (Bank, 2007). The second reading speech ensues, whereby the member proposing the Bill gives a speech to the other members outlining why it should be made law. Consequently, this triggers a debate and amendments done (Bank, 2007). The House members vote on the various amendments made on the Bill. The bill is then presented to the other House after it has been passed in the first, and the process is repeated, first reading, second reading, sitting of the committee, third reading. If it is agreed by the other House, it is passed to the Royals for assent by the Governor-General. In essence, once a Bill has been passed by the houses it becomes an Act of Parliament. As Bank (2007) points out, the assent entails approval by the Governor if it was an Act of the NSW Parliament or Governor-General if it was an Act of the Federal Parliament. In consequence, the Bill becomes Law.

On the other hand, common law jurisdictions occur whenever an issue goes to court, but there is no statute that covers it. As such, the judge will hear the case, gather the facts, and thereby issue a verdict based on the facts (Bank, 2007). For this reason, the verdict becomes the precedent, and therefore, whenever similar cases arise, other judges take account of what verdict was issued in the previous case. As such, it can be derived that the previous judgments are the basis of common law. However, precedents are only set by superior courts, which are the Supreme Court for each of the Australian State, the Federal Court, and the High Court of Australia (Bank, 2007). Also, whenever the precedent has been set, all lower courts must follow suit, and thus, the precedent can be changed whenever a higher court overturns it. For instance, once the Court of Queensland issues a verdict, it sets a precedent, and therefore, all District Courts and Magistrate Courts in Queensland must follow the decisions. In instances when a party appeals and the decision falls in the hands of the High Court of Australia, which gives a different verdict, the High Court’s result will become the precedent (Parliament of Australia, n.d).

Importantly, the precedents can also arise from statutory laws. For instance, whenever a certain statute is vague or ambiguous regarding a specific case, the judgment reflects the statute, but the law is expanded to encompass all aspects of the case that may otherwise be excluded by the statute (Bank, 2007). As such, statutes may have gaps meaning that common law may take effect, and thus, a higher court can make it statute law. For this reason, common laws can be promoted to acts. Whenever the parliament recognizes this gap, it passes a Bill, which is based on the common law’s verdict, and this process is often referred to as codification.

As the Environmental Defenders Office Inc. (n.d) point out, both the common law and statute law can be utilized as sources of environmental law. However, before it has to be passed, the environmental law should undergo the procedures encapsulated within the precincts of the laws. However, statutory laws are the main source of environmental laws in Australia (EDO NSW, n.d). In essence, legislations sets out the processes and powers by which Government Departments, local councils, and Ministers make decisions pertaining to the environment. In additions, statute laws set out a variety of enforcement penalties and powers for breaching any of the environmental laws. As such, the Parliamentary Acts empower public authorities in preparing policies and plans about the environment, including local councils in the preparation of local environmental plans. For example, most NSW environmental laws are made by the government, which cover various environmental issues, including water management, protection of endangered species, aboriginal cultural heritage, and vegetation management among others (Environmental Defenders Office Inc., n.d).

On the other hand, common law forms a part of environmental law. For instance, courts settle disputes dealing with environmental issues such as public nuisance, pollution, and determine whether there is a breach of law to decide the appropriate remedy or penalty. As such, the statute law in this case, is the main source of environmental law. Particularly, the Department of Sustainability, Environment, Water, Population and Communities in the country, as well as Australian Government Comlaw website has a clear set of environmental laws (Environmental Defenders Office Inc. n.d). As such, it can be concluded that as far as the environmental law is concerned, the statute laws, via parliamentary acts enforce and set environmental laws, but in case of any disputes, common law or statute law can offer remedies and penalties.

References

Bank, R. (2007). Hot Topics: Australian Legal System. State Library of New South Wales. Retrieved http://www.utas.edu.au/__data/assets/pdf_file/0017/334232/aust_leg_syst_601.pdf

EDO NSW, (n.d). What are the sources of environmental law? EDO NSW. Retrieved 19 March 2016, from http://www.edonsw.org.au/hys_what_are_the_sources_of_environmental_law

Environmental Defenders Office Inc. (n.d). Sources of environmental law: Environmental law in the Northern TerritoryEdont.org.au. Retrieved from http://edont.org.au/factsheets/sources-environmental-law/

Parliament of Australia, (n.d). Making laws. Parliament of Australia. Retrieved from http://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-_Making_laws