The Australian Legal System
The Australian Legal System has a rich and detailed history dating from 1066. Law is made in Parliament. We have four sources of law and three courts with different jurisdictions that interpret the law when giving out justice. Important doctrines act as the corner-stones of our legal system. There is a procedure in the courts for making appeals. Separation of powers exists between officials in the courts, the parliament and the Executive. Everyone in Australia is treated equally under the Rule of Law, no matter their office or status. The Law is always changing as society changes, but it can never be perfect and cannot please everyone.
The Westminster Legal System, upon which the Australian one is based, can be traced back to 1066 when William the Conqueror won the Battle of Hastings. As king, he set out rules and sent judges around the land on horseback to ensure that they were followed and offenders punished. It is from these times that the Doctrine of Precedence originated. A log of crimes and punishments was kept: as a means of convenience, judges could hand out punishments in line with the punishments given for similar cases. In the 19th Century, this doctrine became binding. In 1215, the Magna Carta was signed by King John, putting the first check against all previous monarchs’ ‘rule by Divine Right’. It was significant because the Magna Carta also gave people the right to be judged by one’s peers. In 1689, after the Glorious Revolution, Parliament became the Supreme Law-making body, monarchs no longer reigned over Parliament, but sat in Parliament.
There are four sources of Law in the Australian Legal System. They are Statute Law, which is made in Parliament, Common Law and the Law of Equity which are made in the courts, and Delegated Legislation which is made by the Councils.
Parliament is the institution which is the Supreme Law-making body. Representatives are elected into Federal and State Parliament by the people to propose and discuss new laws, called Bills. Federal and most State Parliaments are bicameral, meaning they have two houses – the Upper House and the Lower House. Bills are introduced into one house, and if passed there, are brought up or down into the other house to be re-assessed. Once passed by the other house, they become an Act of Parliament until the Governor or Governor-General signs them and they become Statue Law. All laws made in Parliament have to be in line with the Federal and State Constitution, the number one legal document.
In the courts, Common Law is made when judges interpret the laws made by Parliament and follow the Doctrine of Precedence when giving out punishments. This law is also named ‘Judge-made law’. The Law of Equity does not follow the Doctrine of Precedence, but is based on fairness and good conscience. When first created by William the Conqueror, the Law of Equity was used in a different court called the Court of Chancery. However, in 1873, an...