Lyla Lindsey
Australia's legal system has its roots in English law, which was first introduced when Britain claimed the continent as a colony in 1788. Despite the presence of Indigenous inhabitants, Australia was deemed 'settled rather than conquered, resulting in the application of English law. This decision had significant implications, as it failed to recognise the complex legal systems of the Indigenous people and imposed European legal concepts instead. Over time, Australia's legal system has evolved and gained independence, with the Australia Act 1986 marking a symbolic break with Britain. While similarities remain, and English law continues to exert influence, Australia's common law has diverged and developed its own unique characteristics. This evolution reflects Australia's responsibility to shape its legal system to fit the needs of its diverse society.
| Characteristics | Values |
|---|---|
| Basis of Australian law | The Australian legal system is based on the English legal system, which superseded Indigenous Australian customary law during colonisation. |
| Influence of UK law | The influence of UK law remains, with Australian courts influenced by UK common law decisions. |
| Legislative independence | The Australia Act 1986 established complete legislative independence from the UK. |
| Common law | Australia is a common-law jurisdiction, with a uniform system of common law across all states. |
| Indigenous laws | Native title law recognises that some Aboriginal and Torres Strait Islander people have rights and interests in land and waters that come from their traditional laws and customs. |
| Constitutional framework | Law and government in Australia are based on a constitutional framework, which is a product of the British legal system tempered by decisions required by the developing colonies. |
| Representative government | Representative government emerged in the 1840s and 1850s, with considerable autonomy given to local legislatures in the second half of the 19th century. |
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What You'll Learn
Australia's legal system and its links to the English system
Australia's legal system has strong links to the English system, with both systems tracing their origins to the Norman Conquest of England in 1066. When Captain Arthur Phillip claimed 'Terra Australis' for the British Crown in 1788, the British legal system was imposed on the new colony. This was due to the classification of Australia as 'settled' rather than 'conquered', which meant that Indigenous Australian customary law was superseded. As such, all English common and statute law relevant to the new colonies applied, and this formed the basis of Australia's legal system.
The Australian legal system has since diverged from its English counterpart, with complete legislative independence established by the Australia Act 1986. This Act removed the possibility of legislation being enacted at the request of a dominion and abolished appeals to the Privy Council from Australian courts. Despite this growing divergence, English law continues to exert an influence on Australia's legal system. The two systems share legal principles and doctrines, and English thinking about law remains influential among Australian lawyers.
The Australian legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's common law is uniform across all states and territories, with a national legislature that has the power to pass laws on a number of express topics. The states have their own court systems and parliaments and are vested with plenary power.
The development of the Australian legal system has been influenced by both indigenous and colonial factors. Native title law recognises that some Aboriginal and Torres Strait Islander people have rights and interests in land and waters that come from their traditional laws and customs. The High Court's decision in Eddie Mabo and Others v The State of Queensland in 1992 overturned the concept that no previous system of land title existed before European settlement. This led to the enactment of the Native Title Act 1993, which gave effect to the Mabo decision and set out processes for claiming native title.
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The Australian Constitutional System
Australia's legal and governmental systems are based on a constitutional framework. This framework is a product of the British legal system, influenced by decisions made by the developing colonies. In 1788, when Captain Arthur Phillip claimed the land for the British Crown, British law was applied as the colony was deemed 'settled' rather than 'conquered or ceded', implying no recognition of any pre-existing legal system.
The Australian Constitution, also known as the Commonwealth Constitution, is the fundamental law that outlines the country's political structure. It establishes Australia as a federation under a constitutional monarchy with a parliamentary system. The Constitution was drafted between 1891 and 1898 by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The final draft was approved by each state through referendums from 1898 to 1900.
The Constitution sets out the structure and powers of the three parts of the federal level of government: the Parliament, the Executive Government, and the Judicature. The Commonwealth Constitution Act, passed by the British Parliament in 1900, established the Commonwealth Parliament, Government, and the Federal court system, including the High Court. The powers of the Commonwealth Parliament cover areas such as interstate and foreign trade, taxation, defence, currency, marriage and divorce, and various social services.
Over time, the growth of the colonies and their distance from Britain led to a push for autonomous governments and legal systems. This resulted in each settlement becoming substantially independent, with the power to make laws tailored to their specific needs. Australia's independence from the British legal system was fully realised in 1986 with the passage of the Australia Act, which removed the UK's ability to legislate for the states and ended the appeal process to the UK Judicial Committee of the Privy Council.
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The impact of colonisation on Indigenous Australian customary law
When the British colonised Australia, they classified the land as 'settled' rather than 'conquered or ceded', implying that it was uninhabited. This classification was crucial as it formed the basis for the recognition of Indigenous people and their pre-existing legal system. As a result of this classification, the British law applied, and the Indigenous Australian customary law was not recognised.
Indigenous Australian customary law refers to the unique legal systems and practices of Indigenous Australians, including Aboriginal and Torres Strait Islander people. These laws are learned from childhood and dictate how to interact with the land, kinship, and community. They are intertwined with cultural customs, practices, and stories from the Dreamtime and are passed down orally through generations via cultural works such as songlines, stories, and dance.
