Australian legal system

Last updated

The High Court High Court of Australia from lake (85856224) cropped.jpg
The High Court

The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system, which superseded Indigenous Australian customary law during colonisation. [1] 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. [2]

Contents

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. [3] The states are separate jurisdictions with their own system of courts and parliaments, and are vested with plenary power. Some Australian territories such as the Northern Territory and the Australian Capital Territory 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. [4]

Prior to colonisation, the only systems of law to exist in Australia were the varied systems of customary law belonging to Indigenous Australians. 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. [5]

History

Indigenous customary law

Indigenous Australian cultural event Barunga Festival.jpg
Indigenous Australian cultural event

Indigenous Australian customary law varied between language groups, clans, and regions. [6] It developed over time from accepted 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. [7]

Such law is often intertwined with cultural customs, stories, and practices. These customs were and are passed on intergenerationally through oral tradition, often incorporated within cultural works such as songlines, stories and dance.

Reception of English law

Courtroom scene Sydney c1817. State Library of New South Wales Courtroom Sydney c1817.jpg
Courtroom scene Sydney c1817. State Library of New South Wales

The laws of England had evolved over centuries, with the common law emerging following the 1200s. This law was introduced to Australia through the colonisation of Australia by the British. By 1824, a court system based on the English model had been established through Acts of the British Parliament. [8] 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". [8] Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests.

Despite the presence of indigenous inhabitants, Australia was determined to be "settled" rather than "conquered" and as a result all English law "applicable to the new situation and condition of the infant colony" applied, as opposed to the continuation of indigenous laws. [9] [10] This was confirmed by the Australian Courts Act 1828 [11] an act of the Imperial Parliament which had the effect of ensuring that all English common and statute law up to 28 July 1828 was to have effect in New South Wales and Tasmania, and later Victoria and Queensland when they separated from New South Wales. The reception of English law in Western Australia and South Australia was later deemed by statute to have occurred on 1 June 1829 [12] and 28 December 1836 [13] respectively.

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. [14]

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. [15] 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". [16] 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. [17]

Federation and divergence

Australia Act 1986 (United Kingdom) document, located in Parliament House, Canberra Australia Act 1986.jpg
Australia Act 1986 (United Kingdom) document, located in Parliament House, Canberra

Following a number of constitutional conventions during the 1890s to develop a federal nation from the several colonies, the Commonwealth of Australia Constitution Act (Imp) was passed and came into force on 1 January 1901. Section 9 of this act contains Australia's constitution, to this day within a British act.

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 dominions 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 , 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. [18] 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.

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, and Switzerland. [19] [20]

Australia's constitution 'establishes the form of the federal government and sets out the basis for relations between the Commonwealth and the states'. [21] 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 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 of the prime minister.

The Australian constitution is notable for not containing a bill of rights, and express constitutional restrictions upon Commonwealth power are minimal in number and scope. Nevertheless, some restrictions upon Commonwealth power have been recognised 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. [22]

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 )

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. [23] The Parliament of the Commonwealth can also legislate on matters referred to it by the Parliament of one or more States. [24]

In contrast, with a few exceptions [25] 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. [26]

"Making a Law" by the Parliamentary Education Office

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. [27] 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. [28] [29]

The jurisprudence of statutory interpretation is not settled in Australia. Interpretive doctrines such as the literal rule, the golden rule, [30] and the mischief rule; [31] must comply with the Commonwealth's mandate in the Acts Interpretation Act that statutes be interpreted according to their purpose. [32] The legitimate role of extrinsic materials is not settled law in Australia. [33]

Common law

Common law legal systems Common law world.png
Common law legal systems

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. [34]

Until 1963, the High Court regarded decisions of the House of Lords binding, [35] 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. [36] [37]

The High Court has declared that Australia's system of common law is uniform across all states: [2] 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. [38] 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. [39]

By reliance on the external affairs power, 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

Related Research Articles

<span class="mw-page-title-main">High Court of Australia</span> Apex court of Australia

The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation.

