Introduction
New South Wales Courts were established under Charters of Justice early in our colonial history, and later Acts of the British and New South Wales Parliaments. The Supreme Court is the highest court in New South Wales, and its judges also rule on state constitutional issues, thereby exercising a degree of judicial review over legislation.
Two years after the Australian states federated into the Commonwealth of Australia in 1901, the Australian High Court and other Federal courts also began to be established so that both state and federal systems of courts now exist. The judicial power of the Commonwealth is vested by Section 71 of the Australian Constitution, and through subsequent Commonwealth legislation, in the High Court, the Federal Court, the Family Court of Australia and the Federal Magistrates Court. Certain state courts such as the New South Wales Supreme Court have also been given federal jurisdiction by the Federal Parliament.
Since 1986 the final court of appeal for any Australian case has been the High Court of Australia. Prior to that some cases could be considered by the English Privy Council. The High Court also has the important function of interpreting the Australian Constitution as well as the constitutions of each State.
The Sources of Law
There are two main sources of law in New South Wales:
1. Legislation or Statute Law
Parliaments pass laws (or 'statutes'). These can be Federal or State Parliaments, depending on what the laws are about. The Australian Constitution sets out the powers of the Federal Parliament. The States retain all other (residual) powers and may pass laws in all areas not specifically allocated to the Commonwealth. Laws passed by parliaments often give Ministers the power to make regulations under a particular Act (such as road traffic rules) - thus Ministers can, in effect, make laws, although these can be overridden by a House of Parliament. Generally, where state and Commonwealth laws disagree on a particular subject, the court will find the Commonwealth law to be superior. The highest or basic form of state law is constitutional law, which is that founded on the interpretation of the New South Wales Constitution.
2. Case Law or Common Law
The courts are the custodians of the rights of citizens; they interpret laws passed by parliament; and, through their decisions, make the common law. The courts usually follow precedent; that is make decisions based on what earlier courts have decided was the law when similar facts were presented in a case. However, judges often have to decide how to apply the law to a completely new situation. If there is no legislation covering the area, the judges have to decide what the law should be in this new situation, so as to settle the dispute before them. Thus the common law is built up over time with the decisions and interpretations of judges. Statute law often has the effect of reducing or eliminating any common law that may have existed in the same area. Common law countries are generally those where the legal system had essentially British origins, such as the USA, Canada, New Zealand, Australia, and Britain itself. Most now also have some form of constitutional or legislative bill of rights to protect individual and property rights but where this does not exist or is very limited (as with Australia) human rights are largely protected through common law.
Courts' Interpretation of Parliament's Laws
Part of the courts' role is to interpret the laws which Parliament has made. The Parliament of New South Wales passes laws covering many different issues. If a person breaks one of these laws they can be taken to court, or a person can go to court to enforce rights given to them by Parliament.
The court decides whether the law has been broken or what rights to uphold by:
1. establishing the facts;
2. applying the law to the facts.
In interpreting the law, the courts, or rather the judge or judges, may decide that the law itself which Parliament has passed is not valid. This can be for a number of reasons, such as being contradicted by another law or not being within the powers of the State Parliament as delegated by the Commonwealth or State Constitutions. The Parliament and the courts are separate: Parliament makes statute laws, the courts interpret the law. The judiciary (courts) can also "make" law through interpretations and application of common law.
