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Introduction to Australia's Legal System

General

The Commonwealth of Australia (‘Australia’) is a federated constitutional monarchy with power divided between the federal government (also referred to as the Australian or Commonwealth government) and the states and territories.

Australia has a common law legal system with a strong tradition of separation of powers, particularly between the legislative/executive and the judicial arms of government. However the legislative and executive arms of government are not entirely separate as the heads of government departments are government ministers that are elected parliamentarians.

The Prime Minister (Commonwealth) or Premier (States) is the leader of the political party that has the majority of seats in the lower house of parliament House of Representatives (Commonwealth) or Legislative Assembly (States). The leader of self-governing territories parliaments is called the Chief Minister or Administrator.  The Chief Minister may be elected by the Legislative Assembly (ACT) or be the leader of the political party with the most seats in the Legislative Assembly (NT).  An Administrator (Norfolk Island) is appointed by the Federal government.

As a common law system the sources of Australia law include legislation (made by parliament) and case law (law developed by the judiciary). Australian case law follows a precedent system whereby decisions are made in accordance with prior binding decisions.  Generally, higher court decisions will be binding on lower courts and full court decisions (all judges of the court) will be binding on single judges.

Government – Federal

The Australian Constitution (Commonwealth of Australia Constitution Act 1900 (IMP)) establishes the structure and powers and responsibilities of the three branches of the federal government and the relationship between the state and the federal governments.

The three arms of the federal government are the:

Section 51 (external link) of the Constitution defines the areas on which the federal government may make legislation.  Generally these areas are taxation, defense, external affairs, trade, and immigration.

Government – States and Territories

The Australian states (New South Wales (external link) (NSW), Victoria (external link) (Vic), Tasmania (external link) (Tas), South Australia (external link) (SA), Western Australia (external link) (WA), and Queensland (external link) (Qld) (‘States’)) have their own constitutions and three arms of governments.

States may make laws over any area (other than imposing duties of customs and excise, or raising defense forces) without the consent of the Commonwealth Parliament however such laws will be invalid where they conflict with a Commonwealth law.  Therefore, in practice States may make laws on any areas not falling within § 51 of the Constitution.  General areas of state law include education, health, roads, and criminal law.

In addition to the States there are ten Australian territories.  The Commonwealth governs seven territories (Ashmore and Cartier Islands, Australian Antarctic Territory, Christmas Island, Cocos (Keeling) Islands, Coral Sea Islands, Jervis Bay Territory, and the Territory of Heard Island and McDonald Islands) while three are self-governing (the Australian Capital Territory (ACT), the Northern Territory (external link) (NT), and Norfolk Island (external link) (Territories). Self-government means that a range of government matters (including the making of laws) is handled by a locally elected parliament.

Courts

Australia has both federal and state/territory courts systems.

Australia has tribunals at both the federal and the state/territory level.  Tribunals are specialized bodies that operate under legislation to review government decisions or make findings of fact and adjudicate certain disputes.

Federal courts

There are four principal federal courts:

  1. High Court (external link):
    Two types of jurisdiction – original and appellate (external link)
    The High Court has both original and appellate jurisdiction. The High Court is the final court of appeal in Australia (including with authority to decide appeals on cases dealing with State matters such as the interpretation of State criminal laws) and the authority to decide disputes regarding the interpretation of the Constitution.  The High Court is also the Court of Disputed Returns in relation to federal elections.
  2. Federal Court of Australia (external link):
    Established by legislation, the Federal Court (Federal Court of Australia Act 1976 (Cth)) has original jurisdiction (as vested by legislation - eg. bankruptcy, corporations, taxation and trade practices) and appellate jurisdiction in relation to decisions of the single judges of the Federal Court and decisions (other than family law) of Federal Magistrates and some appeals from State and Territory Supreme Courts.

