Queensland's Received Law: Application And Implications

The legal system of Australia has multiple forms, including a written constitution, statutes, regulations, and the judicially determined common law system. The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws on several express topics. The Australian legal system is derived from the English legal system, which superseded Indigenous Australian customary law during colonisation. The reception of English law in Queensland was confirmed by the Australian Courts Act 1828, an act of the Imperial Parliament, which ensured that all English common and statute law up to 28 July 1828 was to be applied in the state. This introduction aims to explore how received law, or the adoption of a pre-existing legal framework, has been applied in Queensland, specifically examining the historical context, the legislative process, and the ongoing implications for the state's legal system.

The Australian Constitution and Queensland's Constitution

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 with a parliamentary system. The Constitution is a written document with eight chapters that set out the structure and powers of the three constituent parts 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, including Queensland, and approved by each state in a series of referendums from 1898 to 1900. The final draft was then transmitted to London, where it was enacted as Section 9 of the Commonwealth of Australia Constitution Act 1900, an Act of the UK Parliament. On 1 January 1901, the six colonies became states within the new Commonwealth of Australia.

The Australian Constitution sets out a federal system of government, with a national legislature having the power to pass overriding laws on specific topics. The states, including Queensland, are separate jurisdictions with their own court systems and parliaments, and they retain plenary power except where valid Commonwealth laws conflict. Queensland's Constitution, the Constitution of Queensland 2001, is the state's second constitution and consolidates various constitutional provisions dating back to the 19th century, particularly the state's first constitution, the Constitution Act 1867. Queensland's Constitution defines and regulates the powers of the state's major institutions, setting out the structure, functions, and roles of its legislature, executive, and judiciary.

While the Australian Constitution is the primary source of constitutional law, it is not the only one. Constitutional conventions, state constitutions, the Statute of Westminster 1931, the Australia Acts 1986, prerogative instruments, and judicial interpretations of these laws by the High Court of Australia also play a role in shaping the country's constitutional framework. The Australian Constitution may only be amended by a national referendum, requiring a double majority of a nationwide majority and a majority of voters in a majority of states.

The Queensland Parliament and law-making process

The law-making process in Queensland typically begins with the identification of a need for a new law or a change to existing legislation. This need may arise from government policy requirements, departmental initiatives, or external factors. Once the need is recognised, the process of drafting a bill commences. Ministers are responsible for introducing government bills related to their areas of responsibility, known as their "portfolio". Individual Members of Parliament (MPs) can also introduce Private Members' Bills, which often address specific issues or concerns.

Before a bill is introduced in Parliament, it undergoes a rigorous process involving approval, drafting, coordination, and advice. The original policy proposal is formatted by the relevant department and approved by the Cabinet. It is then scrutinised and monitored by the Minister's Legislation Committee to ensure its quality and compatibility with existing laws. The bill is drafted into its final form by the Office of Parliamentary Counsel, and it receives the final approval from the Cabinet and the political parties involved.

Once a bill is introduced in Parliament, it goes through several stages, including presentation, explanatory speech, and readings. During the presentation, the minister tables the bill, explanatory notes, and a statement of compatibility with human rights. The minister also delivers an explanatory speech, outlining the principles and policies behind the bill. The first reading involves reading the short title of the bill.

Following the first reading, the bill is referred to a parliamentary committee for consideration. This committee has up to six months to prepare a report on the bill, unless there is a resolution to alter this timeframe. After the committee report is tabled, the bill proceeds to the second reading, where the minister has another opportunity to speak about the bill and address the committee's findings. The shadow minister and other members also contribute to the debate.

During the consideration-in-detail stage, the Legislative Assembly debates the clauses of the bill, and amendments may be proposed. The final reading involves reading the short title of the bill for the third time and agreeing on the long title. After this, the bill is presented to the Governor for Royal Assent. Once Royal Assent is granted, the bill becomes an Act of Parliament and is enacted as law.

This law-making process in Queensland ensures that new legislation undergoes scrutiny, debate, and approval at various stages, involving ministers, committees, and the Parliament as a whole. It provides opportunities for input from different stakeholders and experts, helping to create well-informed and considered laws that serve the interests of Queensland's citizens.

The role of the High Court and appeals

The Australian Constitution establishes a federal system of government, with a national legislature that can pass laws on a range of express topics. The states, including Queensland, have their own court systems and parliaments and are vested with plenary power.

The High Court of Australia is the country's apex court and has the final say on all legal matters. It hears appeals from all other courts in Australia and is vested with original jurisdiction. The High Court's decisions are binding on all other courts in the country.

The High Court's role in the Australian legal system is significant. It is the highest judicial authority and the final interpreter of the law. The Court's decisions set precedents that lower courts must follow, ensuring uniformity and consistency in the interpretation and application of laws across the nation.

