Law of Australia
Encyclopedia
The law of Australia consists of the Australia
n common law
(which is based on the English common law), federal
laws enacted by the Parliament of Australia
, and laws enacted by the Parliaments of the Australian states and territories
. The most important law of Australia is the Constitution of Australia
, which describes Australia's system of constitutional monarchy
, and forms the basis for the government of Australia
.
All of the States and territories of Australia
that are self-governing are separate jurisdiction
s, and have their own system of courts and parliaments. The systems of laws in each state are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia.
The organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statutes, notably including the Commonwealth of Australia Constitution Act 1900. The authority of the United Kingdom Parliament
to enact those statutes depended on the acquisition of the Australian continent as a territorial possession of the British Crown
.
Although the laws of the Australian colonies differed from the UK in many respects from the beginnings of settlement, the underlying patterns of thought reflect the common law tradition as received from Britain
.
The legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins. Influenced by contemporary ideas of international law
, Sophism
, and private ownership, the British regarded the Aboriginal peoples as being too primitive to have lawful possession of the Australian continent. They chose to treat New Holland
as terra nullius
, meaning an uninhabited land open for settlement. Since the Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England, there was no place for Aboriginal native title to land, nor for the recognition of Aboriginal custom or law. The reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment of the legislation
should be applied in the courts of New South Wales
and Van Diemen's Land
(Tasmania
) so far as they were applicable. Since Queensland
and Victoria
were originally part of New South Wales, the same date applies in those States for the reception of English law. South Australia
adopted a different date for reception, as did Western Australia
.
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
was not always observed, the courts limited the powers of the Governor, 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 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
and Exchequer
at Westminster
". Inferior courts were also established, including courts of General
or Quarter Sessions
, 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 and female suffrage, which were not to occur in Britain until many years later. Nevertheless, Acts of the United Kingdom Parliament 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 from which the modern negligence
law derived, was treated as being latent already within the common law at the time of reception.
Whilst the Constitution of the Commonwealth of Australia was itself an Act of the British Parliament, 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
s without the consent of the dominion. The Commonwealth did not invoke the provisions of the statute until 1942. Complete legislative independence was finally established by the Australia Act
1986, passed by the United Kingdom Parliament as well as those of the Commonwealth and States. 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 personally.
Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century.
Australian Republicanism
emerged as a movement in the 1990s hoping to eventually change Australia's status as a constitutional monarchy to a republican form of government.
The Australian Law Reform Commission
investigates suggestions for reform raised by attorneys-general and in some jurisdictions, by members of the public.
The Constitution provided for the legislative power of the Commonwealth to be vested in a federal Parliament consisting of the Queen, a Senate
and a House of Representatives
. The role of the Queen in the legislative process lies in her responsibility to grant Royal Assent
, a power exercised on her behalf by the Governor-General
.
The powers of the federal parliament are also dealt with in the Constitution. Section 51
lists those specific matters on which the Commonwealth has the power to legislate together with the States. In the case of a conflict, the Commonwealth shall prevail and the State law is invalid to the extent of inconsistency. In addition, the Parliament of the Commonwealth can legislate on matters referred to it by the Parliament of one or more States. There is also a power to legislate on matters "incidental" to a Commonwealth power. There are certain matters on which necessarily only the Commonwealth can legislate, including those relating to the Commonwealth seat of government, control of the Commonwealth's public service.
Chapter III allowed for the creation of the High Court of Australia
, and either the establishment of other federal courts, or the vesting of federal jurisdiction in State courts. Australian courts could permit an appeal to the Privy Council on constitutional matters. The right to appeal from the High Court to the Privy Council was only abolished in 1975, and from State courts in 1986.
