Cameron Miranda
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's legal institutions and traditions are largely derived from English law, which superseded Indigenous Australian customary law during colonisation. 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. Once a bill has been passed, it must be assented to by the representative of the sovereign.
| Characteristics | Values |
|---|---|
| Legal system | Multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system |
| Basis of legal system | English legal system, which superseded Indigenous Australian customary law during colonisation |
| Court system | Originated in the common law system of English law |
| Indigenous Australian customary law | Varied between language groups, clans, and regions, developing over time from accepted norms within indigenous societies |
| Bill creation | Drafted by Parliamentary Counsel |
| Bill approval | Read, debated, and sometimes amended in both houses of parliament before being approved |
| Bill passage | Requires assent from the representative of the sovereign |
| Legislation delegation | Local councils, statutory authorities, or government departments, usually for minor statute laws |
| Law interpretation | Judges are not bound to select an interpretation proffered by one party; their role is to seek an objective interpretation |
| Jurisprudence of statutory interpretation | Not settled in Australia |
| Law sources | Case law or common law (decisions of judges in superior courts), and legislation (made by Parliament) |
| Law creation | By Parliament, which may repeal or amend an Act |
| Law enforcement | Through the court system, a tribunal, or alternative dispute resolution methods |
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What You'll Learn
Indigenous Australian customary law
Prior to colonisation, the only systems of law to exist in Australia were these varied systems of Indigenous customary law. During and after colonisation, these laws were 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.
In 1986, a report by the Australian Government acknowledged the existence of Indigenous customary lore but did not find any codified versions. In 1992, post-colonial law recognised Indigenous lore as giving rise to a valid legal claim in the Mabo decision, which discarded the legal fiction of terra nullius. The High Court recognised customary legal rights to land, provided that those legal rights had been maintained continuously since settlement. Indigenous customary claims to land are now regulated by the Native Title Act 1993.
Since the late 20th century, legislative bodies have investigated the concept of 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. In the Northern Territory, some statutes and courts 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.
However, the recognition of Indigenous customary law in Australia has been a slow process. The legislation regulating customary claims to land only applies to Indigenous persons who were not married under the Marriage Act 1961, thus excluding many Indigenous people. The recognition of who has the authority to determine the rules of customary law has also been a significant problem.
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The influence of English law
By 1824, a court system modelled on the English legal system was established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the authority to handle all criminal and civil matters, mirroring the jurisdiction of Her Majesty's Court of King's Bench, Common Pleas, and Exchequer at Westminster. This act also led to the creation of inferior courts, including Courts of General or Quarter Sessions and Courts of Requests.
The Australian Courts Act 1828 further solidified the adoption of English law in Australia. This act ensured that all English common and statute law up to 28 July 1828 would be applied in New South Wales and Tasmania and later in Victoria and Queensland when they became separate colonies. Similarly, the reception of English law in Western Australia and South Australia was deemed to have occurred on 1 June 1829 and 28 December 1836, respectively.
The modern Australian legal system shares much of its history with the English legal system, tracing their common origins back to the Norman Conquest of England in 1066. While the arrival of British settlers in Sydney Cove in January 1788 marked a divergence, English legal institutions and traditions continue to exert a significant influence on Australian law.
English common law decisions and precedents have been influential in shaping Australian courts' interpretations and rulings. Until 1963, Australia's High Court considered itself bound by the decisions of the House of Lords, resulting in substantial uniformity between the two legal systems. While Australia's High Court later declared its independence from the decisions of the Judicial Committee of the Privy Council in 1978, the influence of English legal thinking remains pervasive in the Australian legal landscape.
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The Australian Constitution
The Constitution arose from a growing Australian identity and the fear of the increasing presence of German and French colonies in the Pacific. A series of conferences to discuss federalism were promoted by the premier of New South Wales, Henry Parkes, with the first held in 1890 in Melbourne and another in Sydney in 1891. These conferences were attended by most colonial leaders, and the 1891 conference gave momentum to the federalist cause.
