Anaya Nolan
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 has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Australia is a common-law jurisdiction, with a court system that originated in the common law system of English law.
| Characteristics | Values |
|---|---|
| Legal system | Combination of inherited laws from Britain (English common law) and statutes enacted by various states and federal governments |
| Court system | Originated in the common law system of English law |
| Common law | Same across the states and territories |
| Constitution | Sets out a federal system of government |
| National legislature | Has the power to pass laws of overriding force on express topics |
| States | Separate jurisdictions with their own system of courts and parliaments, and are vested with plenary power |
| Legislative independence | Exists in parallel with a growing divergence between Australian and English common law |
| Human rights | Common law courts have the power to provide significant protection of human rights principles, including the rule of law |
| Common law recognition of rights | Generally lacks provisions contained in human rights treaties for obligations on governments to take active measures to promote and protect human rights |
| Common law principles | Contain concepts intended to provide protection regarding children and people with disabilities |
| Court hierarchy | Lower courts must follow the decisions of appellate courts and the High Court of Australia, which is Australia's superior court |
| Federal legislation | Made by the Commonwealth Government in Parliament |
| State legislation | Each state has a body that makes legislation, e.g., ACT legislation is made by the ACT Legislative Assembly |
| Parliaments | Supreme law-making body, also known as the doctrine of parliamentary supremacy |
| Common law and statutes | Statutes take priority over common law; the meaning of an Act takes precedence over common law |
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What You'll Learn
The Australian legal system's history
Australia's legal system has its roots in English common law, which superseded Indigenous Australian customary law during colonisation. The Australian legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system.
Prior to colonisation, the only systems of law that existed in Australia were the varied systems of customary law belonging to Indigenous Australians. These laws varied between language groups, clans, and regions, developing over time from accepted norms within indigenous societies. During colonisation, these Indigenous systems of law were deliberately ignored by the colonial legal system and have only been recognised as legally important by Australian courts to a limited degree in the post-colonial era.
In 1824, a court system based on the English model was established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to deal with all criminal and civil matters, mirroring the authority of Her Majesty's Court of King's Bench, Common Pleas, and Exchequer at Westminster. Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests. Despite the presence of Indigenous inhabitants, Australia was considered "settled" rather than "conquered", resulting in the application of English law to the colony. This was further confirmed by the Australian Courts Act 1828, ensuring that all English common and statute law up to 28 July 1828 would be in effect in New South Wales, Tasmania, and later Victoria and Queensland.
In the second half of the nineteenth century, colonial parliaments introduced reforms such as secret ballots and female suffrage, which were not yet in place in Britain. However, Acts of the United Kingdom Parliament extending to the colonies could override colonial legislation. The Commonwealth of Australia Constitution Act (Imp) was passed following constitutional conventions in the 1890s, leading to the federation of Australian colonies into 'The Commonwealth' in 1901. The written constitution was influenced by the constitutional systems of the UK, the United States, and Switzerland.
In the last quarter of the 20th century, Australia's legislative independence resulted in a growing divergence between Australian and English common law. Consequently, a significant portion of English law received in Australia has been progressively repealed in state parliaments.
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Common law and human rights
Australia's legal system is based on common law, which was inherited from the United Kingdom. Despite the existence of Indigenous Australians, Australia was considered a "settled" colony, and English common law was applied. The Australian Constitution, which sets out a federal system of government, was influenced by the constitutional systems of the UK, the United States, and Switzerland.
In Australia, human rights are recognised and protected through a range of laws at the federal, state, and territory levels, as well as the Australian Constitution and common 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. There are five explicit individual rights in the Constitution, including freedom of speech, opinion, religion, association, and movement. The High Court has also found that additional rights for individuals may be implied by the language and structure of the Constitution.
The Australian Human Rights Commission Act 1986 outlines the responsibilities of the Australian Human Rights Commission, which include monitoring and promoting human rights protection. The Commission also has responsibilities under various anti-discrimination laws, such as the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, and the Disability Discrimination Act 1992. The principle of non-discrimination is fundamental to human rights law, and Australia has committed to protecting and promoting these rights and freedoms.
While common law in Australia does provide some protection for human rights, it has been noted that it generally lacks the provisions contained in human rights treaties. These treaties outline obligations for governments to actively promote and protect human rights, which may not be explicitly covered by common law principles. However, common law does contain concepts that provide protection for children and people with disabilities in certain areas. Additionally, the right to privacy, including intimate behaviour between consenting adults, has been recognised in cases such as Toonen v Australia.
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The role of the High Court
Australia practices common law. The country's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The Australian legal system is substantially derived from the English legal system, which superseded Indigenous Australian customary law during colonisation.