There are few guarantees of human rights
in the Constitution, certainly nothing equivalent to the United States Bill of Rights
. Many rights have been declared by the High Court as a matter of interpretation, including a guarantee of freedom of political speech, and a right to the recognition of interstate profession
al qualifications.
is drafted, usually by Parliamentary Counsel
. The Bill is read and debated in both houses of parliament before it is either rejected, changed, or approved. An approved Bill must then receive the assent
of either the Governor (State) or the Governor-General (Commonwealth). Parliament often delegates legislation
to local councils, statutory authorities and government departments.
Most statutes are meant to be applied in the main not by legal practitioners and judges but by administrative decision makers. Certain laws receive more judicial interpretation than others, either because more is at stake or because those who are affected are in a position to take the matter to court. Whilst the meanings presented to the court are often those that benefit the litigants themselves, the courts are not bound to select one of the interpretations offered by the parties.
Australian courts have departed from the traditional approach of interpreting statutes (the literal rule
, the golden rule
, and the mischief rule
.). The dominant approach is that rules are not to be applied rigidly because the overriding goal is to interpret the statute in accordance with the intentions of Parliament. This so-called "purposive approach" has been reinforced by statute. Legislation in all States and Territories allows recourse to extrinsic materials.
Until 1963, the High Court regarded decisions of the House of Lords
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 last appeals to the Privy Council were abolished by the Australia Acts of 1986, and there is now a measure of divergence between the two common law systems. This has been particuarly evident since the creation of the European Union
, in which modern Common Law developments in the United Kingdom are influenced by European law and conventions. Nevertheless, decisions of the High Court and the House of Lords are regularly cited in argument and relied upon in the courts of the other country.
The Australian common law is also influenced, but to a lesser degree, by decisions of common law of countries including Canada
, New Zealand
and the United States
.
The common law forms part of a wider Western legal tradition shared with the civil law
of continental Europe
.
system allowing common law and equitable claims to be heard in the one court. Tasmania adopted a Judicature system in 1903, whilst the reform only came into effect in New South Wales in 1972.
The preservation of a distinct equity jurisdiction in New South Wales, with its own specialist practitioners, has led to the revival of equity as an important source of principle in the development and reform of common law doctrines. Many of the most important developments in the law of contract and property
in recent years have resulted from the application of equitable principles.
The failure of Australian law to recognise the possibility of Aboriginal native title lasted until 1992, when the doctrine of terra nullius
was swept away in the landmark decision Mabo v Queensland (No 2)
. In that case, the High Court stated that it is possible for customary laws to co-exist with mainstream common law.
, the Convention on the Elimination of All Forms of Racial Discrimination
, the Convention on the Elimination of All Forms of Discrimination Against Women
, and the Convention on the Rights of the Child
. Treaties do not become part of Australian law merely because Australia is a signatory to them.
Australia's first system of courts modelled on the historical English court system was eventually replaced by courts with other names and structures. The court structure in Australia today is a complex mosaic. Courts may be characterised by whether they are State courts or federal courts, whether they are general or specialist courts, and whether they have a general, or limited jurisdiction.
, which means that its decisions are regarded as valid and unimpeachable unless it is set aside on appeal.
By contrast, the decisions of inferior courts are subject not only to appeal in the normal manner but to review as to whether the matter was within the jurisdiction of that court. All jurisdictions, apart from Tasmania, the Australian Capital Territory
and the Northern Territory, have an intermediate trial court - called a County Court in Victoria and District Court in the other States. Most jury trial
s take place in the intermediate trial courts.
At the bottom of the court hierarchy are the courts of summary jurisdiction, usually called Magistrates' Courts or Local Courts. In Western Australia and the Northern Territory
, there are two types of court of summary jurisdiction, one exercising criminal jurisdiction and one exercising civil jurisdiction. In their civil jurisdiction, inferior courts operate within jurisdictional and monetary limits. The monetary limits of the inferior courts have increased substantially in recent years as a result of pressure of judicial work downwards to the courts lower in the hierarchy.
