Cecily Zamora
Australia's legal system is a common law system, inherited from England following colonisation in 1788. The common law system is based on the principle of precedent, which means that judges must respect past judicial decisions and make consistent rulings. This is also known as 'judge-made' law. While the Australian legal system has diverged from English common law in recent decades, the country remains unusual among common law countries in not having a Constitutional Charter or Bill of Rights.
| Characteristics | Values |
|---|---|
| Origin | The common law system in Australia was inherited from England following colonisation in 1788. |
| Basis | The common law system is based on the principle of precedent, where judges are guided by past judicial decisions to make consistent rulings. |
| Hierarchy | The High Court of Australia is the superior court, with the final say on all legal matters. Lower courts must follow its decisions. |
| Legislative Role | Parliaments make laws, while courts interpret and apply them. The doctrine of parliamentary supremacy asserts that legislation takes priority over common law. |
| Federalism | Australia has a federal system with a written constitution outlining the roles of the federal and state governments. Each state has its own parliament and law-making powers. |
| Indigenous Law | Indigenous Australian customary law, varied and developed over time, was largely ignored by the colonial legal system and has limited recognition today. |
| Human Rights | Common law courts have the power to protect human rights principles, but Australia lacks a Constitutional Charter or Bill of Rights. |
| International Law | Australian laws increasingly reflect international law, particularly in areas like trade and human rights treaties. |
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What You'll Learn
Australia's common law system is inherited from England
Australia's legal system is a common law system inherited from England during the colonisation of Australia by the British. The Australian legal system traces its origins to the Norman Conquest of England in 1066, sharing a history with the English legal system for almost 1000 years.
English common law was introduced to Australia through colonisation, superseding Indigenous Australian customary law, which varied between language groups, clans, and regions. 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, modelled after the English court system. This was followed by the Australian Courts Act 1828, which ensured that all English common and statute law up to 28 July 1828 would be applied in New South Wales and Tasmania, later extending to Victoria and Queensland.
The Australian colonies were federated into 'The Commonwealth' in 1901, with the British Parliament enacting a written constitution drawn up by the Australian colonists. This constitution was influenced by the constitutional systems of the UK, the United States, and Switzerland. While the Australian legal system has diverged from English common law in recent times, with many colonial-era laws being repealed, English legal institutions and traditions continue to exert an important influence on Australia's legal system.
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). Australia's common law is the same across all states and territories, with the High Court of Australia serving as the apex court with the final say on all legal matters.
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Indigenous Australians' customary law
Indigenous Australian customary law, or 'lore', refers to the varied systems and practices among Aboriginal Australians, which developed over time from accepted moral norms within Indigenous societies. These laws regulate human behaviour and relationships, mandate sanctions for misdeeds, and connect people with the land and each other through a system of relationships.
Indigenous customary law is not uniform across Australia and differs between language groups, clans, and regions. Lore dictates the rules on how to interact with the land, kinship, and community. It is intertwined with cultural customs, stories from the Dreamtime, and practices that are passed down orally through generations within cultural works such as songlines, stories, and dance.
Prior to colonisation, the only systems of law in Australia were these varied Indigenous systems of customary law. However, during colonisation, these laws were deliberately ignored by the colonial legal system, which assumed the legal fiction of Australia as terra nullius. In the post-colonial era, Indigenous Australian customary law has only been recognised to a limited degree by Australian courts.
In recent times, legislative bodies have investigated incorporating Indigenous laws more formally into post-colonial legal systems. Reports by the Australian Law Reform Commission and the Law Reform Commission of Western Australia have discussed the desirability of recognising customary law in matters involving Aboriginal Australians. Some statutes and courts in the Northern Territory make explicit reference to customary law where it is useful in identifying relationships and social expectations. On 17 July 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.
Indigenous customary claims to land are regulated by the Native Title Act 1993, which followed the Mabo decision in 1992. In this decision, the legal fiction of terra nullius was discarded, and the High Court recognised customary legal rights to land, provided that those rights had been maintained continuously since settlement.
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The doctrine of precedent
The Australian legal system is a common law system, inherited from the English legal system when England colonised Australia in 1788. The common law system in Australia is based on English common law, which emerged in the 13th century.
