The Australian legal system is a federal system consisting of the Commonwealth (federal) government and nine state and territory jurisdictions. The Constitution establishes a separation of powers between the legislative, executive, and judicial branches. The federal government has defined powers under the Constitution while residual powers belong to the states. The court system includes the High Court of Australia at the top, followed by federal and state courts, with local governments also playing a role.
5. Constitution
An Act to constitute the Commonwealth of
Australia [9th July 1900](63 & 64 Victoria -
Chapter 12)
No Bill of Rights
Changes can only be by referendum carried by
majority of voters and majority of states
6. Federal Government
Parliament - bicameral
Senate - States house – 12 senators per state, 2 per
territory – 76 total
• Proportional representation voting system
House of Representatives – People’s house – 150
members, 1 per electorate based on population
• Preferential voting system
7. Division of powers
Australian Constitution s. 51 defines federal powers:
interstate trade and commerce power
corporations power
external affairs power
taxation power
military defence
quarantine
census
currency
weights and measures
8. ..more federal powers
Service and execution of court processes and the recognition of
judgements
Naturalisation and aliens and immigration
Powers for implementation of a uniform railway system
Postal, telegraphic, telephonic, and like services
Pensions and social services
Pacific relations
The influx of criminals
‘Special laws’ for people of any race
Marriage and divorce
Copyright, patents, and trade marks
Bankruptcy
Bills of exchange
Banking (other than state banking)
Insurance other than state insurance
Conciliation and arbitration of industrial disputes
9. Executive power
Executive power – vested in the Queen of
Australia, represented by the Governor General
(Federal) or Governor (each state).
Legislation must be signed by the Governor in
Council
Executive Council – in theory all ministers of the
Crown
10. State government
Each State and 2 territories (NT & ACT) has a
parliament – lower house usually named
Legislative Assembly; upper house is Legislative
Council
All bicameral apart from Qld
Leader of government is called Premier
Preferential voting
11. State powers
States have all powers that are not specified in
the Constitution – the residual powers, eg
policing, public schools, roads and traffic, public
hospitals (through an agreement with the federal
government), public housing, and business
regulation.
Uniform laws in some areas between States
Federal law takes precedence where there is
overlap
States receive GST tax
12. Australian Territories
Mainland teritories
ACT (self governing)
NT (self governing)
Jervis Bay Territory
External territories
Ashmore and Cartier Islands
Norfolk Island (self governing)
Christmas Island
Cocos (Keeling) Islands
Coral Sea Islands Territory
Heard and McDonald Islands
Australian Antarctic Territory
13. Local government
565 local government bodies in Australia - a diverse
range of metropolitan, regional, rural, and Indigenous
communities.
Responsibilities can include:
infrastructure and property services, including local roads,
bridges, footpaths, drainage, waste collection and management
provision of recreation facilities, such as parks, sports fields and
stadiums, golf courses, swimming pools, sport centres, halls,
camping grounds and caravan parks
health services such as water and food inspection, immunisation
services, toilet facilities, noise control and meat inspection and
animal control
14. continued…
community services, such as child care, aged care and
accommodation, community care and welfare services
building services, including inspections, licensing, certification
and enforcement
planning and development approval
administration of facilities, such as airports and aerodromes,
ports and marinas, cemeteries, parking facilities and street
parking;
cultural facilities and services, such as libraries, art galleries and
museums
water and sewerage services in some states
other services, such as abattoirs, sale-yards and group
purchasing schemes
15. Separation of Powers
The Separation of Powers is the principle whereby the
three arms of government undertake their activities
separate from each other:
the Legislature proposes laws in the form of Bills, and provides a
legislative framework for the operations of the other two arms.
the Executive enacts the laws by Royal Assent, administers the
laws and carries out the tasks assigned to it by legislation;
the Judiciary hears cases arising from the administration of the
law, using both statute law and the common law. The Australian
courts cannot give advisory opinions on the constitutionality of
laws.
the other arms cannot influence the Judiciary.
16. The judiciary
Prior to the Australia Act 1986, (and associated
legislation in the parliament of the United
Kingdom), some Australian cases could be
referred to the Judicial Committee of the Privy
Council for final appeal.
With this act, Australian law was made
unequivocally sovereign, and the High Court of
Australia was confirmed as the highest court of
appeal. The theoretical possibility of the British
Parliament enacting laws to override the
Australian Constitution was also removed
17. Federal court hierarchy
High Court of Australia – original and appellate
jurisdiction. Established by The Constitution
Federal Court of Australia - most civil disputes,
some summary criminal matters governed by
federal law are decided. Established by
Judiciary Act 1903
Family Court. Established 1975
Federal Magistrates Court. Established 1999.
Changed to Federal Circuit Court of Australia in
2013
18. State Court hierarchy
Supreme Court in each State, with original and
appellate jurisdiction.
District or County Courts
Magistrates Courts
Small claims courts
Cross vesting powers apply – Full HC decisions
are binding on Full Court of each Supreme Court
20. Court reports
High Court – Commonwealth Law Reports
(authorised) & Australian Law Reports
(unauthorised)
Federal Court – Federal Court Reports
(authorised) & Federal Law Reports
(unauthorised)
Each State Supreme Court produces an
authorised series of law reports