All Australian States have Criminal Injuries Compensation Schemes. New South Wales,Victoria and Western Australia have created separate Victim Compensation Tribunals. In New South Wales the body is called the NSW Victims Compensation Tribunal in which applications can be made in circumstance where the nominated defendant in not a party to the proceedings The New South Wales Victims Compensation Tribunal. In Victoria and Western Australia the body is called the Victims of Crime Assistance Tribunal. In the Australian Capital Territory and the Northern Territory awards are made by the Magistrate's Court. In South Australia an award can be made by the District Court. In Queensland an award can be made by the Court that heard the criminal proceedings. In Tasmania an award can be made by the Master, Registrar or Deputy Registrar of the Tasmanian Supreme Court.
was established with Australian federation, to act as a court of appeal for the country as a whole. The High Court also hears cases about the Australian Constitution. It also has the powers to declare laws unconstitutional, which means that the laws, regardless of whether they pass parliament, do not exist.
There are also federal courts with a jurisdiction defined by legislation. Major developments in the federal court system occurred in the 1970s. In 1976, the Family Court of Australia
came into existence, exercising jurisdiction mainly under the Family Law Act 1975 (Cth). In addition, in 1977 the Federal Court of Australia
came into being, and now exercises jurisdiction in matters of commercial, administrative and industrial law arising under federal legislation, In 2000, a Federal Magistrates' Court was established. Australian federal court was part of the UK law system, however, they have become disconnected.
State courts, in certain matter, may exercise jurisdiction under federal law. In response to delays, there has been a growing practice of case management by the courts.
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
n common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
(which is based on the English common law), federal
Federation
A federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
laws enacted by the Parliament of Australia
Parliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
, and laws enacted by the Parliaments of the Australian states and territories
Parliaments of the Australian states and territories
The Parliaments of the Australian states and territories are legislative bodies within the federal framework of the Commonwealth of Australia. Before the formation of the Commonwealth in 1901, the six Australian colonies were self-governing, with parliaments which had come into existence at various...
. The most important law of Australia is the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, which describes Australia's system of constitutional monarchy
Constitutional monarchy
Constitutional monarchy is a form of government in which a monarch acts as head of state within the parameters of a constitution, whether it be a written, uncodified or blended constitution...
, and forms the basis for the government of Australia
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
.
All of the States and territories of Australia
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
that are self-governing are separate jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, and have their own system of courts and parliaments. The systems of laws in each state are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia.
The organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statutes, notably including the Commonwealth of Australia Constitution Act 1900. The authority of the United Kingdom Parliament
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
to enact those statutes depended on the acquisition of the Australian continent as a territorial possession of the British Crown
British monarchy
The monarchy of the United Kingdom is the constitutional monarchy of the United Kingdom and its overseas territories. The present monarch, Queen Elizabeth II, has reigned since 6 February 1952. She and her immediate family undertake various official, ceremonial and representational duties...
.
Although the laws of the Australian colonies differed from the UK in many respects from the beginnings of settlement, the underlying patterns of thought reflect the common law tradition as received from Britain
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
Reception of English law
A large part of Australian law is based on English law, known as the Westminster system of law. Even though English precedents are referred to etc. there have been some changes made.The legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins. Influenced by contemporary ideas of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
, Sophism
Sophism
Sophism in the modern definition is a specious argument used for deceiving someone. In ancient Greece, sophists were a category of teachers who specialized in using the tools of philosophy and rhetoric for the purpose of teaching aretê — excellence, or virtue — predominantly to young statesmen and...
