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Now, there is a statement, “common law is no longer important in Australia”. In my opinion, it is not true. Common law is still playing a necessary role in Australia society, and because it is made for all the public, therefore the common law can be used widely. On the other hand, the legal law in Australia is derived from two organisations, the courts and parliament. And the law made by the courts is common law, from this, it is clearer to be seen the importance of common law in Australia.
Definition of common law. The law that is declared by court is called common law (Elizabeth Crosby, 2006, business law) it is known as precedent, case-law and judge-made law. And equity law is usually involved in the common law. The law has been developed over time by judges. This law is applied to later cases having similar facts and circumstances in accordance with the doctrine of precedent. The principal remedy under common law is damages, originally administered in English by common law courts.
Case law and precedent law. One of the most important resources in Australia is the court. The law which is made by court is called common law, and the common law is consist of principles that is referred to as precedent, case-law or judge-made law. A precedent is a decision of a court of a court that establishes one or more legal principles. Precedents may be used by later cases in making decisions. The formal rules about how and when precedents can and will be applied in later cases, and form the case law. The case law can coach the cases which have similar facts and can be solved in a similar way in the court. This can keep fairness and consistency in making decisions by common law. Therefore the case law and precedent law play important role in Australia legislation.
The judges in making and interpreting laws. The judges have large power to make and interpret the laws. This can be seen in three points. Firstly, there is no relevant statute they can refer to. Secondly, they must play an important role about dealing with a gap in the law. Lastly, when the statute is not clear or its application will have an unfair result, the judges have to perform its power to solve disputes.
The parliament in making laws. Under the Australia Constitution the legislative power is required to be carried out by the Commonwealth Parliament (Gibson A & Fraser D, 2005, Business Law). Australia has a federal system of government. For dividing power, Australia sets out that commonwealth have parts of power to make laws. The government can make laws in such areas, taxation, immigration, external affairs and so on. Law-making power can be classified in three parts, concurrent, exclusive and residual. Of these, the parliament has the only power to make laws on exclusive and can hold concurrent. An act of parliament made by the Commonwealth Parliament can potentially affect the whole of Australia. Therefore the parliament is an essential part in making laws in Australia.