In Australia, the High Court is the highest court in the land and its decisions are binding on all other courts in the country. This means that when the High Court makes a novel decision, it establishes a new legal precedent that must be followed by lower courts. For example, the Mabo decision (Mabo v Queensland (No 2) [ 1992 HCA 23; (1992) 175 CLR 1) is a well-known case where the High Court established a new precedent. If a judge decides to depart from established precedent, they must provide a valid reason for doing so.
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The role of parliaments and courts
Australia's legal system is a common law system, inherited from England following colonisation in 1788. The common law system is based on the principle of precedent, which holds that judges should respect past judicial decisions and make consistent rulings. This means that lower courts must follow the decisions of higher courts, especially those of the High Court of Australia, the country's apex court.
Parliaments make legislation, while courts make common law. Parliaments are the supreme law-making body, and this is known as the doctrine of parliamentary supremacy. The legislative powers of the federal Parliament are limited to those set out under an enumerated list of subject matters in the Constitution. These include the power to legislate on matters "incidental" to other powers, and on matters referred to it by the Parliament of one or more States. Each State in Australia also has a body that makes legislation, such as the ACT Legislative Assembly.
The role of parliaments is to make laws for their state, territory, or the Commonwealth. The process of law-making involves converting a Bill to an Act, and understanding how legislation changes over time. The role of courts is to interpret legislation, fill gaps in legislation, and develop the common law when there is no legislation. This involves engaging in 'statutory interpretation', in accordance with an interpretation Act, such as the Legislation Act 2001 (ACT). Judges will consider the ordinary meaning of words in the Act, Parliament's intention when it made the law, and the purpose of the Act.
Common law is often referred to as 'judge-made' law. It is separate from statute law and does not rely on there being any Act of Parliament underpinning it. While statute law is the main source of law in Australia, common law remains a vital and developing part of the legal system. Common law is particularly important in the recognition of human rights and the rule of law, except where legislation specifically overrides this power.
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The protection of human rights
Australia's common law system is based on the English common law system, which was inherited from Britain during colonisation. This system forms the foundation of Australian law and is characterised by the principle of stare decisis, or 'standing by things decided'. This means that past decisions made by higher courts are binding on lower courts, creating a consistent and predictable application of the law.
Australia's common law system plays a crucial role in protecting human rights and ensuring that the rights of individuals are upheld. This protection of human rights through the common law system in Australia operates in several ways:
- Implied Constitutional Rights: While Australia does not have a formal bill of rights, the common law system has recognised certain implied rights and freedoms within the Constitution. For example, the High Court of Australia has interpreted the Constitution to include an implied freedom of political communication, protecting individuals' rights to engage in political discourse without interference.
- Common Law Principles: The common law system encompasses a range of fundamental principles that inherently protect human rights. These include the rule of law, which ensures that everyone is subject to the law, and the principle of habeas corpus, safeguarding individuals from unlawful detention.
- Tort Law and Equity: Tort law, a branch of common law, allows individuals to seek redress for civil wrongs and protects various human rights. For instance, defamation law protects an individual's reputation, while negligence law safeguards the right to personal safety and health. Equity, as part of the common law system, ensures fairness and provides remedies where common law may fall short.
- Interpretation and Legislation: Judges in the common law system interpret legislation in a way that upholds human rights. They may draw upon international human rights instruments and consider the legislative intent to ensure that laws are consistent with protecting individuals' rights.
- Judicial Precedent: The binding nature of judicial precedent in the common law system ensures consistency and predictability in the protection of human rights. Lower courts follow the decisions of higher courts, creating a robust framework for upholding rights across the country.
- Access to Justice: The common law system provides individuals with avenues to seek justice and protect their rights. Through the court system, individuals can challenge laws or actions that infringe upon their rights, and seek remedies or compensation for any wrongs suffered.
The common law system in Australia, with its emphasis on precedent and the protection of fundamental rights, ensures that human rights are safeguarded and advanced through judicial interpretation and decision-making.
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Frequently asked questions
The common law system in Australia is a legacy of English colonisation, with the laws of England introduced to Australia in the 1800s. The common law system is based on the principle of precedent, where judges are guided by previous court decisions, particularly those of higher authority. This is also known as 'judge-made' law.
The common law system in Australia operates at the state and federal levels. While Parliament is the supreme law-making body, the courts interpret and apply the law. When making decisions, judges consider the ordinary meaning of the law, Parliament's intention, and the purpose of the Act.
Parliament makes legislation, which takes priority over common law. Federal legislation is made by the Commonwealth Government in Parliament, and each state and territory also has a body that makes legislation.
