How to change laws

Focus on common law, statute law and how the constitution is changed

Common law

Common law is created through the ruling of a judge, which in turn creates a precedent for other cases ruled the same. If there is a statute law in place for an issue, a common law will not be made as statute law is above common law in the hierarchy. The high courts common law have higher power over the lower courts.

To change a common law, a statute law must be passed regarding the same issue. It may sometimes only affect part of the common law, but it still considered a change. The statute law must go through the same process as any other bill or amendment.

For example, the Native Title Amendment Act 1988 (Commonwealth), the case, known as the wik case, involved whether or not aboriginal Australians had the right to native land over pastoral leases. It was ruled that they can coexist (farmers and aboriginals) on the land, until conflict arises where pastoral rights would take precedence. The federal government and farming corporations felt that this common law created uncertainty, which lead to the creation of the Native Title Amendment Act 1998 (Commonwealth) (statute law). This made it harder for indigenous people to claim native land rights prior to 1994.

Statute law

Children (Care and Protection) act 1987 (NSW) was passed as a statute law, until later being repealed (removed) and replaced with a new act. This act, Children and Young Persons (Care and Protection) Act 2000 (NSW) was created due to the fact that the previous act (of 1987) was considered insufficient, not protecting all children/adolescent who needed the protection (children convicted of committing offences against the law and those being neglected).