david hornby

Legal 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:

1. A 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 is forbidden.

2. An 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 oligarchic.

3. A Collection of Institutions within a Geographic Area: The collection typically includes a legislature which makes laws, an executive department which implements the legislature's policy, courts which resolve disputes between persons subject to the laws, and a police force to 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).


The 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 of parliament.

Under 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 form of government, Australia has a federal system 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).


The 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 sources of law. The material content 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.

There 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 sources to distinguish as opposed to material sources.


There 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.

It 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 system. These medieval concepts still form the basis of Real Property Law in Australia.

The term Common Law; has 3 distinct meanings:

It 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 society.

On the other hand, sometimes the common law leads society for example, in Mabo. When this happens it is called "positive law". Common law is still with us, but its luxuriant growth has been severely trimmed.

When 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 on 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 circumstances.

2. EQUITY: Equity is primarily concerned with “fairness” or natural justice. 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.

The 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.

3. 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.

After 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”.


The statutory definition of site value for property tax purposes rating values is certain or settled law because its meaning has been explored and determined by a long line of cases. 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 case).


The law in Australia gradually became Australian law over time. The introduction of Torrens Title through the various Real Property Acts (RPAs), was quite revolutionary and overturned well established and old principles of law that applied to old system 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).

One 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 English statutes.


A good example of inherently unclear law is the question of what constitutes fixtures 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?

The 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 case”.


The Colonial 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 force 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).

While the Statute of Westminster removed anomalies so far as the Commonwealth was concerned, it was not until the passing of the Australia Acts 1986 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 the Australia Acts in 1986 that appeals from the State Supreme Courts to the Privy Council were also abolished.

Australia has a federal system of government whereby power is shared between the Commonwealth, States and Territories, and in which there is a separation of powers between the legislature, executive, and the courts. The major institutions of this system of government are:

Whilst 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.