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| WHY DO WE HAVE LAWS? | We have laws so that society can work effectively, to make sure that people or organisations are not able to use power, money or strength to take advantage of others or to make things better for themselves. We have laws to make sure that everyone understands their rights and obligations, and the rights and obligations of others |
| WHAT IS A ‘LEGAL SYSTEM’? | All countries have a legal system of some sort. The ‘legal system’ is a broad term that describes the laws we have, the process for making those laws, and the processes for making sure the laws are followed. Our legal system reflects how we, as Australians, behave and how we as a country expect people, organisations and governments to behave to each other. |
| WHERE DOES THE AUSTRALIAN LEGAL SYSTEM COME FROM? | The Australian legal system developed from the legal system of Britain, which was brought to Australia as part of the process of Britain setting up a colony in Australia, beginning in the 1770s. Between 1855 and 1890 the British Parliament granted a limited right to set up a local system of government to each of the British colonies within Australia, usually referred to as granting ‘responsible government’. As each of the colonies was granted this right it was able to develop its own laws and legal systems to deal with its particular situation. So, the law and legal system in each of the colonies began to develop separately. The way in which the power is divided is set out in the Commonwealth of Australia Constitution Act 1900 (UK) (the Constitution). Section 51 of the Constitution lists what powers the federal government will have. State and territory governments have power over anything else within their borders, that is, anything that isn’t mentioned in section 51.1 The Constitution is structured this way because the states came together to create the Commonwealth and they agreed amongst themselves what powers the Commonwealth they were creating could exercise and which powers they would keep. Some of those areas contained in section 51 are: > defence > external affairs > interstate and international trade > marriage and divorce > taxation > corporations > immigration > bankruptcy This means that since Federation, all Australians have been subject to the laws of two legal systems – federal laws, and the laws of the state or territory in which they live. |
| HOW LAWS ARE MADE | In the Australian legal system the main ways that laws are made are by: > parliaments passing Acts known as ‘statute law’; > the executive developing ‘delegated legislation’, which is, regulations, rules, ordinances etc, made under the authority of parliament and statute law; > courts interpreting the law, and deciding cases on the basis of how similar cases have been decided in the past and applying those decisions to the circumstances of the case they are currently deciding, known as ‘common law’ |
| ADVERSARIAL AND INQUISATORIAL SYSTEMS | A feature of the Australian legal system is that it is ‘adversarial’. This means that the competing claims of the two parties to a case are put forward (usually by legal representatives) for decision by an independent decisionmaker (a court or tribunal). The role of the decision maker is to hear both sides of the dispute and then apply the law to that dispute. The decision maker has no role in investigating the situation. This is a feature that comes from the British common law system. The adversarial system differs from the ‘inquisitorial’ system that operates in many other countries, such as much of Western Europe. Under the inquisitorial system, the role of the decision maker is broader: for example, they can have a role in questioning witnesses, in deciding what evidence is to be collected and presented, and in conducting investigations. Over the last 30 years the Australian legal system has increasingly adopted some of the characteristics of the inquisitorial system. In particular, in the area of antidiscrimination law, there is an ‘investigation’ by an independent body before bringing the disputing parties together to try to resolve the dispute or have a hearing. At the state and territory level, the decision-making body for allegations of discrimination is most often a tribunal that can look for evidence that is relevant to its decision beyond what the parties have presented |
| CUSTOMARY LAW | More recently, there has been recognition that Australia’s Indigenous people had systems of customary law that regulated their societies. To a limited extent, Australian courts – particularly in areas with high Indigenous populations living more traditional lifestyles – have given some consideration to that customary law in reaching decisions. In many ways, the system of customary law is similar to common law, because it develops rules for behaviour that reflect the community’s needs and because it is not written down. |
| LEGAL SYSTEM PRINCIPLES | Our legal system also depends on a set of core principles. Without these principles, people and society would not and could not place their trust in the system to protect and promote their legal rights and interests. These principles are sometimes referred to as principles of natural justice. > Fairness – decisions will be made on the basis of a set of established rules that are known. For example, if there were no laws about smoking at work, it would be unfair for a person who smoked at work to be punished by the legal system. > Transparency – what happens in the legal system can be seen and understood by the general public, that courts and tribunals are open to the public, rather than their decisions being made behind closed doors. > Equality before the law – each person should be treated in the same way by the legal system no matter who they are. For example, the legal system must not make a different decision because a person is richer or poorer than another person, or because a person comes from another country. It means that everyone should be able to access the law and the legal system equally. It also means that the law applies equally to everyone. No person is above the law, no matter what position they hold in society. > Freedom from bias – a decision maker must not have a personal interest in the decision she or he is making and must not prefer one person over another when they are making a decision. Another word for this is ‘impartiality’. For example, a judge must not be involved in deciding a case where one of the people involved is their brother, son, or doctor or friend. > The right to be heard – a person who is affected by a decision made by the legal system has a right to present their views and facts that support that view (evidence) to the decision maker before the decision is made. It also means that a person who is accused of doing something wrong has a right to be told what it is they are said to have done wrong and to be shown the evidence against them so that they can defend themself against the accusation. |
| STATUTE LAW | The most important role of parliaments is to make laws for their state, territory or the Commonwealth. This is done through the parliamentary process of passing of statutes, known as ‘Acts’, to deal with regulating various aspects of our society. |
| DELEGATED LEGISLATION | Often an Act of Parliament will include parts that give power to a Government Minister or another member of the executive to create a law that deals with particular aspects of that Act, usually to do with the details of how the Act operates. There are different ways in which delegated legislation becomes law, depending on whether it is made under an Act of the Commonwealth Parliament or one of the state or territory parliaments. |
| COMMON LAW | The common law system of law making came before the parliamentary system. It began in England in the 11th century with the establishment by William the Conqueror, King of England, of the Kings Courts. The courts, in deciding local disputes, applied local customs. Over time, these customs became rules and were the basis for later courts to make decisions on similar disputes. The common law changed and developed as different types of disputes developed and different customs evolved. The common law was the main body of law until the 17th century when the British Parliament increased its law-making power and activity (this resulted in more laws coming into being through Acts of Parliament. Common law is often referred to as ‘judge-made’ law. Common law is separate from statute law and does not rely on there being any Act of Parliament underpinning it. While statute law is the main source of law in Australia, the common law remains a vital and developing part of our legal system. Statute law always prevails over common law if there is a conflict. The common law relies on the principle of precedent. This means that courts are to be guided by previous decisions of courts, particularly courts that have higher authority. So, the extent that common law is written down is that it is found in decisions of courts. This means that it can often be difficult to find the common law that applies to a situation, as it is not in one single decision of a court, but rather different parts of it are set out in different decisions. |
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