Mod2: Overview of the

Australian Legal System

2.1 overview:
Key Lesson Goals Lesson To Do
★ Understand and explain the three Focus on legal classifications
different ways we use the term Chamberlain
'common law'.
★ Grasp the difference between
primary and secondary sources of
law and how they relate to one
another.
★ Explain the different ways in which
law may be classified (and give
examples of each).

2.2 Readings
The Role of Classification
Principles and Practices of Australian Law-
Jennifer Greaneey p5-25

Legal and Non-legal Disputes

❖ As law and society are dynamic→ legal responses will vary dependent of time and place
➢ Eg discrimination laws after 1970’s or the Family Law act 1979
➢ Landmark cases eg Mabo v Queensland (No 2) (1992) 175 CLR 1→ native title
recognised for the first time
Branches of Law
❖ Law can be divided into branches depending on their purpose
Civil vs Criminal
● The same behaviour can give rise to both proceedings
● it is not the behaviour itself that defines its status but the kind of legal processes invoked in
response
● not all harmful conduct is regulated by the criminal law
 Civil Criminal
❖ About: ❖ About:
➢ regulating relations between ➢ conduct that is harmful to society
individual ➢ prohibits certain acts
➢ creation of rights and liabilities in ➢ prescribes procedures for the trial
particular situations and the ➢ punishment of those accused
consequences of their breach.
❖ Eg: contracts torts
Public vs Private
● Private bodies also exercise public power
○ Eg media corporations→constructing the terms of public debate on important political
issues.
● Industry organisations have significant input into law-making
○ Eg mining industries→development of policies affecting the environment
Public Private
❖ About: ❖ About:
➢ Concerned with ➢ The relationship between individuals
the functioning ➢ Private realm distinct from public arena
of a state as an ➢ liberty , individualism and equality
entity ❖ Origins: liberalism in 19th century- historical struggles
➢ The in Europe and North America
relationship ❖ “to break away from a traditional social order based on
between the hierarchy, privilege and status”Law in Context
state and its (Federation Press, 4th ed, 2012)
citizens ❖ notion of a purely private realm is impossible to sustain
❖ Eg: criminal law, in the face of modern life
constitutional law and ❖ Eg: Family law, contract law, environmental law
administrative law ❖ The environment→enforcement is an issue + public
interest in regulation is complicated by the history of
land use as a species of private property

Classification by Subject Matter

● More straightforward classifications
○ constitutional law, discrimination law, consumer protection law, employment law,
intellectual property law, environmental law
Classification by Source
● division of law: classifying according to its institutional source
○ Parliament (executive + legislator) or the courts
Parliament
● A law made by Parliament= Act/statute/legislation
● Parliament can delegate their law making power to particular non-parliamentary bodies
○ =delegated/ subordinate legislation
○ under authority of Parliament (delegated legislation).
■ Eg rules, regulations and ordinances
Courts
● Law made by judges in the superior courts (deciding cases)= common law/case law/
judge-made law
Meaning of Common Law
1. Type of Legal System:
● Australia has a common law legal system rather than civil law legal system, because it was
colonised by Britain, a common law country.
○ reflects the special role and status of judges as law-makers in the English legal tradition
2. Type of Law:
● distinction between common law (the courts) and statute (Parliament)
● Courts have a significant role in interpreting legislation
3. Distinction with equity
● Courts in England had a separate court called Equity which operated alongside common law
courts
International Law
● Australian Parliaments+courts derive their formal legal authority from the Constitution
○ Constitution is a special kind of statute which creates the framework for government for
the nation as a whole
● Australia is a sovereign nation state= part of global environment where international law has a
vital role
● International law is only enforceable in Australia when it has been ratified +incorporated into
domestic law by Commonwealth/ State legislation
● May have an indirect effect on Australian law→ can help judged interpret laws (especially when
positions are unclear)
● High Court’s interpretation of s 51(xxix) of the Constitution has enabled the Commonwealth to
legislate with respect to "external affairs"
Autonomy and Legitimacy
● Autonomy of law: the idea the law is a separate discipline with its own values, rules, institutions
and processes
○ Defines western legal tradition
○ Other countries legal systems are a means of social ordering and moral authority
● Autonomy does not exclude the influence of morality or politics
○ there is not always consensus in our society about policy matters or what morality entails
■ The law provides a mean of deciding between these competing claims
Positivism
● Existence of competing claims (politics vs morality) = problematic nature of legal adjudication
● Involved in human rights and international law
● Before: Natural law→ before modern era, traced law’s authority to God/nature/reason
● Origins
○ 18th-19th century: natural law was challenged by legal positivism
■ Increased secularity of society+philosophical scepticism + modern scientific
thought
○ hand in hand with the systematisation of English common law
● Positive Conception: law is rules “posited” by a person/body with the authority to command
○ A law is a law, regardless of its moral stance
○ Formal separation of law from morality
● Contrasted by Aboriginal customary law → associated with social mores (customs) and spiritual
beliefs of the community
Formalism
● Legal Formalism: law as a self-contained body of rules, objectively and logically applied by
those with specialist knowledge
● Assumes that law is objective and can be “discovered” through apolitical and value free
processes.
● Origins: late 19th cent, by legal realists in US
○ Feminist theory and radical critiques
● incorporate diverse views about law, in broad terms they reject the notion of law as objective,
neutral and wholly autonomous.