Chapter 2

Sources of contemporary
Australian law

An introduction to Australian law and the concepts behind our

legal system. Let’s start in the past and discover how the law is
what it is today.
 Adversarial and inquisitorial systems
Australia’s legal system is based on an adversarial
system of trial
•in an adversarial system, the parties to a court case
are opponents who must prove their version of events
to ‘win’ the case - the judge is only an impartial
observer
•in an inquisitorial system, the judge is actively
involved in asking questions, calling evidence and
determining the case
 Common law

• common law developed in England by judges administering a

common set of laws throughout the Kingdom
• courts create it by recording the outcome and reasoning of each
judgment, known as ‘precedent’
 Common law

• Australia imported common law from England when

the country was settled by British colonists
• over time, Australia developed its own system of
courts and law as it became independent from
Britain
 Equity
Equity is a body of law that supplements the common law
• historically, it developed in England from a separate
system of courts, based on religious law
• common law rules were seen as too rigid, and equity
corrected injustices by applying principles of fairness
• common law and equity are now merged, but are still
treated separately in the NSW Supreme Court
 The doctrine of precedent
‘Precedent’ is the basis of Australia’s system of
common law
• when a court decides a case, the reason for the
decision can become a precedent for future cases
• in this way the law develops a body of case law that is
applied in future judgments
• this is sometimes known as ‘judge-made law’
 The doctrine of precedent

• courts are bound by precedents, and lower courts

will be bound by the decisions of higher courts –
this is known as binding precedent
• when a court is not bound by another court’s
judgment it can still be influential – this is known as
persuasive precedent
 Court hierarchy
The NSW court system has three tiers:
lower, intermediate and superior courts.

Lower courts
• hear more minor matters, usually by a magistrate
• cases heard without a judge or jury
• include the Local Court, Coroner’s Court, Children’s
Court and Land and Environment Court
 Court hierarchy

Intermediate court
– hears more serious matters
– hears some appeals from lower courts
– includes the District Court
 Court hierarchy
Superior courts
– hear most serious matters
– hear appeals from lower and intermediate courts
– the highest court in each state or territory, from which
appeals can be made to the High Court of Australia
– includes the Supreme Court and the Court of Appeal
 Federal court hierarchy
The federal court system has a similar hierarchy to the
state system. It includes:
•Federal Magistrates’ Court
•Federal Court of Australia
•Family Court of Australia
•High Court of Australia
 Federal court hierarchy
Federal Magistrates’ Court
• established in 1999 to take the pressure off the
Federal Court and Family Court
• hears matters including copyright, migration, family
law, child support, bankruptcy or human rights
 Federal court hierarchy
Federal Court
• deals with civil disputes governed by federal law
and some criminal cases
• is superior to the Federal Magistrates’ Court but
equal to the Family Court
 Federal court hierarchy

Family Court
• deals with complex and specialised family law
matters
• can hear appeals from the Federal Magistrates’
Court
 Federal court hierarchy
High Court of Australia

The highest court in the

Australian judicial system. It
deals with appeals from federal
and state supreme courts and
also presides over constitutional
matters.
 Statute law
• statute law is law made by
parliament
• commonly known as legislation
or acts of parliament
• in Australia any parliament has
the power to make statute law
• states, territories and federal
governments all have the right
to make laws
• statute law overrides the
common law
 The legislative process
• passing legislation is one of the most important functions of
parliament
• a proposed new law is called a bill
• the process can be time consuming and difficult
• the process is open to public scrutiny
• when a bill is passed by parliament, it is signed by the
Governor-General and becomes an ‘act of parliament’
 The Constitution
• prior to the Constitution, Australia consisted of six separate
colonies under the British government
• the Constitution commenced on 1 January 1901 to create the
Commonwealth of Australia
• it outlined the legal framework and rules that apply to the
governance of Australia
• it created the states, the Commonwealth and the federal
parliament, and outlined the ‘division of powers’ between the
Commonwealth and states
 Division of powers
• the Constitution defines how power is divided between the
Commonwealth and states to make laws
• section 51 of the Constitution lists powers the Commonwealth
shares with the states
• section 52 lists some exclusive Commonwealth powers
• section 109 says that Commonwealth laws will override any
state laws if they are inconsistent
• matters not listed are considered ‘residual powers’ for the
states
 Tasmanian Dam case
Facts
• the Tasmanian government wanted to build a hydroelectric
dam on the Franklin and Gordon river system
• protesters were against this as it was a recognised
conservation area
• the Commonwealth Government passed a law recognising the
area as World Heritage that must be protected
• Tasmania refused to stop, believing that the building of the
dam was a ‘residual power’ of the states
 Tasmanian Dam case
Issues
There were two issues in this case:
• the building of the dam in a significant region
• whether or not the Commonwealth had power
to make a law declaring the area protected
 Tasmanian Dam case
Findings
The High Court found that under section 51(xxix) the ‘external
affairs power’, the federal government has the power to legislate
over any matter of international concern
 Tasmanian Dam case
Findings

