Sources of contemporary Australian law
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 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.
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.
‘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.
The NSW court system has three tiers: lower, intermediate and superior 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.
hear more serious matters
hear some appeals from lower courts
include the District Court.
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.
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 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
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
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 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.
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.
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.
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 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.
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.
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
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 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.
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.
‘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.
The NSW court system has three tiers: lower, intermediate and superior 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.
hear more serious matters
hear some appeals from lower courts
include the District Court.
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.
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 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
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
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 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.
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.
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.
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 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.
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.
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
