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The law of Australia comprises many levels of codified and uncodified forms of law. These include the Australian Constitution, legislation enacted by the Federal Parliament and the parliaments of the States and territories of Australia, regulations promulgated by the Executive, and the common law of Australia arising from the decisions of judges.
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The Australian Constitution is the legal foundation of the Commonwealth of Australia and sets out a federal system of government, dividing power between the federal Government and the States and territories, each of which are separate jurisdictions and have their own system of courts and parliaments. The constitutional framework of Australia is a combination of elements of the Westminster and United States systems of government. The federal legislature has the power to pass laws with respect to a number of express areas, which apply to the whole of Australia and override any State laws to the extent of any inconsistency. However, beyond those express areas the States legislatures generally have plenary power to enact laws on any subject.
At both the federal and State levels, the substantive law of Australia is largely derived from the common law system of English law.
The High Court of Australia is the highest court in Australia, and hears appeals from federal and State courts on matters of both federal and State law. Unlike the United States, there is only one common law of Australia rather than common laws for each of the several jurisdictions of the States and territories.
Reception of English law
The legal institutions and traditions of Australian law are monocultural in character, reflecting its English origins. When the British arrived in Australia, they considered the continent to be terra nullius, or land belonging to no-one, on the basis that the Aboriginal peoples already inhabiting the continent were too primitive to have lawful possession of the land. Under the English conception of international law at the time, when uninhabited lands were settled by English subjects the laws of England immediately applied to the settled lands. As such, Aboriginal laws and customs, including native title to land, were not recognised. The reception of English law was clarified by the Australian Courts Act 1828 (UK), which provided that all laws and statutes in force in England at the date of enactment should be applied in the courts of New South Wales and Van Diemen's Land (Tasmania) so far as those laws were applicable. Since Queensland and Victoria were originally part of New South Wales, the same date applies in those States for the reception of English law. South Australia adopted a different date for reception, as did Western Australia.
The earliest civil and criminal courts established from the beginnings of the colony of New South Wales were rudimentary, adaptive and military in character. Although legality was not always observed, the courts limited the powers of the Governor, and the law of the colony was at times more egalitarian than in Britain.
By 1824, a court system based in essence on the English model had been established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to deal with all criminal and civil matters "as fully and amply as Her Majesty's Court of King's Bench, Common Pleas and Exchequer at Westminster". Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests.
Representative government emerged in the 1840s and 1850s, and a considerable measure of autonomy was given to local legislatures in the second half of the nineteenth century. Colonial Parliaments introduced certain reforms such as secret ballots and female suffrage, which were not to occur in Britain until many years later. Nevertheless, Acts of the United Kingdom Parliament extending to the colonies could override contrary colonial legislation and would apply by "paramount force". New doctrines of English common law continued to be treated as representing the common law of Australia. For example, the doctrine of the famous case of Donoghue v Stevenson from which the modern negligence law derived, was treated as being latent already within the common law at the time of reception.
Federation and divergence
Following a number of constitutional conventions during the 1890s to develop a federal nation from the several colonies, the Commonwealth of Australia Constitution Act (UK) was passed and came into force on 1 January 1901. Thus, although a British statute, this became Australia's Constitution.
Following federation, Britain's role in the government of Australia became increasingly nominal in the 20th century. However, there was little momentum for Australia to obtain legislative independence. The Australian States did not participate in the conferences leading up to the Statute of Westminster 1931, which provided that no British Act should be deemed to extend to the dominions without the consent of the dominion. The Australian Government did not invoke the provisions of the statute until 1942. The High Court of Australia also followed the decisions of the Privy Council during the first half of the twentieth century.
Complete legislative independence was finally established by the Australia Act 1986, passed by the United Kingdom Parliament. It removed the possibility of legislation being enacted at the consent and request of a dominion, and applied to the States as well as the Commonwealth. It also provided for the complete abolition of appeals to the Privy Council from any Australian court. The Australia Act represented an important symbolic break with Britain, emphasised by Queen Elizabeth II's visit to Australia to sign the legislation, but only as a witness, and not as Assenting Monarch.
Legislative independence has been paralleled by a growing divergence between Australian and English common law in the last quarter of the 20th century. In addition, a large body of English law received in Australia has been progressively repealed in state parliaments, such as in New South Wales by the Imperial Acts Application Act 1969.
Australian Republicanism emerged as a movement in the 1990s, which aims eventually to change Australia's status as a constitutional monarchy to a republican form of government.
Areas of law
The main substantive areas of law in Australia include:
The Australian Law Reform Commission investigates suggestions for reform raised by attorneys-general and in some jurisdictions, by members of the public.