It wasn't until the 1960s that Australia began to slowly experiment with recognising Indigenous customary law within the legal system. In 1986, the Australian Law Reform Commission conducted a major reference on the Recognition of Aboriginal Customary Law, acknowledging the existence of Indigenous lore but noting difficulties in consultation, especially with women. In 1992, the High Court overturned the concept of terra nullius in the Mabo decision, recognising Indigenous lore as giving rise to valid legal claims. This decision marked a shift towards acknowledging the Indigenous legal system, which has continued to gain slow recognition in specific areas, such as traditional adoption practices and intestate matters.
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The Commonwealth Constitution and the Federal Court system
Australia's legal system is based on a constitutional framework, which is a product of the British legal system. The Australian continent was considered uninhabited when Captain Arthur Phillip claimed 'Terra Australis' for the British Crown in 1788, and the first system of law applied was the British system. This was because the colony was classified as 'settled' rather than 'conquered or ceded', which meant there was no recognition of any pre-existing system of law.
The Commonwealth Constitution, contained in an Act of the British Parliament passed in 1900, sets out the terms of agreement reached between the Australian colonies for an Australia-wide Federation. It establishes the Commonwealth Parliament, Government, and the Federal Court system, including the High Court. The High Court is the highest court in the Australian judicial system and was established in 1901 by Section 71 of the Constitution. The functions of the High Court include interpreting and applying Australian law, deciding cases of special federal significance, and hearing appeals from Federal, State, and Territory courts. The Federal Court of Australia was created by the Federal Court of Australia Act 1976 and began exercising its jurisdiction on 1 February 1977. It sits in all capital cities and elsewhere in Australia.
The Commonwealth Constitution also establishes the powers of the Commonwealth Parliament, which include interstate and foreign trade and commerce, taxation, postal and telephonic services, defence, fisheries beyond state limits, currency and coinage, banking and insurance, bankruptcy, trading and financial corporations, marriage and divorce, various social services, minority racial groups, migration, foreign affairs, and industrial conciliation and arbitration of interstate disputes.
The Constitution has been changed by referendum only eight times since 1901, with the most recent change providing for retiring ages for judges of Federal courts. Any changes to the Constitution require a referendum with a majority in at least four states and a nationwide majority, reflecting a commitment to federalism within the document.
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Legislative independence and divergence from English common law
Australia's legal system is founded on the English common law system, which was introduced during colonisation and superseded Indigenous Australian customary law. In 1788, when Captain Arthur Phillip claimed 'Terra Australis' for the British Crown, British law was applied because the colony was deemed 'settled' rather than 'conquered'. This classification was significant as it determined whether the indigenous legal system would be recognised.
As the continent was considered uninhabited, the British system of law was imposed, and all English common and statute law relevant to the new colonies was applied. This foundational aspect of Australia's legal history is shared with other countries of the Commonwealth of Nations. However, the Australian legal system has since diverged from its English counterpart, and legislative independence was formally established with the Australia Act 1986, passed by the United Kingdom Parliament. This act removed the possibility of legislation being enacted at the request of a dominion and applied to both the States and the Commonwealth. It also abolished appeals to the Privy Council from Australian courts.
The Australia Act 1986 symbolised a break with Britain, emphasised by Queen Elizabeth II's visit to Australia to sign the legislation as the Queen of Australia. This legislative independence has been accompanied by a growing divergence between Australian and English common law since the late 20th century. A significant portion of English law previously received in Australia has been repealed in state parliaments, demonstrating Australia's move away from its colonial legal origins.
While the Australian legal system has evolved independently and established its own unique characteristics, it still shares similarities and influences with English common law. English legal thinking continues to hold sway over Australian lawyers, and certain doctrines of English common law are treated as representing Australian common law. For instance, the doctrine of negligence law derived from the famous case of Donoghue v Stevenson is recognised as part of Australian common law.
In summary, while Australia's legal system was initially based on English common law, legislative independence and growing divergence over time have shaped a distinct Australian legal framework. The Australia Act 1986 marked a pivotal moment in this journey towards legal autonomy, and ongoing developments continue to shape the evolution of Australia's legal landscape.
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Frequently asked questions
English law was applied in Australia when the country was colonised in 1788. This was because Australia was classified as 'settled' rather than 'conquered', which meant that the indigenous legal system was not recognised. However, Australia now has legislative independence from the UK, and there has been a growing divergence between Australian and English common law since the late 20th century.
The classification of a colony as 'settled' or 'conquered' depended on whether crops were cultivated. As the Aborigines were hunter-gatherers, Australia was considered ''uninhabited' and available to be 'settled'. This meant that the British legal system was applied, rather than recognising the complex system of law that governed the relationships between and within tribal groups.
Complete legislative independence was established by the Australia Act 1986, passed by the UK Parliament. This removed the possibility of legislation being enacted at the request of a dominion and abolished appeals to the Privy Council from Australian courts.
The Australian legal system is based on a constitutional framework, which is derived from the British legal system. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. The country's common law is uniform across all states.
