In the Australian legal system, the main ways laws are made: If you are new to legal research, you should also work through the Legal Research Skills Guide The legal system of each country consists of laws that can be codified (i.e. written as laws) or not coded. Uncodified laws such as English common law are mainly derived from past cases. Judges interpret the law according to history. The courts administer these laws and judge whether or not people have broken the laws. The Australian legal system evolved from the legal system of Great Britain, which was introduced to Australia as part of the process of establishing a colony in Australia, beginning in the 1770s. Between 1855 and 1890, the British Parliament granted each of the British colonies in Australia a limited right to establish a local system of government, generally referred to as “responsible government.” As each of the colonies obtained this right, it was able to develop its own laws and legal systems to deal with its particular situation. Thus, the law and the legal system in each of the colonies began to develop separately. The first civil and criminal courts established since the early days of the colony of New South Wales were rudimentary, adaptable and military. Although legality was not always respected, the courts limited the powers of the governor and the law of the colony was sometimes more egalitarian than in Britain. [12] A constitution is a set of rules that determine how an organization or country should be managed (governed), how the organization or country decides who will have power, how that power can be exercised. The constitution of a country establishes the system of government of that country.
The full title of the Australian Constitution is the Commonwealth of Australia Constitution Act 1900. Here is a selection of books available in the Library of Legal Research: The English legal system was introduced to Australia by colonization. Upon their arrival in Australia, the settlers declared that the laws of England should apply immediately to all populated lands. [8] This statement was asserted, citing a legal fiction, that the Australian mainland was terra nullius; specifically. Lands that belonged to no one, because it was believed that the Aborigines who already inhabited the continent were not coherently organized to conclude a treaty with a unique representation of their peoples. [9] Australian Aboriginal customary law varied by language group, clan and region. [6] It has evolved over time from accepted moral norms within Indigenous societies. Laws regulated human behavior and relations, ordered penalties for misdeeds, and connected people through a system of relations with the country and with each other.
[7] However, there are a few individuals and organisations at the heart of the legal system: the High Court is Australia`s highest court. He has the final say on the judicial decision of all legal matters. It hears appeals from all other courts in the country and has the original jurisdiction. [4] By 1824, the Acts of the British Parliament had created a judicial system based essentially on the English model. [13] The New South Wales Act of 1823 provided for the creation of a Supreme Court with the power to deal with all criminal and civil matters “as fully and completely as the Court of King`s Bench, the Common Pleas and Her Majesty`s Exchequer at Westminster.” [13] Subordinate courts have also been established, including courts for general or quarterly sessions and courts for motions. The two main types of laws in Australia are laws or codified laws passed by state and federal parliaments and uncodified jurisdictions interpreted by judges in the judicial system. The statutes are adopted after a debate in parliament. They can only be amended by Parliament. Much of the case law stems from English common law, although it has evolved and changed somewhat over time. Although different states may have different laws, the case law is largely similar in each state. The Australian legal system is defined by the Australian Constitution. This establishes the lines of demarcation between the six states and the two territories and the federal government.
In Australia, due to the federal nature of government, states and territorial governments have a good degree of control over the laws that exist in any jurisdiction. Each state and territory, as well as the federal government, has a bicameral parliament (House of Representatives and Senate) in which legislative amendments are discussed and passed if there is a majority of votes in favor of the amendment. Federal laws may override state laws in certain circumstances, such as when it is in the interest of the nation as a whole. The ANU Library provides access to a number of legal databases. The following list is very selective and covers only the main sources of case law and legislation. A more complete list of legal databases can be found here or in the Business, Journal Articles and Legislation tabs for other databases covering this type of information. Before colonization, the only legal systems that existed in Australia were the various customary law systems that belonged to indigenous Australians. Indigenous legal systems were deliberately ignored by the colonial legal system and were recognized as legally important only to a limited extent by Australian courts in the post-colonial era. [5] The Australian colonies were merged into the Commonwealth in 1901. To do this, the British Parliament adopted a written constitution drafted by the Australian colonists. The document was influenced by the constitutional systems of the United Kingdom, the United States and Switzerland. [18] [19] The Australian legal system is a combination of laws inherited from Britain, known as English common law, and the many laws enacted by the various states and federal governments since the Federation.
Jurisprudence, that is, the laws interpreted by judges, changes over time as society changes and different interpretations are made in light of those changes. Four main principles are observed in the Australian legal system. These are: This means that since the Federation, all Australians are subject to the laws of two legal systems: federal laws and the laws of the state or territory in which they live. In general, when you start your legal research, it`s a good idea to start with the secondary resource and then move on to the primary resources. The Constitution can only be amended by national referendum, a provision inspired by the Swiss cantonal system. Everyone has a slightly separate role to play in the legal system, and these are described below in these hot topics. The Supreme Court has stated that Australia`s common law system is uniform across all states. [2] This can be compared to other jurisdictions such as the United States; which have maintained different common law systems in each state. The Commonwealth of Australia was formed by the Federation of Independent Colonies (which later became states).
For this reason, we refer to the creation of the Commonwealth as a “federation” and our system of government in Australia as a “federal” system. In a federal system of government, power is shared between the federal government and the governments of the states or territories. The language used by the legal system is almost a language in itself. In fact, it would be more accurate to say this in several languages, because there are different areas of law, each with its own terminology.