Origins of Australian Law

Australian Law's Origins

• Australian law is largely derived from English law due to Western European colonization.
• Indigenous law and custom existed before European arrival, their status since colonization is a complex and ongoing issue.
• Two main streams of Western law are Roman law (Civil law) and English law (Common law).
• Many countries, including Australia, have legal systems based on either English law or Roman law, or a combination of both.

Law: Dynamic and Ever-Changing

• Law constantly evolves, with changes occurring over time, but often focusing on details rather than fundamental principles.
• Australian law has developed its own characteristics distinct from English law despite sharing similarities due to its shared origins.

Law-Making Powers in Australia

• Law-making in Australia is authorized by bodies with recognized legislative power.
• Two major bodies with law-making powers are:
  • Courts
  • Legislatures (Commonwealth, states, territories) and local government councils (with specified powers).

Legislation: The Law Made by Legislatures

• Law made by a legislature is referred to as "legislation," "statutory law," or "Act of Parliament."
• Each Act has a unique name, like the "Spam Act 2003 (Cth)."
• State and territory legislatures typically have general legislative power "to make law for peace, order and good government" within their respective territories.
• State and territory legislatures share some powers with the Commonwealth parliament, as outlined in s 51 of the Commonwealth Constitution.
• The Commonwealth government has less general legislative power than state and territory governments, with its power limited to specific areas outlined in the Commonwealth Constitution, particularly in s 52.
• The Commonwealth Constitution in s 109 clarifies that where Commonwealth and state/territory legislation overlap and potentially conflict in areas of shared legislative power, the Commonwealth legislation prevails.
• Local governments are established by state and territory governments with powers to make laws called "by-laws."
• By-laws are subject to validation, being invalid if inconsistent with state/federal law or exceeding granted powers.

Origins of Australian Law

• Australian law has roots in both Aboriginal law and Western jurisprudence.
• Western European colonization introduced Roman law and English law.
• Indigenous law and customs still exist in Australia despite colonial influence.

Sources of Law in Australia

• Legislation: Law made by legislatures.
  • Commonwealth Parliament: Makes laws for the whole country.
  • State and Territory Parliaments: Make laws for individual states or territories.
  • Local Governments: Make by-laws for specific regions.
• Common Law: Judge-made law.

The Legislative Process

• Commonwealth Constitution: Defines the powers of the Commonwealth and State Parliaments.
• State and Territory Legislatures: Have general power to make law for "peace, order, and good government" within their jurisdictions.
• Commonwealth Parliament: Has specific powers outlined in the Constitution.
• Shared Powers: Some powers are shared between the Commonwealth and States.
  • Section 109 of the Constitution: If Commonwealth and State laws conflict, Commonwealth law prevails.
• Local Government By-laws: Must be consistent with state and federal laws, and within the scope of their powers.
• Statutory Interpretation: The process of determining what a statute means and how it should be applied.

Different Types of Law in Australia

• Legislation: Also known as statutory law or an Act of Parliament.
• By-laws: Laws created by local governments.

Key Features of Australian Law

• Dynamic System: Law is constantly changing and evolving.
• Similarities with English Law: Australian law shares many similarities with English law due to its historical influence.
• Limited Powers: Each level of government has specific, limited law-making powers.
• Separation of Powers: Power is divided between the legislative, executive, and judicial branches of government.

Australian Law Origins and Development

• Aboriginal law and custom existed before European arrival.
• Western European colonisation brought their legal systems to Australia.
• Two dominant legal traditions: Roman law (civil law) and English law (common law).
• Australia’s legal system is primarily based on English law.
• Australian law continues to evolve and differentiate from English law.
• Legal change stems from bodies with law-making authority.

Sources Of Law in Australia

• Courts: Make common law through case decisions.
• Legislatures: Make legislation (statutory law) through Acts of Parliament. This includes:
  • Commonwealth Parliament
  • State and Territory Parliaments
  • Local Government Councils (through by-laws)

Legislative Power in Australia

• State and Territory Parliaments: Have general power to make law for peace, order, and good government within their jurisdiction.
• Commonwealth Parliament: Has power to make law in specific areas defined by the Commonwealth Constitution.
• Shared Powers: Both Commonwealth and state/territory legislatures can legislate in some areas.
  • If laws conflict, Commonwealth law prevails.
• Local Government Councils: Established by state/territory governments and have limited powers to make by-laws.
  • By-laws must be consistent with state and federal laws.

Legislative Process

• Each Act of Parliament has a unique name, like the Spam Act 2003 (Cth).
• The legislative process involves drafting, debating, and passing a bill into law.
• The process is outlined in the Australian Constitution and each jurisdiction's legislative framework.
• The process and terminology vary between jurisdictions.

Statutory Interpretation

• Definition: Interpreting and applying statutory law to specific cases.
• Purpose: Ensuring that legislation is applied fairly and consistently.
• Principles: Judges must consider legislative intent, context, and the purpose of the legislation.

Origins of Australian Law

• Australia's legal system is primarily based on English law, which arrived with European colonization.
• Aboriginal law and custom existed before colonization, but its status remains complex.
• Western jurisprudence encompasses Roman law (Civil law) and English law (Common law).

Dynamics of Law

• Australian law has evolved distinct from English law over 200 years, while retaining fundamental principles.
• Legal changes occur over time, with modifications being more common than complete overhauls.

Law-Making Bodies in Australia

• Two main law-making bodies:
  • Courts
  • Legislatures and local government councils, including government ministers and officials with specified powers.
• The focus is on legislation made by Australian legislatures.

Legislative Bodies in Australia

• There are numerous legislatures in Australia, including the Commonwealth, states, and self-governing territories.
• The Commonwealth and state legislatures can be referred to as either legislatures or parliaments.
• Law made by a legislature is called 'legislation', 'statutory law', or an 'Act of Parliament'.

General and Specific Powers of Legislatures

• State and territory legislatures have general legislative power to "make law for peace, order and good government," limited to their jurisdiction.
• They share some powers with the Commonwealth parliament (e.g., see s 51, Commonwealth Constitution).
• The Commonwealth government has less general legislative power than state and territory governments.
• The Commonwealth constitution grants the Commonwealth parliament power to make law on specified matters only (e.g., s 52, Commonwealth Constitution).

Reconciling Conflicting Laws

• When the Commonwealth Parliament and a state or territory legislature legislate on a shared power, their enacted provisions coexist as long as they don't conflict (see s 109, Commonwealth Constitution).
• If there's a conflict, federal legislation prevails over state legislation to the extent of the inconsistency (s 109, Commonwealth Constitution).

Local Government and By-laws

• Local governments are established by state and territory governments.
• They have specified power to make laws called 'by-laws'.
• By-laws are invalid if inconsistent with state or federal law or exceeding the local government's powers.