Sources of law

It is important to gain fundamental knowledge of our legal system in order to understand what legal requirements are relevant to your work role.  In Australia, there are two main sources of law – Common law and Legislation.International treaties and conventions are also an important influence on the formation of our laws.

Common law

Common law or case law is essentially judge-made law.  It is the result of judicial decisions of cases that have come before the courts. This is covered more fully in ‘The court hierarchy’.  Decisions made by judges in the higher courts become precedents or rules, which judges in the lower courts are obliged to follow.  This is known as the doctrine of precedent

Legislation can over-ride or limit common law
Legislation may be passed that over-rides or limits common law.  For example, Australian states have legislated to cap or limit the amount of damages that can be awarded in person injuries claims. See the topic Legislation related to negligence.

Role of international or customary law
In developing the common law, the High Court has taken into consideration what is accepted. For example, in the Mabo Case, the High Court took into consideration, and applied, the internationally accepted concept of ‘native title’.

Role of international treaties and conventions
In addition, the High Court takes into consideration many international treaties that the Australian Government has ratified but has not yet legislated into domestic law. A good example of this is Teoh's case.

Teoh's case

Teoh's case (Minister of State for Immigration and Ethnic Affairs v Teoh) is a good example of the High Court taking into consideration an international treaty or convention that the Australian Government has ratified but has not yet legislated into domestic law.

In this instance the High Court applied the provisions of the United Nations Convention on the Rights of the Child (CRC).

Teoh was convicted of drug trafficking and related offences under the Commonwealth Crimes Act, because he was a non-citizen of Australia, the Minister for Immigration ordered his deportation.

Teoh was married to an Australian citizen and was the father of two Australian children.  He applied to the High Court to have the Minister’s deportation order overturned.  The High Court, referring to CRC and the provision that children have the right to family unity, overturned the Minister’s deportation order.

The principle in Teoh's case is that government decision makers, (ministers and the staff within Commonwealth Government departments) should have regard to treaties that have been ratified by Australia but are not yet directly incorporated into Australian law.  Another way of expressing this principle is that an individual has a 'legitimate expectation' that any decisions made by the Commonwealth Government about an individual will conform to ratified treaties. 

Teoh was convicted of drug trafficking and related offences under the Commonwealth Crimes Act, and as a non-citizen of Australia, the Minister for Immigration ordered his deportation. Teoh was married to an Australian citizen and was the father of two Australian children.  He applied to the High Court to have the Minister’s deportation order overturned.  The High Court, referring to CRC and the provision that children have the right to family unity, overturned the Minister’s deportation order. 

The principle in Teoh's Case is that Government decision makers [Ministers and the staff within Commonwealth Government departments] should have regard to treaties that have been ratified by Australia but are not yet directly incorporated into Australian law.  Another way of expressing this principle is that an individual has a 'legitimate expectation' that any decisions made by the Commonwealth Government about themselves will conform with ratified treaties.

 

Last modified: Monday, 30 September 2013, 3:48 PM