![High Court of Australia from lake (85856224) cropped](https://upload.wikimedia.org/wikipedia/commons/1/17/High_Court_of_Australia_from_lake_%2885856224%29_cropped.jpg)
The legal system of
Australia has multiple forms. It includes a written
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
, unwritten
constitutional conventions,
statutes,
regulations, and the judicially determined
common law system
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of
English law. The country's common law is the same across the states and territories (subject to augmentation by statutes).
[.]
The
Australian Constitution sets out a federal system of government. There exists a national legislature, with a power to pass laws of overriding force on a number of express topics. The States are separate
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
s with their own
system of courts and parliaments, and are vested with
plenary power
A plenary power or plenary authority is a complete and absolute power to take action on a particular issue, with no limitations. It is derived from the Latin term ''plenus'' ("full").
United States
In United States constitutional law, plenary p ...
. Some Australian territories such as the
Northern Territory
The Northern Territory (commonly abbreviated as NT; formally the Northern Territory of Australia) is an Australian territory in the central and central northern regions of Australia. The Northern Territory shares its borders with Western Aust ...
and the
Australian Capital Territory
The Australian Capital Territory (commonly abbreviated as ACT), known as the Federal Capital Territory (FCT) until 1938, is a landlocked federal territory of Australia containing the national capital Canberra and some surrounding townships. I ...
have been granted a regional legislature by the Commonwealth.
The
High Court is Australia's
apex court. It 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
In common law legal systems original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher court has the power to review a lower court's decision.
India
In India, the S ...
.
Prior to
colonisation
Colonization, or colonisation, constitutes large-scale population movements wherein migrants maintain strong links with their, or their ancestors', former country – by such links, gain advantage over other inhabitants of the territory. When ...
, the only systems of law to exist in Australia were the varied
systems of customary law belonging to
Indigenous Australians
Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
. Indigenous systems of law were deliberately ignored by the colonial legal system, and in the post-colonial era have only been recognised as legally important by Australian courts to a limited degree.
History
Law prior to Colonisation
![Barunga Festival](https://upload.wikimedia.org/wikipedia/commons/c/c9/Barunga_Festival.jpg)
Indigenous Australian customary law varied between language groups, clans, and regions.
It developed over time from accepted moral norms within indigenous societies. The laws regulated human behaviour and relationships, mandated sanctions for misdeeds, and connected people with the land and each other through a system of relationships.
Such law is often intertwined with cultural customs, stories, and practices. These customs were and are passed on intergenerationally through
oral tradition
Oral tradition, or oral lore, is a form of human communication wherein knowledge, art, ideas and cultural material is received, preserved, and transmitted orally from one generation to another. Vansina, Jan: ''Oral Tradition as History'' (1985) ...
, often incorporated within cultural works such as
songline
A songline, also called dreaming track, is one of the paths across the land (or sometimes the sky) within the animist belief systems of the Aboriginal cultures of Australia which mark the route followed by localised "creator-beings" in the Dre ...
s, stories and dance.
Arrival of English law through colonisation
![Courtroom Sydney c1817](https://upload.wikimedia.org/wikipedia/commons/a/a2/Courtroom_Sydney_c1817.jpg)
The English legal system was introduced to Australia through colonisation. Upon arrival to Australia, the colonists declared that the laws of England were to immediately apply to all settled lands.
This declaration was asserted by reliance upon a
legal fiction that the Australian continent was ''
terra nullius
''Terra nullius'' (, plural ''terrae nullius'') is a Latin expression meaning " nobody's land".
It was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
:
:
...
;'' i.e. land belonging to no-one, as it was believed that the
Aboriginal people
Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
s already inhabiting the continent were not cohesively organised for a treaty to be struck with any single representation of their peoples.
Under the conventions of international law at the time, terra nullius lands were recognised as immediately adopting the laws of the relevant colonial power.
