Transcript No Slide Title

Summary of Lecture 1 The
Australian Legal System
• Operation of the Australian legal system
• English common law heritage, federal system of
government
• constitutional arrangements;
• Basic court structure at both state and federal
levels;
• function of tribunals; and sources of our laws,
operation of the doctrine of precedent.
2
The Australian Constitution
© Oxford University Press, 2007. All rights reserved.
Learning Objectives
• Understand what Federalism means
• Explain what the separation of powers doctrine means
• Explain how the Australian constitution divides power
between the federal and state jurisdictions
• Describe which powers are exclusive , concurrent and
residual
• What are the procedures to amend the constitution?
• Understand the Landmark cases that give meaning to
the Australian constitution e.g the Tasmanian Dam
case , Uniform tax case , Engineers case , Re Wakim
and the Boilmakers case.
Federalism
• Australia has a federal system of government
• the meaning of federalism
– A system of government where several states (6 in Australia) form
a single nation with a central government but each state remains
independent for their own internal affairs.
– Why ? large countries like Australia and USA can govern at a local
level by individual states but certain larger matters like defence are
best dealt with by a central government.
• federal law prevails over state law if there is any inconsistency
• doctrine of reciprocity:
The commonwealth parliament can make an act of parliament ( law)
that can bind the state and a state parliament could pass a law affecting
the commonwealth.
the Engineers’ case. P 19
The Australian Constitution
There are 3 sources of legislative ( law making power) in the
Australian government.(division of law powers)
• Exclusive powers: exercised by the Commonwealth to make
law in specific areas
e.g. defence. customs , federal government.
• Concurrent powers: Commonwealth and states
– Both federal and state government legislate alongside each
other but if any inconsistent federal overrides the state e.g.
education , health , commerce
• Residual powers (remaining): exercised by the states.(i.e. not
residual or concurrent powers)
- Only states can use this power to fill the gap in the law not
filled by the commonwealth e.g contract and business law
Landmark constitutional cases
High Court expands Commonwealth powers
Examples:
• the Tasmanian Dam case ( see exclusive powers)
See page 21 Coursebook.
• Uniform Taxation case No 1.( see concurrent
powers)
See page 23 of Coursebook
Changing the Constitution
Section 128 of the Constitution:
All of the following requirements must be met:
The proposed amendment must be:
•
passed by over 50% (i.e. 51% at least) (an absolute majority)
of all elected members in both Houses of Parliament; and
•
put to a referendum of all Australian votes within two-six
months after the absolute majority vote; and
•
approved by a majority of voters and by a majority of voters
in a majority of States; and
•
given Royal Assent by the Governor General on behalf of
the Queen.
Separation of powers
Means in theory that the three arms of government
are supposed to be separate and independent.
• The division of power between:
(i) the legislature (parliament)
(ii) the executive (cabinet)
(iii) the judiciary. ( judges and the Courts)
• To what extent is the doctrine of separation of
powers a practical reality?
Australia Act 1986 (Cth)
• Enacted in 1986 the Act was designed to bring
constitutional arrangements between the commonwealth
and the states into uniformity
(together) by aligning
their legal and constitutional arrangements.
• features of the Act which terminate UK ties
– Laws passed by the UK government no longer affect
Australia.
– Australian laws can be inconsistant with UK laws
– UK parliament has no responsibility for the governance
of Australia
– Cannot appeal from Supreme Court to privy Council.
• note procedures for amendment.
Bill of Rights
Q : In the absence of a Bill of Rights in Australia,
what are the sources of our individual rights?
Australians must rely on a number of provisions in the
constitution which aim to protect fundamental freedoms.
Also there are arguably some implied rights from
democracy and rule of law which add to the formal
constitutional rights.
Examples : presumption of innocence etc.
Q Does Australia need a constitutional Bill of
Rights?
What about certainty of the law ?