Australia: a land of plenty (of legislative regimes)

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Burns, K
Loughnan, A
Lunney, M
Willis, S
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Dyson M.

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2015
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Abstract

Australia is a common law-based federation of states and territories that derived its legal system from England. Australia has no national Bill of Rights but its federal constitution grants specific powers to the federal government with the remaining powers exercised by each state. Two states have created human rights statutes. The federal powers to govern crime and tort are limited to crimes or torts falling within one of a number of narrow federal constitutional heads of power. Therefore, most criminal law and tort law is state based and, hence, varies across Australia. On the one hand, each state legislature has ultimate constitutional power to alter the common law through legislation. The federal constitution also enables the enforcement throughout Australia of tortious and criminal decisions by state courts. On the other hand, the High Court of Australia is the ultimate arbiter of the common law of Australia as applicable in each state. The common law system of precedent applicable in Australia thus enables the High Court to bring significant uniformity to tort and crime law in Australia albeit constricted by potentially conflicting state legislation. During the past few decades, statute-based law has proliferated in Australia in many areas including both the criminal and tort spheres. Much of this legislative reform has been driven by ‘law and order’ politics, public policy objectives and lobbying by a powerful insurance industry. Overall, the proliferation of statutes has increased the diversity of both criminal and tort law throughout Australia. Particularly in the area of tort, different states have adopted quite disparate statutory regimes for resolving high frequency disputes such as those involving motor vehicles and work place injuries. However, there remains a strong common law of both tort and crime with a unifying thread provided by the High Court of Australia. There are eight state/territories in Australia of which New South Wales (NSW), Victoria and Queensland are by far the most populous (containing over 75 per cent of the Australian population between them). This chapter most commonly uses NSW as an example because over 30 per cent of Australia's population resides in NSW.

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Comparing Tort and Crime: Learning from Across and Within Legal Systems

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Tort law

Criminal law

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