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.

The Australian Constitution 2 The Australian Constitution Australian constitution is the single most important document of the Australian legal system. Aimed that legislative powers and judicial functions of the federation would be balanced with the interests of the states. States hold legislative powers as residual powers and commonwealth is responsible for matters of national concern or interest. Aim of constitution is to provide the commonwealth with exclusive powers and concurrent (exist at same time) powers to achieve this task. Constitution has mechanism which allows the constitution to be amended. It is difficult for parliament to formally ammend it so the High Court (judiciary) has interpreted the meaning of the constitution provisions broadly in the commonwealths favour. Examples are : Uniform tax case. ( expanded federal power at the expense of other states) Australia constitution followed the USA system of government that a federation was to share powers between the commonwealth and the existing states. © 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 Engineers case : Facts :The commonwealth parliament passed legislation that affected certain industrial groups at a state level for settling disputes. The groups argued that the commonwealth did not have the power to settle disputes on state employees. Issue : Whether the Act passed by the commonwealth could bind the groups of employees at the state level ( for example did the commonwealth have the power to bind the state groups) Held : The commonwealth parliament had the power to affect the settling of disputes at a state level and the law could be binding on the states. Legal principle : The law making powers of the Commonwealth which is found in the constitution allows them to make laws that affect the interests of states. Note : A law made by state parliament is equally binding on the commonwealth providing it is not inconsistent with commonwealth statute or law.

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 Australia has a written constitution which defines the law making powers of both the federal and state powers. - Each state remains in charge of their own laws within their jurisdiction whilst issues the of national importance are decided by the commonwealth government.

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 The Tasmanian Dam case ( see exclusive powers) Facts : Tasmania (state) passed a regulation (law) to make a dam. However the commonwealth government did not want the dam to be made. Commonwealth used constitution powers to make an Act legislation and regulations to stop the dam from being made. Issue :was the regulation (state)or the Act (commonwealth) valid? Held : Commonwealth can use powers from the constitution to make law that regards their international obligations. This meant the Act was valid but the regulation (state) law was not because it was inconsistent with the laws of the commonwealth. Uniform Taxation case no 1 Facts : The Commonwealth government tried to pass legislation ( through an Act) so that the commonwealth and not individual states had the power to collect income tax. The commonwealth proposed to give back some of this money to individual states at a later date. The individual States argued that the commonwealth government should not have the powers to make tax laws for them because they wanted to be able to make their own laws about income tax for their State and they argued that the constitution allowed them to do this. Held : The commonwealth legislation was decided by the judges to be valid because it treated all states equally and the Commonwealth had the power according to the constitution to make this law and enforce it on the individual states. The Uniform taxation case shows that commonwealth law through legislation overrides that of the State when there is any inconsistency between them in accordance with the constitution.

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. Referendum (page 536) A specific political decision decided by the vote of electors (the people who vote politicians into parliament) Royal Assent ( page 537) The formal signing of a Bill which has been passed by Parliament by the Governor ( state level) or the Governor General ( federal level) which shows the Crown’s ( Government’s) assent or permission to make the proposed law into effect. ( when a bill has received royal assent it becomes an Act of Parliament.

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? Separation of powers doctrine : 1) Legislature (Parliament) the body of government that makes the laws ( legislation or statute law) 2) Executive (cabinet) of the elected government. Administer the laws and deal with the affairs of the state. Includes the Crown , Ministry and Public service ( e.g police etc) 3) Judiciary (Judges and the Courts) interpret , apply and enforce the laws. Is the seperation of powers doctrine a practical reality ? In practice (not theory) there is really little seperation of powers between the legislative and executive branches of the federal system. This is because the Australian system is adopted from the British system of government which uses “responsible government” approach. This means that the Prime Minister and other ministers who control government departments of the Executive (e.g cabinet) must also be elected member of parliament ( legislature)

Australia Act 1986 (Cth) features of the Act which terminate UK ties 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. The Australia Act can be amended in two ways : Section 15 permits the Act to be changed by the Commonwealth Parliament through another Act if requested by the State Parliament. 2) Through a constitutional mechanism by the commonwealth parliament found in s 128 of the Constitution.

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 ?