Sources of contemporary Australian law

Australia’s legal heritage:

Australia’s legal system is based on an adversarial system of trial:

• In an adversarial system, the parties to a court case are opponents who must prove their version of events to ‘win’ the case – the judge is only an impartial observer.
• In an inquisitorial system, the judge is actively involved in asking questions, calling for evidence and determining the case.

Common law:

• Common law developed in England by judges administering a common set of laws throughout the kingdom.
• Courts continue to create it by recording the outcome and reasoning of each judgment, known as ‘precedent’.
• Australia imported common law from England when the country was settled by British colonists.
• Over time, Australia developed its own system of courts and law as it became independent from Britain.

Development of equity:

Equity is a body of law that supplements the common law:

• Historically, it developed in England from a separate system of courts, based on religious law.
• Common law rules were seen as too rigid, and equity corrected injustices by applying principles of fairness.
• Common law and equity are merged, but are still treated separately in the NSW Supreme Court.

The doctrine of precedent:

‘Precedent’ is the basis of Australia’s system of common law .

• When a court decides a case, the reason for the decision can become a precedent for future cases.
• In this way, the law develops a body of case law that is applied in future judgments.
• This is sometimes known as ‘judge-made law’.
• Courts are bound by precedents, and lower courts will be bound by the decisions of higher courts – this is known as binding precedent.
• When a court is not bound by another court’s judgment, it can still be influential – this is known as persuasive precedent.

Court hierarchy - Jurisdiction of state and federal courts:

• The NSW court system has three tiers: lower, intermediate and superior courts.

Lower courts:

• hear more minor matters, usually by a magistrate
• have cases heard without a judge or jury
• include the Local Court, Coroner’s Court, Children’s Court, and Land and Environment Court.

Intermediate courts:

• hear more serious matters
• hear some appeals from lower courts
• include the District Court.

Superior courts:

• hear most serious matters
• hear appeals from lower and intermediate courts
• are the highest court in each state or territory, from which appeals can be made to the High Court of Australia
• include the Supreme Court and the Court of Appeal.

Federal courts:

The federal court system has a similar hierarchy to the state system. It includes:

• Federal Magistrates Court of Australia:
  • was established in 1999 to take the pressure off the Federal Court and Family Court
  • hears matters including copyright, migration, family law, child support, bankruptcy and human rights.
• Federal Court of Australia:
  • deals with civil disputes governed by federal law and some criminal cases
  • is superior to the Federal Magistrates’ Court but
    equal to the Family Court.
• Family Court of Australia:
  • deals with complex and specialised family law matters
  • can hear appeals from the Federal Magistrates’ Court.
• High Court of Australia.
  • is the highest court in the Australian judicial system
  • deals with appeals from federal and state supreme courts and also presides over constitutional matters.

Statute law:

• Statute law is law made by parliament
• It is commonly known as legislation or Acts of parliament
• In Australia, any parliament has the power to make statute laws
• Statute law overrides the common law

The legislative process:

• Passing legislation is one of the most important functions of parliament
• A proposed new law is called a bill
• The process can be time-consuming and difficult
• The process is open to public scrutiny
• When a bill is passed by parliament, it is signed by the Governor-General and becomes an Act of Parliament

The constitution:

• Prior to the Constitution, Australia consisted of six separate colonies under the British Government.
• The Constitution commenced on 1 January 1901 to create the Commonwealth of Australia.
• It outlined the legal framework and rules that apply to the governance of Australia.
• It created the states, the Commonwealth and the federal parliament, and outlined the ‘division of powers’ between the Commonwealth and states.

The division of powers:

• The Constitution defines how power is divided between the Commonwealth and states to make laws.
• Section 51 of the Constitution lists powers the Commonwealth shares with the states.
• Section 52 lists some exclusive Commonwealth powers.
• Section 109 says that Commonwealth laws will override any state laws if they are inconsistent.

Separation of powers:

• The doctrine of separation of powers was developed in 18th-century France by Charles de Secondat Montesquieu.
• It ensures that the powers of government are not concentrated in one place, with one person or a group of people.
• If one person or group holds all state power, it risks being abused, and the rights of citizens are at risk.
• Separation of powers splits state power into three separate areas:
  • legislature – which includes the law-makers (that is, parliament)
  • executive – which includes the ministers and government departments who administer the law
  • judiciary – which includes the judges and courts who interpret and apply the law.

Role of the high court:

• The High Court of Australia is the highest court in Australia, higher than all other federal and state courts.
• Chapter III of the Constitution creates the High Court and specifies its powers.
• The High Court has:
  • original jurisdiction to hear new matters appellate jurisdiction to hear appeals from other courts.
  • Originally, matters from state courts could still be appealed to the Privy Council in the United Kingdom, but this avenue was cut off with the Australia Act 1986 (Cth).
• The High Court also hears cases involving interpretation of the Constitution. These have been very influential in defining Australia.

Appeals to the high court:

• The High Court is the highest court in Australia. Its decisions are final and cannot be appealed.
• Appeals can be made from state and territory supreme courts and from federal courts.
• The High Court must grant leave to appeal before it will review a case. It only grants this in rare cases.

International law:

• International law governs the relationship between countries (known as states or ‘nation-states’).
• It regulates trade and commerce between countries and provides laws to maintain peace and security.
• One of the main criticisms of international law is that it lacks enforcement because it relies on countries’ consent to its jurisdiction.

Sources of international law:

Customary international law:

• This is not contained within a written document; rather, it is based on traditions and customs that are seen to be fair and right by the international community.
• It takes a long time to develop because it must be constant and uniformly applied, but if it is found to exist it is binding on all states.
• Treaties:
  • the most common source of international law
  • are international agreements that are written and binding on the countries that sign and ratify them
  • can be bilateral or multilateral.
• Declarations:
  • are written international instruments
  • state and clarify the parties’ position on a particular issue, but are not binding.
• Other sources include legal decisions and legal writings.

Relevance of international law to Australian law:

• Unlike other countries, in Australia signing and ratifying a treaty does not automatically make it part of domestic law.
• For international law to become Australian law, new legislation is usually required.
• International treaties have had a profound influence on the development of modern Australian law.
• The United Nations Convention on the Rights of the Child is present in the Family Law Act section 67ZC