The Australian legal system

Here you will find a podcast explaining the Australian legal system. The podcast is an MP3 file. Right click and save to your computer or MP3 player. Alternatively you can listen to it from this page.

You will need to have an audio player such as Windows media player.

Podcast

This is an interview of a legal practitioner Kelvin Postlethwaite by David Mendelssohn on the origins of the Australian legal system. It is a good summary of the issues involved. Length 22m18s.

Legislation and common law

Legislation and common law steer the way in which we as workers perform our professional duties in the workplace.

Before considering specific legislation that an aged care worker needs to be familiar with, it is important to have an overview of the legal system and define some key terms.

• common law — law made in the courts by judges
• parliamentary law — statutes passed by government on behalf of the people
• civil law
• criminal law
• statutory and regulatory obligations.

Community service workers frequently face legal issues and it is important to have a clear idea of how to respond appropriately to everyday situations as well as situations of risk. You will need to have a basic understanding of the legal framework in order to fulfil your role correctly and so uphold client rights, as well as look after your own safety and follow organisational procedures.

Although the Australia Act 1986 made Australia independent of British law legally and politically, our legal system is based on the English system. There are basically two major sources of law:

Legislation

Legislation refers to rules and regulations that have been passed in Parliament (either State or Federal) and have become law. Legislations clearly define what is legal or illegal and as a consequence there are serious sanctions applied if the guidelines or legislations are not adhered to. An example of a legislation which you may have heard about is the Occupational Health and Safety Act.

Another example of a legislated act is the Aged Care Act of 1997, which promotes and maintains the rights of older people and ensures that services operate ethically and professionally.

The laws made by parliament are also known as statutory law, enacted law or legislation.

Parliamentary law in Australia also has its origins in the British system. There are two important principles to remember, the principle of the separation of powers, and the supremacy of parliament.

The separation of powers

The Government, through the Parliament, should make the laws. This is legislative power.

The judges should decide how to interpret and enforce the laws. This is judicial power.

Government departments headed by an elected minister and run by bureaucrats (public servants) should put the laws into practice. This is executive power.

The supremacy of Parliament

Parliament has ultimate authority to make laws but it must do so according to strict rules. It can alter its own structure and its powers. It can change laws. It can overrule or abolish aspects of common law.

Legislation

Legislation is a form of government policy that outlines rules to be followed. The rules and regulations that are passed in parliament (either state or federal) become law. By having the status of a law, there are more serious sanctions if the guidelines (or legislation) are not adhered to.

What is the purpose of legislation? In the community services industry (CSI) there are a number of rules and regulations that relate to client services. They exist to ensure that the rights of clients and workers are considered, a consistently high quality of service is provided, and that safety is always a primary consideration.

Legal requirements vary according to the target group, but some legislation operates across all service types, such as occupational health and safety (OHS) and the Anti-Discrimination Act.

Some services, for example those for children and people with disabilities, have to follow specific laws relating to abuse and physical protection. Workers have to be aware that some specific behaviours are prohibited and that consequences will follow for any worker not adhering to the correct code of behaviour. In some services staff will be required by their employers to have police checks before they are employed.

Common law

Common law, by contrast, refers to judge-made laws — to law and the corresponding legal system developed through decisions of courts and similar tribunals, rather than through legislative statutes or executive action. It is the body of law based on custom, usage, and court decisions. These are laws whereby a decision about guilt is not bound by Acts of Parliament but rather by looking at legal precedence (what decisions have been made previously by a judge), and looking at community attitudes and expectations. An example of common law in Australia is the Mabo case. These are laws whereby a decision about guilt is not bound by Acts of Parliament but rather by looking at legal precedence (what decisions have been made previously by a judge), and looking at community attitudes and expectations. An example of common law in Australia is the Mabo case.

In the community services, common law is framed around duty of care requirements. This means that a worker has a responsibility to provide appropriate standards of care to clients, and a responsibility to assist in maintaining a safe working environment for colleagues and clients. Decisions about worker negligence are related to community standards of what is fair and reasonable care. This is of course far more open to interpretation than an Act of Parliament (legislation).

Sometimes, as in the Mabo case, common law principles influence Acts of Parliament. The Native Title Act of 1993 was established to legislate the common law principles raised by the Mabo decision. This means that the Government wanted to establish specific rules and regulations about native title in Australia.

