Lyla Lindsey
Australia's legal system is a common law system inherited from England at the time of colonisation. The two major sources of Australian law are cases (decisions made by judges in court) and legislation (legal rules made by parliament and those to whom parliament has delegated authority). The Australian Constitution outlines the purpose and history of Australia's Constitution, which defines how laws are shared between the Federal Parliament and Victorian Parliament. The rule of law is a key feature of Australia's democracy and legal system, and it is established in covering clause 5 of the Australian Constitution, which states that all laws made by the Australian Parliament apply to everyone in Australia.
| Characteristics | Values |
|---|---|
| Rule of law | Established in covering clause 5 of the Australian Constitution |
| Everyone is innocent until proven guilty in a fair and public trial | |
| People can only be punished if a court has decided they have broken the law | |
| A person can only be found guilty of committing a crime if their actions were illegal at the time | |
| Retrospective laws should not be created | |
| The government can be challenged about its actions through the courts and by the media and citizens | |
| Separation of powers | |
| All citizens are free from arbitrary arrest and imprisonment, or standing trial for breaking an unknown law | |
| Australia's common law was inherited from the United Kingdom | |
| The principle of non-discrimination is a fundamental one in human rights law |
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What You'll Learn
The Australian Constitution
The Constitution was drafted during a series of meetings called conventions in the 1890s, which were attended by representatives from each British colony on the continent. By this time, the colonies had their own parliaments but were still under the rule of the British Parliament. Many colonists saw the benefits of uniting into a federation. The Commonwealth of Australia Constitution Act 1900 was passed in Britain in 1900 and came into effect on 1 January 1901, marking the formation of the new Australian Parliament and the transition of the colonies into Australian states.
The rule of law, established in covering clause 5 of the Australian Constitution, states that all laws made by the Australian Parliament apply to everyone in Australia. Some key features of Australia's legal system that are considered part of the rule of law include the presumption of innocence, the right to a fair and public trial, and the prohibition of retrospective laws.
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Separation of powers
The 'separation of powers' is a vital principle in Australia's democracy and legal system, outlined in the Australian Constitution. It dictates that the power to create and manage laws should be distributed among three branches of government: the legislature, the executive, and the judiciary.
The legislature, or parliament, is responsible for making laws. The executive branch, which includes the government, enforces these laws. The judiciary, an independent body, interprets the laws and ensures their fair application. This separation aims to prevent any single group from holding excessive power.
The Australian Constitution's first three chapters are dedicated to these three branches, with each chapter vesting the relevant powers in the appropriate persons or entities. However, the Constitution also incorporates the concept of 'responsible government', which effectively unites the legislature and the executive. This is reflected in the requirement for ministers (executive) to sit in Parliament (legislative) and maintain the confidence of the legislature. As such, a strict separation of powers is not always evident in Australia's political system, particularly between the executive and legislature.
Despite this, the judiciary maintains its independence. The High Court of Australia has consistently upheld the strict separation of judicial power, ensuring that only courts can interpret and apply the law without influence from the other branches. This independence is a crucial safeguard for democracy, ensuring that all citizens are equal under the law and can access impartial justice.
In summary, the separation of powers in Australia establishes a system of checks and balances, distributing power among the legislature, executive, and judiciary. While there is some overlap between the executive and legislature, the judiciary's independence remains a fundamental principle, upheld by the High Court to protect the rights and liberties of Australian citizens.
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Human rights
While Australia does not have a comprehensive human rights instrument at the Commonwealth level, human rights are recognised and protected through various laws at the federal, state, and territory levels, as well as the Australian Constitution and common law. 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 various anti-discrimination laws, including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 1996.
The Australian Parliament has passed laws that enact the country's human rights obligations, including the Native Title Act 1993, which recognises the land rights of Aboriginal and Torres Strait Islander peoples. Additionally, the Human Rights (Parliamentary Scrutiny) Act 2011 established the Parliamentary Joint Committee on Human Rights, which scrutinises all bills introduced in Parliament for their compatibility with the seven core human rights treaties Australia has agreed to.
Despite Australia's strong record on human rights, some people are still denied their basic rights due to their race, colour, sex, sexuality, disability, or other factors. Vulnerable groups in Australia, including Aboriginal and Torres Strait Islander people, asylum seekers, migrants from non-English speaking backgrounds, and people living in poverty, are particularly at risk of human rights abuses.
To address these issues, Australia has endorsed non-binding human rights instruments and ratified binding legal instruments, such as international human rights treaties. The Australian Government is committed to protecting and promoting traditional rights and freedoms, including freedom of speech, opinion, religion, association, and movement. These rights are underpinned by the belief that they are essential for Australia's democracy.
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Common law
Australia's legal system is a common-law jurisdiction, meaning its court system originated in the common law system of English law. The country's common law is the same across all states and territories.
While Australia does not have a Constitutional Charter or Bill of Rights, common law courts have the power to provide significant protection of human rights principles. Common law recognition of rights includes concepts intended to protect children and people with disabilities, and the freedom of association has also been recognised as part of common law.
The Australian legal system has diverged from English common law over time. In 1986, the Australia Act was passed by the United Kingdom Parliament, establishing complete legislative independence and removing the possibility of legislation being enacted at the request of a dominion. This act also provided for the abolition of appeals to the Privy Council from any Australian court, symbolising a break with Britain. Since then, a large body of English law has been repealed in Australian state parliaments, further distinguishing the two legal systems.
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The Australian Parliament
Australia's legal system is a common law system inherited from England at the time of colonisation. The two major sources of Australian law are cases (decisions made by judges in court) and legislation (legal rules made by parliament and those to whom parliament has delegated authority).
The Australian Constitution outlines the purpose and history of Australia's Constitution and defines how laws are shared between the Federal Parliament and Victorian Parliament. The Australian Electoral Commission is responsible for conducting federal elections and referendums and maintaining the Commonwealth electoral roll.
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Frequently asked questions
The rule of law is the foundation of Australian society, with everyone, including citizens and the government, being subject to and benefiting from the laws. The Australian Constitution, federal legislation, and common law, which is developed by judges, are some of the sources of these laws.
Visitors to Australia are expected to obey formal laws and social customs. Some key laws to be aware of include:
- Littering is prohibited.
- Drinking alcohol in public is not allowed.
- The legal age to purchase alcohol and cigarettes is 18 years.
- Smoking is prohibited in restaurants, bars, nightclubs, and many other public areas.
- It is illegal to buy, sell, or possess illicit drugs.
- Australia has strict road rules, and each state has its own licensing requirements and driving restrictions.
Australian law treats males and females equally. It is illegal to discriminate against anyone based on gender, race, sexual preference, marital status, political beliefs, or disability. The Australian government also works to uphold the rule of law, protect human rights, and promote adherence to global rules and effective governance internationally.
