Key Points
- The different types of law that govern Australia are statute law made by parliament, delegated law made by government, and common law made by courts.
- Our legal system with two parallel sets of legislation and courts, reflects the fact the Commonwealth of Australia is a federation of states and territories
- There are various options for accessing legal advice and support, regardless of your financial circumstances.
All actors and institutions involved in the Australian legal system operate in a way that serves the rule of law.
“The rule of law means that the law applies equally to all people, it is applied by impartial, independent courts and… is passed in a procedural way,” William Partlett, Associate Professor at the University of Melbourne Law School, explains.
The Constitution is Australia’s fundamental legal document, that sets up the structures of our government, including parliamentary procedures for creating legislation, Dr Partlett explains. Credit: Kokkai Ng/Getty Images
“Australia, like the UK, Hong Kong, New Zealand, many of the former parts of the British Empire, has a common law system. This means that the chief source of law is statute which is a law passed by Parliament. The courts can create what's called ‘case law’ which can become what we know as the ‘common law’ and common law can always be overridden by statute,” Dr Partlett says.
“So, it's an interaction between an independent judiciary which applies the law and is able to create case law. But the fundamental source of norms is the parliament and the creation of statutes.”
In Australia, when a court decision is made, this is binding on future lower courts in the application of that law, unless Parliament changes it Credit: RUNSTUDIO/Getty Images
For instance, ministers make laws in the form of regulations under the authority of an Act of Parliament.
Federal and state laws and courts
In Australia, some laws apply nationwide, while others differ across jurisdictions.
“There are areas where the federal government is given exclusive authority to legislate under the Constitution, such as marriage and divorce, taxation, defence, issues involving foreign affairs, migration,” Chris Stone from South Australia’s Legal Services Commission says.
“That's why if you're dealing with things like obtaining a visa to visit or to live in Australia, those are Commonwealth laws that you would be dealing with, rather than state laws.”
A common example of legislation that changes depending on your state or territory is road traffic laws.
“In South Australia, there is the Road Traffic Act, but that only applies to South Australia. If somebody is in, say, Victoria, then they have to comply with the relevant laws about driving cars in Victoria. These are state laws,” Mr Stone says.
Most criminal cases are dealt with by state and territory courts in Australia. Credit: Light Bulb Works/Getty Images
Dr Partlett provides some examples.
“A separate section within the federal jurisdiction is the Family Court because family law in Australia is in the national jurisdiction.
“At the state level, we have a number of courts, the Magistrates courts, the County Court, the Supreme Court, the Court of Appeal, and so forth, which deal with the implementation of state laws. The High Court oversees both the federal courts and those at the state level.”
When it comes to criminal law, most matters are dealt within state or territory levels. Legal proceedings are typically initiated by the state in criminal cases, as Greg McIntyre SC, the Law Council of Australia President-Elect, explains.
“Usually, the police service will investigate crimes, they then refer them to the Director of Public Prosecutions, and the Director decides whether or not to prosecute a person.”
This is not the case in legal issues concerning disputes between individuals and/or organisations.
Disputes including breach of contract, motor vehicle accidents, worker’s compensation cases and property disputes are examples of civil law cases. Credit: Lighthousebay/Getty Images
Accessing legal assistance
Unlike civil cases, criminal matters are prioritised in government-subsidised , which include Legal Aid Commissions in each state and territory and Commonwealth legal financial assistance schemes.
“Where people are at risk of imprisonment, they get a higher priority for being granted legal assistance, or in family law where people have limited resources. In civil claims where people are seeking compensation for something, it's generally difficult to get legal aid.”
When hiring a lawyer to represent you in a case, it is good practice to check the validity of their credentials.
“All legal practitioners are obliged to have a current practice certificate under the regulations which apply in each of the states and territories,” Mr McIntyre says.
Practice certificates are issued by statutory bodies in each jurisdiction.
“You can check on their websites whether the individual that you're in communication has a practice certificate and doesn't have any disqualifications upon it. You can also find that information from the Bar Associations and the Law Societies in each state and territory.”
There are law firms who deal with cases on a no win - no fee basis, particularly in matters of personal injuries, motor vehicle accident cases and workers compensation cases, says Mr McIntyre. Credit: Jacobs Stock Photography/Getty Images
There are also community legal centres across the country, including in each state and territory, specialising in providing legal support for family violence cases.
Legal Aid Commissions have limited grants to cover legal representation costs for eligible cases of those unable to afford commercial rates.
However, Mr Stone from the SA Legal Services Commission says most of the times legal aid is not about representation and there are services accessible to anyone.
“Most Legal Aid Commissions in Australia will provide other assistance, such as advice to people that is not dependent on a grant of legal aid.”
Everyone has access to advice and information on their legal matter from the Legal Aid Commission in their place of residence, free of charge Credit: Thurtell/Getty Images
“But I would always encourage people to get some advice before dealing with the matter by themselves or going to court.”
Mr Stone says, getting legal advice is always recommended, especially if you are not entirely familiar with Australia’s legal system.
“What I know, from a lot of experience of dealing with people who have come to Australia from different countries and cultures, is that they may have different understandings of how legal systems work.
“Sometimes people had very bad experiences elsewhere, and that would tend to influence them in terms of their attitude towards the law and legal process. So, getting advice about how the legal system works in Australia is always a good idea.”
A range of government-funded services can help people with a legal issues.
Visit for a comprehensive list of legal assistance providers, including Legal Aid commissions and specialist domestic violence legal services.
