Cameron Miranda
Australia is a common law country, which means that when judges and magistrates settle legal disputes in court, they must decide cases along the lines of previous decisions made in similar cases. This practice is called the doctrine of precedent, which translates to 'stand by that decided'. There are two main categories of law in Australia: private law and public law. Private law includes contract, commercial, property, and family law, while public law includes criminal, administrative, and international law. Australia inherited its system of common law from Britain, and while the country does not have a Constitutional Charter or Bill of Rights, common law courts have the power to provide significant protection of human rights principles.
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What You'll Learn
- Australia's apex court, the High Court, has the final say on all legal matters
- Australia inherited its common law system from Britain
- Common law includes the recognition of fundamental human rights
- Parliaments make legislation, while courts make common law
- Common law is made when judges make decisions in court, using precedent to guide them
Australia's apex court, the High Court, has the final say on all legal matters
Australia is a common-law jurisdiction, with a legal system substantially derived from that of the English legal system, which superseded Indigenous Australian customary law during colonisation. The country's common law is the same across all states and territories.
The High Court of Australia is the apex court of the Australian legal system. It was established following the passage of the Judiciary Act 1903 and hears matters involving disputes about the meaning of the Constitution, as well as final appeals in civil and criminal matters from all courts in Australia. The High Court also hears appeals against the decisions of the Supreme Courts of the States and Territories, the Federal Court of Australia, and the Family Court of Australia. These appeals are heard by a full court of at least two Justices, and the decisions are binding on all other courts throughout Australia.
The High Court's original jurisdiction is determined by sections 75 and 76 of Australia's Constitution. Section 75 confers original jurisdiction in all matters, including suing the Commonwealth (section 75(iii)) and conflicts between states (section 75(iv)). The High Court also exercises appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation.
Justices of the High Court prepare written reasons for their decisions, which are handed down at a later sitting. Printed copies of the judgments are provided to the involved parties immediately after the decision is announced and are subsequently recorded in law reports and computerised legal databases.
Some common laws in Australia include prohibitions on littering, public drinking, and offering bribes. It is illegal to discriminate against anyone based on gender, race, sexual preference, marital status, political beliefs, or disability. Australia also has road rules and licensing requirements that must be followed, and there are laws prohibiting the purchase of alcohol and cigarettes by those under 18.
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Australia inherited its common law system from Britain
The Australian legal system shares much of its history with the English legal system, with both tracing their origins back to the Norman Conquest of England in 1066. While the Australian legal system branched off with the arrival of British settlers in Sydney Cove in January 1788, English institutions continue to exert an influence. Australian law still shares legal principles and doctrines with England and other Commonwealth nations practising common law.
The Australian legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's common law is the same across all states and territories, with a national legislature that can pass laws of overriding force on specific topics. The states, however, have their own court systems and parliaments and are vested with plenary power.
The two major sources of Australian law are cases (decisions made by judges in courts) and legislation (legal rules made by parliament and delegated authorities). When laws are brought before a court, judges seek an objective interpretation of the law, and their role is not limited to selecting an interpretation offered by one of the parties. Interpretive doctrines, such as the literal rule, the golden rule, and the mischief rule, must comply with the Commonwealth's mandate in the Acts Interpretation Act.
While Australia's common law system originated in the UK, there are now substantial divergences between the two systems. Nevertheless, the influence of UK common law decisions remains prominent in Australian courts.
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Common law includes the recognition of fundamental human rights
Australia is a common-law jurisdiction, with a court system originating from the common law system of English law. The country's common law is the same across all states and territories.
In addition to the Australian Constitution, 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 the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996.
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. A well-established principle of statutory interpretation in Australian courts is that Parliament is presumed not to intend to limit fundamental rights unless it clearly indicates this intention.
While Australia does not have a national Human Rights Act, certain states have enacted their own human rights legislation. For example, Victoria's Charter of Human Rights and Responsibilities, passed in 2006, affirms the importance of building respect for human rights within the Victorian community. Queensland's Human Rights Act 2019 protects 23 rights, including civil and political rights, access to education and health services, and cultural rights.
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Parliaments make legislation, while courts make common law
Australia's legal system is a mix of written constitution, unwritten constitutional conventions, statutes, regulations, and judicially determined common law. The country's legal institutions and traditions are largely derived from English law, which superseded Indigenous Australian customary law during colonisation.
The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws on a range of express topics. The states are separate jurisdictions with their own courts and parliaments and are vested with plenary power. The legislative powers of the federal Parliament are limited to those set out in the Constitution, and include the power to legislate on matters incidental to other powers. The Parliament of the Commonwealth can also legislate on matters referred to it by the Parliament of one or more states. The process of creating a statute involves a Bill being drafted, usually by Parliamentary Counsel. The Bill is then read, debated, and sometimes amended in both houses of parliament before being approved and assented to by the sovereign's representative.
In Australia, the common law is the same across all states and territories. This system originated in the UK, where the English Court of Common Pleas was established after the Magna Carta in 1215 to try lawsuits between commoners. Judge-made common law was the primary source of law for several hundred years before Parliament acquired legislative powers to create statutory law. Common law systems place great weight on precedent, and while civil law judges may give less weight to precedent, they often do not have the authority to invalidate legislative provisions.
The Australian legal system, therefore, operates with parliaments making legislation and courts interpreting and applying the common law. This separation of powers is designed to ensure that no one branch of government has too much power.
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Common law is made when judges make decisions in court, using precedent to guide them
Australia's legal system is based on the common law system, which originated in the UK. The country's common law is the same across all states and territories. Common law is created when judges make decisions in court, using previous rulings, or precedents, to guide them. This is distinct from statute law, which is made by parliament.
The Australian legal system has its roots in English law, which superseded Indigenous Australian customary law during colonisation. By 1824, a court system based on the English model had been established through Acts of the British Parliament. The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws on a number of express topics. The states are separate jurisdictions with their own court systems and parliaments and are vested with plenary power.
While the UK and Australian legal systems share similarities, there are also significant differences. Interpretive doctrines in Australia, such as the literal rule, the golden rule, and the mischief rule, must comply with the Commonwealth's mandate in the Acts Interpretation Act that statutes be interpreted according to their purpose.
Some examples of Australian laws include:
- Equality under the law for males and females
- Prohibition of littering
- Prohibition of drinking alcohol in public places
- Minimum age of 18 for purchasing alcohol and cigarettes
- Restrictions on smoking in public places
- Illegality of buying, selling, or possessing illicit drugs
- Illegality of discriminating against any person based on gender, colour, race, sexual preference, marital status, political beliefs, or disability
- Requirement to obey road rules and hold a valid driver's license according to state or territory licensing requirements
- Prohibition on bribing government officials
- Respect for residential noise restrictions
- Freedom of speech
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Frequently asked questions
There are three sources of law in Australia: statute law made by parliament, delegated law made by the Executive government, and common law made by judges in courts.
Common law is made when judges make decisions in courts. When judging cases, judges use precedent – decisions made in previous similar cases – to guide their decisions. If no past cases with similar circumstances exist, a judge will make a new decision which would then become a precedent for similar cases in the future.
The doctrine of precedent means that lower courts must follow the decisions of appellate courts and especially the decisions of the High Court of Australia, which is Australia's superior court. The doctrine provides an important constraint on judicial decision-making.
Statute law is made when Parliament agrees to a bill – a proposal for a new law or a change to an existing one – by a majority vote. The bill is then given Royal Assent by the Governor-General and becomes an Act of Parliament.
Delegated law is when the power to make laws is given to someone else. The authority to make delegated law is generally given to ministers in the Executive or government officials.