The law reports then became the 'accumulated wisdom of the past' and were subsequently used by other judges who had to make similar decisions. This is the idea of precedence; new decisions are based on decisions from past cases. It was believed that this would help people anticipate what might happen if they took their particular matter to court and improve consistency in how judges made their decisions. Common law came to mean a uniform basis for decision making.

It is now mostly associated with the idea of judge made or case law, and the doctrine of precedence which holds that new decisions should apply the same principles that were used in the past.

Parliamentary law

An Act of Parliament determines Parliamentary Law. These Acts clearly define what is legal or illegal and as a consequence there are serious sanctions applied if the guidelines or legislations are not adhered to. By having the status of a law, there are more serious sanctions if the guidelines (or legislation) are not adhered to. An example of a legislation which you may have heard about is the NSW Occupational Health and Safety Act 2000.

The laws made by parliament are also known as statutory law, enacted law or legislation.

What is the purpose of legislation? In the CSI there are a number of rules and regulations that relate to client care and client services in the community. They exist to ensure that the rights of clients and workers are considered, a consistently high quality of service is provided, and that safety is always a primary consideration.

Community service organisations, including community-based and government services, have to comply with a minimum set of legal requirements. These vary according to the target group, but some legislation operates across all service types, such as Occupational Health and Safety (OHS) and Anti-Discrimination. Some services, for example those for children, people with disabilities, or aged care services, all have to adhere to laws relating to abuse and physical protection.

Key statutory and legislative requirements that must be adhered to means, simply, your legal obligations to your clients.

Legal obligations are:

• contained within Acts and Regulations and carry obligations for workers—they tell workers what they must do in order not to break the law
• are punishable by law if not followed
• are very clear about what is expected from you in your particular work settings.

Policy

A set of principles adopted by an individual, group, or government. For example, an aged care facility will have a Policy of Occupational Health and Safety

Procedure

The correct method of doing something. For example, hand washing procedure.

Standards

Standards are guidelines or principles, which dictate and describe how specific legislation should be applied. They are a statement about how services should be delivered in the community and a statement about what clients should expect from service delivery. They are a level of quality or excellence attained and accepted as the norm. For example, Aged Care Standards

Guidelines

Official recommendation on how something should be done and what action should be taken in a particular situation. For example, Infection Control Guidelines

A substantial part of your job is based on policies and procedures of the aged care facility where you work. The organisation's management has systems in place to identify and ensure compliance with all relevant legislation, regulatory requirements, professional standards and guidelines.

These policies and procedures are based on current legislation and all staff are expected to comply with this legislation. If a staff member does not comply with policies of the aged care facility, it may be considered as a breach and disciplinary action may be taken in line with legislation that applies. When there are any changes to legislation, standards, regulations or guidelines, management will reflect these changes by also implementing changes to policies, processes and practices as necessary.

What is the purpose of legislation and law and why is it important for workers to be clear about this?

Laws tell us how we must work. In the community services there are a number of rules and regulations that relate to client care, and how services are provided in the community and in health settings. These are in place to ensure that the rights and safety of clients and workers are upheld, and so that a consistently high quality of service is provided at all times. Community service organisations, including community-based and government services, have to comply with a minimum set of legal requirements. These vary according to the target group, but some legislation operates across all service types, such as Occupational Health and Safety (OH&S) and the Anti-Discrimination Act.

The following terms describe the process of applying legislation and law to service delivery:

Statutory Requirements relate to legislation and Acts that have been passed through Parliament. If a legal obligation is statutory it means that there is an Act which outlines what we should do in given situations. One can be legally punished if the Act is not followed. For example, in NSW it is a statutory obligation for community service workers to report situations where a child is at risk of harm.

Regulatory Requirements refer to standards or rules on how a service should be run in order to meet the needs of clients safely and effectively whilst ensuring at all times that clients are able to have control over their own lives.

Regulations are the details of how to make the broader directions of a particular Act work in practice.

The statutory and regulatory requirements contained in Acts and regulations shape community service organisations’ policies and procedures. They guide your decisions about what is “right” in regard to your clients in the same way that road rules provide clear instructions about how we should drive safely so that others are not put in danger.

To summarise, key statutory and legislative requirements are your legal obligations to your clients. They are:

• contained within acts and regulations and carry obligations for workers – they inform workers of what they must do in order not to break the law
• are punishable by law if not followed
• are very clear about what is expected of you in particular work settings.