Every legal system is unique and Australia’s legal system is no exception. It is a combination of English common law and a U.S. style constitutional framework developed due to the federal nature of Australia. Like most countries, new laws are debated and enacted by the legislature, which in Australia are the state, territory and federal parliaments. The executive, i.e. the public service, ensures that new laws are carried out. The judiciary is the arm of the executive that interprets the laws and establishes whether someone has broken a law and what penalties should be meted out.
Why do we have laws?
Without laws, people would be able to do more or less what they wanted. In practice, it would probably mean that the richer and more powerful in society would be able to do more of what they wanted, while the poorer and weaker in society would not.
Of course, this doesn’t happen. Society establishes rules and laws which are for the common good and allow the society to function in an orderly and relatively fair manner. Not everyone agrees with the laws of the land, but in a democracy, there is always the opportunity to change the laws if enough people vote for a party that wants a law changed.
What is a 'legal system'?
The legal system of any country consists of the body of laws that may be codified (i.e. written down as statutes) or uncodified. Uncodified laws like English common law are mainly derived from past cases. Judges interpret the law according to case history. Courts administer these laws and make judgments about whether people have broken the laws or not.
Most countries that were originally colonised by the British have legal systems which have been derived from the British legal system handed down to them. In most cases, as countries have achieved independence from Britain, laws have been enacted which specifically serve the needs of the society, even if elements of the British legal system persist.
In Australia, the Australian legal system is defined by the Australian Constitution. This establishes the demarcation lines between the six states and two territories and the federal government. In Australia, because of the federal nature of the government, states and territory governments have a good deal of control over the laws that exist in each jurisdiction. Each state and territory, as well as the federal government, has a bicameral parliament (lower house of representatives and Senate) where changes in the law are debated and passed if there is a plurality of votes for the change. Federal law can override state laws in certain circumstances, e.g. if it is in the interest of the nation as a whole.
The court system in each state and territory is in charge of the bulk of the laws of each jurisdiction, most of which are based on English common law, inherited from Britain after Australia was colonised.
Where does the Australian legal system come from?
The Australian legal system is a combination of inherited laws from Britain, known as English common law and the numerous statutes that have been enacted by the various states and federal government since federation. Case law, i.e. the laws that are interpreted by judges do change through time as society changes and different interpretations are made in light of these changes.
Laws passed by state and federal parliaments change according to democratic principles. Elections decide the composition of the parliaments and usually different political parties have their own preferences when it comes to changes in the law. It would be impossible for huge and dramatic changes in the law to be made every time a new government is elected and in practice, most laws are retained, while new laws often take quite a .long time to be eventually enacted and even then may never get passed because of the checks and balances inherent in the bicameral (two-chambered) parliaments.
History of the Australian Legal System
For 50,000 years or more, Australia was inhabited by indigenous people. Indigenous people developed their own rules and laws which governed how people behaved and established penalties for when these laws were broken.
When Europeans arrived in Australia, they judged the land to be ‘uninhabited’ or ‘terra nullius.’ For the first two centuries of European settlement, existing indigenous laws were totally ignored. The first colonies were in New South Wales and Tasmania, with South Australia and Western Australia, settled separately later. Queensland was considered part of New South Wales at first. A typically British legal system was established. When Australia got its independence from Britain it formed a federation and the foundation of the Australian Constitution was established.
Types of laws in the Australian legal system
The two main types of laws in the Australian legal system are the statutes or codified laws that are decided by state and federal parliaments and the uncodified case laws that are interpreted by judges in the court system. The statutes are enacted after a debate in parliament. They can only be changed by parliament. Case law is mostly inherited from English common law although it has developed and changed somewhat over time. While different states may have different laws from each other, on the whole, case law tends to be similar in each state.
Principles of the Australian legal system
There are four main principles observed in the Australian legal system. These are:
- equality before the law;
- the right to be represented; and
Important terminology in the legal system
The language used by the legal system is almost a language all to itself. In fact, it would be more accurate to say it is several languages, as there different areas of law, each of which has its own unique terminology. For example, the two main areas of law are civil law and criminal law. Within civil law, there are further divisions, such as business law, personal injury law, employment law etc. Each area of law has developed its own terminology, although there are also terms which are widely used across the entirely legal system.