, and private ownership, the British regarded the Aboriginal peoples as being too primitive to have lawful possession of the Australian continent. They chose to treat New Holland
New Holland (Australia)
New Holland is a historic name for the island continent of Australia. The name was first applied to Australia in 1644 by the Dutch seafarer Abel Tasman as Nova Hollandia, naming it after the Dutch province of Holland, and remained in use for 180 years....
as terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
, meaning an uninhabited land open for settlement. Since the Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England, there was no place for Aboriginal native title to land, nor for the recognition of Aboriginal custom or law. The reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment of the legislation
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
should be applied in the courts of New South Wales
New South Wales
New South Wales is a state of :Australia, located in the east of the country. It is bordered by Queensland, Victoria and South Australia to the north, south and west respectively. To the east, the state is bordered by the Tasman Sea, which forms part of the Pacific Ocean. New South Wales...
and Van Diemen's Land
Van Diemen's Land
Van Diemen's Land was the original name used by most Europeans for the island of Tasmania, now part of Australia. The Dutch explorer Abel Tasman was the first European to land on the shores of Tasmania...
(Tasmania
Tasmania
Tasmania is an Australian island and state. It is south of the continent, separated by Bass Strait. The state includes the island of Tasmania—the 26th largest island in the world—and the surrounding islands. The state has a population of 507,626 , of whom almost half reside in the greater Hobart...
) so far as they were applicable. Since Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
and Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
were originally part of New South Wales, the same date applies in those States for the reception of English law. South Australia
South Australia
South Australia is a state of Australia in the southern central part of the country. It covers some of the most arid parts of the continent; with a total land area of , it is the fourth largest of Australia's six states and two territories.South Australia shares borders with all of the mainland...
adopted a different date for reception, as did Western Australia
Western Australia
Western Australia is a state of Australia, occupying the entire western third of the Australian continent. It is bounded by the Indian Ocean to the north and west, the Great Australian Bight and Indian Ocean to the south, the Northern Territory to the north-east and South Australia to the south-east...
.
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
The principle of legality is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary...
was not always observed, the courts limited the powers of the Governor, 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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
. The New South Wales Act 1823 provided for the establishment of a Supreme Court
Supreme Court of New South Wales
The Supreme Court of New South Wales is the highest state court of the Australian State of New South Wales...
with the power to deal with all criminal and civil matters "as fully and amply as Her Majesty's Court of King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
, Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
and Exchequer
Exchequer
The Exchequer is a government department of the United Kingdom responsible for the management and collection of taxation and other government revenues. The historical Exchequer developed judicial roles...
at Westminster
Palace of Westminster
The Palace of Westminster, also known as the Houses of Parliament or Westminster Palace, is the meeting place of the two houses of the Parliament of the United Kingdom—the House of Lords and the House of Commons...
". Inferior courts were also established, including courts of General
Courts of General Sessions
Courts of Quarter Sessions were the courts for the British North American colonies and existed until the creation of local court systems in Canada and the United States....
or Quarter Sessions
Quarter Sessions
The Courts of Quarter Sessions or Quarter Sessions were local courts traditionally held at four set times each year in the United Kingdom and other countries in the former British Empire...
, and Courts of Requests
Court of Requests
The Court of Requests was a minor equity court in England and Wales. Created at an unknown date, it first became a formal tribunal with some Privy Council elements under Henry VII, hearing cases from the poor and the servants of the King. It quickly became popular due to the low cost of bringing a...
.
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 and female suffrage, which were not to occur in Britain until many years later. Nevertheless, Acts of the United Kingdom Parliament 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 from which the modern negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
law derived, was treated as being latent already within the common law at the time of reception.
Divergence
Statute of Westminster 1931
The Statute of Westminster 1931 is an Act of the Parliament of the United Kingdom. Passed on 11 December 1931, the Act established legislative equality for the self-governing dominions of the British Empire with the United Kingdom...
1931, which provided that no British Act should be deemed to extend to the dominion
Dominion
A dominion, often Dominion, refers to one of a group of autonomous polities that were nominally under British sovereignty, constituting the British Empire and British Commonwealth, beginning in the latter part of the 19th century. They have included Canada, Australia, New Zealand, Newfoundland,...
s without the consent of the dominion. The Commonwealth did not invoke the provisions of the statute until 1942. Complete legislative independence was finally established by the Australia Act
Australia Act 1986
The Australia Act 1986 is the name given to a pair of separate but related pieces of legislation: one an Act of the Commonwealth Parliament of Australia, the other an Act of the Parliament of the United Kingdom...