<span class="mw-page-title-main">Australia Act 1986</span> Legislation by the Australian and UK parliaments

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 Parliament of Australia, the other an act of the Parliament of the United Kingdom. In Australia they are referred to, respectively, as the Australia Act 1986 (Cth) and the Australia Act 1986 (UK). These nearly identical Acts were passed by the two parliaments, because of uncertainty as to whether the Commonwealth Parliament alone had the ultimate authority to do so. They were enacted using legislative powers conferred by enabling acts passed by the parliaments of every Australian state. The acts came into effect simultaneously, on 3 March 1986.

Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.

<i>Commonwealth v Tasmania</i> 1983 Australian constitutional law case

Commonwealth v Tasmania was a significant Australian court case, decided in the High Court of Australia on 1 July 1983. The case was a landmark decision in Australian constitutional law, and was a significant moment in the history of conservation in Australia. The case centred on the proposed construction of a hydro-electric dam on the Gordon River in Tasmania, which was supported by the Tasmanian government, but opposed by the Australian federal government and environmental groups.

<i>Amalgamated Society of Engineers v Adelaide Steamship Co Ltd</i> Judgement of the High Court of Australia

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd, commonly known as the Engineers case, was a landmark decision by the High Court of Australia on 31 August 1920. The immediate issue concerned the Commonwealth's power under s 51(xxxv) of the Constitution but the court did not confine itself to that question, using the opportunity to roam broadly over constitutional interpretation.

The judiciary of Australia comprises judges who sit in federal courts and courts of the States and Territories of Australia. The High Court of Australia sits at the apex of the Australian court hierarchy as the ultimate court of appeal on matters of both federal and State law.

The separation of powers in Australia is the division of the institutions of the Australian government into legislative, executive and judicial branches. This concept is where legislature makes the laws, the executive put the laws into operation, and the judiciary interprets the laws; all independently of each other. The term, and its occurrence in Australia, is due to the text and structure of the Australian Constitution, which derives its influences from democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. However, due to the conventions of the Westminster system, a strict separation of powers is not always evident in the Australian political system, with little separation between the executive and the legislature, with the executive required to be drawn from, and maintain the confidence of, the legislature; a fusion.

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 inconsistent state laws, to the extent of the inconsistency. Section 109 is analogous to the Supremacy Clause in the United States Constitution and the paramountcy doctrine in Canadian constitutional jurisprudence, and the jurisprudence in one jurisdiction is considered persuasive in the others.

Section 51(xxvi) of the Constitution of Australia, commonly called the race power, is the subsection of Section 51 of the Constitution of Australia granting the Australian Commonwealth the power to make special laws for people of any race.

The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case, replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

<span class="mw-page-title-main">Criminal law of Australia</span>

The criminal law of Australia is the body of law in Australia that relates to crime.

Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.

In Australian constitutional law, chapter III courts are courts of law which are a part of the Australian federal judiciary and thus are able to discharge Commonwealth judicial power. They are so named because the prescribed features of these courts are contained in chapter III of the Australian Constitution.

<i>Kruger v Commonwealth</i> Judgement of the High Court of Australia

In Kruger v Commonwealth, decided in 1997, also known as the Stolen Generation Case, the High Court of Australia rejected a challenge to the validity of legislation applying in the Northern Territory between 1918 and 1957 which authorised the removal of Aboriginal children from their families. The majority of the bench found that the Aboriginals Ordinance 1918 was beneficial in intent and had neither the purpose of genocide nor that of restricting the practice of religion. The High Court unanimously held there was no separate action for a breach of any constitutional right.

<i>DEmden v Pedder</i>

D'Emden v Pedder was a significant Australian court case decided in the High Court of Australia on 26 April 1904. It directly concerned the question of whether salary receipts of federal government employees were subject to state stamp duty, but it touched on the broader issue within Australian constitutional law of the degree to which the two levels of Australian government were subject to each other's laws.

<span class="mw-page-title-main">Constitution of Australia</span> Supreme law of Australia

The Constitution of Australia is the fundamental law that governs the political structure of Australia. It is a written constitution, that establishes the country as a federation under a constitutional monarchy governed with a parliamentary system. Its eight chapters sets down the structure and powers of the three constituent parts of the federal level of government: the Parliament, the Executive Government and the Judicature.

