Ruqayyah Snyder
Australia's legal system has multiple forms, including a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially-determined common law system. The power to make laws is shared between the Commonwealth Parliament and each state parliament. Law made in courts is called common law, case law, or judge-made law. Common law is made when judges make decisions in courts, referring to previous decisions for guidance on how the law is applied. Statute law, on the other hand, is made by parliament, while delegated law is made by the Executive government.
| Characteristics | Values |
|---|---|
| Sources of law in Australia | Case law or common law, legislation |
| Basis of case law or common law | Decisions of judges in superior courts |
| Basis of legislation | Laws made by Parliament |
| Hierarchy of courts | Courts arranged in a hierarchy based on the kinds of issues being decided, with appeals from lower courts going to a higher court |
| Jurisdiction of courts | The kind of case that a particular court decides depends on the jurisdiction of that court, or its authority to determine particular issues |
| Court procedure | Parties to the action present evidence to support their case; the judge listens to the evidence, decides what evidence is relevant and what facts have been proved, decides what law is relevant, and applies that law to the facts in making a decision which is binding on the parties |
| Court interpretation | Judges interpret the law, but may be bound by precedent, or interpretations of the law made by judges in higher courts in cases with similar facts or involving similar legal principles |
| Court decision-making | Judges use precedent – decisions made in previous similar cases – to guide their decisions; if no past cases with similar circumstances exist, a judge will make a new decision which would then become a precedent for similar cases in the future |
| Law applicability | If no statute law applies to cover a particular situation, common law will apply; however, statute law always overrides common law |
| Indigenous Australian customary law | Only recognised as legally important by Australian courts to a limited degree |
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What You'll Learn
Common law, case law, or judge-made law
In Australia, there are two main sources of law: case law or common law, and legislation. Case law, also known as common law or judge-made law, is based on the decisions of judges in the superior courts. Over hundreds of years, judges have decided cases, developing a body of legal principles known as common law or case law. This is distinct from legislation, which is the law made by Parliament.
When a case comes before a court, the parties present the evidence they need to support their case. The judge listens to the evidence, decides what evidence is relevant, determines which facts have been proven, identifies the relevant law, and applies that law to the facts in making a binding decision. The type of case a court decides depends on its jurisdiction, or its authority to determine particular issues. The courts are arranged in a hierarchy, with appeals from lower courts going to a higher court.
Common law is a collection of court decisions developed over hundreds of years by Australian superior courts, English courts, and the courts of other countries with similar legal systems. Judges deciding cases refer to common law to guide them in making decisions about the particular case they are dealing with. This ensures that cases of a similar nature are decided using the same principles as previous similar cases. This is known as the doctrine of precedent, a key marker of the common law system.
When a case comes before a court, a judge will refer to previous decisions for guidance on how the law is applied. This is known as precedent, where judges are bound to follow interpretations of the law made by judges in higher courts in cases with similar facts or involving similar legal principles. For example, a decision of a judge in a State Supreme Court is binding on judges making decisions in similar cases in all State courts, but not on a judge in a Federal Court or the Supreme Court of another State.
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Statute law or legislation
In Australia, statute law or legislation is made by the Parliament. This involves a proposal for a new law or a change to an existing one, which is introduced to the House of Representatives and the Senate. The bill is then debated and voted on by members and senators, respectively. This is followed by an optional public inquiry stage, where a committee of the House or Senate may investigate and report back. The bill may then be discussed further, including any proposed changes, before a final vote. If passed, the bill receives Royal Assent from the Governor-General and becomes an Act of Parliament, i.e., statute law.
The Australian Parliament has the power to overrule common law and delegated law through statute law. Statute law always takes precedence over common law. If a statute law covers a particular situation, it will be applied instead of common law.
In some cases, the interpretation of statute law by the courts can be challenging, especially when dealing with ambiguous Acts. In such situations, lawyers may provide advice on what the law might allow under certain interpretations and what it definitely allows.
