The major sources of law in the Australian legal system are legislation passed by federal and state parliaments, common law developed through judicial decisions, and equity. English common law was initially received but has adapted over time. The legal system evolved from early colonial systems to the federation of states under the 1900 Australian Constitution, which divided powers between the Commonwealth and states. The Constitution established a parliamentary democracy with separation of powers along Westminster system principles.

1. Sources of law in the Australian legal system

14. Commonwealth and state powers Commonwealth State Concurrent powers (Shared powers Exclusive powers (Commonwealth only) Residual powers (State only) Examples s.52: Exclusive powers of Parliament s.90: Customs, excise and bounties s.92: Free trade between the States s.105: Taking over state public debts s.114: Military forces s.115: Currency s.122: Government of federal territories Examples Insurance Banking Industrial Relations Examples Education Local Government Transport Exclusive, concurrent and residual powers

19. Commonwealth Constitution Commonwealth Constitution Parliament has Legislative power Cabinet has Executive power The Courts have Judicial power The Ministry High Court House of Representatives Senate Other federal courts Doctrine of separation of powers

25. Australianness of Australian law ‘ The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root is not a weakness but one of its great strengths. Were it not so the common law would not have flourished as it has, with all the common law countries learning from each other.’ Lord Lloyd, Invercargill City Council v Hamlin [1996] 1 All ER 756 at 764–765

26. The case for a Bill of Rights ‘ The founding fathers of our Constitution took it for granted that individual rights were secure under common law. But the experience of many countries and the growing power of executive government and bureaucracies have lead to greater interest in the notion of incorporating constitutional guarantees of individual rights and freedoms in some kind of Bill of Rights.’ Sir Ninian Steven, 1992

27. The case against a Bill of Rights ‘ If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.’ Sir Harry Gibbs, 1990