The Legal System

Fundamental Concepts

Introduction

Australia inherited its legal system from England at the time of colonisation. Since then laws have been interpreted, applied and developed by Australian judges, and new laws have been made by Australian parliaments.

This chapter explains the basics of how our legal system works, including:

• how laws are made;
• how courts and tribunals operate; and
• how laws are enforced.

Types of law

Every law in Australia is:

• either common law or statute law, and
• either criminal law or civil law, and
• either Commonwealth law or State law or Territory law.

Every law also has a particular jurisdiction. The jurisdiction of a law includes:

• the geographical area it covers (for example, the ACT, or the whole of Australia)
• its subject matter (for example, family law).

Common Law and Statute Law

Australian law comes from either:

• the common law (judge-made law or case law), or
• an Act of parliament (statute law).

Aboriginal and Torres Strait Islander customary law also has some limited application (see Aboriginal and Torres Strait Islander Law).

Common law

The centuries-old tradition of English law is that judges decide each case as it comes to court, and give reasons for their decisions. These reasons, or judgments, are published in books called law reports (and now also on the Internet - see Finding Out About the Law). The accumulation of judges' decisions over many years is what is called the common law -- law made by judges in deciding common disputes.

The Australian colonies inherited the English common law, and from early in the 19th century judges in Australia have been developing the common law locally.

A. The doctrine of precedent

Judges are bound by a strong tradition to decide cases consistently with earlier decisions based on similar facts. Even if the facts of the earlier cases were not exactly the same, the judge compares the situations and applies an established principle, or develops a new but reasonably similar principle for the new facts. This approach to decision-making is called the doctrine of precedent, and the principles and rules generated form, collectively, the principles and rules of the common law.

The doctrine of precedent in Australia

Some of the rules that make up the doctrine of precedent in Australia are:

• In the hierarchy of the court system, a decision of a higher court is binding on lower courts.
• Most courts are not bound to follow their own previous decisions, although they are expected to do so.
• The highest court in Australia, the High Court, is not bound to follow its own decisions.
• The decisions of courts outside Australia are not binding on Australian courts. However, Australian courts can refer to them for guidance or comparison if, for example, a case is unusual or difficult.
• When a court makes a decision, it gives reasons for its decision. Another case with similar but not identical facts can be decided differently (that is, it can be distinguished). It is often said that 'each case will be decided on its own facts'.

B. Interpreting the law

Judges also have an important role in interpreting legislation. The decisions they make in interpreting Acts of parliament are precedents that other courts can later use.

Judges continue to develop the common law in areas not covered by legislation.

Statute law

A. Acts of Parliament

States

The governors of New South Wales and Van Diemen's Land (Tasmania) had very wide powers to run the colonies. English Acts of parliament applied in the Australian colonies from 1828, and thereafter the British government gradually increased the role of the New South Wales parliament while reducing the power of the governor.

In 1855 the British government gave the colonies clear powers to make their own laws, and Australian parliament-made laws (statutes or Acts) date from that time.

Each Australian State has power to make its own laws.

Commonwealth of Australia

Since 1901 the Commonwealth Government has had power to make laws for the whole of Australia within the powers of the Constitution.

Territories

The Northern Territory and the Australian Capital Territory are self-governing territories and derive their law making powers from Commonwealth statutes:

• the Northern Territory (Self-Government) Act 1978 (Cth) (s 6); and
• the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act') (s 22).

B. ACT Laws and Self-Government

Before the ACT Self-Government Act created a democratically elected Legislative Assembly in the ACT, laws were sometimes made for the ACT by the Commonwealth Parliament. More often, ACT laws were made by the Governor-General exercising powers delegated to him under the Seat of Government (Administration) Act 1910 (Cth), s 12. The laws made by the Governor-General were known as 'ordinances' and corresponded in subject matter and effect to the Acts now made by the ACT Legislative Assembly. With self-government in the ACT, the Seat of Government (Administration) Act 1910 (Cth) was amended to narrow the scope of s 12.