The Australian Constitution sets out a federal system of government, with a national legislature that has the power to pass laws on specific topics, overriding state laws. The states, however, have their own systems of courts and parliaments and hold plenary power.
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Delegated law
In Australia, the power to make laws is shared between the Commonwealth Parliament and each state parliament. The sources of law in Australia are case law or common law, and legislation. Common law is developed by judges as they decide cases and refer to previous decisions for guidance on how the law is applied.
Delegated Legislation
Delegated legislation is made by the executive branch under the authority granted by primary legislation. It tends to focus on the detailed rules and technical matters necessary to enforce the broader objectives of the Act. This process is generally faster and more flexible but comes with less direct democratic oversight.
While primary legislation forms the backbone of the legal system, delegated legislation fills in important details necessary for effective implementation. It allows the executive branch to respond quickly to unforeseen circumstances, which is particularly vital during emergencies or fast-changing technological and economic conditions.
The evolving nature of delegated legislation means that businesses benefit from robust internal processes for legal review. Regular consultations with legal experts can help ensure that a business remains both agile and compliant in the face of regulatory changes. To stay informed, businesses should regularly check reputable sources such as the Australian Government's legislation website for updates.
Compliance is an ongoing challenge, particularly as delegated legislation can change rapidly. To mitigate risks, businesses should develop a structured monitoring system, regularly review internal policies, and seek expert guidance.
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Indigenous Australian customary law
There is no uniform Indigenous customary law across Australia, and systems differ between language groups, clans, and regions. While there are no systematic accounts, manuals, or handbooks, lore has been recognised as giving rise to valid legal claims. Notably, the 1992 Mabo decision discarded the legal fiction of terra nullius, recognising Indigenous lore and customary legal rights to land. This decision was further regulated by the Native Title Act 1993.
Despite the recognition of Indigenous lore in the Mabo decision, Australian courts have historically ignored or failed to recognise Aboriginal traditions and customary laws. Legislative bodies since the late 20th century have investigated incorporating Indigenous laws into post-colonial legal systems, and reports by law reform commissions have discussed the recognition of customary law in matters involving Aboriginal Australians.
In the Northern Territory, some statutes and courts refer to customary law to identify relationships and social expectations. However, these changes have been controversial when customary law is imprecise or infringes upon human rights. For example, on 17 July 2020, the Queensland Government introduced a bill to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020.
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The Australian Constitution
The Constitution was drafted between 1891 and 1898 at a series of conventions attended by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The 1891 draft was submitted to colonial parliaments, but it lapsed in New South Wales, leading to other colonies' reluctance to proceed. In 1895, the six premiers of the Australian colonies agreed to establish a new convention by popular vote, and the meetings produced a new draft with added provisions for responsible government. The final draft was approved by each state in referendums from 1898 to 1900.
The Constitution can only be changed with the approval of the Australian people. A proposed change must be approved by Parliament and then voted on by Australians in a referendum. This process ensures that the Constitution remains a living document that can adapt to the changing needs of the country while upholding the principles of democracy and the rule of law.
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Frequently asked questions
There are two main sources of law in Australia: case law or common law, and legislation. Case law or common law is based on the decisions of judges in the superior courts. Legislation, on the other hand, is the law made by Parliament.
When a case is presented before a court, the involved parties present their evidence. The judge then listens to the evidence, decides what evidence is relevant, determines what facts have been proven, and applies the relevant law to the facts, making a decision that is binding on the parties. In doing so, the judge uses precedent—decisions made in previous similar cases—to guide their decision-making process. If no previous cases with similar circumstances exist, the judge will make a new decision, which then becomes a precedent for future cases.
The Australian court system is arranged in a hierarchy, with appeals from lower courts going to higher courts. For example, a decision made by a judge in a State Supreme Court is binding on judges in similar cases in all State courts, but not on a judge in a Federal Court or the Supreme Court of another State. The High Court is the highest court in the Australian court system.
