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Distinguishing Features of the Australian Legal System

Info: 1881 words (8 pages) Essay
Published: 8th Aug 2019

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Jurisdiction / Tag(s): EU LawAustralian Law

Legal System by definition refers to the process of making and implementation of laws. This system primarily describes the type of laws created and implement among States (Banks, 2006). This reflects the manner on how people, governments and organizations behavior in accordance with the observance of the laws (Banks, 2006).

Banks has described how the Australian Legal System has been created. He Stated that the Australian Legal System has been created based on the legal system of Britain due to the European settlement in Australia. When the British Parliament has granted the permission of putting up government in their colonies including Australia, laws have been created which follows the establishment of the legal system (2006). It was during the 19th century that the six states of Australia created a movement for the creation of central government. The creation of the Australian Constitution that took effect in January 1,1901 has marked the beginning of an independent Australian Legal System.

This paper is an attempt to identify the key distinguishing features of the Australian Legal System. In order to address this paper’s main thesis, a careful investigation and analysis would be done on Australian Legal system in Connection with the Australian Constitution emphasizing the functions of the Judicatory Government, the contrasting concepts of adversarial and non-adversarial system, specifically identify between the criminal and civil cases, and the hierarchy of courts.

The Australian Constitution

Australia is a federation of six States, which includes Queensland, Victoria , New South Wales, Tasmania, South Australia, and Western Australia. These states were held together under three self-governing territories, encompassing their own governments, constitution, parliaments and laws.

Among the fundamental principles that the legal system of Australia has been practicing were the observance of the following: significance of judicial precedent, procedural fairness and separation of powers. This argument has been supported by the political theory that recognizes the importance of the primary powers of a government: the executive power to enforce and carry out the law, the legislative power to create laws, and the judicial power of interpreting the laws. This theory further recognizes the significance of the separation of law to achieve political balance. Though, this principle has been modified in Australian Constitution as Parliamentary Government. This form of government signifies that the there were functions of both the legislative and executive that overlaps since members of the executive government came from the parliament or the legislative government.

Australian Legal System

The legal system of Australia has been considered as one of the world’s “common law” legal system. According to Laster, this characteristic of the Australian Legal System, were rooted on the influenced of English colonial rule which has been developed since the 14th century (1994). Common law tradition has been derived for local custom – developed, created and applied uniformly within the court of Kings (Chisholm and Nettheim, 1992). This primary characteristics has also been observed across countries such as New Zealand, Canada, Malaysia, United States and India (Laster, 1994).

However, one of the disadvantages of observing a common law is the development of adversarial justice system (Laster, 1994). A debate conducted by the Australian Law Reform Commission primarily aims for a call to change the adversarial system. In which this call for a change were due to the associated problems such as unfairness of the judicial system and more (Laster, 1994). This would lead to the further study of what is an adversarial system and how does it affect the Australian Legal System in general.

In an Adversarial System a jury was expected to lay a “common sense” perspective in the adjudication of disputes. Furthermore, the technical rules with this type of system have been developed for a jury to be able to filter the type and nature of information that serves as evidences during the 14th century. The presence of lawyers has dominated the court proceedings during the 18th century (Laster, 1994). A contrasting practiced has been used by the European “civil law” which uses “inquisitorial” system in which the judge takes an active role of doing accurate investigations of the case. Furthermore, evidences and procedures became more flexible. This further provides the judge to have greater latitude or understanding of the court cases (Laster, 1994).

According to the (Australian Law Reform Commission, 1999), an adversarial system refers to a common law system which has been used in different court proceedings by which parties were given the responsibility of defining and investigating the issues (Australian Law Reform Commission, 1999). This implies that this type of systems draws solutions more on both parties and not on the judge. The term `inquisitorial’ on other hand refers to a civil code system by which the fundamental responsibility of investigating the issues or court proceedings (Australian Law Reform Commission, 1999). This signifies another key distinguishing characteristic of the Australian Legal System as an adversarial system. However, it has been stated that there were evidences that shows the Australia review sytem and litigation has adopted and modified some of its adversarial features into with some barrowed civil code of system (Australian Law Reform Commission, 1999).

