Overview of the Australian legal system

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This article is a topic within the subject Introducing Law & Justice.

Contents

Required Reading

Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009), pp. 3-24 (Chapters 1-2).

Introduction

[1] The purpose of law is to ensure there is justice. A basic principle of justice is the doctrine of the the Rule of Law. Basically, the rule of law means that the law is supreme - everyone is subject to the law in the same way and no one is exempt from it. In that way, the rule of law aims to prevent arbitrary use of power.

Australian law has developed from English law, but immediately became distinct from it. The first distinction was made by Henry and Susannah Kable:

  • The Kables were prisoners being transported to Australia.
  • They deposited money with their ship's captain but the money disappeared.
  • Under English law, the Kables were 'civilly dead' or 'attainted' (unable to sue people in civil matters) because they were prisoners (and prisoners lose that right).
  • However, they were allowed to sue in Australia, because the Australian authorities realised that this law of 'attaint' is impractical in a new penal where everyone is a prisoner. This was the first civil case in Australia.
  • In this way, Australian law first became distinct from English law.

Overview of Australia's Legal System

[2] Features borrowed from English law:

  • Representative democracy - people vote for representatives who then sit in parliament and make laws.
  • Solicitor/barrister division - an (informal) distinction between solicitors, who advise clients and manage their affairs, and barristers, who appear in court.
  • Common law system - this term operates on three different levels:
    1. As legal system - common law (the English system of law) as opposed to Civil law (French, German etc) or Islamic, indigenous or other law systems.
    2. As a source of law inside the legal system - in the legal system, there are two sources of law: legislation (law made by the parliament) and common law (law made by the judges through previous court decisions).
    3. As a classification inside the source of law - within the common law 'source', law is divided into two classifications: common law (the law made by the judges of the normal courts) and Equity (law made by the judges of Equity).
  • Court system for dispute resolution - disputes are resolved in courts through juries and judges.

On the other hand, there are features distinct from the English law:

  • Federal system - a federation of several states and territories making up the Commonwealth. This structure divides power between the state and Commonwealth parliaments.
  • Recognition of indigenous law - there is a (limited) recognition of Indigenous customary law in Australia ever since Mabo v Queensland (No 2).

The subject of Indigenous law had a lot of implications on the Australian legal system, and was discussed in R v Wedge (which was before Mabo):

  • It has been decided that NSW was a 'settled' colony, and therefore the English law was immediately transferred to it and to all its inhabitants.
  • English law is the only law in Australia, and applies to Aboriginals as well.

Place of Australia in Global Law

[3] There are other legal systems which exist in the world besides the common law system. These include:

  • Civil law (Germany, France, Italy, Japan, China etc):
    • This is the other dominant legal system in the world. Its main difference from the common law system is that judges only interpret the law and do not make the law. There is no doctrine of precedent which means that judge's decisions do not bind future courts.
    • Usually, almost all of the law is codified - written down in statutes and regulations etc.
    • Civil law systems use the inquisitorial process rather than the adversarial one used by the common law systems.
  • International Law - law between countries or states. Derived from:
    • Customary international law: practice that should be uniform across many states. States comply with it out of a sense of legal obligation.
    • Treaty (convention) law: Agreements made between countries that can be bilateral or multilateral. Only in force after ratification (and not merely signing).
    • Note:Australia courts must obey the Australian law, regardless of the breach of international law. This is a matter of Australian constitutional law.
  • Customary law (Aboriginal law in Australia, Native American law in America, etc)
    • This is where an Indigenous population is governed (partially) by their own laws. In most cases (such as in Australia), customary law is limited and only applies in certain circumstances.
  • Talmudic law (personal law which Jewish people abide by in various countries)
  • Islamic law (different schools are used in different Islamic countries)

References

Textbook refers to Prue Vines, Law and Justice in Australia: Foundations of the Legal System, (2nd ed, Melbourne, Oxford University Press, 2009).

  1. Textbook, p. 3.
  2. Textbook, pp. 5-9.
  3. Textbook, pp. 17-24.
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