The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.
The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.
The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.
The states and territories are the first-level administrative divisions of the Commonwealth of Australia. They are the second level of government in Australia, located between the federal and local government tiers.
The Australian Constitution is the legal foundation of the Commonwealth of Australia and sets out a federal system of government, dividing power between the federal Government and the States and territories, each of which are separate jurisdictions and have their own system of courts and parliaments. The constitutional framework of Australia is a combination of elements of the Westminster and United States systems of government. The federal legislature has the power to pass laws with respect to a number of express areas,which apply to the whole of Australia and override any State laws to the extent of any inconsistency. However, beyond those express areas the States’ legislatures generally have plenary power to enact laws on any subject.
Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. It is the largest country in Oceania and the world's sixth-largest country by total area. The neighbouring countries are Papua New Guinea, Indonesia, and East Timor to the north; the Solomon Islands and Vanuatu to the north-east; and New Zealand to the south-east. The population of 25 million is highly urbanised and heavily concentrated on the eastern seaboard. Australia's capital is Canberra, and its largest city is Sydney. The country's other major metropolitan areas are Melbourne, Brisbane, Perth, and Adelaide.
Jurisdiction is the practical authority granted to a legal body to administer justice within a defined field of responsibility, e.g., Michigan tax law. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels; e.g. the court has jurisdiction to apply federal law.
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.
At both the federal and State levels, the substantive law of Australia is largely derived from the common law system of English law.
English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.
The High Court of Australia is the highest court in Australia, and hears appeals from federal and State courts on matters of both federal and State law.Unlike the United States, there is only one common law of Australia rather than common laws for each of the several jurisdictions of the states and territories.
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, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states. The United States is the only country to combine the creation of common law doctrines with a complete federalism, wherein the national supreme court has virtually no power to review state court decisions to determine whether the state courts have followed state laws. The High Court of Australia is sometimes said to have federal common law, but because all state and territorial courts are directly appealable to the High Court, this is indistinguishable from a general common law. In contrast, the United States Supreme Court has effectively barred the creation of federal common law in areas traditionally under the authority of state courts. Nevertheless, there are several areas where federal common law continues to govern.
The legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins.When the British arrived in Australia, they considered the continent to be terra nullius , or land belonging to no-one, on the basis that the Aboriginal peoples already inhabiting the continent were too primitive to have lawful possession of the land. Under the English conception of international law at the time, when uninhabited lands were settled by English subjects the laws of England immediately applied to the settled lands. As such, Aboriginal laws and customs, including native title to land, were not recognised. The reception of English law was clarified by the Australian Courts Act 1828 (UK), which provided that all laws and statutes in force in England at the date of enactment should be applied in the courts of New South Wales and Van Diemen's Land (Tasmania) so far as those laws 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 history of Australia from 1788–1850 covers the early colonial period of Australia's history, from the arrival in 1788 of the First Fleet of British ships at Sydney, New South Wales, who established the penal colony, the scientific exploration of the continent and later, establishment of other Australian colonies.
Terra nullius is a Latin expression meaning "nobody's land", and was a principle sometimes used in international law to justify claims that territory may be acquired by a state's occupation of it.
International law, also known as public international law or law of nations, is the set of rules, norms, and standards generally regarded and accepted in relations between nations. It establishes normative guidelines and a common conceptual framework for states to follow across a broad range of domains, including war, diplomacy, trade, and human rights. International law thus provides a mean for states to practice more stable, consistent, and organized international relations.
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.
Legality can be defined as an act, agreement, or contract that is consistent with the law or state of being lawful or unlawful in a given jurisdiction.
The Governor of New South Wales is the viceregal representative of the Australian monarch, Queen Elizabeth II, in the state of New South Wales. In an analogous way to the Governor-General of Australia at the national level, the Governors of the Australian states perform constitutional and ceremonial functions at the state level. The governor is appointed by the queen on the advice of the premier of New South Wales, for an unfixed period of time—known as serving At Her Majesty's pleasure—though five years is the norm. The current governor is retired judge Margaret Beazley, who succeeded David Hurley on 2 May 2019.
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.
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 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.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.
