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What are the similarities in common law countries application of laws to Canada

A Canadian flag with blurred fairgrounds in the background

Common-law is a compilation of laws that are not written down or put into a body of legislation but rather evolve into a system of rules based on precedent. The common law creates guiding principles that judges implement through their decision making.  The majority of Canada is governed by the common law doctrine with the exception of Quebec that operates under the civil code. There are over eighty countries that actively utilize the common law either exclusively or in part of their legal system.

This blog will focus on two countries and their similarities to Canada in the application of the common law: Australia and South Africa.

Both Australia and Canada have ensured that human rights remain entrenched in their constitution which can only be altered through the use of a referendum. A referendum requires that; both Houses of Parliament, a majority of the population and majority of the provinces or states of the country agree with the proposed change. This is an extensive process which means that only changes deemed necessary will be considered and accepted. 

Another similarity within both these countries is the powers held by the court system. The courts have the ability to interpret legislation and determine whether rights have been infringed.

In South Africa, like Canada policies have been adopted to allow for government intervention to reduce discrimination based on race, gender, and physical capabilities.  Both countries foster the development of legislation that assists in the prevention and elimination of these issues. South Africa has patterned its Employment Equity Act and part of their Constitution Act after Canada’s Bill of Rights.  

These are just a few of the similarities in common law countries.  It is important to note that the basis of common law is rooted in Britain and therefore many commonwealth countries have adopted laws based on that system.