overview

This page provides an overview of the note on Australian law.

The note covers -

• this introduction - key concepts and structures for understanding the Australian legal system
• systems - pointers to works on jurisprudence
• databases - ket databases for accessing statute and case law, along with some legal news sites
• legislatures - Australian and overseas legislatures
• courts - Australian and overseas courts
• tribunals - Australian administrative tribunals
• ombudsmen and auditors - public/private sector ombudsmen and government watchdogs
• legal aid and advocacy
• reform - Australian and overseas law reform agencies and research bodies
• profession - legal practice as an occupation, vocation and embodiment of power relationships
• police - policing and security in Australia
• crime and society in Australia
• proof - evidence law, motivation, capacity and forensics
• punishment - prisons, fines and other punishment mechanisms
• lawblogs - selected blawgs and legal home pages

     concepts

In essence, law is a system of rules that frame the interaction of members of the community, including individuals, private sector organisations (commercial or otherwise) and government agencies.

Those rules are not static, changing to reflect advocacy by particular interest groups and differing perceptions of what is appropriate, achievable or just. They do not necessarily embody a particular morality, given that many societies are pluralistic - with disagreements about ethical/religious precepts and priorities - and that many societies respect the autonomy of members of the community. Law and justice are not identical; theorists such as Herbert Hart and Hans Kelsen have persuasively argued that 'good' law may indeed unjust and that states such as Nazi Germany which behave in morally repugnant ways may develop/implement good law.

Disagreements about legal taxonomies abound. It is common, however, to encounter a demarcation of Australian law into civil law (essentially that involving relations, particularly disputes, without direct involvement of the state) and criminal law (in which the state assumes responsibility for prosecution of offenders, acting on behalf of the community).

Civil law is often subdivided into specific fields of interest, including family law, migration law, intellectual property law, discrimination law, employment law, contract law, land law, human rights law, privacy law, environment law, consumer protection law. Some of those fields feature in discussion elsewhere on this site. The demarcation between those fields is often blurred and criminal sanctions may be invoked for activity that would otherwise be addressed under civil law. Australian law typically uses more stringent standards of 'proof' (in particular through statute and common law regarding evidence) for criminal rather than civil offences.

It is also common to encounter a demarcation between domestic law (the legal framework within a particular nation, province/state or other jurisdiction) and international law (law governing the relationships between states or activity that takes place across national borders).

Practitioners often distinguish between substantive law (ie the legal rights of one party against another) and procedural law (how a matter is brought before the court, including choice of forum, filing of documentation and what evidence is acceptable).

A more useful demarcation for many users of this site may be between public law (concerned with the state, including taxation, administrative, constitutional and criminal law) and private law (concerned with relationships between other legal 'persons', eg individuals and companies, such as contract, tort and succession law).

From an Australian perspective it is useful to distinguish between a 'rule of law' and 'rule by law', with the former characterising states in which no-one (including government) is above the law and the latter characterising states - such as the USSR and contemporary China - in which law was essentially punitive and in which the powerful were able to disregard restrictions that constrained the activity of ordinary people.

     structures

Australian law is essentially made in two ways.

The first, which most readers of this site probably take for granted, is the enactment of statute law by legislatures (the familiar 'Acts passed by Parliament') and regulations made by Ministers or delegates such as senior officials under the authority of those statutes.

The following page of this note points to databases that provide the text of Australian statutes and indexes for the identification of statutes and regulations.

At the national level a framework for statute law is provided by the Constitution, embodying transfer of some (crucially, not all) powers from the future Australian states to the new nation at the turn of last century.

Law is also made by judges and magistrates, ie by jurists in courts. That 'judge-made' or 'common law' reflects Australia's inheritance of the English legal system. It may involve application of law developed by courts in preceding disputes, with judges for example relying on several centuries of precedent (essentially models for conceptualising the nature of disagreements and appropriate responses).

It may instead involve interpretation of statute law, with courts for example applying a legislature's enactment to a specific dispute or deciding that a particular enactment is invalid because that statute is inconsistent with a provision of the Constitution. Much social/commercial activity in Australia is covered by common law rather than by statute law.

