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Our Legal System

Contributed by Hannah Lee and current to March 2022

This chapter explains the basics of the Australian legal system. It aims to provide a background understanding of the Australian legal system to inform your reading of the rest of the handbook.

What is Australian Law?

Law is a collection of rules which govern our society. Australian law governs all aspects of Australians’ lives including business, healthcare, government, families and the environment.

Australia inherited its legal system from England with the arrival of English colonialists in 1788. Prior to colonisation, Indigenous Australians followed their own legal systems. For more information about Indigenous Australian law, see chapter Aboriginal and Torres Strait Islanders and the Law.

There are two main categories of law in Australia, private law and public law. Public law describes laws that apply to our entire society. Public law includes criminal, administrative and international law. Private law describes laws that only affect a few individuals at any one time. Private law includes contract, commercial, property and family law.

Where does Australian law come from?

Our law comes from parliaments and courts. Parliaments make legislation while courts make common law. Parliaments and courts make both private and public law.

Common law and the courts

Australia is a common law country. This means that when judges and magistrates settle legal disputes in court they must decide cases along the lines of earlier decisions made in similar cases. This practice is called the doctrine of precedent which means to ‘stand by that decided’, and it is the backbone of the common law system.

The doctrine of precedent provides an important constraint on judicial decision-making. The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions and make consistent decisions. If the facts of a case are unique judges may be required to make more innovate decisions. These cases create new legal precedents. Donoghue v Stephenson ([1932] UKHL 100) is one well-known example of a precedent case.

Australian judges must abide by the doctrine of precedent. This means that lower courts must follow the decisions of appellate courts and especially decisions of the High Court of Australia, which is Australia’s superior court. As a result, when the High Court makes a novel decision it establishes new legal precedent. The Mabo decision (Mabo v Queensland (No 2) [ 1992 HCA 23; (1992) 175 CLR 1) is one well-known example of the High Court establishing a new precedent.

If a judge’s decision is not consistent with established precedent, the judge must state that they are not following precedent and explain their reasoning. In some cases judges of lower courts express dissatisfaction with the common law precedent but are nevertheless bound to follow it.

Judgments are published in a variety in places, including online. Austlii has digital copies of most Australian court judgements. Please see: Learning More About the Law.

You can read more about how Australian courts work in this chapter. Please see: What is the role of the Courts in making and enforcing the law?

Legislation and Parliaments

Federal legislation is made by the Commonwealth Government in Parliament. Every State and Territory in Australia also has a body which makes legislation. For example, ACT legislation is made by the ACT Legislative Assembly. The States all have State Parliaments.

Most parliaments have two houses, the House of Representatives and the Senate. The people who sit in the houses are called parliamentarians or members of parliament. Australians elect parliamentarians to represent them in Federal Parliaments and in their States or Territories.

An Act starts life as a parliamentary Bill which is a document that contains a parliamentarian’s ideas concerning what should become law. If Parliament successfully passes a Bill, it becomes an Act and is, therefore, ‘enacted’ or ‘legislated’ into law. Please see: What is the role of the government in making and enforcing the law?

The interaction between common law and legislation

Parliaments, and not the courts, are the supreme law-making body. This is known as the doctrine of parliamentary supremacy (more information on Parliament and the Courts in Australia can be found here). The doctrine provides that the meaning of an Act must take priority over the common law.

To determine the meaning of an Act a judge must engage in ‘statutory interpretation’ in accordance with an interpretation Act. The ACT interpretation Act is the Legislation Act 2001 (ACT). Generally, the judge will consider the ordinary meaning of words in the Act, Parliament’s intention when it made the law and the purpose of the Act containing the law. If the judge still cannot ascertain the meaning of the law, he or she will also consider which possible meaning best promotes the purpose of the Act and whether the ordinary meaning of the law is absurd.

The common law provides judges with years of precedents and wider common law principles from similar cases to help them make their decisions consistent with established precedents.

In some cases, parliaments do not agree with judges’ decisions. If the Commonwealth is a party to the proceedings it may appeal to a higher court until the High Court makes a decision. If the Commonwealth is not a party to the proceedings, or the High Court has decided the matter, parliaments can enact legislation to mitigate the legal consequences of the decision. An example of this is the Native Title Act 1993 (Cth) which was enacted by the Commonwealth Parliament in response to the High Court’s Mabo decision. Please see: What is the role of the courts in making and enforcing the law?

The Australian Constitution

The Constitution, which was passed in 1900 and took effect on 1 January 1901, is the founding legal document of the modern Australia.

The Constitution states which powers are powers of the Commonwealth. Commonwealth powers include interstate and foreign trade, taxation, telephonic and similar services (including television), defence, certain fisheries, currency, banking, corporations, marriage, social services, minority racial groups, migration and foreign affairs. If a power is not listed as a Commonwealth power it is a State power.

Questions sometimes arise about the meaning of the powers and whether the Commonwealth Parliament is authorised to make certain laws (for example, what is the meaning of ‘marriage’). The High Court answers these questions by interpreting the meaning of the Constitution and the disputed law. If the High Court concludes that the Commonwealth Parliament did not have the power to make the law it is invalid.

The meanings of the words in the Constitution have changed since 1900. This means that the High Court’s interpretation of the Constitution can develop over time. For example, the ‘ race-power’ (section 51(xxvi)) has evolved from being a provision which once protected racist laws to a provision which currently prohibits racist laws.

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