The Australian Legal System

The Australian Legal System

A legal system consists of a collection of rules, procedures, and institutions that guide the legitimate administration of public and private endeavours. In other words, it is a system of interpreting and enforcing the laws that dictate the rights and duties of citizens. It is important to abide by the law of the land when travelling to any country. There are many categories of the law which require various knowledgeable professionals such as consumer lawyers, criminal lawyers and tax lawyers.

Contemporary legal systems fit into four major categories:

– Civil law: has roots in the Roman legal tradition and consists of written codes that are frequently updated to guide the legal procedures.

– Common law: unlike the codified laws of the civil system, the statutes of common law are based on legal precedents. The history of this law is traced back to English common law. 

– Statutory law: legal codes are made by a federal or state parliament depending on the form of government.

– Religious law: the laws in these systems emanate from religious texts and traditions and are often characteristic of Islamic nations.

It is important to note that many countries have mixed legal systems incorporating two or more of the above categories. Generally, legal systems are tailored to fit the unique history of the nation. So what are the basic features of the Australian legal system?

The Australian legal system

As former colonies of Britain, the states of Australia became a unified nation in 1901 and developed a common system. The system reflected several elements of the British legal system including the parliamentary system and the two-sided (adversarial) court system which entails trial by a jury and advocates for the principle of ‘innocent until proven guilty’. Contemporary Australia has a mixed legal system consisting of civil, statutory, and common law.

Civil law

Civil law in Australia is contained in the Constitution which lays the foundation for the entire legal system. Developed and voted into law by the people of Australia, the Constitution codifies the laws of the land which can only be changed by a referendum.

Statutory Law

Statutory law is either made by the Federal Parliament or the parliament of each state. Statutory laws in Australia are introduced as bills to parliament and are passed by the two houses. An exception is Queensland where there is only one house. Once the bills are passed in parliament, they become Acts that are then signed into law by the Governor-General on behalf of the Head of State. The Federal Parliament retains the jurisdiction to make laws on some national issues including state security, taxation, international trade, immigration, marriage, and divorce, amongst many others. For practical reasons, states are granted jurisdiction over state laws and state court systems.

Common Law

Common law reflects the British common law and is based on precedent. In practice, court decisions that serve as precedent are described as ‘courts of records’. Where common law contradicts statutory law, the latter overrides the previous. The interpretation of statutory law by a judge can equally be used as a precedent.

Overview of the Australian court system

The court system, commonly known as the Judiciary, interprets and implements the Constitution and laws of a country. Australia’s court system is organised at two levels.

The Federal court system consists of:

  • The High Court of Australia
  • The Federal Court of Australia 
  • The Family Court of Australia

The State and Territory courts are organised into:

  • Superior (supreme) courts 
  • Intermediate courts (District or County courts)
  • Lower courts/Coroner’s Court/Children’s Court

As the system that guides major decision-making processes of the country, the Australian legal system is certainly complex. 

When travelling in Australia, you must obey any laws and regulations like you would when travelling in any nation. Abide by the visa you have received and if you are moving to Australia speak with a migration lawyer.

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