During a staged period after self-government in the ACT, most ordinances that had applied before self-government were converted into Acts. Since self-government, ordinances may only be made in the ACT on a fairly narrow range of topics including the classification of materials for censorship, land used or intended to be used for Commonwealth purposes (National land), and companies. Ordinances are no longer a major source of law in the ACT, and since self-government very few ordinances have been made. When they are made they continue to be administered by the Commonwealth.

C. Making Acts of Parliament

Bills

While a parliament is considering whether or not to pass an Act, the draft Act is called a Bill. A Bill must pass through parliament and receive royal assent (approval by the governor-general or the relevant State governor) before it becomes an Act. However, because the ACT does not have a State Governor the royal assent has been replaced with other provisions for the enactment of laws.

When does an Act come into effect?

After a Bill becomes an Act, it does not necessarily become operational (commence) immediately. It may commence on a date specified in the Act itself, or by proclamation (publication in the Government Gazette). Different parts of an Act may commence at different times. If no time is specified, an Act commences on the day of notification in the Territory Gazette.

In practice, some Acts or parts of an Act never actually come into operation because, for a range of practical or political reasons, they are never proclaimed to commence.

Once an Act, or part of it, commences, it becomes law.

Names of Acts

An Act is identified by name, date, and jurisdiction; for example, the Family Law Act 1975 (Cth), or the Human Rights Act 2004 (ACT). The name usually indicates its content, the date is the year it passed through parliament (which is not necessarily the date it commenced), and the jurisdiction is the parliament that passed it.

Definition of the terms used in an Act

Most Acts have a definitions section at the beginning (around section 3), or a Dictionary at the end of the Act, to explain what is meant by words and phrases used in it. These definitions are crucial to understanding the Act.

Repeals and amendments

From time to time, a parliament repeals (does away with) or amends (changes) an Act.

It is important always to check the currency of an Act you are reading to make sure that it has not been amended.

D. Subordinate Legislation

There are also laws covering administrative details and other matters not easily dealt with by the more general terms of an Act. These are called Subordinate Laws or subordinate legislation. A subordinate law is a regulation, rule or by-law. Regulations are the most common type of subordinate law in the ACT. Subordinate legislation is also known as delegated legislation, and they always relate to the Act under which they are made.

If a subordinate law is primarily concerned with matters of procedure (especially of a court or tribunal), it is usually be called a rule, for example 'rules of court'. A subordinate law that operates in a particular geographical area (for example a nature reserve) or applies in relation to a particular body will often be called a by-law; by-laws are rare in the ACT. However, that there is no legal requirement that regulations, rules and by-laws operate in this way: it is a matter of usage relating to the way that subordinate law-making powers are commonly expressed. Ordinances in the ACT, which were the principal source of law in the ACT before self-government, are described above at ACT Laws and Self-Government.

Subordinate or delegated legislation such as regulations needs to be considered, along with the Act, in researching and understanding the law.

How is delegated legislation made?

An Act usually empowers some authority (a local council, parliamentary minister, public authority or public servant) to make Regulations from time to time. Regulations must be submitted to parliament before they become law.

E. Publication of Acts and Regulations

Acts and Regulations are printed in statute books for each year. They are reprinted as changes occur, and these reprints are sold to the public in written and electronic formats.

Acts and Regulations are also available for free on the Internet at www.legislation.act.gov.au (ACT laws) and www.comlaw.gov.au (Commonwealth laws). See also:

• www.austlii.edu.au (both Commonwealth and State and Territory Acts and Regulations (as well as court and tribunal cases)). A comprehensive and trusted website.
• www.australia.gov.au (Commonwealth law). This site also provides a great deal of interesting and useful information about government services and policies, not just legislation, and is a useful starting point for links to government agencies of every description.

See also FindingOutAboutTheLaw.

How statute and common law affect each other

A. Interpretation of Acts

Acts and other legislation are sometimes drafted in very broad terms. Courts must often decide their meaning, and the court's interpretation becomes part of the common law in that area. For example, the law on families is found not only in the Commonwealth Family Law Act 1975 (Cth), but also in the decisions courts have made on matters controlled by the Act.

Interpretation Acts

An Act is interpreted according to an Interpretation Act in each jurisdiction, such as the Acts Interpretation Act 1901 (Cth) and the Legislation Act 2001 (ACT).

