The foundation of the Australian legal system traces its roots to the English ‘common law’ legal system. The UK Parliament had the power to legislate in its colonies and establish governments in colonies. As a result, Australian law reflects its English origins, due to the fact it was – at one point in time – governed by the same set of laws.
However, the British regarded the Aboriginal peoples as being too primitive to have lawful possession of the Australian continent and chose to treat “New Holland” as terra nullius, an uninhabited land open for settlement.
Since the Privy Council had held that uninhabited lands settled by English subjects would be governed by the laws of England, there was no place for Aboriginal native title to land, or for recognition of Aboriginal custom or law.
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English law was clarified by the Australian Courts Act 1828, which provided that all laws and statutes in force in England at the date of enactment should be applied in the courts of New South Wales and Van Diemen’s Land (Tasmania) so far as they were applicable. Since Queensland and Victoria were originally part of New South Wales, the same date applies in those States for the reception of English law.
South Australia and Western Australia adopted a different date. The earliest civil and criminal courts established in New South Wales were basic and military in character, although adaptive to the different situation in the new colony. Although legality was not always observed, the courts limited the powers of the Governor, and the law of the colony was at times more egalitarian than in Britain.
By 1824, a court system based on the English model had been established through Acts of the British Parliament. The New South Wales Act 1823 provided for the establishment of a Supreme Court with the power to deal with all criminal and civil matters “as fully and amply as Her Majesty’s Court of King’s Bench, Common Pleas and Exchequer at Westminster”.
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Inferior courts were also established, including courts of General or Quarter Sessions, and Courts of Requests. Representative government emerged in the 1840s and 1850s, and a considerable measure of autonomy was given to local legislatures in the second half of the nineteenth century.
Colonial Parliaments introduced certain reforms such as secret ballots and female suffrage, which were not to occur in Britain until many years later.
Nevertheless, Acts of the United Kingdom Parliament extending to the colonies could override contrary colonial legislation and new doctrines of English common law continued to be treated as representing the common law of Australia.
Under the Australian legal system, all constitutional power is derived from the UK Parliament and Australian institutions of government are modelled on those of Britain. One major difference is that Britain has a unitary form of government; Australia has a federal system of government with Commonwealth, State, and Territory governments.
The major similarity is that Australian law, like British law, consists of statutes, delegated legislation, and common law.
However, as a result of the Constitution of Australia, Australian statute law includes federal (commonwealth) laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories.
The most important law in Australia is the Constitution of Australia, which describes Australia’s system of constitutional monarchy, and forms the basis for the government of Australia. All of the States and territories of Australia that are self-governing are separate jurisdictions and have their own system of courts and parliaments.
The systems of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia apply to the whole of Australia.
The High Court of Australia has general jurisdiction over the State Supreme Courts. This ensures there is a single uniform Australian common law.
In Australia, only a Parliament may make legislation or authorise the making of legislation. However, because judges have the role of applying the laws of interpretation, if there is a dispute about the meaning of legislation, the judges decide the dispute.
There has been little borrowing of other overseas statute law, despite the fact that some sections in the Australian Constitution are modelled on the Constitution of the USA.