    Industrial Relations Court of Australia (external link):
    Established under legislation the Industrial Relations Court (Industrial Relations Reform Act 1993 (Cth)) was a specialized court dealing with industrial relations disputes.  Since May 1997 (Workplace Relations and other Legislation Amendment Act 1996 (Cth)) the jurisdiction of the Industrial Relations Court has been transferred to the Federal Court.  Judges of the Industrial Relations Court are also judges of the Federal Court, however, the Industrial Relations Court will continue in existence while they remain judges of the Industrial Relations Court.

  3. Family Court of Australia (external link):
    Established by legislation the Family Court (Family Law Act 1975 (Cth)) is a specialist court for family and child support disputes (other than for Western Australia).  Western Australia has a state family court – the Family Court of Western Australia.
  4. Federal Magistrates Court of Australia (external link):
    Established under legislation the Federal Magistrates Court (Federal Magistrates Act 1999 (Cth)); handles less complex disputes under Commonwealth laws, including, in the areas of family law, child support, administrative law, bankruptcy and consumer protection.  As required the Federal Magistrates Court shares jurisdiction with the Family Court of Australia and the Federal Court of Australia.

State and Territory Courts

Australia’s State and Territory courts have jurisdictions over disputes under State or Territory laws and, over disputes under federal law where jurisdiction has been conferred on the State or Territory court.

Each State and Territory has a Supreme Court, an intermediate court (generally called a district court or a county court) and a court of summary jurisdiction (generally called a magistrate’s court). There will also be an appellate court (generally called a Court of Appeal) and other specialist courts – such as the Land and Environment Court or the Coroner’s Court.

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Official Sources of Law

The sources of Australian law are:

  1. the Constitution;
  2. Legislation (also called enactments, acts or statutes) and including subsidiary legislation (also called delegated legislation, regulations, rules and includes Orders in Council);
  3. Common law (also called judge or court made law).

The Federal parliament and most States (other than Queensland) are bicameral. Queensland and the Territories have a single house of parliament.

Generally draft legislation is tabled in the lower house as a bill accompanied by an explanatory document (Explanatory Memorandum (external link) (PDF) – this may be used by courts to interpret the provisions of a statute (Acts Interpretation Act 1901 (Cth) § 15AB(e))).  The bill may then be debated in parliament and may be referred to a parliamentary committee for further research and advice.

Once a bill is passed by the originating house it must then be submitted to and passed by the other house before being sent to the Governor-General (Commonwealth) or Governor (States) for Royal Assent after which it is published in its final form (as an Act).

If there is no stated commencement date within an Act, the Act will come into force twenty-eight days after receiving the Royal Assent (Acts Interpretation Act 1901 (Cth) § 5(1A)).

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Print Sources

Acts (or statutes) are initially published by the relevant government in pamphlet form and then published in bound volumes under the year of issue.

Most Australian jurisdictions have an authorised (or official) law report series. These are:

  • Commonwealth Law Reports (CLR) (High Court of Australia decisions)
  • Federal Court Reports (FCR) (Federal Court of Australia decisions)
  • New South Wales Law Reports (NSWLR)
  • Queensland Reports (QdR)
  • South Australian State Reports (SASR)
  • Tasmanian Reports (TR)
  • Victorian Reports (VR)
  • Western Australian Reports (WAR)
  • Northern Territory Law Reports (NTLR)

Unofficial versions of Acts and reports are published by legal publishing companies (generally Butterworths/LexisNexis, Lawbook/Thompson and CCH).

Such reporters may be general, for example, covering all federal cases or subject specific, for example covering family law cases or intellectual property cases. Examples of unofficial case law reporters include:

