The Australian legal system is based on a fundamental belief in the rule of law, justice and the independence of the judiciary. All people of Australia and non-Australians are treated equally before the law and safeguards exist to ensure that people are not treated arbitrarily or unfairly by governments or officials. Principles such as procedural fairness, judicial precedent and the separation of powers are fundamental to Australia’s legal system.
The common law system, as developed in the United Kingdom, forms the basis of Australian jurisprudence. It is distinct from the civil law systems that operate in Europe, South America and Japan, which are derived from Roman law. Other countries that employ variations of the common law system are the United States, Canada, New Zealand, Malaysia and India.
The chief feature of the common law system is that judge’s decisions in pending cases are informed by the decisions of previously settled cases.
Consitution of Australia
The United Kingdom passed the Commonwealth of Australian Constitution Act 1900. The significant of the Act was that it created a federal Commonwealth compraising the Commonwealth of Australia and the states. It also incorporated the constitution which came in to effect on January 1901. The Australian Constitution of 1901 established a federal system of government, under which powers are distributed between the federal government and the states Itdefined exclusive powers (investing the federal government with the exclusive power to make laws on matters such as trade and commerce, taxation, defence, external affairs, and immigration and citizenship) and concurrent powers (where both tiers of government are able to enact laws). Thestates and territories have independent legislative power in all matters not specifically assigned to the federal government. Where there is any inconsistency between federal and state or territory laws, federal laws prevail. Federal laws apply to the whole of Australia.
Seperation of powers
Governing Australia needs lots of power. The Constitution says that this power is divided between three groups of people so they can balance each other. Each group checks the power of the other two. This division of power stops one person or group of people taking over all the power to govern Australia.
Legislative power means the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government. Judicial power gives the High Court power to decide whether laws are legal according to the Constitution.
Division of Powers
The law making powers which are not stated in the constitution as belonging to the commonwealth remains with the state .The powers are divided between the State Parliament and the Commonwealth parliament.There are some areas where both the commonwealth and the states have power to make laws these are concurrent powers,for example ,the taxation power. The state can however be excluded from these areas if their law are in consistant with those of the commonwealth. Some powers are stated to be exclusive to common wealth. These includes defence powers , the power to impose exercise and customs dudies , the currency, coin age and legal tender power and making of law for the government of a territory.
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The commonwealth is irestricted on areas for which it can make laws, the state can make laws on the commonwealth areas as long as they are with in the juristiction of the state,where a commonwealth has not been specifically given a power to legislate, then those remaining powers are exclusive to the states , for instance motor law , Criminal law and contract law. Most business law are made as state laws
The Commonwealth Parliament
The Parliament is at the very heart of the Australian national government. The Parliament consists of the Queen ,represented by the Governor General and two Houses (the Senate and the House of Representatives). These three elements make Australia a constitutional monarchy and parliamentary democracy.
There are five important functions of parliament:
- to provide for the formation of a government;
- to legislate;
- to provide the funds needed for government;
- to provide a forum for popular representation; and
- to scrutinise the actions of government.
The Governor-General
The Governor-General is appointed by the Queen on the advice of the Prime Minister. The Governor-General performs a large number of functions which are defined by the Constitution, but fall roughly into three categories: constitutional and statutory duties, formal ceremonial duties, and non-ceremonial social duties. On virtually all matters, however, the Governor-General acts on the advice of the Ministry.
The Senate
The Senate has 76 Senators – 12 are elected for each of the 6 states, and 2 each for the Australian Capital Territory and the Northern Territory. State Senators are elected for 6 year terms, territory Senators for 3 year terms.
Historically, the Senate has been regarded as a State’s House: the States enjoy equal representation in the Senate, regardless of their population, and State matters are still important to Senators.
The modern Senate is a very powerful Chamber. Bills cannot become law unless they are agreed to in the same terms by each House, except in the rare circumstances of a double dissolution followed by a joint sitting of both the houses
The Senate has a highly developed committee system and Senators spend much of their time on committee work.
The House of Representatives
The House of Representatives has 150 Members – each representing a separate electoral division. Members are elected for terms of up to 3 years.
The most distinctive feature of the House is that the party or group with majority support in the House forms the Government. The accountability of the Government is illustrated every sitting day, especially during Question Time.
Members have many other functions. They are involved in law making, committee work and in representing their electors.
Executive Government
The Prime Minister is appointed by the Governor-General, who by convention under the Constitution, must appoint the parliamentary leader of the party, or coalition of parties, which has a majority of seats in the House of Representatives. This majority party becomes the government and provides the ministers, all of whom must be members of Parliament.
The Federal Executive Council, referred to in the Constitution, comprises all ministers, with the Governor-General presiding. Its principal functions are to receive ministerial advice and approve the signing of formal documents such as proclamations, regulations, ordinances and statutory appointments.
Federal Judicature
The Constitution provides for the establishment of the High Court of Australia and such other courts as Parliament may create. The judges of the High Court are appointed by the Governor-General in Council (acting on advice of the Federal Executive Council).
The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws; and to hear appeals, by special leave, from Federal, State and Territory courts
State and territory courts.
Australian state and territory courts have jurisdiction in all matters brought under state or territory laws. They also handle some matters arising under federal laws, where jurisdiction has been conferred by the federal parliament. State and territory courts deal with most criminal matters, whether arising under federal, state or territory law.Each state and territory court system operates independently.
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