Legislation

Federal, state and territory jurisdictions

Australia’s legal system is effectively made up of nine legal jurisdictions, comprising of the Commonwealth plus each state and territory. Each jurisdiction develops its own legislation and common law, but they often overlap or are intertwined.

Legislation

In terms of enacting legislation, the Constitution of Australia divides legislative powers between the Commonwealth and state and territory parliaments. The Commonwealth Parliament only has the power to enact legislation in discrete areas specified in the Constitution. With the exception of a few exclusive powers, the Commonwealth's powers to legislate exist alongside those of the states and territories.

In contrast, the states and territories have power to enact legislation on any subject and for any purpose, with the exception of the few exclusive powers the Constitution specifies will be exercised by the Commonwealth. There are now also powers which have been withdrawn from state and territory parliaments by agreement, for example, taxation on income.

Where Commonwealth and state and territory parliaments make laws about the same subject matter and the respective laws clash or are inconsistent, the Constitution provides that the Commonwealth law will supersede the state or territory law.

Delegated legislation

Legislation is not limited to acts of parliaments, and can also consist of 'delegated legislation' such as by-laws and regulations made by persons or bodies who are authorised under the relevant legislation to do so such as:

• ministers
• local authorities (councils)
• industry bodies (for example, the Architects' Registration Board).

Case law

As discussed above, the law also contains a large component of more traditional judge-made law, known as 'case law' or 'common law'. The common law prevails unless the parliament has replaced the relevant part of it with legislation. For example, the law of torts (including negligence) and contract are almost entirely composed of rules derived from various judgments made in previous cases. Sometimes legislation is passed to modify or clearly state the law made by judges. Judges must decide according to legislation where it applies, and in doing so, judges also play a significant role in interpreting legislation.

Court hierarchy

Australian courts are arranged in hierarchies and the decisions of a superior court makes law which lower courts within that particular hierarchy must apply. Given the federal nature of our legal system, under the Constitution, a court hierarchy exists in each state and territory, as well as at the Commonwealth level. The High Court, a Commonwealth court, is the ultimate court of appeal against the decision of another court, and is at the top of both the state and territory and Commonwealth hierarchies.

At the state and territory level, the Supreme Courts are at the top of the hierarchy. A Supreme Court has jurisdiction to consider any issue related to state/territory legislation or common law, but not Commonwealth legislation. Subject to what sort of orders are sought in a particular case, there are monetary limits that serve as a guide as to which court should be determining a particular dispute. Supreme Courts also have jurisdiction to hear appeals from the lower courts. Appeals from the Supreme Court may be heard by the Court of Appeal of the Supreme Court, where an appeal is heard by more than one judge. From there, appeals are heard by the High Court if the High Court considers the case for appeal is strong, or the community needs the law clarified, or both.

District or County Courts are one level beneath the Supreme Courts. These courts have jurisdiction to hear appeals from the lower courts.

Local or Magistrates' Courts are one level beneath the District or County Courts. Civil matters involving relatively small amounts are initiated in these courts.

There are also tribunals which have power to administer justice in disputes under certain legislation. Sometimes this power exists as an alternative to courts, but under some legislation certain disputes must be brought to tribunals first and (on the basis that a court may only hear the dispute on appeal from the Tribunal). A common example are the civil and administrative tribunals that exist throughout the states and territories.

In addition to the state and territory hierarchies, there are Commonwealth courts such as the Family Court and the Federal Court. The Federal Court has jurisdiction to hear appeals from various administrative tribunals. It also has jurisdiction to hear matters under Commonwealth Acts, such as the Competition and Consumer Act 2010 (Cth), Bankruptcy Act 1966 (Cth) and the Copyright Act 1968 (Cth).

The Federal Court may also hear disputes under state and territory laws, including the common law, and appeals from the Federal Court may be heard by the Full Court of the Federal Court, and ultimately by the High Court of Australia.

Doctrine of precedent

The common law developed the 'doctrine of precedent', which generally requires that the law decided in a case is to be followed in later and similar cases. That doctrine also has effect when courts are considering legislation.

The advantages of following precedent where lower courts and tribunals are 'bound' by decisions of higher courts are that:

1. a person is treated by the law consistently with the treatment as another person who has had the same, or a similar, dispute
2. arbitrary decisions are less likely, and the system demonstrates to the public that the decisions made are not arbitrary.

This makes the law more predictable – would-be litigants have more basis upon which to decide whether to take the matter to court, and in turn, it minimises cost and time by reducing the argument in each particular case to the issues which are in real contention.

Where there is no clear statement of the law on a subject from a higher court in the relevant jurisdiction, courts may also be influenced by courts of other jurisdictions. That may include a court in another Australian state or territory, or another country altogether (typically Commonwealth countries such as the UK, New Zealand or Canada).