Gavin Howe
Australia's legal system is a common-law jurisdiction, inherited from the English legal system during colonisation. Common law is made by judges in courts, and in Australia, the High Court is the apex court with the final say on the judicial determination of all legal matters. The country's common law is the same across the states and territories, and while the states have their own court systems, the High Court ensures uniformity in the administration of the law.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Basis of common law | Inherited from Britain |
| Court hierarchy | Supreme Court, High Court, inferior courts |
| Law-making powers | Parliament, Executive government, Judiciary |
| Law-making process | Bills passed by majority vote in House of Representatives and Senate, given Royal Assent by Governor-General |
| Common law recognition of rights | Lacks provisions of human rights treaties, but includes concepts for protection of children and people with disabilities |
| Role of international law | Courts favour interpretation consistent with Australia's obligations under international treaties |
| Uniformity of common law | Varying decisions by final courts of states may indicate non-uniform common law rules |
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What You'll Learn
The High Court of Australia
The court consists of seven justices, including a chief justice, currently Stephen Gageler. Justices of the High Court are appointed by the governor-general on the formal advice of the attorney-general following the approval of the prime minister and Cabinet. They are appointed permanently until their mandatory retirement at age 70, unless they retire earlier. The increasing demands on the High Court led to the number of justices being increased to five in 1906 and then to seven in 1913.
The High Court's role is to interpret and apply the laws of Australia, to decide cases of federal significance, and to hear appeals from federal, state, and territory courts. The court operates by receiving applications for appeal from parties in a process called special leave. If a party's application is accepted, the court proceeds to a full hearing, usually with oral and written submissions from both parties. After the hearing, the result is decided by the court. The special leave process does not apply when the court elects to exercise its original jurisdiction; however, the court typically delegates its original jurisdiction to Australia's inferior courts.
The High Court building is located in Canberra, and sittings of the court previously rotated between state capitals, particularly Melbourne and Sydney. The court continues to regularly sit outside Canberra. The building is open to the public from 9:45 am to 4:30 pm on weekdays and admission is free of charge.
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Common law and Indigenous law
Australia is a common-law jurisdiction, with a legal system substantially derived from English law, which superseded Indigenous Australian customary law during colonisation. The common law of Australia was introduced through the colonisation of Australia by the British, and by 1824, a court system based on the English model was established through Acts of the British Parliament.
Indigenous Australian customary law refers to the legal systems and practices unique to Indigenous Australians, including Aboriginal and Torres Strait Islander people. These laws are intertwined with cultural customs, practices, and stories from the Dreamtime, and are passed on through the generations by means of cultural works such as songlines, stories, and dance. Indigenous customary law is not uniform across Australia and differs between language groups, clans, and regions. It developed over time from accepted moral and social norms within Indigenous societies, regulating human behaviour and mandating specific sanctions for non-compliance.
During the colonial era, Indigenous systems of law were deliberately ignored by the colonial legal system and have only been recognised to a limited degree in the post-colonial era. In 1992, the High Court recognised Indigenous lore as giving rise to a valid legal claim in the Mabo decision, discarding the legal fiction of terra nullius. The Native Title Act 1993 now regulates Indigenous customary claims to land.
In recent years, there has been a slow movement towards recognising Indigenous customary law in certain matters, such as succession and inheritance. The Northern Territory brought in an Indigenous customary law provision in 1979, and in 2009, NSW amended its intestacy legislation to allow for Indigenous customary law to be used. In 2020, the Queensland Government introduced a bill to legally recognise the Torres Strait Islander practice of traditional adoptions, which was passed as the Meriba Omasker Kaziw Kazipa Act 2020.
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Common law and human rights
Australia's legal system is a common-law jurisdiction, with its court system originating in the common law system of English law. The country's common law is the same across states and territories. The Australian Constitution sets out a federal system of government, with a national legislature that can pass laws of overriding force on certain topics.
Australia is unusual among common-law countries in not having a Constitutional Charter or Bill of Rights. Instead, human rights are protected through the Constitution and legislation passed by the Commonwealth Parliament or State or Territory Parliaments. 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 necessarily implied by the language and structure of the Constitution.
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. Common law principles contain concepts intended to provide protection regarding children and people with disabilities in some areas. For example, the right to privacy under the ICCPR includes a right to private life, as confirmed by the UN Human Rights Committee in Toonen v Australia.
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 and the Sex Discrimination Act 1984.
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Common law and the Crown
Australia's legal system is derived from the English legal system, which superseded Indigenous Australian customary law during colonisation. Common law in Australia is made by judges in courts, and it is the common law that confers on the Crown in the right of the Commonwealth and State powers, privileges, and immunities. The common law determines the scope and governs the exercise of these powers.
Common law, also known as case law or judge-made law, is made when judges make decisions in courts. Judges use precedent—decisions made in previous similar cases—to guide their rulings. If no past cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases in the future. Common law applies when no statute law covers a particular situation, but statute law always overrides common law.
In Australia, the High Court is the apex court with the final say on the judicial determination of all legal matters. It hears appeals from all other courts in the country and is vested with original jurisdiction. The Australian Constitution sets out a federal system of government, with a national legislature that can pass laws of overriding force on express topics. The states are separate jurisdictions with their own court and parliamentary systems and are vested with plenary power.
The legal system in Australia includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Australia is a common-law jurisdiction, and its court system is based on the common law system of English law. The country's common law is the same across all states and territories.
Common law in Australia is unusual in that it lacks 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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Common law and the Australian Constitution
Australia's legal system is derived substantially from the English legal system, which superseded Indigenous Australian customary law during colonisation. Common law in Australia emerged following the colonisation of Australia by the British in the 1200s.
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. The High Court of Australia is the apex court and has the final say on the judicial determination of all legal matters.
The common law of Australia is different from the notion of a federal common law. The Privy Council (Appeals from the High Court) Act 1975 removed the right to appeal from the High Court to the Privy Council on non-constitutional matters, such as common law or state laws.
Common law recognition of rights generally lacks the provisions contained in human rights treaties for obligations on governments to actively promote and protect human rights. However, common law principles do contain concepts intended to provide protection regarding children and people with disabilities in some areas.
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
Common law in Australia is a law that is made by judges in courts. It is called case law or judge-made law.
Common law is made when judges make decisions in courts. Judges use past decisions made in similar cases to guide their decisions. If no past cases with similar circumstances exist, a judge will make a new decision, which then becomes a precedent for similar cases in the future.
Australia inherited its system of common law from Britain during colonisation. By 1824, a court system based on the English model had been established through Acts of the British Parliament.
Yes, statute law always overrides common law. Parliament has the power to create statutes that overrule common law.