The purpose rule of interpretation

A very important rule made to assist in the interpretation of Acts is the purpose rule of interpretation, which says that Acts are to be interpreted in a way that promotes the underlying purpose or object of the Act. Acts in the ACT usually have a statement of 'objects' at the beginning, around section 3 or 4.

B. Can a judge overrule an Act?

An Act is binding on all courts and judges. Judges cannot overrule or challenge the validity of an Act, except in the High Court.

C. Which has precedence?

If an Act and a common law rule apply to the same area, and they are inconsistent, the Act overrides the common law. If, for example, the common law creates a new principle, parliament can overrule it or vary it with an Act. The High Court decision in the Mabo case, and the subsequent Native Title Act 1993 (Cth), is an example of this (see Aboriginal and Torres Strait Islander Law for more information on this example).

D. Where the law is unclear

Occasionally, the courts are uncertain about the meaning of an Act, or make unclear or unhelpful decisions about it.

It is particularly important to seek advice from a lawyer when the law is unclear.

E. Unconstitutional Acts

The High Court of Australia, or a State Supreme Court (for a State Act) can declare an Act invalid and of no effect if (and only if) the Act is found to be unconstitutional (that is, the parliament did not actually have the power to make it. The ACT and the Northern Territory do not have constitutions -- the limits of the law-making powers of their legislatures are set out in Commonwealth Acts. See State and Commonwealth constitutions and Territory enabling legislation

Aboriginal and Torres Strait Islander law

The customary laws of Aboriginal and Torres Strait Islander peoples were given little recognition by the legal system until recently. For more information see Aboriginal and Torres Strait Islander Law.

Criminal Law and Civil Law

Criminal law

A crime, or offence, is essentially an action that is contrary to the social expectations of personal conduct reflected in law, such as stealing, assault, fraud, failing to lodge tax returns, and polluting. . For a further explanation of offences, see Summary offences, indictable offences and committal hearings.

The government has the role of prosecuting or enforcing the criminal law against a person or company, usually through the police, the Director of Public Prosecutions or some other government body, such as the Environment Protection Authority (EPA) in the ACT.

A person who is being prosecuted in criminal law is called the defendant or the accused.

A. The burden of proof

In criminal law, the burden (or onus) of proof is on the prosecution. The accused is presumed to be innocent until and unless the prosecution can prove otherwise.

B. The standard of proof

In criminal law, the standard of proof for allegations is 'beyond reasonable doubt'.

C. Penalties

A penalty, such as a fine, a bond or imprisonment, can be imposed on a person or company found to have committed a criminal offence.

It is possible to be found guilty but to have no conviction recorded or penalty imposed.

Criminal law is discussed in detail in CriminalOffencesInfringementsAndPenalties and surrounding chapters.

Civil law

Broadly speaking, civil law is all law that is not criminal law. Examples of matters that come under the heading 'civil law' are the law of negligence, family law and contract law.

Civil cases usually involve individuals or companies taking legal action against other individuals or companies, often for doing something that is alleged to be unfair, harmful, or contrary to an agreement.

A person bringing a case is called a plaintiff or, sometimes, an applicant or complainant. A person against whom an action is taken is called a defendant or respondent.

A. Administrative law

Administrative law is a special form of civil law that usually involves legal action by a person against a government agency, something that has become much more common in the last 30 years. This area of law is discussed in detail in AdministrativeLaw.

B. The standard of proof

In civil law, the standard of proof is 'on the balance of probabilities', meaning that something is more likely than not to have happened.

C. Damages

In a civil case the plaintiff or applicant can seek an order for compensation (damages) from the defendant, or an order that some conduct of the defendant be required, stopped, or altered.

State, Territory and Commonwealth Law

State and Commonwealth constitutions and Territory enabling legislation

A. State and Commonwealth constitutions

Australia and its states all have constitutions. These are the source of the various parliaments' power to make legislation. If a Commonwealth Act goes beyond the power given in the Australian Constitution (or a State Act goes beyond the power given in the relevant State constitution), the Act, or part of it, can be declared by certain courts to be invalid.