[.] As such,
Indigenous Australian
Indigenous Australians or Australian First Nations are people with familial heritage from, and membership in, the ethnic groups that lived in Australia before British colonisation. They consist of two distinct groups: the Aboriginal peoples ...
laws and customs were not recognised (including those pertaining to land ownership). The arrival of English Law was later expressly stated in statute by the passage of the ''Australian Courts Act 1828'' (IMP). The act stated that all laws and statutes in force in England at the date of enactment should be applied in the courts of
New South Wales
)
, nickname =
, image_map = New South Wales in Australia.svg
, map_caption = Location of New South Wales in AustraliaCoordinates:
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, es ...
and
Van Diemen's Land
Van Diemen's Land was the colonial name of the island of Tasmania used by the British during the European exploration of Australia in the 19th century. A British settlement was established in Van Diemen's Land in 1803 before it became a sep ...
(
Tasmania
)
, nickname =
, image_map = Tasmania in Australia.svg
, map_caption = Location of Tasmania in AustraliaCoordinates:
, subdivision_type = Country
, subdi ...
) so far as those laws were applicable. Since
Queensland
)
, nickname = Sunshine State
, image_map = Queensland in Australia.svg
, map_caption = Location of Queensland in Australia
, subdivision_type = Country
, subdivision_name = Australia
, established_title = Before federation
, establishe ...
and
Victoria
Victoria most commonly refers to:
* Victoria (Australia), a state of the Commonwealth of Australia
* Victoria, British Columbia, provincial capital of British Columbia, Canada
* Victoria (mythology), Roman goddess of Victory
* Victoria, Seychelle ...
were originally part of New South Wales, the same date applies in those States for the reception of English law.
South Australia
South Australia (commonly abbreviated as SA) is a state in the southern central part of Australia. It covers some of the most arid parts of the country. With a total land area of , it is the fourth-largest of Australia's states and territories ...
adopted a different date for reception, as did
Western Australia
Western Australia (commonly abbreviated as WA) is a state of Australia occupying the western percent of the land area of Australia excluding external territories. It is bounded by the Indian Ocean to the north and west, the Southern Ocean to th ...
.
The earliest civil and criminal courts established from the beginnings of the colony of New South Wales were rudimentary, adaptive and military in character. Although
legality
Legality, in respect of an act, agreement, or contract is the state of being consistent with the law or of being lawful or unlawful in a given jurisdiction, and the construct of power.
According to the Merriam-Webster Dictionary, legality is 1 : ...
was not always observed, the courts limited the powers of the
Governor
A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
, and the law of the colony was at times more egalitarian than in Britain.
By 1824, a court system based in essence on the English model had been established through Acts of the
British Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprem ...
.
[ (IMP); (IMP).] 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 "as fully and amply as Her Majesty's Court of
King's Bench,
Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
and
Exchequer
In the civil service of the United Kingdom, His Majesty’s Exchequer, or just the Exchequer, is the accounting process of central government and the government's '' current account'' (i.e., money held from taxation and other government revenu ...
at
Westminster
Westminster is an area of Central London, part of the wider City of Westminster.
The area, which extends from the River Thames to Oxford Street, has many visitor attractions and historic landmarks, including the Palace of Westminster, B ...
".
Inferior courts were also established, including courts of
General
A general officer is an officer of high rank in the armies, and in some nations' air forces, space forces, and marines or naval infantry.
In some usages the term "general officer" refers to a rank above colonel."general, adj. and n.". OED ...
or
Quarter Sessions
The courts of quarter sessions or quarter sessions were local courts traditionally held at four set times each year in the Kingdom of England from 1388 (extending also to Wales following the Laws in Wales Act 1535). They were also established in ...
, and
Courts of Requests.
Representative government emerged in the 1840s and 1850s, and a considerable measure of autonomy was given to local legislatures in the second half of the nineteenth century. Colonial Parliaments introduced certain reforms such as
secret ballots
The secret ballot, also known as the Australian ballot, is a voting method in which a voter's identity in an election or a referendum is anonymous. This forestalls attempts to influence the voter by intimidation, blackmailing, and potential vot ...
and
female suffrage, which were not to occur in Britain until many years later. Nevertheless, Acts of the
United Kingdom Parliament
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative supremac ...
extending to the colonies could override contrary colonial legislation and would apply by "paramount force". New doctrines of English common law continued to be treated as representing the common law of Australia. For example, the doctrine of the famous case of ''
Donoghue v Stevenson
was a landmark court decision in Scots delict law and English tort law by the House of Lords. It laid the foundation of the modern law of negligence in Common law jurisdictions worldwide, as well as in Scotland, establishing general principle ...
