Law of Australia

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All of the states and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The systems of laws in each state are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia.

The organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statutes, notably including the Commonwealth of Australia Constitution Act 1900. The authority of the United Kingdom Parliament to enact those statutes depended on the acquisition of the Australian continent as a territorial possession of the British Crown. Although the laws of the Australian colonies differed from the UK in many respects from the beginnings of settlement, the underlying patterns of thought reflect the common law tradition as received from Britain.

Reception of English law[edit]

The legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins.[1] Influenced by contemporary ideas of international law, Sophism, and private ownership, the British regarded the Aboriginal peoples as being too primitive to have lawful possession of the Australian continent. They chose to treat New Holland (as much of Australia was then known) as terra nullius, meaning an empty place. Since the Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England,[2] there was no place for Aboriginal native title to land, nor for the recognition of Aboriginal custom or law. The reception of English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of the enactment of the legislation should be applied in the courts of New South Wales and Van Diemen's Land (Tasmania) so far as they were applicable. Since Queensland and Victoria were originally part of New South Wales, the same date applies in those States for the reception of English law. South Australia adopted a different date for reception,[3] as did Western Australia.[4]

The earliest civil and criminal courts established from the beginnings of the colony of New South Wales were rudimentary, adaptive and military in character. Although legality was not always observed, the courts limited the powers of the Governor, and the law of the colony was at times more egalitarian than in Britain.[5]

By 1824, a court system based in essence on the English model had been established through Acts of the British Parliament.[6] 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 "as fully and amply as Her Majesty's Court of King's Bench, Common Pleas and Exchequer at Westminster".[7] Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests.

Representative government emerged in the 1840s and 1850s, and a considerable measure of autonomy was given to local legislatures in the second half of the nineteenth century.[8] Colonial Parliaments introduced certain reforms such as secret ballots and female suffrage, which were not to occur in Britain until many years later. Nevertheless, Acts of the United Kingdom Parliament extending to the colonies could override contrary colonial legislation and would apply by "paramount force".[9] New doctrines of English common law continued to be treated as representing the common law of Australia. For example, the doctrine of the famous case of Donoghue v Stevenson from which the modern negligence law derived, was treated as being latent already within the common law at the time of reception.[10]

Divergence[edit]

Australia Act 1986 (United Kingdom) document, located in Parliament House, Canberra.

While the Constitution of the Commonwealth of Australia was itself an Act of the British Parliament, Britain's role in the government of Australia became increasingly nominal in the 20th century (the federal government is normally referred to in a legal context as 'the Commonwealth'). However, there was little momentum for Australia to obtain legislative independence. The Australian States did not participate in the conferences leading up to the Statute of Westminster 1931, which provided that no British Act should be deemed to extend to the dominions without the consent of the dominion. The Commonwealth did not invoke the provisions of the statute until 1942. Complete legislative independence was finally established by the Australia Act 1986, passed by the United Kingdom Parliament as well as those of the Commonwealth and States. It removed the possibility of legislation being enacted at the consent and request of a dominion, and applied to the States as well as the Commonwealth. It also provided for the complete abolition of appeals to the Privy Council from any Australian court. The Australia Act represented an important symbolic break with Britain, emphasised by Queen Elizabeth II's visit to Australia to sign the legislation personally.

Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century.[11] In addition, a large body of English law received in Australia has been progressively repealed in state parliaments, such as in New South Wales' Imperial Acts Application Act 1969.

Australian Republicanism emerged as a movement in the 1990s hoping to eventually change Australia's status as a constitutional monarchy to a republican form of government.

Sources of law[edit]

Discussion of the sources of Australian law is complicated by the federal structure, which creates two sources of written constitutional law: state and federal—and two sources of general statute law, with the federal Constitution determining the validity of State and federal statutes in cases where the two jurisdictions might overlap.

The Australian Law Reform Commission investigates suggestions for reform raised by attorneys-general and in some jurisdictions, by members of the public.

Constitutional law[edit]

The Australian colonies became a federation in 1901 through the passing of the Commonwealth of Australia Constitution Act by the British Parliament. The federal constitution was the product of nearly ten years of discussion, "with roots in both the British legal tradition and Australian democracy".[12]

The Constitution provided for the legislative power of the Commonwealth to be vested in a federal Parliament consisting of the Queen, a Senate and a House of Representatives. The role of the Queen in the legislative process lies in her responsibility to grant Royal Assent, a power exercised on her behalf by the Governor-General. The Queen has no actual role in the Assent to legislation in contemporary Australia.