B. Territory enabling legislation

The Territories do not have constitutions. They are created by the Commonwealth Government and so, unlike the powers held by State governments, the powers of the Territory governments can be created and limited by Commonwealth legislation. The reason for this is found in s 122 of Australia's Constitution, which allows the Commonwealth government to 'make laws for the government of any territory'.

In the ACT, the source of the ACT Legislative Assembly's law making power is found in the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act'), which is a Commonwealth Act.

If an ACT Act goes beyond the powers granted to the Legislative Assembly in the ACT Self-Government Act, the Act, or part of it, can be declared by certain courts to be invalid.

What State, Territory and Commonwealth laws cover

The laws of the Commonwealth Parliament apply to all Australians, while ACT law applies to people and things in the ACT or having a connection with the ACT. Generally, Commonwealth and State / Territory legislation deal with different matters.

A. Commonwealth legislation

The Commonwealth Parliament can only make laws about matters listed in s 51 of the Australian Constitution. If a matter is not listed, the power to make laws about it lies with the states.

Matters about which the Commonwealth Parliament can legislate include:

• defence;
• taxation;
• customs;
• migration;
• social security; and
• marriage.

These powers reflect the world as the drafters of the Constitution saw it in the 1890s. For example, the 'marriage' power does not cover the families of de facto couples, which are a State concern. But under s 51 the States can agree to hand over powers to the Commonwealth Parliament, and they have done so in this area to avoid confusion and duplication.

The external affairs power

Section 51 of the Constitution also gives the Commonwealth government the power to make laws in relation to 'external affairs'. It is this power that enables the Commonwealth Parliament to sign international treaties and then make laws giving effect to them.

For example, the Racial Discrimination Act 1975 (Cth) gives effect to Australia's obligations under the United Nations' Convention for the elimination of all forms of racial discrimination.

B. State legislation

Under their own constitutions, State parliaments have the general power to make laws for any matter as long as it is for 'the peace, welfare and good government' of the State -- a very wide power. Under the Australian Constitution States can make laws for any matter as long as it is not inconsistent with a Commonwealth law made under s 51.

Matters dealt with by the states commonly include:

• health;
• education;
• roads and traffic;
• building;
• local government; and
• the environment.

C. Territory legislation

Under the Australian Capital Territory (Self-Government) Act 1988 (Cth) ('ACT Self-Government Act'), the ACT Legislative Assembly has a general power to make laws for any matter as long as it is for 'the peace, welfare and good government' of the Territory -- a very wide power. Exceptions to this general power are listed in s 23 of the ACT Self-Government Act. For example, the Commonwealth government retains control of the Australian Federal Police, the defence force, censorship classification, and corporations and securities. Also, the ACT Legislative Assembly has no power to legalise euthanasia. Under the Australian Constitution, Territories can make laws for any matter as long as it is not inconsistent with a Commonwealth law made under s 51.

Matters dealt with by the territories commonly include:

• health;
• education;
• roads and traffic;
• building;
• local government; and
• the environment.

D. Inconsistent legislation

A State Act and a Commonwealth Act can cover the same matter as long as they are not inconsistent (for example, both Commonwealth and states have anti-discrimination laws). If they are inconsistent, the Commonwealth law prevails to the extent of the inconsistency (Australian Constitution s 109). Similarly, Commonwealth law will prevail over any law made by the ACT government, not on the basis of s 109 of the Australian Constitution, but on the basis of the common law doctrine of repugnancy. The effect of this doctrine is that any Territory law inconsistent with paramount law is rendered invalid. Where the Territories are concerned the paramount law is the law of the Commonwealth because it is Commonwealth law that created the Australian Capital Territory and which grants the ACT government law making powers.

Inequities in the Law

The law works differently for different people. Some groups are consistently disadvantaged in our system; for example:

• the legal system operates in English, which is not the first language of many Australians;
• most judges are not familiar with the day-to-day circumstances of, for instance, women and Aboriginal people, and they may use processes and make decisions that are insensitive to them; and
• legal advice and resources are not readily available to people without the means to pay for them.

To a large extent these inequities have occurred because these groups have not traditionally been included among the law-makers.

Measures to improve access to the legal system include law reform (see LawReform), the ongoing education of judges, the availability of interpreters, the work of community legal centres, and access to legal aid.