'' from which the modern
negligence
Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
law derived, was treated as being latent already within the common law at the time of reception.
Federation and divergence
![Australia Act 1986](https://upload.wikimedia.org/wikipedia/commons/1/16/Australia_Act_1986.jpg)
Following a number of
constitutional conventions during the 1890s to develop a federal nation from the several colonies, the
''Commonwealth of Australia Constitution Act'' (UK) was passed and came into force on 1 January 1901. Thus, although a British statute, this became Australia's Constitution.
Following federation, Britain's role in the government of Australia became increasingly nominal in the 20th century. However, there was little momentum for Australia to obtain legislative independence. The Australian States did not participate in the conferences leading up to the ''
Statute of Westminster'' 1931, which provided that no British Act should be deemed to extend to the
dominion
The term ''Dominion'' is used to refer to one of several self-governing nations of the British Empire.
"Dominion status" was first accorded to Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State at the 192 ...
s without the consent of the dominion. The Australian Government did not invoke the provisions of the statute until 1942. The High Court also followed the decisions of the Privy Council during the first half of the twentieth century.
Complete legislative independence was finally established by the ''
Australia Act 1986
The Australia Act 1986 is the short title of each of a pair of separate but related pieces of legislation: one an Act of the Commonwealth (i.e. federal) Parliament of Australia, the other an Act of the Parliament of the United Kingdom. In ...
'', passed by the United Kingdom Parliament. It removed the possibility of legislation being enacted at the consent and request of a dominion, and applied to the States as well as the Commonwealth. It also provided for the complete abolition of appeals to the Privy Council from any Australian court. The Australia Act represented an important symbolic break with Britain, emphasised by
Queen Elizabeth II's visit to Australia to sign the legislation in her legally distinct capacity as the Queen of Australia.
Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century. In addition, a large body of English law received in Australia has been progressively repealed in state parliaments, such as in New South Wales by the ''Imperial Acts Application Act 1969''.
Australian Republicanism emerged as a movement in the 1990s, which aims eventually to change Australia's status as a constitutional monarchy to a republican form of government.
Sources of law
Constitutional law
The Australian colonies were federated into 'The Commonwealth' in 1901. To achieve this, the British Parliament enacted a written constitution drawn up by the Australian colonists. The document was influenced by constitutional systems of the
UK, the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...
, and
Switzerland.
Australia's constitution 'establishes the form of the federal government and sets out the basis for relations between the Commonwealth and the states'. Chapter I defines the role and powers of the legislature, Chapter II defines that of the Executive, and Chapter III defines that of the Judiciary.
In addition to the document's text, Australian constitutional law is affected by the structure of the document. The division of the three branches of government into chapters is understood to establish a
Separation of Powers
Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
doctrine in Australia.
It is also known that a number of unwritten constitutional conventions are present within the document. E.g. the constitutional doctrines of
responsible government, and the requirement of the governor-general to accept the
advice
Advice (noun) or advise (verb) may refer to:
* Advice (opinion), an opinion or recommendation offered as a guide to action, conduct
* Advice (constitutional law) a frequently binding instruction issued to a constitutional office-holder
* Advice (p ...
of the prime minister.
The Australian constitution is notable for not containing a
bill of rights
A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pr ...
, and express constitutional restrictions upon Commonwealth power are minimal in number and scope. Nevertheless, some restrictions upon Commonwealth power have been recognized by implications drawn constitutional sections unconcerned with the establishment of rights. The stipulations of Section 7 and 24 that the members of the respective Commonwealth legislatures be 'directly chosen by the people'; have been interpreted by the High Court as giving rise to doctrines protecting freedom of political communication, and a right to vote.
The constitution may only be amended by a national referendum, a provision inspired by the Swiss Canton system.
The respective state governments of Australia also have constitutional documents, many of which have carried over from the colonial era. Those documents, however, are amenable to state legislation, and thus do not bind on the respective state parliaments in the same way that the Commonwealth and the States are bound by Australia's written constitution as supreme law. (see also: ''
Marbury v. Madison
''Marbury v. Madison'', 5 U.S. (1 Cranch) 137 (1803), was a landmark U.S. Supreme Court case that established the principle of judicial review in the United States, meaning that American courts have the power to strike down laws and statutes t ...