The powers of the federal parliament are also dealt with in the Constitution. Section 51 lists those specific matters on which the Commonwealth has the power to legislate. In the case of a conflict, the federal law prevails.[13] However, federal law can only be passed in relation to matters allowed by the Constitution. The High Court of Australia determines whether the federal government has such a power where there is a dispute. In addition, the Parliament of the Commonwealth can legislate on matters referred to it by the Parliament of one or more States.[14] There is also a power to legislate on matters "incidental" to a Commonwealth power.[15] There are certain matters on which necessarily only the Commonwealth can legislate, including those relating to the Commonwealth seat of government and control of the Commonwealth's public service.[16]

Chapter III of the Constitution allows for the creation of the High Court of Australia, and either the establishment of other federal courts, or the vesting of federal jurisdiction in State courts. Australian courts could permit an appeal to the Privy Council on constitutional matters. The right of appeal from the High Court to the Privy Council was only abolished in 1975,[17] and from State courts in 1986.[18]

There are few guarantees of human rights in the Constitution; certainly nothing equivalent to the United States Bill of Rights. A few rights have been declared by the High Court as a matter of interpretation, including a guarantee of freedom of political speech,[19] and a right to the recognition of interstate professional qualifications.[20]

Statute law[edit]

If the government agrees that the changes are worthwhile, a Bill is drafted, usually by Parliamentary Counsel. The Bill is read and debated in both houses of parliament before it is either rejected, changed, or approved. An approved Bill must then receive the assent of either the Governor (State) or the Governor-General (Commonwealth). Parliament often delegates legislation to local councils, statutory authorities and government departments.

Most statutes are meant to be applied in the main not by legal practitioners and judges but by administrative decision makers.[21] Certain laws receive more judicial interpretation than others, either because more is at stake or because those who are affected are in a position to take the matter to court. Whilst the meanings presented to the court are often those that benefit the litigants themselves,[22] the courts are not bound to select one of the interpretations offered by the parties.[23]

Australian courts have departed from the traditional approach of interpreting statutes (the literal rule, the golden rule,[24] and the mischief rule[25]). The dominant approach is that rules are not to be applied rigidly because the overriding goal is to interpret the statute in accordance with the intentions of Parliament.[26] This so-called "purposive approach" has been reinforced by statute.[27] Legislation in all States and Territories allows recourse to extrinsic materials.[28]

Common law[edit]

Unlike the United States Supreme Court, the High Court of Australia, which was established in 1903, has a general appellate jurisdiction over the State Supreme Courts. This ensures there is a single uniform Australian common law.[29]

Until 1963, the High Court regarded decisions of the House of Lords binding,[30] and there was substantial uniformity between Australian and English common law. In 1978, the High Court declared that it was no longer bound by decisions of the Judicial Committee of the Privy Council,[31] the last appeals to the Privy Council were abolished by the Australia Acts of 1986, and there is now a measure of divergence between the two common law systems. This has been particularly evident with the growing influence on the English common law of the law of the European Union, in which modern common law developments in the United Kingdom are influenced by European law and conventions.

The Australian common law is still influenced by UK Court decisions but also, to a lesser degree, by those of common law countries such as Canada,[32] New Zealand[33] and the United States.[34]

The common law forms part of a wider Western legal tradition shared with the civil law of continental Europe.[35]

Equity[edit]

As in England, a procedural distinction was maintained between law and equity, with equitable and legal claims held in separate Courts.

However, the immediate need of the earliest British settlers in Australia was to establish a stable legal order. The First Charter of Justice in 1787 created a Court of Civil Judicature which did not distinguish between common law and equity. The New South Wales Act 1823 [36] conferred on the newly created Supreme Court the power to exercise locally the jurisdiction that the Chancellor exercised in England.[37]

By 1883, most States had adopted the English Judicature Acts system allowing common law and equitable claims to be heard in the one court. Tasmania adopted a Judicature system in 1903,[38] whilst the reform only came into effect in New South Wales in 1972.[39]

The preservation of a distinct equity jurisdiction in New South Wales, with its own specialist practitioners, has led to the revival of equity as an important source of principle in the development and reform of common law doctrines. Many of the most important developments in contract law and property law in recent years have resulted from the application of equitable principles.[40]

Customary law[edit]

The notion that the indigenous peoples of Australia had their own form of law was rejected by the British,[41] and from the time of white settlement Aborigines were subjected to English law.