  • Administrative Appeals Reports (Lawbook)
  • Administrative Law Decisions (LexisNexis)
  • Australian Capital Territory Reports (LexisNexis)
  • Australian Company Law Cases (CCH)
  • Australian Company Law Reports (LexisNexis)
  • Australian Consumer Credit Reports (LexisNexis)
  • Australian Contract Reports (CCH)
  • Australian Corporations and Securities Reports (LexisNexis)
  • Australian Criminal Reports (Lawbook)
  • Australian Industrial Law Reports (CCH)
  • Australian Intellectual Property Cases (CCH)
  • Australian Law Reports (LexisNexis)
  • Australian Tax Cases (CCH)
  • Australian Tax Reports (Westlaw)
  • Australian Torts Reports (CCH)
  • Australian Trade Practices Reports (CCH)
  • District Court Law Reports (NSW) (Lawbook)
  • Equal Opportunity Cases (CCH)
  • Family Law Cases (CCH)
  • Family Law Reports (LexisNexis)
  • Federal Court Reports (Lawbook)
  • Federal Law Reports (Lawbook)
  • Industrial Reports (Lawbook)
  • Intellectual Property Reports (LexisNexis)
  • Local Government and Environmental Reports of Australia (Lawbook)
  • Motor Vehicle Reports (LexisNexis)
  • New South Wales Conveyancing Cases (CCH)
  • New South Wales Law Reports (Lawbook)
  • Northern Territory Reports (LexisNexis)
  • Queensland Conveyancing Cases (CCH)
  • South Australian State Reports (Westlaw)
  • Victorian Conveyancing Cases (CCH)
  • Victorian Reports (LexisNexis)

Colonial era court decisions for New South Wales (external link) and Tasmania (external link) are available on the internet via a project by Prof. Bruce Kercher at the Macquarie University and Dr. Stefan Petrow at the University of Tasmania.

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Web Sources

General

The main dictionary on Australian law is the Australian Legal Dictionary (ed: Nygh & Butt), Butterworths, 1997.  This is a commercial publication that is published in hardcopy and electronically.  Electronic access requires a subscription.

There are two legal encyclopedias that cover Australian law and are an appropriate place to start researching a topic.  These are: Halsburys Laws of Australia (LexisNexis) and The Laws of Australia (Law Book Co).  Both are commercial publication and require a subscription.

A list of Abbreviations of legal publications (external link) is maintained by Monash University Library and is freely available.

The Australian Parliamentary Library (external link) maintains a list of internet sources for Australia law.

LawLex (external link) provides a free service that allows for text searching across legislation from all Australian jurisdictions.

LLRX.com (external link) has an excellent article by Nicolas Pengelley (dated February 7, 2006) on researching Australian law.

Australian law online (external link) is a government portal that provides access to legal information sites across a variety of topics. A similar service is provided by the State Library of New South Wales Legal Information Access Centre (external link) for New South Wales legal information.

Parliaments

Government

Legislation - Australian Federal

ComLaw (external link) is the legal information system owned by the Australian government Attorney-General's Department.  It provides copies of Commonwealth statues and subsidiary legislation as well as compilations and historical versions. SCALEplus (external link), a precursor to ComLaw, still maintains a database with the full text of ordinances and subordinate legislation for other territories, ie. Ashmore and Cartier Islands, Australian Antarctic Territory, Christmas Island, Cocos-Keeling Island, Coral Sea Islands Territory, Heard Island and McDonald Islands, Jervis Bay Territory.  This information will eventually be migrated over to ComLaw (external link).

Austlii (external link), the Australian Legal Information Institute, is a university supported free legal database of Australian statutes and case law.

Legislation – Australian States and Territories

The following databases are provided by the relevant state or territory government and provide statutes and subsidiary legislation as well as compilations.

New South Wales – Parliamentary Counsel’s Office - NSW Legislation Website (external link)

Queensland – Office of the Queensland Parliamentary Counsel – Queensland Legislation (external link)

South Australia – Attorney-General’s Department – South Australian Legislation (external link)

Victoria – Victorian parliamentary documents and legislation (external link)

Western Australia – State law publisher (external link)

Australian Capital Territory – ACT legislation register (external link)

Northern Territory – Department of the Chief Minister – Current Northern Territory legislation database (external link)

Norfolk Island – Administration Norfolk Government Island Administration (external link)

Courts, Tribunals, and Decisions

The following sites are websites of some of the main courts and tribunals in Australia and where available decisions of those courts and tribunals.

Federal

States and Territories

New South Wales

Queensland

South Australia

Tasmania

Victoria

Western Australia

Australian Capital Territory

Northern Territory

Norfolk Island

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Last Updated: 03/07/2014