The Australian Law Reform Commission conducts comparison between the advantages and disadvantages of the adversarial system in the actual application in carrying out civil law in a federal jurisdiction:

The relative merits and demerits of adversarial systems have been extensively debated. There is a variety of texts dealing with judicial impartiality, independence, consistency, flexibility and the democratic character of adversarial processes, or with the disadvantages of the tactical manoeuvring, partisanship and unreliability of witnesses, the obscured focus of many adversarial hearings, and the unfairness that can result in such hearings when parties are unrepresented or there is inequality of legal representation (Australian Law Reform Commission, 1999).

The Commission doesn’t permit the advocacy towards the implementation of non-adversarial federal civil legislation. They don’t change the judicial and the administrative step in informal dispute resolution. The commission findings were directed on judicial, administrative and alternative processes wherein it is held on federal civil justice. This well be provided and understood views and has well delivered basis for a change, effectiveness from adversarial and non-adversarial system (Australian Law Reform Commission, 1999).

Sir Anthony Mason mentioned that the inquisitorial by the Australia was change through a wholesale. The system of civil justice would be a great effort because of the possessiveness of our own traits and culture. It became a reversible manner or for the expertise that will come and will have a new system that provide us with superior to our own selves (Australian Law Reform Commission, 1999).

Hierarchy of Court

The constitution covers the judicial power of the commonwealth to implement the laws and judge, if they hand it out to individual cases-in through higher court and other federal courts. Constitution created the higher court. Other higher positions such as Minister and cabinet, like the governor-general can only removed judges that has been proven to be misbehaving or incapacity in the house parliament.

The hierarchy of courts in every legal system allows consistency and decentralized of decision making from the superior courts to the lower courts. In Australia, the hierarchy of courts was considered complicated in nature sue to its being a federal political system. Each of the six states in each territory has their own hierarchy of courts. Furthermore, each state regard themselves as separate and distinct jurisdictions. The Commonwealth of Australia has established the courts capable of dealing or overcoming problems or issues that falls within the legislative power under the Australian constitution.

The ability of the higher court to divert the constitution and the higher court can decide a law that may unconstitutional, it is not considerable to the power given to parliament but, the parliament may overruled a court with passes under the parliament such as Amending Act through parliament. Parliament doesn’t change through an Act alone the suggestion of the people is needed.

The Higher Court has been entitled by the following jurisdictions:

in accordance and subjected to the regulations of the Parliament Government the higher court is task to hear and determine the appeals of all the decrees, judgments, sentences and orders of the following: among any of the Justices (that use into practise the original jurisdictions of the higher court ); among any of the federal courts or any supreme courts the six states of Australia that exercises the jurisdictions of the federal that the appeal is based on the Queen of the council; and those commissions of any Inter-state who have questions on the laws of the parliament

Is directly responsible of all the matters including the following: arise of matters that is directly involve with the treaty; and matters that have impacts or effect on the representatives or consuls of the country

Among the most significant court in Australia are the Superior courts in each of the six States of Australia. Each of the Superior Court accepts both criminal and civil cases. It hears appeals on cases appeals from the lower courts. Furthermore, most of the jurisdictions that have been filed in the Superior Courts were cases or matters that pertains to Commonwealth matters. The Lower Courts of Summary of Jurisdiction particularly handles cases that pertain to the Australian people’s day-to-day experiences or matters. The Australian courts have Specialist courts, which is commonly known as the Family Court. This court is primarily concern on the cases that pertains to family matters such as divorce, child custody and guardianship of children, and resolution for disputes that concerns financial and property issues.


The Australian Legal System based from the above discussion signifies that a rational system, the Australian Legal System’s distinguishing features were shaped from the state’s historical and ideological circumstances.

It has been concluded that the following were the primary or key features of the Australian System that made it distinct from other legal systems globally. These features includes the following:

The Australian Legal System as one of the world “common law legal system”

The Australian Legal System as an Adversarial system

The Australian Legal System has a specialized hierarchy of courts

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