<i>Tasmania v Commonwealth</i>

Tasmania v Commonwealth, is a landmark decision of the High Court of Australia in 1904. The case concerned a claim by Tasmanian for customs tariffs collected in Victoria during the period between Federation and the commencement of the Commonwealth Customs Tariff. Significantly, the High Court established that the Australian Constitution should interpreted consistently with the ordinary rules of statutory interpretation.

<i>Australian Boot Trade Employees Federation v Whybrow & Co</i> Judgement of the High Court of Australia

Australian Boot Trade Employees Federation v Whybrow & Co, commonly known as Whybrow's case or the Boot Trades case, was the third of a series of decisions of the High Court of Australia in 1910 concerning the boot manufacturing industry and the role of the Commonwealth Court of Conciliation and Arbitration in preventing and settling industrial disputes. In doing so the High Court considered the constitutional power of the Federal Parliament to provide for common rule awards and the jurisdiction of the High Court to grant prohibition against the Arbitration Court. The majority held in Whybrow that the Arbitration Court could not make an award that was inconsistent with a State law, but that different minimum wages were not inconsistent as it was possible to obey both laws. In Whybrow the High Court established the doctrine of ambit, with the emphasis on the precise claim made and refused, and the practice with respect to "paper disputes" being treated "prima facie as genuine and real", with the majority holding that the High Court had power to order prohibition to correct jurisdictional error as part of its original jurisdiction. Finally in Whybrow the High Court unanimously held that the Federal Parliament had no constitutional power to provide for common rule awards.

<span class="mw-page-title-main">Constitution Act 1902</span> Australian state constitution

The Constitution of New South Wales is composed of both unwritten and written elements that set out the structure of Government in the State of New South Wales. While the most important parts are codified in the Constitution Act 1902, major parts of the broader constitution can also be found in:

Section 122 of the Constitution of Australia deals with matters relating to the governance of Australian territories. It gives the Commonwealth Parliament complete legislative power over the territories. This power is called the territories power. The extent and terms of the representation of the territories in the House of Representatives and the Senate are also stated as being at the discretion of the Commonwealth Parliament.

