Law of Australia Totally Explained

Everything about Australian Law totally explained

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.
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 organized system of law and government now in force in Australia is historically dependent for its legal validity on a series of British statutes, 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

Australia had remained as a settled territory which didn't have any laws under it. This concept, known as "Terra Nullius", meant that any pre existing customs of the Aboriginal people were not recognised. It has been observed that a few years later the country also followed the English common law and statute law as part of the "birthrights" (in William Blackstone's terms) which English people carried with them. It has been observed that the colonies had inherited United Kingdom laws. Even the first Australian colony, New South Wales, founded on 26 January 1788, followed the same path.
The development of local law progressed when the Supreme Court of New South Wales was established in 1824. Throughout the nineteenth century the various colonies attained representative government, enacted local statutes and established court systems, from which appeals lay ultimately to the Privy Council. The United Kingdom Parliament continued to be able to legislate for the colonies. Such legislation was said to operate by "paramount force".

Australian common law

Unlike the United States Supreme Court, the High Court of Australia, which was established in 1903, has a general appellate jurisdiction over the State Supreme Courts. This ensures there's a single uniform Australian common law. Until 1963, the High Court regarded decisions of the House of Lords binding, and there was substantial uniformity between Australian and English common law. In 1978, the High Court declared that it was no longer bound by decisions of the Judicial Committee of the Privy Council, the last appeals to the Privy Council were abolished by the Australia Acts of 1986, and there's now a measure of divergence between the two common law systems. Nevertheless, decisions of the High Court and the House of Lords are regularly cited in argument and relied upon in the courts of the other country. The Australian common law is also influenced, but to a lesser degree, by decisions of common law of countries including Canada, New Zealand and the United States.

State laws

All 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's 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.

Further Information

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