'')
Statute law
The legislative powers of the federal Parliament are limited to those set out under an enumerated list of subject matters in the Constitution. These powers include a power to legislate on matters "incidental" to the other powers. The Parliament of the Commonwealth can also legislate on matters referred to it by the Parliament of one or more States.
In contrast, with a few exceptions the State legislatures generally have plenary power to enact laws on any subject. However, federal laws prevail in the event of collision, according to
Section 109 of the Constitution of Australia
Section 109 of the Constitution of Australia is the part of the Constitution of Australia that deals with the legislative inconsistency between federal and state laws, and declares that valid federal laws override ("shall prevail") inconsistent ...
.
[ Inconsistency of laws.]
The process of creating a statute involves a Bill being drafted, usually by
Parliamentary Counsel. The Bill is 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. Legislation may also be delegated to local councils, statutory authorities or government departments. Usually, this is done in respect of minor statute laws such as road rules.
Most statutes are applied by administrative decision makers rather than judges. When laws are brought before a court, judges are not bound to select an interpretation proffered by one of the parties and instead their role is to seek an objective interpretation of the law.
The
jurisprudence
Jurisprudence, or legal theory, is the theoretical study of the propriety of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and they also seek to achieve a deeper understanding of legal reasoning a ...
of statutory interpretation is not settled in Australia. Interpretive doctrines such as the
literal rule
The plain meaning rule, also known as the literal rule, is one of three rules of statutory construction traditionally applied by English courts. The other two are the " mischief rule" and the " golden rule".
The plain meaning rule dictates that ...
, the
golden rule, and the
mischief rule
The mischief rule is one of three rules of statutory interpretation traditionally applied by English courts, the other two being the "plain meaning rule" (also known as the "literal rule") and the " golden rule". It is used to determine the exact ...
; must comply with the Commonwealth's mandate in the Acts Interpretation Act that statutes be interpreted according to their purpose. The legitimate role of extrinsic materials is not settled law in Australia.
Common law
![Common law world](https://upload.wikimedia.org/wikipedia/commons/2/2f/Common_law_world.png)
Australia's common law system originated in the system of common law in the UK. Although similarities remain, and the influence of UK common law decisions remain influential on Australian courts; there exists substantial divergence between each system.
Until 1963, the High Court regarded decisions of the
House of Lords
The House of Lords, also known as the House of Peers, is the upper house of the Parliament of the United Kingdom. Membership is by appointment, heredity or official function. Like the House of Commons, it meets in the Palace of Westminste ...
binding, and there was substantial uniformity between Australian and English common law. In 1978, the High Court declared that it was no longer bound by decisions of the
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Aug ...
.
The High Court has declared that Australia's system of common law is uniform across all states.
This may be contrasted with other jurisdictions, like the United States; that have maintained distinct systems of common law within each state.
International law
Australia has entered into many treaties. Treaties are not automatically incorporated into Australian domestic law upon signature or ratification (aside from those terminating a state of war).
The role of treaties in influencing the development of the common law is controversial. The text within a treaty is a valid interpretive aid to an act which attempts to give effect to that treaty.
By reliance on the
external affairs power
Section 51(xxix) of the Australian Constitution is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament of Australia the right to legislate with respect to "external affairs".
In recent years, most att ...
, matters subject of a treaty may be legislated upon by the Commonwealth Parliament; even in the absence of the matter among other the heads of power.
See also
*
Law of the United Kingdom
The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English and Welsh law, Scots law, Northern Ireland law, and, since 2007, purely Welsh law (as a result o ...
*
Law of the United States
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as v ...
References
Further reading
*Rosemary Barry (ed.), ''The Law Handbook'' (Redfern Legal Centre Publishing: Sydney, 2007).
*John Carvan, ''Understanding the Australian Legal System'' (Lawbook Co.: Sydney, 2002).
External links
*
Australian Government - Attorney-General's DepartmentAustralasian Legal Information Institute (AustLII)Australian Law Reform CommissionFederal Register of LegislationAustralian Treaties Library
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