Gavin Howe
Australia's legal system is a combination of inherited laws from Britain, known as English common law, and the numerous statutes that have been enacted by the various states and federal governments since federation. The Australian legal system is unusual among common-law countries in not having a Constitutional Charter or Bill of Rights. However, common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws of overriding force on a number of express topics.
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What You'll Learn
Australia's common law is uniform across all states
Australia is a common-law jurisdiction, with a legal system inherited from the English common law system. This was the result of colonisation, which saw Indigenous Australian customary law superseded. The Australian legal system is a combination of inherited laws from Britain and the numerous statutes that have been enacted by the various states and federal governments since federation.
The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws of overriding force on a number of express topics. The states are separate jurisdictions with their own system of courts and parliaments, and are vested with plenary power. Despite this, the High Court has declared that Australia's system of common law is uniform across all states. This is in contrast to other jurisdictions, like the United States, that have maintained distinct systems of common law within each state.
The legal system in Australia is defined by the Australian Constitution, which establishes the demarcation lines between the six states and two territories and the federal government. The country's common law is the same across the states and territories, although there are some differences in case law between the states. This is because case law, or the laws that are interpreted by judges, changes over time as society changes and different interpretations are made.
Australia is unusual among common-law countries in not having a Constitutional Charter or Bill of Rights. However, common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
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Indigenous Australian customary law
Australia is a common-law jurisdiction, with a legal system substantially derived from English law, which superseded Indigenous Australian customary law during colonisation. Indigenous Australian customary law, or "lore", differs between language groups, clans, and regions. It dictates the rules on how to interact with the land, kinship, and community, and is intertwined with cultural customs, stories, and practices from the Dreamtime. Lore is passed down through oral tradition, songlines, stories, and dance.
Indigenous systems of law were deliberately ignored by the colonial legal system, and in the post-colonial era have been recognised to a limited degree. In 1992, the Mabo decision discarded the legal fiction of terra nullius, and the High Court recognised customary legal rights to land, as long as those rights had been maintained continuously since settlement. The Native Title Act 1993 now regulates Indigenous customary claims to land.
Since the late 20th century, legislative bodies have investigated incorporating Indigenous laws more formally into post-colonial legal systems. In 1986, the Australian Law Reform Commission considered the use of Aboriginal Customary Law within the legal system, but found difficulties with consultation, particularly with women, who would not speak in meetings involving men. In 2020, the Queensland Government introduced a bill to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020.
The recognition of Indigenous customary law has been slow, and the authority to determine the rules of customary law has been a significant problem in Australian common law. In some cases, customary law has been controversial, especially when it is imprecise or infringes upon human rights.
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Australia's written constitution
Australia is a common-law jurisdiction, with a court system originating from the common law system of English law. The Australian Constitution, also known as the Commonwealth Constitution, is the fundamental law that governs the country's political structure. It is a written constitution, which sets out a federal system of government, with a national legislature that can pass laws on various express topics. The Constitution establishes Australia as a federation under a constitutional monarchy with a parliamentary system.
The Constitution comprises eight chapters that outline the structure and powers of the three components of the federal government: the Parliament, the Executive Government, and the Judicature. It was drafted between 1891 and 1898 by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The final draft was approved by each state through referendums from 1898 to 1900. The Constitution came into effect on January 1, 1901, marking the birth of the Commonwealth of Australia, with the six colonies becoming states.
The Australian Constitution serves as the primary source of Australian constitutional law. However, it operates in conjunction with other elements such as constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments, and judicial interpretations by the High Court of Australia. Notably, the Constitution can only be amended through a national referendum, requiring a double majority of voters nationwide and across a majority of states.
While Australia's written constitution provides a framework for governance, it does not include a comprehensive bill of rights. This stands in contrast to other countries with common law systems, highlighting a unique aspect of Australia's constitutional framework. The limited recognition of Indigenous Australian customary law, both historically and in the post-colonial era, further shapes the context of Australia's legal system.
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Common law rights and human rights
Australia is a common-law jurisdiction, with a court system that originated in the common law system of English law. The country's common law is uniform across states and territories. However, it is unusual among common-law countries in lacking a Constitutional Charter or Bill of Rights.
Despite this, common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law. There is a presumption that legislation is intended to be consistent with fundamental rights and should not infringe upon them unless the legislation expresses a clear intention to do so and the infringement is reasonable. This presumption constitutes a substantial level of protection for the "principle of legality".
The Australian Constitution recognises five explicit individual rights, and the High Court has found that additional rights may be necessarily implied by the language and structure of the Constitution. The Australian Government is committed to protecting and promoting traditional rights and freedoms, including freedom of speech, opinion, religion, association, and movement.
The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission, which is responsible for monitoring and promoting human rights protection. The Commission also has responsibilities under various anti-discrimination acts, including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996.
The responsibilities of the Commission and the requirements for legislation to be accompanied by Statements of Compatibility with human rights are defined by reference to seven major human rights treaties to which Australia is a party. These include the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Elimination of All Forms of Discrimination Against Women.
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Australia's court system
Australia is a common-law jurisdiction with a court system that originated in the common law system of English law. The country's common law is uniform across the states and territories, though each state and territory has its own laws and court system. The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws of overriding force on certain express topics.
The High Court of Australia is the highest court in the Australian judicial hierarchy and was created by Section 71 of the Constitution. It has appellate jurisdiction over all other courts and original jurisdiction in certain matters, including powers of judicial review. The High Court is the final Court of Appeal in Australia and hears matters involving disputes about the interpretation of the Australian Constitution, as well as final appeals of criminal and civil matters from all Courts in Australia.
The Federal Court of Australia is a superior court with jurisdiction to hear civil disputes governed by federal laws. It hears matters on a range of different subjects, including bankruptcy, corporations, industrial relations, native title, taxation, and trade practices laws. It also hears appeals from decisions (except family law decisions) of the Federal Circuit Court.
The Federal Circuit Court, which includes a family law division, hears less complex disputes than the Federal Court of Australia. Its jurisdiction extends to matters including family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy, and trade practices.
The Supreme Court is the highest State Court and also has appeal divisions, known as the Court of Appeal (in civil matters) or the Court of Criminal Appeal (in criminal matters). The Supreme Court of Appeal hears all civil appeals from the Supreme Court, District Court, Land and Environment Court, and some tribunals. Appeals from the Supreme Court of Appeal are heard by the High Court.
The District Court deals with civil claims (in New South Wales between $100,000 and $750,000) and all motor accident cases. The Land and Environment Court is a specialist environmental and planning court responsible for interpreting and enforcing planning and environmental law.
Australia is unusual among common-law countries in not having a Constitutional Charter or Bill of Rights. However, common law courts have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
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Frequently asked questions
Yes, Australia has a common law system.
A common law system is a body of law containing doctrine, principles, rules, concepts, values, and methodology. It is mainly derived from past cases and is interpreted by judges according to case history.
Australia's common law system is inherited from English common law. During colonisation, English law superseded Indigenous Australian customary law, which varied between language groups, clans, and regions.
Australia's common law system is uniform across all states and territories. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and judicially determined common law. The country's laws are decided by state, territory, and federal parliaments.
No, Australia does not have a Constitutional Charter or Bill of Rights, which is unusual among common law countries. However, common law courts have the power to protect human rights principles, except where legislation specifically overrides this power.
