systems respond to the various environments in which they operate.
The different environments create a number of different perspectives
or ways to view legal systems. These include:
Systematic Collection of Principles and Rules of Law:
These should be distinguished from principles and rules of morality,
politics or physics. Under this paradigm an analysis of law would be
an inquiry into legal rules to determine what is permitted and what
Independent System of the Government:
The legal system should be separate from the government which
possesses 'ultimate law making and governmental authority'.
Under this perspective legal systems are viewed externally, from the
outside. For the system to survive it requires a level of coherence
necessary for viability in the international community, irrespective
of whether the mode of government is democratic, autocratic or
Collection of Institutions within a Geographic Area:
The collection typically includes a legislature
makes laws, an executive
implements the legislature's policy, courts
resolve disputes between persons subject to the laws, and a police
enforce the law and to prevent breaches. The collection is bound
together into one system by its common recognition of an ultimate
source of authority (eg the crown).
AUSTRALIAN LEGAL SYSTEM
Australian legal system has its base in the English legal system. The
UK parliament had sovereign or unlimited power to make laws, and
therefore, could legislate for colonies, and establish movements in
colonies. The crown (the king or queen) had an inherent power to
operate in colonies and therefore, could establish representatives (a
Governor or Governor General) and endow them with formidable
executive powers called prerogatives.
However, the power of the crown was inferior to, and subject to, that
the Australian legal system all constitutional power is derived from
the UK Parliament and Australian institutions of government are
modeled on those of Britain (crown, parliaments, executive, courts).
However, an important difference which is basic to Australian law is
that, unlike Britain, which has a unitary
of government, Australia has a federal
of government (Commonwealth, State and Territory governments).
Further, Australia has a written constitution, which Britain does not
have. A major similarity is that Australian law, like British law,
consists of statutes, delegated legislation, and the common law (also
known case law or judge made law).
OF AUSTRALIAN LAW
source of law is grounded in cultural custom (for example, Roman
civil law or Anglo Saxon custom) which suggests that the idea of
a particular rule of law may be traced to a point of development when
taken into the legal system. That is, the substance of a rule may be
traced to a material source as a matter of history. Therefore, such
sources are referred to as material
law. The material
of Australian rules of law (for example, ideas, standards, principles
and purposes) as distinct from their formal validity as enforceable
law, has a variety of sources.
has been little borrowing of other overseas law such as that in the
USA over the years. This is despite the fact that some sections in
the Australian Constitution are taken almost word perfect for some
sections the Constitution of the United States of America and there
are other examples. Source of law refers to a source in any
particular legal system that has the authority to declare a rule to
be a law. Such sources are known as authoritative
distinguish as opposed to material
SOURCES OF LAW
are three sources of law:
1. COMMON LAW: That
part of the law of England formulated, developed and administrated by
the old Common Law Courts. It was originally based on the common
customs of the country but unwritten. The commonsense of the community,
crystallized and formulated by forefathers.
is basically tribal custom. For example, for real estate, the tribe
in question was the Norman conquerors of England, who imposed on
England Norman ideas of land holdings, the feudal
These medieval concepts still form the basis of Real Property Law in
term Common Law; has 3 distinct meanings:
- Common law
rather than local law (its original meaning). That is, a law for ALL
- Common Law
rather than the law under Equity (see later)
- Common Law
rather than Statute Law.
would be fair to say that until recently case law was the main source
of law, statutes being of a relatively minor importance. However,
today the roles have been reversed. This is because in today's modern
and complex society there is a greater need for government
intervention. Statutes have become the dominant source of law,
particularly inasmuch as statute law can amend or repeal the common
law, and therefore, has priority over it. The main problem with the
common law is that it has been too slow to meet the needs of today's
the other hand, sometimes the common law leads society for example,
When this happens it is called "positive law". Common law
is still with us, but its luxuriant growth has been severely trimmed.
faced with a contradictory statute, the common law must yield, but
frequently statutes vest wide discretions in courts and a new common
law develops as courts interpret and apply these discretions. As
well, the common law stands in sharp contrast to statute law.
