Leslie Massey
Australia is a common law country with a legal system based on the English model, introduced during the colonisation of Australia by the British. The country's highest court, the High Court of Australia, has the final say on all legal matters and hears appeals from all other courts in the country. The Australian Constitution establishes the form of the federal government and sets out the relationship between the Commonwealth and the states, with the federal Parliament's legislative powers limited to those listed in the Constitution. Notably, Australia does not have a Constitutional Charter or Bill of Rights, which is unusual among common law countries.
| Characteristics | Values |
|---|---|
| Type of legal system | Common law |
| Highest court | High Court of Australia |
| Federal court | Federal Court of Australia |
| State or territory courts | Each state or territory has a Supreme Court, a County or District Court, and a Magistrates' Court |
| Separation of powers | Yes |
| Constitutional charter or bill of rights | No |
| Indigenous customary law recognised | Limited recognition |
| Human rights recognised | Yes |
| International law obligations | Yes |
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What You'll Learn
Australia's common law history
Australia is a common law country. The common law in Australia was inherited from the British legal system during colonisation. By 1824, a court system based 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. Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests.
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. Indigenous Australian customary law varied between language groups, clans, and regions. It developed over time from accepted norms within indigenous societies and was intertwined with cultural customs, stories, and practices.
The Australian Constitution establishes the form of the federal government and sets out the basis for relations between the Commonwealth and the states. The division of the three branches of government into chapters is understood to establish a Separation of Powers doctrine in Australia. 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.
The High Court of Australia is the highest court in the Australian judicial system. The Federal Court of Australia is a superior court of record with jurisdiction over civil matters under Australian federal law and some criminal matters. Each State or Territory has a Supreme Court, which is the highest court in that State or Territory.
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Indigenous Australian customary law
Australia is a common-law country, with the laws of England introduced during the colonisation of Australia by the British. However, before colonisation, the only systems of law that existed in Australia were the varied systems of customary law belonging to Indigenous Australians. These customary laws were deliberately ignored by the colonial legal system and have only been recognised to a limited degree in the post-colonial era.
Lore is learned from childhood and regulates human behaviour, mandates specific sanctions for non-compliance, and connects people with the land and each other through a system of relationships. While there are no codified versions of Indigenous customary lore, it has developed over time from accepted norms within Indigenous societies.
In recent times, there have been efforts to incorporate Indigenous laws more formally into post-colonial legal systems. For example, the Queensland Government introduced a bill in 2020 to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020. Additionally, in the Northern Territory, some statutes and courts make explicit reference to customary law when useful in identifying relationships and social expectations.
Despite these advancements, the recognition of Indigenous Australian customary law in the legal system remains limited. The Mabo decision in 1992 was a significant step forward, as it recognised Indigenous lore as giving rise to valid legal claims and discarded the legal fiction of terra nullius. Indigenous customary claims to land are now regulated by the Native Title Act 1993.
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Australia's federal government
Australia is a common law country. The common law was introduced to Australia through British colonisation. By 1824, a court system based 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.
The Australian Constitution establishes the form of the federal government and sets out the relationship between the Commonwealth and the states. It is divided into three chapters, each defining the role and powers of the legislature, executive, and judiciary, respectively. This division establishes a Separation of Powers doctrine in Australia.
The legislative powers of the federal Parliament are limited to those listed in the Constitution. These include the power to legislate on matters "incidental" to other powers and on matters referred to it by the Parliament of one or more states. The Parliament of the Commonwealth can also legislate on matters referred to it by the Parliament of a state. In contrast, state legislatures generally have plenary power to enact laws on any subject. However, federal laws prevail in the event of a clash, according to Section 109 of the Constitution.
The process of creating a statute involves drafting a Bill, which is then read, debated, and sometimes amended in both houses of Parliament before being approved. Once passed, the Bill must be assented to by the representative of the sovereign.
The High Court of Australia is the highest court in the country, with the final say on all legal matters. It hears appeals from all other courts and is vested with original jurisdiction. Each state or territory also has its own Supreme Court, which is the highest court within that state or territory.
As a common law country, Australia recognises that many traditional rights and freedoms are now considered 'human rights'. Common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
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Common law and human rights
Australia is a common law country, with its common law inherited from the United Kingdom. The common law in Australia emerged following colonisation by the British in the 1200s.
Australia is an unusual common law country in that it does not have a Constitutional Charter or a Bill of Rights. However, common law courts in Australia have the power to provide significant protection of human rights principles, including the rule of law, except where legislation specifically overrides this power.
There are five explicit individual rights in the Australian Constitution. These are:
- The right to vote in federal elections (s 7)
- The right to trial by jury (s 80)
- Freedom of religion (s 116)
- Freedom of interstate trade and commerce (s 92)
- Just terms for property acquisition (s 51 (xxxi))
In addition to these, the High Court has found that the language and structure of the Constitution imply additional rights for individuals. For example, in 1992, the Court decided that Australia's form of parliamentary democracy requires a degree of freedom for individuals to discuss and debate political issues.
The Australian Human Rights Commission Act 1986 details the powers and functions of the Australian Human Rights Commission, which is responsible for monitoring and promoting human rights protection. The Commission also has responsibilities under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996.
Common law principles contain concepts intended to provide protection for children and people with disabilities in some areas. However, common law recognition of rights generally lacks the provisions contained in human rights treaties, which outline obligations on governments to actively promote and protect human rights.
The Australian common law provides particularly strong protections for freedom of speech related to public affairs and political matters.
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Australia's highest court
Australia is a common law country. The common law in the country emerged following the colonisation of Australia by the British in the 1200s.
The High Court of Australia is the highest court in the country's judicial hierarchy. It was established in 1901 by Section 71 of the Constitution. The court has been the setting for memorable landmark legal cases and is considered the symbolic focus of justice in Australia. The High Court exercises both original and appellate jurisdiction. It has the final say on the judicial determination of all legal matters and hears appeals from all other courts in the country.
The High Court consists of seven justices, including a chief justice, currently Stephen Gageler. Justices are appointed by the governor-general on the advice of the attorney-general and with the approval of the prime minister and Cabinet. They are appointed permanently until their mandatory retirement at 70 years old.
The High Court typically operates by receiving applications for appeal from parties in a process called special leave. If a party's application is accepted, the court proceeds to a full hearing, usually with oral and written submissions from both parties. After the hearing, the result is decided by the court. The court has resided in Canberra since 1980, following the construction of a purpose-built High Court building.
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Frequently asked questions
Yes, Australia is a common law country.
Common law is a system of law that emerged in England following the 13th century. It was introduced to Australia through colonisation. Common law is intertwined with cultural customs, stories, and practices, which are passed down through oral tradition.
The sources of common law in Australia include the country's constitution, which establishes the federal government and sets out the relationship between the Commonwealth and the states. Common law in Australia is also influenced by the legal precedents set by the High Court of Australia, which is the country's apex court.