The Constitution was drafted between 1891 and 1898 at a series of conventions conducted by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. A draft constitution was drawn up under the guidance of Sir Samuel Griffith, but these early attempts lacked popular support. The 1891 draft was submitted to colonial parliaments but lapsed in New South Wales, causing other colonies to hesitate.
In 1895, the six premiers of the Australian colonies agreed to establish a new convention by popular vote. This convention met from 1897 to 1898 and produced a new draft that retained the same principles of government as the 1891 version but included provisions for responsible government. The final draft was then approved by each state in a series of referendums from 1898 to 1900.
The agreed-upon Constitution was transmitted to London, where it became law after receiving royal assent on July 9, 1900, as the Commonwealth of Australia Constitution Act. Queen Victoria proclaimed the act of federation on September 17, 1900, which took effect on January 1, 1901. On this date, the six British colonies became a single federated nation, with the colonies becoming Australian states and the new Australian Parliament being formed.
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Federal vs State laws
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's legal institutions and traditions are substantially derived from English law, which superseded Indigenous Australian customary law during colonisation.
The Australian legal system has three levels of government that work together to provide services to the country. The federal Parliament, located in Canberra, makes laws for the whole of Australia. Six state parliaments make laws for their respective states, and two territory parliaments make laws for their territories. Additionally, over 500 local councils make local laws (by-laws) for their region or district.
The Federal or Commonwealth Government is responsible for the conduct of national affairs, including defence and foreign affairs, trade, commerce and currency, immigration, postal services, telecommunications and broadcasting, air travel, and most social services and pensions. The Federal Government is also involved, mainly through funding, in areas largely carried out by the states, such as health, education, environmental issues, and industrial relations.
The states are separate jurisdictions with their own systems of courts and parliaments and are vested with plenary power. Under the Australian Constitution, the states are responsible for everything not listed as a Federal responsibility. Major state responsibilities include schools, hospitals, conservation and the environment, roads, railways and public transport, public works, agriculture and fishing, industrial relations, community services, sport and recreation, consumer affairs, police, prisons, and emergency services.
In the event of conflicting laws passed by federal and state parliaments, Section 109 of the Constitution states that the federal law overrides the state law or the part of the state law that is inconsistent with it.
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The role of judges
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's legal institutions and traditions are largely derived from English law, which superseded Indigenous Australian customary law during colonisation.
Judges play a crucial role in Australia's legal system, particularly in the development and interpretation of common law. When a case comes before a court, judges listen to the evidence presented by the parties, decide which evidence is relevant, determine which facts have been proven, identify the relevant law, and apply that law to the facts to reach a decision. This process has, over time, contributed to the development of a body of legal principles known as 'common law' or 'case law'.
In Australia, the court system is hierarchical, with appeals from lower courts going to higher courts. Judges in higher courts set precedents that are binding on judges in lower courts. This means that when deciding similar cases, judges in lower courts must follow the interpretations of the law made by judges in higher courts. However, judges are not bound to select an interpretation offered by one of the parties in a case; instead, their role is to seek an objective interpretation of the law.
While most statutes are applied by administrative decision-makers rather than judges, judges do have the power to interpret legislation, fill gaps in legislation, and develop common law when there is no legislation. This process of interpreting and developing the law through judicial decisions gives judges a significant role in shaping the legal landscape in Australia.
In addition to interpreting and applying the law, judges also play a role in ensuring the fair and efficient administration of justice. This includes overseeing legal proceedings, ensuring due process, and upholding the rights of individuals. Judges are also responsible for hearing appeals and reviewing decisions made by lower courts or tribunals, providing a mechanism for correcting errors and ensuring consistency in the application of the law.
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Frequently asked questions
The Australian legal system has multiple sources, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The laws of England were introduced to Australia through colonisation by the British.
There are two main sources of law in Australia: case law or common law, based on the decisions of judges in superior courts; and legislation, the law made by Parliament.
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. Once a bill has been passed, it must be assented to by the representative of the sovereign.
The High Court is Australia's apex court and has 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.
Common law and case law are interchangeable terms in Australia, both referring to the body of legal principles that has developed over time from judges' decisions in superior courts.
