How Australian Law Works
Understanding how Australian law works helps individuals, professionals, and organisations—including those working with animals—know their rights, responsibilities, and the systems that govern society.
The Three Arms of Government
Australia’s legal system is based on the separation of powers between three key institutions:
| Arm | Role | Example |
|---|---|---|
| Parliament (Legislative) | Makes and changes the laws | Passing Acts like the Companion Animals Act 1998 (NSW) |
| Executive (Government) | Administers and enforces laws | Government departments and councils implementing animal laws |
| Judiciary (Courts) | Interprets and applies the law | Courts ruling on whether a law was broken or how it applies |
This separation ensures checks and balances in how laws are made, applied, and reviewed.
Levels of Government
Australia is a federation, which means that power is shared between:
- Federal (Commonwealth) Government – handles national issues (e.g. defence, immigration, taxation)
- State and Territory Governments – handle areas like animal welfare, education, health, and policing
- Local Government – responsible for local implementation (e.g. council-run pounds)
When State and Federal Law Conflict
If a valid federal law conflicts with a state law, Section 109 of the Australian Constitution says the federal law takes precedence, and the state law is invalid to the extent of the inconsistency.
However, because animal law is not a federal power, it remains under state and territory jurisdiction. The federal government cannot override these laws unless the Constitution is amended or all states and territories voluntarily agree to adopt uniform legislation—such as in areas like consumer law and workplace health and safety (WHS), where laws remain state-based but are harmonised nationally.
Sources of Law in Australia
- The Constitution
Outlines the powers and structure of government. It defines which topics the federal government can legislate on, with anything not listed usually falling to the states. - Statute Law (Legislation)
Laws made by parliament. These are the main rules that govern society, e.g. Prevention of Cruelty to Animals Act 1979 (NSW) - Regulations and Subordinate Legislation
Detailed rules made under Acts. These explain how laws operate in practice and often include standards, offences, and enforcement procedures, e.g. Prevention of Cruelty to Animals Regulation 2012 (NSW) and related animal welfare codes. - Common Law (Case Law)
Law made by judges through decisions in court cases. These legal principles can set precedents that apply in future similar cases, e.g. Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130.
How Laws Change
Laws can be changed at both state and federal levels through different processes:
| Type | How it Changes | Example |
|---|---|---|
| Acts (Statutes) | Amended or repealed through parliament | Prevention of Cruelty to Animals Act 1979 (NSW) updated to strengthen enforcement powers |
| Regulations | Modified by government departments, often after consultation | Prevention of Cruelty to Animals Regulations 2012 (NSW) were introduced to accompany the Act |
| Common Law | Changes through new court decisions or higher court appeals | Court interprets or clarifies statute, e.g. Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 |
| The Constitution | Requires a referendum (majority of voters in a majority of states) | E.g. 1967 referendum allowed federal laws for Aboriginal people |
Case Study: NSW Animal Management Framework
| Type | Document | Role |
|---|---|---|
| Legislation | Companion Animals Act 1998 (NSW) | Main law covering pet registration, dog control, dangerous dogs |
| Regulation | Companion Animals Regulation 2018 (NSW) | Adds detail about microchipping, fines, signage, administration |
| Operational Guidelines | Codes of Practice | Support law enforcement and set industry expectations |
| Enforcement | Local councils and the Office of Local Government | Carry out inspections, issue penalties, maintain registers |