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 determining the validity of State and federal statutes in cases where the two jurisdictions might overlap.
|Wikisource has original text related to this article:|
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 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 Queen has the highest role in the Assent to legislation in contemporary Australia.Without the Royal Assent there can be no law created or amended within the dominion of the Commonwealth of Australia and its States and Territories.
The legislative powers of the federal Parliament are limited to those set out under an enumerated list of subject matters in section 51 of the Constitution. These powers include a power to legislate on matters "incidental" to the other powers,similar to the United States necessary and proper clause. 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 over State laws where there is any inconsistency. The High Court of Australia has jurisdiction to determine disputes about whether a law is within power and consistent with the Constitution.
Chapter III of the Constitution required the creation of the High Court and confers power to establish other federal courts and to vest federal jurisdiction in State courts.
Australian courts could permit an appeal to the Privy Council on constitutional matters. The right of appeal from the High Court to the Privy Council was only abolished in 1975,and from State courts in 1986.
Australia does not have a constitutional bill of rights and there are few express rights guaranteed by the Constitution. However, certain indirect protections have been recognised by implication or as a consequence of other constitutional principles. For example, there is an implied guarantee of freedom of political communication.Additionally, rights are protected indirectly through the separation of powers, which requires courts to be sufficiently independent and impartial from the other branches of government. Human rights in Australia are generally protected through statutes and the common law.
If the government agrees that the changes are worthwhile, a Bill 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 then handed down to either the Governor (State) or the Governor-General (Commonwealth). Parliament often delegates legislation to local councils, statutory authorities and government departments, for sub or minor statute laws or rules such as Road Rules, but all law is answerable to the Commonwealth Constitution.
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.
In each Australian state, including the Commonwealth and the Australian Capital Territory, there is an official compilation of all new laws enacted by the Parliaments in such states. The Western Australian Consolidated Acts, Northern Territory Consolidated Acts, Queensland Consolidated Acts, South Australian Current Acts, New South Wales Consolidated Acts, Victorian Consolidated Acts, and the Tasmanian Consolidated Acts are the official compilation of laws and statutes in such Australian states. They contain statutes, Acts of Parliament, criminal law and many major topic areas. They are all enacted in chronological order and are normally enacted in statute.
The Commonwealth of Australia Consolidated Acts are all of the federal statutes and laws, including federal criminal law, enacted by the Parliament of Australia. The Australian Capital Territory Consolidated Acts are all of the enacted laws and statutes of the Australian Capital Territory that are enacted by the Australian Capital Territory Legislative Assembly.
Common law in Australia, like in other former British colonies, is the body of law developed from thirteenth century England to the present day, as case law or precedent, by judges, courts, and tribunals. However, after over a century of federation, there is a substantial divergence between English and Australian common law.
The High Court of Australia has a general appellate jurisdiction from the State Supreme Courts per s 73(ii) of the Australian Constitution. p 563 The High Court also has original jurisdiction for matters in s 75 of the Australian Constitution.The High Court's appellate jurisdiction ensures a uniform Australian common law. :
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.
A bilateral treaty (between two nations) or a multilateral treaty (among more than two nations, or organised by an International body) can be a source of Australian law. Australia has entered into a substantial number of treaties.Although treaties can legally be entered into by the executive government of the day (not necessarily Parliament), in practice treaties are tabled in both houses of Parliament 15 days prior to signing. They are generally organised and administered by the Department of Foreign Affairs and Trade who advise "The general position under Australian law is that treaties which Australia has joined, apart from those terminating a state of war, are not directly and automatically incorporated into Australian law. Signature and ratification do not, of themselves, make treaties operate domestically. In the absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. Nevertheless, international law, including treaty law, is a legitimate and important influence on the development of the common law and may be used in the interpretation of statutes." Treaties can be implemented through executive action, and often existing laws are sufficient to ensure a treaty is honoured.
The main substantive areas of law in Australia include:
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 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. The Acts came into effect simultaneously.
Australian 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.