References

  1. ↑ Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001) at 6.
  2. 1 2 Lange v Australian Broadcasting Corporation ("Political Free Speech case") [1997] HCA 25 at p. 563, (1997) 189 CLR 520(8 July 1997).
  3. ↑ Constitution (Cth) s 51 Legislative powers of the Parliament.
  4. ↑ Constitution (Cth) s 73 Appellate jurisdiction of High Court.
  5. ↑ Mabo v Queensland (No 2) [1992] HCA 23
  6. ↑ Australian Law Reform Commission (12 June 1986). "24. The Proof of Aboriginal Customary Laws". Recognition of Aboriginal Customary Laws (ALRC Report 31) . Retrieved 30 May 2011.
  7. ↑ Law Reform Commission of Western Australia (February 2006). Aboriginal Customary Laws (Project 94) - Discussion Paper Overview. Quality Press. p. 7. ISBN   1-74035-056-1.
  8. 1 2 New South Wales Act 1823 (PDF), archived (PDF) from the original on 19 September 2017, retrieved 18 September 2017 (IMP); Australian Courts Act 1828 (PDF), archived (PDF) from the original on 2 March 2016, retrieved 18 September 2017 (IMP).
  9. ↑ Castles, Alex C (1963). "The Reception and Status of English Law in Australia". Adelaide Law Review. 2– via Austlii.
  10. ↑ Case 15 - Anonymous(1722)2 Peer William's Reports 75, 24 ER 646 , King's Bench (UK).
  11. ↑ Australian Courts Act 1828 (Imp) 9 Geo 3, c 83, s 24
  12. ↑ Interpretation Act 1984 (WA) s 73
  13. ↑ Adoption of Laws Ordinance 1842 (SA) now expressed in Legislation Interpretation Act 2021 (SA) s 23
  14. ↑ Kercher, B (1995). An Unruly Child: A History of Law in Australia. Allen & Unwin. ISBN   9781863738910. Archived from the original on 18 September 2017. Retrieved 18 September 2017. at 7, 52. Kercher refers to the case of Henry Kable, who successfully sued the captain of the ship Alexander. Cable v Sinclair [1788] NSWSupC 7 , [1788] NSWKR 7.
  15. ↑ Great Reform Act 1832; Australian Constitutions Act 1842 (PDF), archived (PDF) from the original on 2 March 2016, retrieved 7 May 2020 (IMP); Australian Constitutions Act (No 2) (IMP).
  16. ↑ Colonial Laws Validity Act 1865 (PDF), archived (PDF) from the original on 11 March 2016, retrieved 7 May 2020 (Imp), s 2.
  17. ↑ State Government Insurance Commission v Trigwell [1979] HCA 40 , (1979) 142 CLR 617.
  18. ↑ M. Ellinghaus, A. Bradbrook and A. Duggan (eds.), The Emergence of Australian Law (Butterworths: Sydney, 1989) at 70.
  19. ↑ "Saunders, Cheryl --- "Australian Federalism" [2001] ALRCRefJl 2; (2001) 78 Australian Law Reform Commission Reform Journal 5". www5.austlii.edu.au. Retrieved 29 August 2020.
  20. ↑ Kercher, B (1995). An Unruly Child: A History of Law in Australia. Allen & Unwin. ISBN   9781863738910. Archived from the original on 18 September 2017. Retrieved 18 September 2017. at 157.
  21. ↑ corporateName=Commonwealth Parliament; address=Parliament House, Canberra. "Infosheet 13 - The Constitution". www.aph.gov.au. Retrieved 29 August 2020.{{cite web}}: CS1 maint: multiple names: authors list (link)
  22. ↑ Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45 , (1992) 177 CLR 106.
  23. ↑ Constitution (Cth) s 51 Placitum xxxix.
  24. ↑ Constitution (Cth) s 51 Placitum xxxvii.
  25. ↑ Constitution (Cth) s 52 Exclusive powers of the Parliament.
  26. ↑ Constitution (Cth) s 109 Inconsistency of laws.
  27. ↑ Barnes, Jeffrey W. "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law Part One". Archived from the original on 19 March 2018. Retrieved 19 March 2018. (1994) 22 Federal Law Review 116; Part Two, archived from the original on 19 March 2018, retrieved 19 March 2018, (1995) 23 Federal Law Review 77.
  28. ↑ Dennis C. Pearce and R. S. Geddes, Statutory Interpretation in Australia (4th edition, Butterworths: Sydney, 1996), p. 3.
  29. ↑ Saif Ali v Sydney Mitchell v Co [1978] UKHL 6 , [1980] AC 198 at 212.
  30. ↑ Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106.
  31. ↑ Heydon's Case [1584] Eng R 9; (1584) 3 Co Rep 7a at 7b.
  32. ↑ For example, Acts Interpretation Act 1901 (Cth) s 15AA.
  33. ↑ Dharmananda, Jacinta (1 June 2014). "Outside the Text: Inside the use of Extrinsic Materials in Statutory Interpretation". Federal Law Review. 42 (2): 333–356. doi:10.22145/flr.42.2.5. S2CID   220285163. (2014) 42(2) Federal Law Review 333.
  34. ↑ Finn, Paul. "Common Law Divergences". Archived from the original on 8 April 2017. Retrieved 7 April 2017. (2013) 37 Melbourne University Law Review 509.
  35. ↑ Parker v The Queen [1963] HCA 14 , (1963) 111 CLR 610 per Dixon J at [17].
  36. ↑ Viro v The Queen [1978] HCA 9 , (1978) 141 CLR 88.
  37. ↑ Geddes, R. "The Authority of Privy Council Decisions in Australian Courts" (PDF). Archived (PDF) from the original on 18 September 2017. Retrieved 18 January 2016. (1978) 9 Federal Law Review 427.
  38. ↑ "Australian Treaties Library". AustLII. Archived from the original on 3 December 2012. Retrieved 7 April 2017.
  39. ↑ "Treaty making process". Department of Foreign Affairs and Trade. Archived from the original on 18 September 2017. Retrieved 18 September 2017.

Further reading

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.