Sources of law Law of Australia

1 sources of law

1.1 constitutional law
1.2 statute law
1.3 common law
1.4 international law

sources of law

discussion of sources of australian law complicated federal structure, creates 2 sources of written constitutional law: state , federal—and 2 sources of general statute law, federal constitution determining validity of state , federal statutes in cases 2 jurisdictions might overlap.

constitutional law

the australian colonies became federation in 1901 through passing of commonwealth of australia constitution act british parliament. federal constitution product of ten years of discussion, roots in both british legal tradition , australian democracy .

the constitution provided legislative power of commonwealth vested in federal parliament consisting of queen, senate , house of representatives. role of queen in legislative process lies in responsibility grant royal assent, power exercised on behalf governor-general. queen has highest role in assent legislation in contemporary australia.without royal assent there can no law created or amended within dominion of commonwealth of australia , states , territories.

the legislative powers of federal parliament limited set out under enumerated list of subject matters in section 51 of constitution. these powers include power legislate on matters incidental other powers, similar united states necessary , proper clause. parliament of commonwealth can legislate on matters referred parliament of 1 or more states. in contrast, few exceptions state legislatures have plenary power enact laws on subject. however, federal laws prevail on state laws there inconsistency. high court of australia has jurisdiction determine disputes whether law within power , consistent constitution.

chapter iii of constitution required creation of high court of australia, , confers power establish other federal courts , vest federal jurisdiction in state courts.

australian courts permit appeal privy council on constitutional matters. right of appeal high court privy council abolished in 1975, , state courts in 1986.

australia not have constitutional bill of rights , there few express rights guaranteed constitution. however, indirect protections have been recognised implication or consequence of other constitutional principles. example, there implied guarantee of freedom of political communication. additionally, rights protected indirectly through separation of powers, requires courts sufficiently independent , impartial other branches of government. human rights in australia protected through statutes , common law.

statute law

if government agrees changes worthwhile, bill drafted, parliamentary counsel. bill read , debated in both houses of parliament before either rejected, changed, or approved. approved bill must receive assent handed down either governor (state) or governor-general (commonwealth). , must put people through referendum , majority vote of states ensure law passed. parliament delegates legislation local councils, statutory authorities , government departments, sub or minor statute laws or rules such road rules, law answerable commonwealth constitution.

most statutes meant applied in main not legal practitioners , judges administrative decision makers. laws receive more judicial interpretation others, either because more @ stake or because affected in position take matter court. whilst meanings presented court benefit litigants themselves, courts not bound select 1 of interpretations offered parties.

australian courts have departed traditional approach of interpreting statutes (the literal rule, golden rule, , mischief rule). dominant approach rules not applied rigidly because overriding goal interpret statute in accordance intentions of parliament. so-called purposive approach has been reinforced statute. legislation in states , territories allows recourse extrinsic materials.

common law

common law in australia, in other former british colonies body of law developed thirteenth century england present day, case law or precedent, judges, courts, , tribunals. however, after on century of federation, there substantial divergence between english , australian common law.

unlike united states supreme court, high court of australia, established in 1903, has general appellate jurisdiction on state supreme courts. ensures there single uniform australian common law.

until 1963, high court regarded decisions of house of lords binding, , there substantial uniformity between australian , english common law. in 1978, high court declared no longer bound decisions of judicial committee of privy council.

international law

a bilateral treaty (between 2 nations) or multilateral treaty (among more 2 nations, or organised international body) can source of australian law. australia has entered substantial number of treaties. although treaties can legally entered executive government of day (not parliament), in practice treaties tabled in both houses of parliament 15 days prior signing. organised , administered department of foreign affairs , trade advise general position under australian law treaties australia has joined, apart terminating state of war, not directly , automatically incorporated australian law. signature , ratification not, of themselves, make treaties operate domestically. in absence of legislation, treaties cannot impose obligations on individuals nor create rights in domestic law. nevertheless, international law, including treaty law, legitimate , important influence on development of common law , may used in interpretation of statutes. treaties can implemented through executive action, , existing laws sufficient ensure treaty honoured.