The basis of the Australian legal system is the belief in the independence of the judiciary, justice, and law. Australians and citizens of other countries are treated equally, and safeguards protect people against unfair actions of officials or government. Such principles as separation of powers, judicial precedent, and procedural fairness form a strong basis for the whole legal system.
Generally, Australian jurisprudence was developed based on the legal system of the United Kingdom. The Australian system is different from other European, Japanese, and South American systems, since they don’t have much in common with Roman law. Such a common system is somewhat similar to systems of Canada, India, the United States, Malaysia, and New Zealand.
A distinctive feature of the common system is that previous cases determine future decisions.
Constitution of Australia
The Commonwealth of Australian Constitution Act was passed in 1900. In fact, it created the Commonwealth of Australia and the states, as a part of the federal Commonwealth. It also provided a new constitution that came into power in January 1901. This constitution described a federal government, where powers are shared among the states and the federal government itself, highlighting certain exclusive powers. For example, the exclusive power to make commercial and trading laws, as well as laws on matters like immigration, defense, external affairs are governmental. At the same time, the territories are independent regarding legislative powers and all matters that are not directly related to federal issues. If local and federal laws differ regarding certain issues, federal laws prevail.
Separation of Powers
According to the Constitution of Australia, there are three groups of people who have power and they create a balanced system. Each group has certain means to control other two groups. Such an approach protects the country from a person or a group of people who could take all the power.
The Parliament is the center of legislative power. Executive power implements laws made by the Parliament, and it’s concentrated in the government. The third type of power is the High Court, which estimates laws according to the constitutional principles.
Division of Powers
If powers are not mentioned as commonwealth in the Constitution, they remain with the state. Thus, powers are divided between the Commonwealth Parliament and the State Parliament. There are some areas where these two powers are concurrent, for example, the taxation power. Some powers may be applied simultaneously in the same area, and some powers are exclusively commonwealth. These powers include such systems as legal tenders, the currency, lawmaking for the government of a certain territory, etc.
The Commonwealth isn’t restricted regarding areas where it can make laws. On the contrary, a state is able to make laws only on particular territories which are in the jurisdiction of this state. In some areas, where the legislative power hasn’t been given directly to a commonwealth, the states have exclusive powers (for example, contract law, criminal law, and motor law).
The Commonwealth Parliament
This is the logical center of the Australian government. It consists of two Houses (the House of Representatives and the Senate), and the Queen, who is represented by her Governor General. Thus, Australia combines elements of parliamentary democracy with those of a constitutional monarchy.
The parliament has five quite important functions:
- Legislative function;
- Provides a forum for representation;
- Provides the formation of a government;
- Assesses actions of government;
- Provides funds for the government.
This position performs several functions described in the Constitution, and it’s appointed on the advice of the Prime Minister, by the Queen. Generally, duties can be divided into ceremonial (formal duties), statutory duties, constitutional duties, and social duties (non-ceremonial).
There are 76 Senators in the Senate. 6 states elect twelve Senators, and two are elected for the Northern Territory and the Australian Capital Territory. The latter ones are elected for three years, while state Senators – for 6 years.
All the States are represented equally in the Senate, regardless of their population. The modern Senate has a lot of power, since there is no bill that could become law without the agreement of each House. The Senate also has a developed system of committees, which are the major part of Senators’ work.
The House of Representatives
There are 150 Members of the House of Representatives, and each one of them represents a certain electoral division. Such Members are elected for up to three years.
An interesting fact about the House is that the party that has the biggest support in the House forms the Government. Members also participate in committee work and lawmaking and also represent their electors.
The Prime Minister appoints the Governor-General. In turn, the Governor-General appoints the parliamentary leader of the party that has a majority of Members in the House of Representatives. Such a majority forms the government. All the Ministers must be also members of the Parliament.
All the Ministers are controlled by the Federal Executive Council. He signs most formal documents and receives ministerial advice.
The High Court of Australia is established by the Constitution, as well as any other courts created by Parliament. All the judges are appointed by the Governor-General, who acts on the advice of the Federal Executive Council.
The High Court applies and interprets the Australian law; it decides cases of highest significance, such as the validity of laws regarding the Constitution. It hears appeals from Territory, Federal, and State courts.
Territory and State Courts
These courts work with matters controlled by territory and state laws. They also may consider some federal matters, in case jurisdiction is conferred by the federal parliament. Most of the criminal matters are considered by territory and State courts. Each of these courts acts independently.