The failure of Australian law to recognise the possibility of Aboriginal native title (to land) lasted until 1992, when the High Court held that Aboriginal and Torres Strait Islander peoples retained common law rights to land, providing that these were not 'extinguished' by later Australian laws. Mabo v Queensland (No 2).[42]

International law[edit]

Australia is signatory to a number of international conventions, including International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. Treaties do not become part of Australian law merely because Australia is a signatory to them.

Judicial system[edit]

Australia's first system of courts, modelled on the historical English court system, was eventually replaced by courts with other names and structures. The court structure in Australia today is a complex mosaic. Courts may be characterised by whether they are State courts or federal courts, whether they are general or specialist courts, and whether they have a general, or limited jurisdiction.

Federal courts[edit]

The High Court was established with Australian federation, to act as a court of appeal for the country as a whole. The High Court also hears cases about the Australian Constitution. It also has the power to declare laws unconstitutional, which means that the laws, regardless of whether they pass parliament, are not valid.

There are also federal courts with a jurisdiction defined by legislation. Major developments in the federal court system occurred in the 1970s. In 1976, the Family Court of Australia came into existence, exercising jurisdiction mainly under the Family Law Act 1975 (Cth). In addition, in 1977 the Federal Court of Australia came into being, and now exercises jurisdiction in matters of commercial, administrative and industrial law arising under federal legislation, In 2000, a Federal Magistrates' Court was established.

State courts, in certain matters, may exercise jurisdiction under federal law. In response to delays, there has been a growing practice of case management by the courts.[43]

State and territory courts[edit]

All states and territories have a supreme court.[44] Jurisdiction can be excluded by "operation of a State statute". This has happened, for example, with environmental and planning matters, which are dealt with by the Land and Environment Court. These types of courts can remit cases to lower courts or remove cases initiated in lower courts. Supreme Courts are "superior courts", which means that their decisions are binding on lower courts (unless reversed on appeal).

By contrast, the decisions of inferior courts are subject not only to appeal in the normal manner but to review as to whether the matter was within the jurisdiction of that court. All jurisdictions, apart from Tasmania, the Australian Capital Territory and the Northern Territory, have an intermediate trial court - called a county court in Victoria and district court in the other States. Most jury trials take place in the intermediate trial courts. At the bottom of the court hierarchy are the courts of summary jurisdiction, called Magistrates' Courts or Local Courts (depending on the jurisdiction). In Western Australia and the Northern Territory, there are two types of court of summary jurisdiction, one exercising criminal jurisdiction and one exercising civil jurisdiction. In their civil jurisdiction, inferior courts operate within jurisdictional and monetary limits. The monetary limits of the inferior courts have increased substantially in recent years as a result of pressure of judicial work downwards to the courts lower in the hierarchy.

All Australian states have Criminal Injuries Compensation Schemes. New South Wales, Victoria, and Western Australia have created separate Victim Compensation Tribunals. In New South Wales the body is called the New South Wales Victim Compensation Tribunal in which applications can be made even where a person has not been charged with a criminal offence. In Victoria and Western Australia the body is called the Victims of Crime Assistance Tribunal. In the Australian Capital Territory and the Northern Territory, awards are made by the magistrate's court.[45] In South Australia an award can be made by the district court. In Queensland an award can be made by the court that heard the criminal proceedings. In Tasmania an award can be made by the master, registrar or deputy registrar of the Tasmanian supreme court.

