Every country of the world is being operated in a certain way or method. In the language of the law, this method is called the Legal system. Australia is a common law country. All the laws of Australia are developed from the Common Law and various case decisions. The origin of Australian law is the common law of England. The conception of the Australian law was first originated in Rome. Through the development of equity, Australian law is grown up. It is known to all that for a lot of days, Australia was under the province of England and still now, the Australian Legal system is under the common law. When Australia got rid of the authorization of England, it tried to make a constitution. Thus the constitution of Australia is made, and gradually, it is developed.
Sources of the Law of Australia: Statute Law and Common Law.
There are two main sources of the law of Australia. That’s Statute Law and Common Law. “Statute law is legislation passed by the people’s representative through the commonwealth, state and territory parliaments and by subordinate authorities, in the form of delegated legislation.” The original function of the statute law was an attempt to limit the absolute power of the king. The operation of statute law begins as a bill, with its proposal coming from a variety of sources such as decisions of the cabinet minister, the decisions of the parliament, the laws of any of the statutes, the rules of the case decisions publications and such others.
It is not enacted until considerable deliberation is given by both houses of parliament and finally receives Royal assent from the Governor-General. Once an act of parliament, the courts interpret the legislation when deciding cases, using various interpretation methods, such as Interpretation Acts, the golden rule approach and the mischief approach. Examples of statutes passed by parliament include A New Tax System (Goods and Services Tax) Act 19999 and Work Choices Act 2005 on a Commonwealth level, and Motor Accidents Act 1988 and Crimes Act 1900 on a state level in New South Wales.
Common law is the law system Australia inherited from England and is created through the reported decisions of the judges in the higher courts called precedent. It can be divided into two areas; civil law and common law.
Civil law deals with disputes between individuals where the emphasis is a remedy such as monetary compensation, specific performance (an order to compel the defendant to do something) and injunction (an order that compels the defendant to stop doing something). “The burden of proof is on the plaintiff to prove their case on the balance of probabilities.”
Criminal law deals with disputes between the Crown and individuals, with an emphasis on punishment such as fines and jail sentences. If the accused is found guilty, the onus is on the Crown to prove their case beyond a reasonable doubt. One example can be given here that is Fisher v. Bell. Common law also includes equity, which developed in England to address the growing inflexibility of the law and added frames and justice to decision making by the king. No longer a separate court system, equity rules are now to be considered with common law, and where the two conflicts, equity law prevail.
The judge made law operates through a hierarchy of courts, each with either its own jurisdiction and binding precedents from the court above. This hierarchy begins with the local courts and finishes at the top with the High Court of Australia. The structure of this court allows for appeals to be heard in a higher court that has appellate jurisdiction. The legislature and judiciary derive their separate powers from different sections of the Australian constitution that were enacted on 1 January 1901:
- Section 1 vests legislative power in a federal parliament, consisting of the queen, the House of Representatives and the statute.
- Section 71 vests judicial power in the High Court and such other federal courts as the parliaments creates under the doctrine of separation of powers; the legislature is the supreme lawmaker with the judiciary meant to give effect to the laws. In accordance with this, if common law and the statute law conflict, statute law will prevail.
Statute Law and Judge-Made Law
Australian legal system consists primarily of common law that is known as judge-made or case law and statute law. “Australia inherited this legal system from the English when they “falsely claimed the land on the basis of ‘terra nullius’.” They applied the Doctrine of Reception on the basis that; while there were local inhabitants, there appeared to be no legal system or original society. “This meant that the English laws of the time became the laws of Australia. Gradually since then, Australia has become more independent and now has its own legal system completely separate from the English; however, the main principles have stated the same.
Statute Laws are passed by a parliament or other subordinate authorities in the form of legislation. In Section 1 of the Commonwealth Of Australia Constitution Act1900, legislative power was given to the parliament to enact and create the laws of Australia. Section 51 of the Constitution also defines what area the Commonwealth government can legislate in and in what areas the states are able to legislate. In cases of conflict between state legislation and commonwealth legislation, according to Section 109 of the constitution, Commonwealth Law shall prevail. Commonwealth statutes apply to all people, wherever they may be in Australia, for example, Trade Practices Act 1974. While statutes passed by State parliament only apply within the state, legislation was enacted, for example, Fair Trading Act 1987.
Statute Law will last forever unless it is repealed or charged under a later statute. The statute is the supreme law in Australia, and if there is a conflict with common law, statute law will prevail to the extent of the conflict.