The doctrine of the separation of powers in Australia divides the institutions of government into three branches: legislative, executive and judicial. The legislature makes the laws; the executive put the laws into operation; and the judiciary interprets the laws. The doctrine of the separation of powers is often assumed to be one of the cornerstones of fair government. A strict separation of powers is not always evident in Australia; instead the Australian version of separation of powers combines the basic democratic concepts embedded in the Westminster system, the doctrine of "responsible government" and the United States version of the separation of powers. The issue of separation of powers in Australia has been a contentious one and continues to raise questions about where power lies in the Australian political system.
The criminal law of Australia is the body of law made, recognised and applied in Australia that relates to crime. Most criminal law is made and administered by the individual states and territories of Australia. However, a body of criminal law is also made and administered by the federal government. Criminal law may be differentiated from civil law, which in Australia relates to non-criminal law including civil wrongs, contract law, much of property law and other areas that concern the rights and duties of individuals amongst themselves.
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.
Re Wakim; Ex parte McNally was a significant case decided in the High Court of Australia on 17 June 1999. The case concerned the constitutional validity of cross-vesting of jurisdiction, in particular, the vesting of state companies law jurisdiction in the Federal Court.
Commonwealth v Bank of New South Wales, was a Privy Council decision that affirmed the High Court of Australia's decision in Bank of New South Wales v Commonwealth, promoting the theory of "individual rights" to ensure freedom of interstate trade and commerce. The case dealt primarily with Section 92 of the Constitution of Australia.
The Acts Interpretation Act 1901 is an Interpretation Act of the Parliament of Australia which establishes rules for the interpretation of Australian Acts and other legislation. The Act applies only to Australian legislation, with each state and the self-governing territory having its own legislation.
Bank of New South Wales v The Commonwealth, also known as the Bank Nationalisation Case, is a decision of the High Court of Australia that dealt with the constitutional requirements for property to be acquired on "just terms", and for interstate trade and commerce to be free. The High Court applied an 'individual rights' theory to the freedom of interstate trade and commerce that lasted until 1988, when it was overturned in favour a 'free trade' interpretation in Cole v Whitfield.
The Court of Disputed Returns in Australia is a special jurisdiction of the High Court of Australia. This jurisdiction was initially established by Part XVI of the Commonwealth Electoral Act 1902 and is now contained in Part XXII of the Commonwealth Electoral Act 1918. The High Court sitting as the Court of Disputed Returns hears challenges regarding the validity of federal elections. The jurisdiction is twofold: (1) on a petition to the Court by an individual with a relevant interest or by the Australian Electoral Commission, or (2) on a reference by either house of the Commonwealth Parliament.
Kirmani v Captain Cook Cruises Pty Ltd , was a decision of the High Court of Australia on 17 April 1985 concerning section 74 of the Constitution of Australia. The Court denied an application by the Attorney-General of Queensland seeking a certificate that would permit the Privy Council to hear an appeal from the High Court's decision in Kirmani v Captain Cook Cruises Pty Ltd .
Plaintiff S157/2002 v Commonwealth, was a significant Australian court case, decided in the High Court of Australia on 4 February 2003. The case was an influential decision not only in relation to immigration law but to administrative law generally and is an authority for the proposition that Parliament cannot restrict the availability of constitutional writs.
Bond v Commonwealth was an early decision of the High Court of Australia that established that rights under the Constitution could not be taken away by Commonwealth legislation. The case was the second case heard by the High Court.
Deakin v Webb was one of a series of cases concerning whether the States could tax the income of a Commonwealth officer. The High Court of Australia overruled a decision of the Supreme Court of Victoria, holding that the States could not tax the income of a Commonwealth officer. This resulted in conflict with the Privy Council, a conflict which was ultimately resolved by the passage of Commonwealth law in 1907, that permitted the States to tax the income of a Commonwealth officer. The constitutional foundation of the decision was overturned by the subsequent decision of the High Court in the 1920 Engineers' Case.
SS Kalibia v Wilson, was the first decision of the High Court of Australia on the extent of the power of the Australian Parliament to make laws about shipping and navigation, including the Admiralty jurisdiction of the High Court. The High Court held that the power was limited to overseas and interstate trade and commerce. There was no separate power about navigation and shipping.
|Wikimedia Commons has media related to Law of Australia .|
| Library resources about |
Law of Australia