See also[edit]

References[edit]

  1. ^ Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001) at 6.
  2. ^ Case 15 - Anonymous (1722) 2 Peer William's Reports 75; 24 ER 646.
  3. ^ Acts Interpretation Act 1919 (South Australia), s 48.
  4. ^ Interpretation Act 1918 (Western Australia), s 43.
  5. ^ R. Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, 1995) at 7, 52. Kercher makes reference to the case of Henry Kable, who successfully sued the captain of the ship Alexander.
  6. ^ New South Wales Act 1823; Australian Courts Act 1828
  7. ^ 4 Geo IV c 96, s 2.
  8. ^ Great Reform Act 1832; Australian Constitutions Act (No 1) 1842; Australian Constitutions Act (No 2) (Imp).
  9. ^ Colonial Laws Validity Act 1865 (Imp), s 2.
  10. ^ State Government Insurance Commission (SA) v Trigwell (1979) 142 CLR 617.
  11. ^ M. Ellinghaus, A. Bradbrook and A. Duggan (eds.), The Emergence of Australian Law (Butterworths: Sydney, 1989) at 70.
  12. ^ B. Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin, Sydney, 1995) at 157.
  13. ^ Section 109.
  14. ^ Placitum xxxvii.
  15. ^ Placitum xxxix.
  16. ^ Section 52.
  17. ^ Privy Council (Appeals from the High Court) Act 1975.
  18. ^ Australia Act 1986.
  19. ^ Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106.
  20. ^ Street v Queensland Bar Association (1989) 168 CLR 461.
  21. ^ Jeffrey W. Barnes, "Statutory Interpretation, Law Reform and Sampford's Theory of the Disorder of Law" Part One (1994) 22 Federal Law Review 116; Part Two, (1995) 23 Federal Law Review 77.
  22. ^ Dennis C. Pearce and R. S. Geddes, Statutory Interpretation in Australia (4th edition, Butterworths: Sydney, 1996), p. 3.
  23. ^ Saif Ali v Sydney Mitchell v Co [1980] AC 198 at 212.
  24. ^ Grey v Pearson (1857) 6 HLC 61 at 106.
  25. ^ Heydon's Case (1584) 3 Co Rep 7a at 7b.
  26. ^ Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 321 per Justices Mason and Wilson.
  27. ^ For example, Acts Interpretation Act 1901 (Cth-Commonwealth) s 15AA, introduced by the Statute Law Revision Act 1981 (Cth).
  28. ^ For example, Acts Interpretation Act 1901, s 15AB, introduced in 1984.
  29. ^ Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563
  30. ^ Parker v The Queen (1963) 111 CLR 610 at 632
  31. ^ Viro v The Queen (1978) 141 CLR 88
  32. ^ For example, Pilmer v Duke Group Ltd (2001) 207 CLR 165
  33. ^ For example, Vigolo v Bostin (2005) 221 CLR 191
  34. ^ For example, Roxborough v Rothmans of Pall Mall (2001) 208 CLR 516 at [18].
  35. ^ G Sawer, "The Western Conception of Law" International Encyclopedia of Comparative Law by (Tubingen, The Hague, 1975), Volume II, Chapter 1.
  36. ^ Museum of Australian Democracy http://foundingdocs.gov.au/item-sdid-73.html
  37. ^ Equity & Trusts in Australia. M.W. Bryan and V.J. Vann. Cambridge University Press 2012. p10
  38. ^ Legal Procedure Act 1903, extended by the Supreme Court Civil Procedure Act 1932.
  39. ^ Supreme Court Act 1970 (NSW) ss 57-63; Law Reform (Law and Equity) Act 1972 (NSW).
  40. ^ See for example Commercial Bank of Australia v Amadio (1983) 151 CLR 447; Garcia v National Australia Bank (1998) 194 CLR 395.
  41. ^ R v Jack Congo Murrell (1836) Legge 72.
  42. ^ (1992) 175 CLR 1
  43. ^ Australian Law Reform Commission, Managing Justice (Sydney, 2000).
  44. ^ New South Wales Act 1823; Supreme Court Act 1970 (NSW), ss 22-23; Constitution Act 1975 (Vic), s 85.
  45. ^ "Australian Capital Territory ACT; City First Solicitors 2010". Retrieved 2011-10-27. 

http://www.austlii.edu.au/au/cases/cth/high_ct/175clr1.html

Further reading[edit]

  • Rosemary Barry (ed.), The Law Handbook (Redfern Legal Centre Publishing: Sydney, 2007).
  • John Carvan, Understanding the Australian Legal System (Lawbook Co.: Sydney, 2002).
  • Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen & Unwin: Sydney, 1995).
  • Patrick Parkinson, Tradition and Change in Australian Law (Sydney: LBC Information Services, 2001).

External links[edit]