The High Court's jurisdiction extends to hearing appeals on civil and criminal matters, constitutional questions, and disputes between states or between a state and the Commonwealth. The Court also has the power to invalidate laws or actions of the Commonwealth, states, or territories if they are found to be inconsistent with the Constitution.

Appeals to the High Court are typically made from lower courts within the state or federal court systems. The High Court has the discretion to choose which appeals to hear and will generally only hear cases that involve significant legal questions, constitutional issues, or matters of public importance.

The High Court plays a crucial role in shaping the law in Queensland and ensuring that the state's laws are interpreted and applied consistently with the rest of the country. It provides a mechanism for resolving legal disputes and interpreting the law, contributing to the uniformity and fairness of the Australian legal system.

Indigenous customary law and its recognition

Indigenous Australian customary law refers to the legal systems and practices unique to Indigenous Australians, encompassing Aboriginal and Torres Strait Islander people. These two groups differ significantly in their histories, ethnicities, and customs. While Torres Strait Islanders are strictly monogamous and predominantly church-married, Aboriginal customary law, developed over time from accepted moral and social norms within Indigenous societies, regulating human behaviour, mandating sanctions for non-compliance, and fostering connections to the land and each other.

Indigenous customary law is not uniform across Australia, varying between language groups, clans, and regions. Within some Aboriginal Australian communities, the terms "law" and "lore" differentiate between the colonial legal system and the Indigenous system, respectively. Lore, passed down orally through cultural works like songlines, stories, and dance, dictates rules for interacting with the land, kinship, and community.

Historically, Indigenous customary law was ignored by the colonial legal system, which deemed Australia as terra nullius, or "nobody's land." However, in the 1992 Mabo decision, the High Court recognised Indigenous lore as giving rise to valid legal claims, discarding the terra nullius doctrine. The Native Title Act 1993 was enacted to give effect to this decision, recognising that some Aboriginal and Torres Strait Islander people have rights and interests in land or waters derived from their traditional laws and customs.

In recent years, there has been a push for greater recognition of Indigenous customary law in the Australian legal system. Legislative bodies have investigated incorporating Indigenous laws more formally, and reports by law reform commissions have discussed recognising customary law in matters involving Aboriginal Australians. Additionally, some statutes and courts in the Northern Territory explicitly refer to customary law when identifying relationships and social expectations.

On July 17, 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 ("For Our Children's Children") on September 8, 2020. This recognition of Indigenous customary law in Queensland is a significant step towards acknowledging and preserving the unique legal systems and practices of Indigenous Australians.

The impact of COVID-19 on Queensland's laws

The COVID-19 pandemic has had a significant impact on Queensland's laws and legal system. To curb the spread of the virus, the Queensland government implemented various measures, including public health directives and legislative changes. The state's response to the pandemic raised concerns about the rule of law and the balance between public health and individual freedoms.

One of the key pieces of legislation enacted during the pandemic was the COVID-19 Emergency Response Act 2020 (Qld), which came into force on 23 April 2020 and expired on 30 April 2022. This Act modified a significant number of existing Queensland laws, including the Corrective Services Act 2006 and the Transport Legislation (COVID-19 Emergency Response) Regulation 2020. These modifications aimed to address the evolving nature of the emergency and ensure a quick and effective response from the government.

The pandemic also highlighted the increasing reliance on delegated legislation, which is common in Australia but raised concerns during the COVID-19 outbreak due to its prevalence and formal characteristics. Delegated legislation is created by the executive branch under the authority of a primary Act of Parliament and does not require formal legislative processes. While it allows for quick and efficient responses to emergencies, it also poses challenges to the rule of law and representative democracy by sidelining parliamentary oversight and scrutiny.

The Public Health Act 2005 (Qld) and the Disaster Management Act 2003 (Qld) were also key statutes involved in Queensland's COVID-19 response. The state was quick to declare a disaster situation and public health emergency, giving state emergency services wide powers to control the movement of persons and property. The Public Health Act was amended several times, conferring extensive powers on the Chief Health Officer to issue directions restricting the movement of people and contact between individuals. These directions, published on the Queensland Health website, were subject to frequent changes, making it challenging for the public to keep track of the applicable laws.

Additionally, Queensland's COVID-19 vaccination mandate for paramedics and police was found to be unlawful by the state's Supreme Court, based on the Human Rights Act. The court ruled that the decision-makers failed to give proper consideration to relevant human rights, setting a precedent for future cases involving human rights and government decisions.

Overall, the COVID-19 pandemic led to significant modifications in Queensland's laws, with the government utilising various legislative tools to address the public health crisis. These changes had a substantial impact on the state's legal landscape, highlighting the delicate balance between public health needs and individual freedoms.

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