1986, passed by the United Kingdom Parliament as well as those of the Commonwealth and States. 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 personally.
Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century.
Australian Republicanism
Republicanism in Australia
Republicanism in Australia is a movement to change Australia's status as a constitutional monarchy to a republican form of government. Such sentiments have been expressed in Australia from before federation onward to the present...
emerged as a movement in the 1990s hoping to eventually change Australia's status as a constitutional monarchy to a republican form of government.
Sources of law
Discussion of the sources of Australian law is complicated by the federal structure, which creates two sources of written constitutional law: state and federal—and two sources of general statute law, with the federal Constitution usually deciding validity of State and federal statutes in cases where the two jurisdictions might conflict. Until recently, statutes passed by the United Kingdom Parliament were also applicable in Australia.The Australian Law Reform Commission
Australian Law Reform Commission
The Australian Law Reform Commission is an Australian independent statutory body established to conduct reviews into the law of Australia and advocate options for law reform...
investigates suggestions for reform raised by attorneys-general and in some jurisdictions, by members of the public.
Constitutional law
The Australian colonies became a federation in 1901 through the passing of the Commonwealth of Australia Constitution Act by the British Parliament. The federal constitution was the product of nearly ten years of discussion, "with roots in both the British legal tradition and Australian democracy".The Constitution provided for the legislative power of the Commonwealth to be vested in a federal Parliament consisting of the Queen, a Senate
Australian Senate
The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
and a House of Representatives
Australian House of Representatives
The House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
. The role of the Queen in the legislative process lies in her responsibility to grant Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
, a power exercised on her behalf by the Governor-General
Governor-General of Australia
The Governor-General of the Commonwealth of Australia is the representative in Australia at federal/national level of the Australian monarch . He or she exercises the supreme executive power of the Commonwealth...
.
The powers of the federal parliament are also dealt with in the Constitution. Section 51
Section 51 of the Australian Constitution
Section 51 of the Constitution of Australia grants legislative powers to the Australian Parliament only when subject to the constitution. When the six Australian colonies joined together in Federation in 1901, they became the original States and ceded some of their powers to the new Commonwealth...
lists those specific matters on which the Commonwealth has the power to legislate together with the States. In the case of a conflict, the Commonwealth shall prevail and the State law is invalid to the extent of inconsistency. In addition, the Parliament of the Commonwealth can legislate on matters referred to it by the Parliament of one or more States. There is also a power to legislate on matters "incidental" to a Commonwealth power. There are certain matters on which necessarily only the Commonwealth can legislate, including those relating to the Commonwealth seat of government, control of the Commonwealth's public service.
Chapter III allowed for the creation of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
, and either the establishment of other federal courts, or the vesting of federal jurisdiction in State courts. Australian courts could permit an appeal to the Privy Council on constitutional matters. The right to appeal from the High Court to the Privy Council was only abolished in 1975, and from State courts in 1986.
There are few guarantees of human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
in the Constitution, certainly nothing equivalent to the United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. Many rights have been declared by the High Court as a matter of interpretation, including a guarantee of freedom of political speech, and a right to the recognition of interstate profession
Profession
A profession is a vocation founded upon specialized educational training, the purpose of which is to supply disinterested counsel and service to others, for a direct and definite compensation, wholly apart from expectation of other business gain....
al qualifications.
Statute
If the government agrees that the changes are worthwhile, a BillBill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
is drafted, usually by Parliamentary Counsel
Parliamentary Counsel
Parliamentary counsel are lawyers who prepare legislation that it is proposed to pass into law. The term Parliamentary draftsman is also widely used. These terms are used in relation to the United Kingdom parliament, and other parliaments on the Westminster system...