• since the federal law was declared valid, section 109 of the
Constitution meant that the Commonwealth law overrode the
state law because it was inconsistent
• as a result, the dam construction was stopped and the
Franklin River preserved for future generations
 Separation of powers
• the doctrine of separation of powers was developed in 18th
Century France by Montesquieu
• it ensures that the powers of government are not concentrated
in one place, with one person or a group of people
• if one person or group holds all state power, it risks being
abused, and the rights of citizens are at risk
 Separation of powers
Separation of powers splits state power into three separate
areas:
• legislature – which includes the lawmakers (i.e. parliament)
• executive – includes the ministers and government
departments who administer the law
• judiciary – includes the judges and courts who interpret and
apply the law

In Australia, the legislature and executive are not clearly

separated, but the Constitution ensures the judiciary is
strictly separated from the non-judicial arms of government
 The role of the High Court
• the High Court of Australia is the highest court in
Australia, higher than all other federal and state
courts
• Chapter III of the Constitution creates the High Court
and specifies its powers
 The role of the High Court
• the High Court has both:
– original jurisdiction to hear new matters, and
– appellate jurisdiction to hear appeals from other courts
• originally, matters from state courts could still be appealed to
the Privy Council in the UK, but this avenue was cut off with
the Australia Act 1986 (Cth)
• the High Court also hears cases involving interpretation of the
Constitution – these have been very influential in defining
Australia
 Appeals to the High Court
• the High Court is the highest court in Australia – its decisions
are final and cannot be appealed
• appeals can be made from state and territory supreme courts
and from federal courts
• the High Court must grant leave to appeal before it will review
a case – it only grants this in rare cases
 Judicial review
• judicial review involves review by a court of a decision made
by a government official or department
• the federal court undertakes most judicial reviews
• a more efficient way to appeal a government decision is
through the Administrative Appeals Tribunal, which can review
the merits of a decision
 Aboriginal and Torres Strait Islander
customary laws
• prior to European settlement only Indigenous people
populated Australia, 250 distinct nations
• each community had its own language, culture, traditions and
customs
• there was no single system of law between the groups, but
there were many common aspects and many groups shared
alliances
• many groups stayed in particular areas according to seasonal
variations in food and climate
 Aboriginal and Torres Strait Islander
customary laws
• Aboriginal and Torres Strait Islander law is based on tradition,
ritual and socially accepted conduct
• for this reason it is known as ‘customary law’ and many
communities continue to apply it today
• one difference between the customary law and British law was
the concept of ownership:
– possession of land was a key principle in British law
– Indigenous cultures considered the land as sacred that
could not be owned by any one person
 Ownership and terra nullius
• when the British settled Australia they made a legal claim
under international law that the land was terra nullius, meaning
land belonging to no one
• they claimed it was unoccupied because Indigenous people
used no fences or signs showing ownership that the British
were accustomed to
• this decision had lasting effects for Indigenous people to this
day
Relevance of customary law today
• some elements of Indigenous customary law are applied in
Australian law today, for example:
– customary law can sometimes be taken into account when
an Indigenous Australian is charged with a crime
– Indigenous elders can sometimes be consulted by those
maintaining or enforcing the law
• parliaments have been reluctant to formally incorporate
customary laws into Australian law
– one consideration is being accused that everyone is not
being treated equally by the law
 International law
• international law governs the relationship between countries
(known as states or ‘nation-states’)
• it regulates trade and commerce between countries and
provides laws to maintain peace and security
• one of the main criticisms of international law is that it lacks
enforcement because it relies on countries’ consent to its
jurisdiction
 Sources of international law
Customary international law
• not a written document, it is based on traditions and customs
which are seen to be fair and right by the international
community
• it takes a long time to develop because it must be constant
and uniformly applied, but if it is found to exist it is binding on
all states
 Sources of international law
Treaties
• the most common source of international law
• international agreements are written and binding on the
countries that sign and ratify them
• they can be bilateral or multilateral
Declarations
• like treaties, declarations are written international instruments
• they state and clarify the parties’ position on a particular issue
but are not binding
Other
• other sources include legal decisions and legal writings
 International organisations
The United Nations
• established in 1945 following the end of World War II
• its founding treaty is the Charter of the United Nations
• it is the chief organisation involved in international law
• there are currently 192 members of the UN
• main objective is to maintain global peace and security, but its
influence and institutions are wide-reaching
• has been central to international cooperation, treaty
development, dispute resolution and international
development of areas of law like human rights and
environmental protection
 International organisations
General Assembly
• the representative body and discussion forum of the UN, made
up of all UN member states
Security Council
• the arm of the UN that is responsible for maintaining world
peace and security, with five permanent members
International Court of Justice
• the judicial body of the UN with the primary function to settle
disputes submitted by states
Relevance of international law to Australia

• unlike other countries, in Australia signing and ratifying a treaty

does not automatically make it part of domestic law
• for international law to become Australian law new legislation
is usually required
• international treaties have had a profound influence on the
development of modern Australian law