The two main types of laws in Australia are laws or codified laws passed by state and federal parliaments and uncodified jurisdictions interpreted by judges in the judicial system. The statutes are adopted after a debate in parliament. They can only be amended by Parliament. Much of the case law stems from English common law, although it has evolved and changed somewhat over time. Although different states may have different laws, the case law is largely similar in each state. These different sources of law fit together to create our legal system. Each part of the system – the courts, parliament and the executive (ministers and civil service) – has its own role to play. In particular, the courts are independent of Parliament. That is one of the reasons why judges are appointed for life. Australia is subject to different types of rights that are enacted and operate in different ways. Today, the law governs almost every aspect of our daily lives. There are several sources for this law. The dominant source is parliament, where elected politicians make laws.
Judges also deliver justice through their decisions in court proceedings. Local councils and civil servants also draft and enforce laws. A number of people – such as the police, Centrelink officers, council officers and the transport police – manage and enforce our laws. The Australian legal system is a combination of laws inherited from the United Kingdom, known as English common law, and the many laws enacted by the various states and federal governments since the Federation. Jurisprudence, that is, laws interpreted by judges, change over time as society changes and different interpretations are made in light of those changes. This fact sheet presents the different types of laws that govern Australia – legislation enacted by Parliament, law delegated by the government and customary law by the courts. When a court makes a decision, it justifies its decision. Another case with similar but not identical facts may be decided differently. In this case, reasons are usually given as to why this case should be treated differently. Each case is decided according to its own facts. The laws applicable in the ACT come from 2 main sources: laws promulgated or approved by the Legislative Assembly (laws and instruments promulgated on the basis of legislation) and court decisions (common law).
A third source is orders issued from time to time by the Governor General under the Seat of Government (Administration) Act 1910 (Cwlth). Eventually, the ACT inherited a number of laws (mainly New South Wales and the Commonwealth). The Commonwealth Constitution and various Commonwealth statutes, regulations and instruments also apply to the ACT, but this website deals only with laws enacted under the authority of the Legislative Assembly under the Australian Capital Territory (Cwlth) Self-Government Act, 1988 (the Self-Government Act). Victorian laws apply to people living in Victoria and to victoria`s courts and judges. Commonwealth laws apply throughout Australia and to courts and judges dealing with Commonwealth or federal law. The Australian Constitution determines which parliament is responsible for various aspects of government. Laws passed by state and federal parliaments change according to democratic principles. Elections decide the composition of parliaments and generally different political parties have their own preferences for legislative changes. It would be impossible to make major and dramatic legislative changes every time a new government is elected, and in practice, most laws are maintained, while new laws often take a long time to come into force, and even then they may never be adopted because of the oversight mechanisms inherent in bicameral parliaments. According to the international conventions of the time, the terra nullius countries were recognized as being directly according to the laws of the respective colonial power.
[8] As a result, Australian Indigenous laws and customs have not been recognized (including those relating to land ownership). The advent of English law was then explicitly legislated by the passage of the Australian Courts Act 1828 (IMP). The Act provided that all laws and statutes in force in England at the time of coming into force were to be applied in the courts of New South Wales and Van Diemen`s Land (Tasmania) to the extent that such laws were applicable. Since Queensland and Victoria were originally part of New South Wales, the same date applies to the receipt of English law in those states. South Australia took a different date for the reception,[10] as did Western Australia. [11] The ANU Library provides access to a number of legal databases. The following list is very selective and covers only the main sources of case law and legislation. A more complete list of legal databases can be found here or in the Business, Journal Articles and Legislation tabs for other databases covering this type of information. The language used by the legal system is almost a language in itself. In fact, it would be more accurate to say this in several languages, because there are different areas of law, each with its own terminology. The two main areas of law are, for example, civil law and criminal law.
In civil law, there are other areas, such as business law, personal injury law, labor law, etc. Each area of law has developed its own terminology, although there are also terms that are widely used throughout the legal system. In addition to their direct effect as a source of rights and obligations, laws also allow for the adoption of regulations and instruments of various kinds (e.g. the appointment of persons holding positions or the setting of fees). Since the Legislative Assembly does not necessarily have the time to deal with these issues, in our constitutional system, the government of the day deals with them through its branches and other agencies. For this reason, laws passed by the Legislative Assembly generally provide the authority to issue regulations and other instruments. In this way, the law on a subject can be divided between the law (which defines the main features of the proposal), regulations (which concern more detailed regulations that may need to be amended quickly) and other instruments to act in certain situations. Since the power to make regulations is given or delegated by the Legislative Assembly, they are sometimes referred to as delegated statutes or “subordinate statutes.” Although regulations are the most common type of subordinate laws, other types are judicial rules. Senate Reference – The Senate may refer the text of the bill to a Senate committee for investigation (this may occur while the bill is in the House of Representatives). Before colonization, the only legal systems that existed in Australia were the various customary law systems that belonged to indigenous Australians.
Indigenous legal systems were deliberately ignored by the colonial legal system and were recognized as legally important only to a limited extent by Australian courts in the post-colonial era. [5] Most laws are passed by Parliament. The legislative process is similar in federal and state parliaments.