1. Australian Legal System
An overview
May 2006

3. Australia – a federal system with 9 jurisdictions

4. Structure of government
The Constitution

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 electorates 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
722 local government bodies in Australia - a diverse range of metropolitan, regional, rural, and Indigenous communities. Of these, 579 are regional/rural.
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. Estab by The Constitution
Federal Court of Australia - most civil disputes, some summary criminal matters governed by federal law are decided. Estab. by Judiciary Act 1903
Family Court. Estab 1975
Federal Magistrates Court. Estab 1999

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 Supreme Courts

19. Other bodies Administrative Appeals Tribunal Native Title Tribunal
Industrial bodies

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

21. Parliament – www.aph.gov.au

22. Federal legislation online

23. State governments, eg:

24. Legislation online – each state

25. Caselaw online