. The Bill is read and debated in both houses of parliament before it is either rejected, changed, or approved. An approved Bill must then receive the assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
of either the Governor (State) or the Governor-General (Commonwealth). Parliament often delegates legislation
Delegated legislation
In the United Kingdom, delegated legislation is legislation or law that is passed otherwise than in an Act of Parliament . Instead, an enabling Act confers a power to make delegated legislation on a Government Minister or another person or body...
to local councils, statutory authorities and government departments.
Most statutes are meant to be applied in the main not by legal practitioners and judges but by administrative decision makers. Certain laws receive more judicial interpretation than others, either because more is at stake or because those who are affected are in a position to take the matter to court. Whilst the meanings presented to the court are often those that benefit the litigants themselves, the courts are not bound to select one of the interpretations offered by the parties.
Australian courts have departed from the traditional approach of interpreting statutes (the literal rule
Plain Meaning 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 golden rule
Golden rule (law)
In law, the Golden rule, or British rule, is a form of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “mischief rule.”...
, and the mischief rule
Mischief rule
The mischief rule is one of three rules of statutory construction traditionally applied by English courts. The other two are the “plain meaning rule” and the “golden rule.”...
.). The dominant approach is that rules are not to be applied rigidly because the overriding goal is to interpret the statute in accordance with the intentions of Parliament. This so-called "purposive approach" has been reinforced by statute. Legislation in all States and Territories allows recourse to extrinsic materials.
Common law
Unlike the United States Supreme Court, the High Court of Australia, which was established in 1903, has a general appellate jurisdiction over the State Supreme Courts. This ensures there is a single uniform Australian common law.Until 1963, the High Court regarded decisions of the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
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
Judicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
, the last appeals to the Privy Council were abolished by the Australia Acts of 1986, and there is now a measure of divergence between the two common law systems. This has been particuarly evident since the creation of the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, in which modern Common Law developments in the United Kingdom are influenced by European law and conventions. Nevertheless, decisions of the High Court and the House of Lords are regularly cited in argument and relied upon in the courts of the other country.
The Australian common law is also influenced, but to a lesser degree, by decisions of common law of countries including Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, New Zealand
New Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
.
The common law forms part of a wider Western legal tradition shared with the civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
of continental Europe
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
.
Equity
Initially, a distinction was maintained between common law and equity, which were administered in separate divisions of the Supreme Courts. By 1883, most States had adopted the English Judicature ActsJudicature Acts
The Judicature Acts are a series of Acts of Parliament, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales. The first two Acts were the Supreme Court of Judicature Act 1873 and the Supreme Court of Judicature Act 1875 The Judicature Acts are a...
system allowing common law and equitable claims to be heard in the one court. Tasmania adopted a Judicature system in 1903, whilst the reform only came into effect in New South Wales in 1972.
The preservation of a distinct equity jurisdiction in New South Wales, with its own specialist practitioners, has led to the revival of equity as an important source of principle in the development and reform of common law doctrines. Many of the most important developments in the law of contract and property
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
in recent years have resulted from the application of equitable principles.
Customary law
The notion that the indigenous peoples of Australia had their own form of law was rejected by the British, and from the time of white settlement Aborigines were subjected to English law.The failure of Australian law to recognise the possibility of Aboriginal native title lasted until 1992, when the doctrine of terra nullius
Terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning "land belonging to no one" , which is used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished...
was swept away in the landmark decision Mabo v Queensland (No 2)
Mabo v Queensland
Mabo v Queensland was a landmark High Court of Australia decision recognising native title in Australia for the first time...
. In that case, the High Court stated that it is possible for customary laws to co-exist with mainstream common law.
International law
Australia is signatory to a number of international conventions, including International Covenant on Civil and Political RightsInternational Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
, the Convention on the Elimination of All Forms of Racial Discrimination
Convention on the Elimination of All Forms of Racial Discrimination
The International Convention on the Elimination of All Forms of Racial Discrimination is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races...
, the Convention on the Elimination of All Forms of Discrimination Against Women
Convention on the Elimination of All Forms of Discrimination Against Women
The Convention on the Elimination of all Forms of Discrimination against Women is an international convention adopted in 1979 by the United Nations General Assembly....