Statutes emanate from parliament and are generally aimed at the
future, for active intervention in our lives. Their terms are readily
ascertainable from the statute. However, the common law, being
judgemade law, operates retrospectively
the parties in a case. It is made in response to a dispute and
because it is concerned with the particular facts of the subject case
it is often difficult to translate to other or more general
EQUITY: Equity is primarily concerned with “fairness” or natural
It is a comparatively new body or rules founded on distinct
principles but claiming to superiority to the common law because of
its superior sanctity inherent in those principles. It was originally
the body of rules formulated and administered by the Court of
Chancery to supplement and provide relief to the strict rules and
procedures of the common law. It evolved out of church law and
therefore, has taken the high moral ground.
idea of a Court of Chancery was attractive to the King as it allowed
the remedy of defects in the administration of justice through the
established courts. Originally, it had a general mandate to provide
justice in all cases, but over the centuries, the rules of Equity
became fixed. It is sometimes important to distinguish between Equity
and Common Law, but they are similar in being both; judgemade law.
STATUTE LAW: Statute Law includes both direct legislation passed by
Parliament (Acts) and delegated legislation such as bylaws and
regulations initiated by a government body. If there is a conflict
between the three laws, statute law is the superior law.
new legislation is passed there is a hiatus caused by the fact that
the law has not been tested or sufficiently determined by the courts.
This is the case with the Native Title Act. However, over a period of
time the legislation is tested and interpreted in court cases and
becomes more settled. When the legal system is reasonably assured of
what the legislation means because of case law, then the law is
“certain” or “settled”.
statutory definition of site
for property tax purposes rating values is certain or settled law
because its meaning has been explored and determined by a long line
Case law on interpretation of one section of an Act may converts a
couple of lines (or even words) into a detailed explanation. For
example, the willing
seller willing seller
theory of market value (Spencer’s
law in Australia gradually became Australian law over time. The
introduction of Torrens
through the various Real Property Acts (RPAs), was quite
revolutionary and overturned well established and old principles of
law that applied to old
title. However, in the early days of implementation (late 19th
century) some courts, particularly the Privy Council (a UK Court that
was the highest court of appeal before 1975), could not believe that
an Australian Parliament really meant what the legislation said. The
consequences of this are still with use in terms of a confused
property law still based on feudal notions. This is one reason that
the law became vernacular (more Australian) particularly, after the
abolition of appeals to the Privy Council in 1975 (Privy Council
(Appeals from the High Court) Act, 1975).
problem with statute law, is that a large amount of law is unclear,
ambiguous or it means not what the legislators intended it to mean
because of poor drafting. Some of the problems of understanding
legislation have been addressed by a trend towards plain
good example of inherently unclear law is the question of what
to land and thus pass with the sale of the land? Clearly, a car
driven onto the land does not become part of the land. A pile of
bricks on the land will most likely not become part of the land.
However, what if the bricks are stacked in such a way that they
support a substantial barbecue in a special barbecue area?
definition of such simple words such as fixtures
can only be determined by complex law including complex legislation.
A typical answer is that it depends on the “circumstances of the
DEVELOPING INDEPENDENCE OF THE AUSTRALIAN GOVERNMENT
Laws Validity Act 1865
(CLVA) was applicable to all the colonies, and also to the
Commonwealth parliament when it was established in 1901 (Commonwealth
of Australia Constitution Act (1901))
passed by the UK Parliament. The CLVA granted limited forms of power
to the state parliaments but always subject to the paramount
that is, the ultimate power of the UK parliament. This, produced the
anomaly that while the Commonwealth could participate in the
international community as an independent nation, at the same time it
could still be subject to constitutional restrictions arising from
Australia's original colonial status. However, the anomaly was
removed in 1942 when the Commonwealth government passed the Statute
of Westminster Adoption Act (Cth),
which in turn adopted the Statute
of Westminster 1931
(UK), and backdated the adoption to 3 September 1939 ( the outbreak
of World War II).
of Westminster removed
anomalies so far as the Commonwealth was concerned, it was not until
the passing of the Australia
that the remaining anomalies relating to the States and Territories
were removed. Although appeals from the High Court to the British
Privy Council were abolished in 1975, it was only with the passing of
1986 that appeals from the State Supreme Courts to the Privy Council
were also abolished.
has a federal system of government whereby power is shared between
the Commonwealth, States and Territories, and in which there is a
between the legislature,
The major institutions of this system of government are:
- The crown
- The parliament
- The executive
- The courts.
the crown is undoubtedly an important element in Australian
government, it is not of central concern to us, and it will not be
considered in detail.