Learning Objectives

Definition:

Common law refers to the law made by judges through their decisions, not through specific statutes of parliament. This law is created by a judge's decision in a matter not governed by the constitution or statute law.

Case Studies:

Norrie vs NSW Registrar of Births/Deaths/Marriages (2014)

Norrie applied for review of the Registrar’s decision to refuse to register her sex as “non-specific”.
The Court of Appeal of NSW found in Norrie’s favour. The Court said Norrie might be assigned to a category of sex other than male/female, such as “non-specific”, or, indeed, “intersex”
The High Court agreed with the decision of the Court of Appeal and ruled in Norrie’s favour.
The recognition that sex can exist outside male and female categories can influence judicial consideration of analogous legislation in other states and territories

Timber Creek Case (2019)

This case was about seeking financial compensation for aquired native land which came about due to clause built in the Native Title act allowing compensation.
In Federal court Justice Mansfield ruled that 3.3m would provided to the Aboriginal Torres Strait Islander people (the claimants) of which 1.3m was for cultural, spiritual and social loss & 2m for economic loss of the land.
NT & other State governments appealed this in the High Court stating that the 1.3m compensation was excessive, however, the H.C ruled that it was not excessive only decreasing 2m for economic to 1.2m.
The impact of this case was that it set a precedent - common law - for the calculation of compensation provided to Claimants on basis of Native Title.

Mabo Case (1992)

H.C declared that ‘terra nullius’ was invalid and hence the land belongs to the Aboriginal Communities.
Led to the creation of the Native Title Act which included a provision to reparations of aboriginal communities for their land.