, and the Convention on the Rights of the Child
Convention on the Rights of the Child
The United Nations Convention on the Rights of the Child is a human rights treaty setting out the civil, political, economic, social, health and cultural rights of children...
. Treaties do not become part of Australian law merely because Australia is a signatory to them.
Judicial system
State and Territory Courts
The present position is that all States and Territories have a Supreme Court, which have full powers without any need for a specific enumeration of judicial powers. Jurisdiction can be excluded by operation of a State statute, for example in matters of environment and planning, which are dealt with by the Land and Environment Court. They can remit cases to lower courts or remove cases initiated in lower courts. Supreme Courts have the status of being superior courts of recordCourt of record
In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a...
, which means that its decisions are regarded as valid and unimpeachable unless it is set aside on appeal.
By contrast, the decisions of inferior courts are subject not only to appeal in the normal manner but to review as to whether the matter was within the jurisdiction of that court. All jurisdictions, apart from Tasmania, the Australian Capital Territory
Australian Capital Territory
The Australian Capital Territory, often abbreviated ACT, is the capital territory of the Commonwealth of Australia and is the smallest self-governing internal territory...
and the Northern Territory, have an intermediate trial court - called a County Court in Victoria and District Court in the other States. Most jury trial
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
s take place in the intermediate trial courts.
At the bottom of the court hierarchy are the courts of summary jurisdiction, usually called Magistrates' Courts or Local Courts. In Western Australia and the Northern Territory
Northern Territory
The Northern Territory is a federal territory of Australia, occupying much of the centre of the mainland continent, as well as the central northern regions...
, there are two types of court of summary jurisdiction, one exercising criminal jurisdiction and one exercising civil jurisdiction. In their civil jurisdiction, inferior courts operate within jurisdictional and monetary limits. The monetary limits of the inferior courts have increased substantially in recent years as a result of pressure of judicial work downwards to the courts lower in the hierarchy.
All Australian States have Criminal Injuries Compensation Schemes. New South Wales,Victoria and Western Australia have created separate Victim Compensation Tribunals. In New South Wales the body is called the NSW Victims Compensation Tribunal in which applications can be made in circumstance where the nominated defendant in not a party to the proceedings The New South Wales Victims Compensation Tribunal. In Victoria and Western Australia the body is called the Victims of Crime Assistance Tribunal. In the Australian Capital Territory and the Northern Territory awards are made by the Magistrate's Court. In South Australia an award can be made by the District Court. In Queensland an award can be made by the Court that heard the criminal proceedings. In Tasmania an award can be made by the Master, Registrar or Deputy Registrar of the Tasmanian Supreme Court.
Federal Courts
The High CourtHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
was established with Australian federation, to act as a court of appeal for the country as a whole. The High Court also hears cases about the Australian Constitution. It also has the powers to declare laws unconstitutional, which means that the laws, regardless of whether they pass parliament, do not exist.
There are also federal courts with a jurisdiction defined by legislation. Major developments in the federal court system occurred in the 1970s. In 1976, the Family Court of Australia
Family Court of Australia
The Family Court of Australia is a superior Australian federal court of record which deals with family law matters. Together with the Federal Magistrates Court, it covers family law matters in all states and territories of Australia except Western Australia...
came into existence, exercising jurisdiction mainly under the Family Law Act 1975 (Cth). In addition, in 1977 the Federal Court of Australia
Federal Court of Australia
The Federal Court of Australia is an Australian superior court of record which has jurisdiction to deal with most civil disputes governed by federal law , along with some summary criminal matters. Cases are heard at first instance by single Judges...
came into being, and now exercises jurisdiction in matters of commercial, administrative and industrial law arising under federal legislation, In 2000, a Federal Magistrates' Court was established. Australian federal court was part of the UK law system, however, they have become disconnected.