The High Court of Australia is the highest court in the Australian judicial system. It was established in 1901 by Section 71 of the Constitution and consists of seven justices, including a chief justice. The court's functions include interpreting and applying Australian law, deciding cases of special federal significance, and hearing appeals from federal, state, and territory courts. The High Court exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. Its authority derives from Chapter III of the Australian Constitution, which vests it with the judicial power of the Commonwealth.
The High Court Justices are appointed by the Governor-General, with the advice of the Council, which typically includes the advice of the Prime Minister and the Attorney-General for Australia. The only constitutional requirement for appointment is that the appointee be under the compulsory retirement age of 70. Further qualifications were introduced by statute in 1979, requiring appointees to have prior experience as a judge or legal practitioner.
The High Court typically operates by receiving applications for appeal from parties in a process called special leave. If an application is accepted, the court proceeds to a full hearing with oral and written submissions from both parties. The court's workload has increased significantly over time, particularly from the 1960s onwards, leading to proposals for the establishment of additional federal courts.
The High Court plays a crucial role in interpreting the Australian Constitution and resolving ambiguities or uncertainties regarding its meaning. It also hears cases that have significant federal implications and challenges to the constitutional validity of laws. The court's decisions can shape the country's legal landscape and have a lasting impact on Australian society, as illustrated in landmark cases such as the Franklin Dam case in the 1980s and the Mabo case in the 1990s.
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The Australian Constitution
Australia is a common-law jurisdiction, and its court system has origins in 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 establishes Australia as a federation under a constitutional monarchy governed by a parliamentary system. The Constitution sets out the structure and powers of the three constituent parts of the federal level of government: the Parliament, the Executive Government, and the Judicature.
The Constitution emerged from a series of conventions held by representatives of the six self-governing British colonies in Australia between 1891 and 1898. The conventions addressed the growing presence of German and French colonies in the Pacific and a developing Australian identity. The 1891 draft constitution, guided by Sir Samuel Griffith, was submitted to colonial parliaments but lapsed in New South Wales. In 1895, the premiers of the Australian colonies agreed to establish a new convention by popular vote, and the resulting 1898 draft included provisions for responsible government.
The Constitution was then put to a vote by the people of the colonies, who approved it. It also had to be agreed upon by the British Parliament, which passed the Commonwealth of Australia Constitution Act 1900, which came into effect on 1 January 1901. The Act, also known as the covering act, authorised Queen Victoria to proclaim the act of federation, uniting the six British colonies into a single federated nation. The Constitution can only be changed with the approval of the Australian people through a referendum.
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The influence of Indigenous law
Australia's legal system is derived substantially from English law, which superseded Indigenous Australian customary law during colonisation. Despite this, Indigenous law, or 'lore', continues to influence the Australian legal system today.
Indigenous Australian customary law developed over time from accepted moral and social norms within Indigenous societies. Lore dictates rules on how to interact with the land, kinship, and community, and is passed on through the generations via songs, stories, dance, and ceremonies. Lore is intertwined with cultural customs, practices, and stories from the Dreamtime.
During the colonisation of Australia, the English declared the land to be ''terra nullius' – not inhabited by peoples with settled laws or customs. This meant that Indigenous Australians were expected to follow British law, despite having no input into its content. Indigenous law was ignored by Australian courts during and after the colonial era, and the two legal systems often conflict. For example, the Australian legal system punishes offenders with imprisonment and isolation from their community, whereas in Indigenous lore, matters are often discussed between the offender's family and the victim to decide the severity of the punishment.
In 1992, the High Court ruled in the Mabo case that Australia was not terra nullius in 1788, opening the door for more legal action, including native title claims. The court recognised that it would acknowledge customary legal rights to land, but only if those rights had been maintained continuously since settlement. Legislative bodies have also investigated the concept of incorporating Indigenous laws more formally into post-colonial legal systems. For example, in 2009, New South Wales amended its intestacy legislation to allow Indigenous customary law to be used where the deceased died intestate.
Despite these developments, Australia has been criticised for its lack of attention to the civil law needs of Indigenous people.
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Frequently asked questions
Yes, Australia is a common-law jurisdiction.
Common law is a type of uncodified law that is mainly derived from past cases.
In Australia, common law is the same across all states and territories. The country'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.
The Australian legal system has its roots in English common law, which superseded Indigenous Australian customary law during colonisation. The New South Wales Act 1823 established a Supreme Court with the power to handle criminal and civil matters, and English common and statute law was applied in New South Wales and Tasmania (and later Victoria and Queensland) until 1828.
Common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power. However, Australia does not have a Constitutional Charter or Bill of Rights, which is unusual among common law countries.
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