Introduction to the Australian Legal System
This summary covers Australia's legal system: colonization, Indigenous laws, reception of English law, Federation, legal independence, primary and secondary sources of law, legislative process, delegated legislation, court structure.
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Week 1: Introduction to the Australian Legal System
Australia's Colonization & Indigenous Laws
□ Australia was colonized by Britain in 1788 and legally classified as
"settled."
□ Mabo (No. 2) (1992):
o High Court ruled that Australia was not "terra nullius."
o The British Crown still acquired sovereignty and the right to
allocate land without Indigenous consent.
o Native title (Indigenous land ownership) recognized but
limited in scope.
Reception of English Law
u NSW was classified as "settled" under legal principles.
□ Three branches of government:
1. Legislature
2. Executive
3. Judiciary
□ Judicature Acts 1873-1875: Fused common law and equity.
□ Law received in three waves:
1. 1788: English law applied to NSW.
2. 1828: Australia Courts Act updated received English law.
3. 1859: QLD separated from NSW, adopting NSW laws.
Post-Reception Developments
□ Colonial Laws Validity Act 1865: Limited British legislative control.
□ Statute of Westminster Adoption Act 1942: Strengthened
Australia's legislative independence.
u Australia Act 1986: Severed remaining legal ties with the UK.
Federation (1901)
□ Australia adopted a federal system, sharing power between
national and regional governments.
□ Inspired by the US federal model.
Australia's Colonization & Indigenous Laws
□ Australia was colonized by Britain in 1788 and legally classified as
"settled."
□ Mabo (No. 2) (1992):
o High Court ruled that Australia was not "terra nullius."
o The British Crown still acquired sovereignty and the right to
allocate land without Indigenous consent.
o Native title (Indigenous land ownership) recognized but
limited in scope.
Reception of English Law
u NSW was classified as "settled" under legal principles.
□ Three branches of government:
1. Legislature
2. Executive
3. Judiciary
□ Judicature Acts 1873-1875: Fused common law and equity.
□ Law received in three waves:
1. 1788: English law applied to NSW.
2. 1828: Australia Courts Act updated received English law.
3. 1859: QLD separated from NSW, adopting NSW laws.
Post-Reception Developments
□ Colonial Laws Validity Act 1865: Limited British legislative control.
□ Statute of Westminster Adoption Act 1942: Strengthened
Australia's legislative independence.
u Australia Act 1986: Severed remaining legal ties with the UK.
Federation (1901)
□ Australia adopted a federal system, sharing power between
national and regional governments.
□ Inspired by the US federal model.
n Commonwealth Constitution Act 1900 (UK): Became law on
January 1, 1901.
□ First Governor-General: Lord Hopetoun.
□ Current Governor-General: Sir Peter Cosgrove.
□ Head of State: Queen.
Sources of Law in Australia
Primary Sources
1. Legislation (Statutes, Acts of Parliament)
2. Delegated Legislation (Rules, regulations, by-laws)
3. Court Judgments (Common law, precedents)
Secondary Sources
1. International law (Treaties ratified by Australia)
2. Law reform commission reports
3. Academic commentary (Books, journal articles)
Legislation
□ Passed by nine parliaments in Australia (one federal, six state, two
territory).
□ Hierarchy: Federal laws override state laws (Section 109 of the
Constitution).
□ Invalidation: High Court can strike down laws beyond Parliament's
powers.
Functions of Legislation
□ Create new laws (Override outdated common law).
□ Repeal laws (Remove unnecessary laws).
□ Codify laws (Consolidate multiple laws into one).
Process of Making a Law
1. Bill introduced and passed through both houses of Parliament.
2. Sent to Governor-General for assent.
January 1, 1901.
□ First Governor-General: Lord Hopetoun.
□ Current Governor-General: Sir Peter Cosgrove.
□ Head of State: Queen.
Sources of Law in Australia
Primary Sources
1. Legislation (Statutes, Acts of Parliament)
2. Delegated Legislation (Rules, regulations, by-laws)
3. Court Judgments (Common law, precedents)
Secondary Sources
1. International law (Treaties ratified by Australia)
2. Law reform commission reports
3. Academic commentary (Books, journal articles)
Legislation
□ Passed by nine parliaments in Australia (one federal, six state, two
territory).
□ Hierarchy: Federal laws override state laws (Section 109 of the
Constitution).
□ Invalidation: High Court can strike down laws beyond Parliament's
powers.
Functions of Legislation
□ Create new laws (Override outdated common law).
□ Repeal laws (Remove unnecessary laws).
□ Codify laws (Consolidate multiple laws into one).
Process of Making a Law
1. Bill introduced and passed through both houses of Parliament.
2. Sent to Governor-General for assent.
3. Becomes an Act of Parliament.
Commencement of Legislation
□ Default commencement varies by state:
o NSW, WA, VIC: 28 days after assent.
o TAS: 14 days after assent.
o QLD, SA, NT: On the day of assent.
o ACT: The day after notification in the Gazette.
Delegated Legislation
□ Made by government ministers or executive bodies under authority
of a parent Act.
□ Examples: Environmental regulations, tax rules.
□ Benefits:
o Faster and cheaper than passing formal legislation.
o Made by subject-matter experts.
□ Criticisms:
o Less public scrutiny.
o Possible violation of separation of powers.
Amending & Repealing Legislation
□ Amendments: Introduced through new laws (e.g., Native Title
Amendment Act 2007).
□ Repeals:
o Some laws contain sunset clauses (expire after a
It looks like the boxes you're referring to might be artifacts from copying
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Week 1: Introduction to the Australian Legal System
n Australia was colonized by Britain in 1788 and was considered
"settled" as a matter of law.
Commencement of Legislation
□ Default commencement varies by state:
o NSW, WA, VIC: 28 days after assent.
o TAS: 14 days after assent.
o QLD, SA, NT: On the day of assent.
o ACT: The day after notification in the Gazette.
Delegated Legislation
□ Made by government ministers or executive bodies under authority
of a parent Act.
□ Examples: Environmental regulations, tax rules.
□ Benefits:
o Faster and cheaper than passing formal legislation.
o Made by subject-matter experts.
□ Criticisms:
o Less public scrutiny.
o Possible violation of separation of powers.
Amending & Repealing Legislation
□ Amendments: Introduced through new laws (e.g., Native Title
Amendment Act 2007).
□ Repeals:
o Some laws contain sunset clauses (expire after a
It looks like the boxes you're referring to might be artifacts from copying
and pasting text. Here's your text with those formatting issues removed:
Week 1: Introduction to the Australian Legal System
n Australia was colonized by Britain in 1788 and was considered
"settled" as a matter of law.
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