Page 2832 - Week 10 - Tuesday, 13 September 1994
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The Minister makes the very pertinent, the very timely claim that it is important for us to be able to bring the law to a state where it can be, as far as possible, ascertained by reference to a single document or a single source. So, we are not so much writing down the common law principles or writing down these criminal law principles, but we are writing them down in a particular place where they can be easily found.
I should say that, in terms of the argument between common law and statute law, there is nothing wrong with common law. The reference by the Minister to the common law principles being largely unwritten seems to reinforce a prejudice that might be held in some people's minds that common law is inferior to statute law. Common law is, of course, essentially judge-made law; and statute law, of course, is law made by parliament. Common law is very old. Common law is very flexible. It is determined by judges hearing particular cases or hearing appeals from particular cases, deciding whether justice is done by the application of an existing law in a particular way or not. I think we should recognise that common law has evolved, in a very real sense, to meet the needs of ordinary people. It is wrong to suggest that statute law is superior in this sense because, in a sense, it is made by people who are sitting in a parliament like this, who are dealing with a law in a theoretical fashion; whereas judges who make common law do so often with real people sitting before them, sometimes in the dock, sometimes as litigants before them, and make the law which, in their view, best suits justice in those particular cases.
In addition, I do not believe that, by enacting legislation such as this uniform Criminal Code or by attempting to codify the criminal law, we in fact abolish common law or remove the right of judges to formulate the law of the land. Indeed, it is arguable that, because common law is natural, it has a life of its own and statute law is, in a sense, artificial, there will always be common law. Members should be aware that, as fast as the legislature makes laws in a piece of paper, it falls to judges and magistrates to interpret the law, and every time they interpret the laws that we enact in this place they, of course, establish common law because, by their ruling in a particular case where two parties are arguing about the meaning of a particular word in a statute or a particular phrase in a statute - that it has X meaning rather than Y meaning - that becomes, if it is a superior court at least, the law of the land. That interpretation becomes the law which is, in a sense, tacked onto the statute law. As law is codified, I think it is true to say, the common law grows on it - a bit like mould, you might say. We cannot abolish the common law, therefore, unless we also abolish the principle that lawyers refer to as star-rated chasers, that is, something has already been decided and should be applied consistently by other courts as a previous court has decided it.
Of course, having said all that, there is a very good, very powerful reason why we should be moving, wherever possible, particularly in a case like this, to codify our law and attempt to make it available to ordinary people in a single place. By reason of having laws which differ from jurisdiction to jurisdiction we place citizens in the sometimes abhorrent position that an act that they might do in one place in this country could be an innocent act, an act with no consequences, or an act with certain consequences which are utterly different to the consequences of performing exactly the same act in a different place; that is, doing something in Canberra might have quite different consequences from doing the same thing in Queanbeyan.
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