Law of Australia

The law of Australia consists of the Australian common law (which is based on the English common law), federal laws enacted by the Parliament of Australia, and laws enacted by the Parliaments of the Australian states and territories. The most important law of Australia is the Constitution of Australia, which describes Australia's system of constitutional monarchy, and forms the basis for the government of Australia.

Each of the States and territories of Australia that are self-governing are separate jurisdictions, and have their own system of courts and parliaments. The system of laws in each State are influential on each other, but not binding. Laws passed by the Parliament of Australia, and common law made by federal courts (such as the High Court of Australia) are federal laws, and apply to the whole of Australia.

The organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statues, notably including the Commonwealth of Australia Constitution Act 1900. The authority of the United Kingdom Parliament to enact those statutes depended on the acquisition of the Australian continent as a territorial possession of the British Crown.

Common law

Reception of English law

Australia has traditionally been conceived as a "settled" territory without any pre-existing law. It followed that the legal vacuum was immediately filled by the English common law and statute law, as part of the "birthrights" (in William Blackstone's terms) which English settlers carried with them.

When the first Australian colony, New South Wales, was founded on 26 January 1788, it inherited all the laws of the United Kingdom which were applicable to the colonial situation. Letters patent in 1787 (the New South Wales Charter of Justice) had provided that a court would be established in the new colony.

When the Supreme Court of New South Wales was established in 1824, the law began to develop more independently, although all decisions were still subject to review by English courts. The United Kingdom Parliament also retained an overriding power to legislate specifically for the colony. In the 19th century such legislation was said to operate by "paramount force".

As the other colonies were granted independence from New South Wales, they each established their own court systems, and began to develop their common law separately from each other.

Australian common law

When the High Court of Australia was established in 1903, it began to develop a body of federal common law, relating to areas in which the High Court has original jurisdiction (for example, matters involving international treaties, or cases where the Commonwealth of Australia is a party). By this stage, Australia was more independent from the United Kingdom, and the High Court was bolder in moving away from English law.

After appeals to the Judicial Committee of the Privy Council were abolished by the Australia Acts of 1986, the High Court became the court of "last resort" in Australia. As such, the court has been completely free to move away from English precedents. In recent years, Australian courts have thus been more amenable to considering the common law of countries like Canada and the United States when deciding cases.

Federal law

Australian federal laws are made primarily by the Parliament of Australia. Section 51 of the Australian Constitution describes the areas which the Parliament has the power to makes laws about, such as defence, immigration and customs. Section 109 of the Constitution provides that where federal and state laws are inconsistent with each other, the federal law prevails under Section 109 of the Australian Constitution.

State laws

Each of the Australian States are self-governing, and have their own Parliaments and court systems. In some areas, the law is very similar between the States, and in others, it is very different. A major difference is in the criminal law. In the states of Queensland, Tasmania and Western Australia, the criminal law is governed by statutory criminal codes, whereas the other states rely on the common law. In Victoria, some elements of the criminal law, such as penalties and definitions of various terms, and some of the more recently described crimes, are described by statute. However, most of the major crimes, such as most of the forms of homicide, are still governed by the common law.

Specific areas of the law of Australia