State courts, in certain matter, may exercise jurisdiction under federal law. In response to delays, there has been a growing practice of case management by the courts.
Legal taxonomy
- Australian administrative lawAustralian administrative lawAustralian administrative law define the extent of the powers and responsibilities held by administrative agencies of the Australian government. It is a common law system, with a highly significant statutory overlay that has shifted focus to generalist tribunals and codified judicial...
- Australian constitutional lawAustralian constitutional lawAustralian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Several major doctrines of Australian constitutional law have developed....
- Australian contract lawAustralian contract lawAustralian contract law is based on the inherited English contract law, with specific statutory modifications of principles in some areas. Australian law has developed through the decisions of Australian courts, especially since the 1980s, and various pieces of legislation passed by the Parliament...
- Australian copyright lawAustralian copyright lawThe copyright law of Australia defines the legally enforceable rights of creators of creative and artistic works under Australian law. The scope of copyright in Australia is defined in the Australian Copyright Act 1968 , which applies the national law throughout Australia...
- Australian criminal lawAustralian criminal lawThe criminal law of Australia generally administered by individual jurisdictions in the Commonwealth of Australia. These jurisdictions include the six states, the Commonwealth, and the self-governing territories...
- Australian sedition lawAustralian sedition lawAustralian sedition law is the area of the criminal law of Australia relating to the crime of sedition.Effectively defunct for nearly half a century, these laws returned to public notice in 2005 when changes were included in an Anti-terrorism Bill announced by Prime Minister Howard prior to a...
- Australian sedition law
- Australian family lawAustralian family lawFamily Law in Australia is contained in various pieces of legislation, but also includes the common law and laws of equity, which affect the family and the relationship between those people - including when those relationships end....
- Australian heritage lawAustralian heritage lawAustralian heritage laws exist at the national level, and at each of Australian Capital Territory, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia state levels....
- Australian insurance lawAustralian insurance lawAustralian insurance law is a term which refers to the body of law which regulates the insurance industry and insurance contracts within Australia. Commonwealth Parliament gains authority to make laws with respect to insurance and insurance companies under section 51 XIV and XX of the Australian...
- Australian labour lawAustralian labour lawAustralian labour law has had a unique development that distinguishes it from other English speaking jurisdictions.In 1904 the Conciliation and Arbitration Act was passed mandating "Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of...
- Australian migration law
- Australian privacy law
- Australian securities lawAustralian securities lawAustralian securities law relates to securities issued by corporations as well as other securities, including debentures, stocks and bonds issued by governments, and interests in managed investment schemes....
- Australian tort lawAustralian tort lawTort law in Australia is the body of precedents and, to a lesser extent, legislation, that together define the operation of tort law in Australia. A tort is a civil wrong, other than a breach of contract. Tort law is a way in which the law can interfere with relationships between private...
- Law enforcement in AustraliaLaw enforcement in AustraliaLaw enforcement in Australia is facilitated by police, sheriffs and bailiffs under the control of state, territory and the Federal governments. A number of specialist agencies also administer a wide variety of legislation related to white-collar crime....
- Native titleNative titleNative title is the Australian version of the common law doctrine of aboriginal title.Native title is "the recognition by Australian law that some Indigenous people have rights and interests to their land that come from their traditional laws and customs"...
- Same-sex marriage in AustraliaSame-sex marriage in AustraliaSame-sex marriages are currently not permitted under Australian federal law. In 2004 the Marriage Act 1961 was amended in federal parliament to expressly state that marriage is considered a union between a man and a woman only and that any existing same-sex marriage from a foreign country is not to...
- Australian Federal PoliceAustralian Federal PoliceThe Australian Federal Police is the federal police agency of the Commonwealth of Australia. Although the AFP was created by the amalgamation in 1979 of three Commonwealth law enforcement agencies, it traces its history from Commonwealth law enforcement agencies dating back to the federation of...
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).
- Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin: Sydney, 1995).
- Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001).