Courts, discussed later in this note, are institutions that in Australia are largely independent of the state and that exist to decide disagreements in civil and criminal law. Australia has an adversarial rather than an inquisitorial legal system, meaning that the judge or magistrate does not conduct independent investigations but instead decides on the basis of argument and evidence provided by the parties to a dispute (in criminal cases characterised as the plaintiff and the defendant).

Many disputes in courts are preceded by attempts at mediation; Australian law is increasingly emphasising use of 'alternative dispute resolution' (ADR) mechanisms - discussed here - for commercial and family disagreements.

Tribunals are official entities that review disputes regarding the implementation of administrative law, ie review and potentially overturn decisions made by officials. They are significant because much official decisionmaking directly affects the lives of individuals and businesses (eg the provision of social welfare/health services) and because tribunals are meant to be more accessible to disputants than courts. Reviews may also be undertaken by federal and state/territory ombudsmen, agencies that rely on shaming faulty official decisionmaking or information handling rather than overturning those decisions.

A range of government agencies act on behalf of the state in enforcing statute and common law. The agency with which most people are familiar is the police, discussed here. However a wide range of agencies have a policing role (including environmental protection and national security activity). Many implement law and may, for example, issue fines (financial penalties), award licences or otherwise constrain the activity of individuals and nongovernment organisations.

Much security (including security for government agencies) is provided on a commercial basis by private security entities, such as night watchmen and nightclub bouncers.

As the preceding paragraphs suggest, law is not static. It changes over time - albeit more slowly and sporadically than many people would like, given the conservative nature of much common law and the gap between community expectations and what appears in the legal databases. Change involves new law from legislatures or from courts, often prompted or legitimised by reports from official law reform bodies or from independent specialists.

It is an Australian shibboleth that everyone is equal in the eyes of the law, a notion embodied in the image of a blindfolded figure of Justice. In practice not everyone enjoys equal access to law in an adversarial or inquisitorial system.

In Australia a foundation for equal access is provided by expectations that law will not be secret: one reason why the databases highlighted on the following page are important. Another foundation, one that is weaker, is a tradition of disinterested pro bono advising/representation by commercial legal practitioners and provision of government funded legal aid to the disadvantaged, particularly in criminal trials.

     a federal system

The development and operation of law in Australia may confuse people from unitary legal systems - and indeed some Australians.

Part of that confuson is attributable to Australia's history, which resulted in a federal system of government. Federation has been reflected in a division of responsibilities between the national government and the state/territory government, a division evident in separate police forces, legislatures, courts and statute law in those different jurisdictions.

Much of this site accordingly identifies national and state/territory responsibilities and law, which on occasion are inconsistent. It also identifies turf wars, with Commonwealth and state/territory agencies pursuing different agendas and battling for influence - or merely for favourable coverage in the nightly news.

For convenience legal practitioners and scholars use a standard set of abbreviations to identify the Australian jurisdictions, as follows -

• Commonwealth (ie the nation and national law) - Cth
• Australian Capital Territory - ACT
• New South Wales - NSW
• Norfolk Island - NI
• Northern Territory - NT
• Queensland - Qld
• South Australia - SA
• Tasmania - Tas
• Victoria - Vic
• Western Australia - WA

     orientations

The author assumes that readers of this site have some familiarity with legal systems per se and with the Australian legal system in particular.

Primers for people without that familiarity include Understanding the Australian Legal System 5 ed (Pyrmont: Lawbook Co 2005) by John Carvan, Laying down the Law 6 ed (Chatswood: LexisNexis Butterworths 2005) by Catriona Cook, Robin Creyke, Robert Geddes & David Hamer, Tradition and Change in Australian Law 3 ed (Pyrmont: Lawbook Co 2005) by Patrick Parkinson, Law & Justice in Australia: Foundations of the Legal System (Melbourne: Oxford Uni Press 2005) by Prue Vines, Australian Courts of Law 4 ed (Melbourne: Oxford Uni Press 2004) by James Crawford & Brian Opeskin, Australian Criminal Justice 3 ed (Melbourne: Oxford Uni Press 2005) by Findlay.

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