Australia's Legal System

Australia’s legal system also known as ‘Common law system’ is based on the model which was inherited by those countries whose development was influenced by British Colonialism in particular the commonwealth countries and the U.S. Under the Australian legal system all people whether domestic or international are treated equally before the law and safeguards to ensure the unfairly judgment by government or officials. Australian courts work on ‘adversarial’ system, which innate within the English legal system. This system comprise of two parties presenting their case against each other, where the third party known as judge or magistrate presides the case directly. Whereas in the adversarial system, witness is not handled by the judge directly. The judge listens to each side’s discussions and after the cross-examination of witnesses by both sides then only the judge makes the decision. But in other countries like France In France, ‘inquisitorial’ system of courts operate, where the judge plays an active role in examining evidence and questioning witnesses.

The Australian Constitution

Australia operates in a constitutional monarchy. At a federal (Commonwealth) level, the first institution of law in Australia is the Commonwealth Constitution. The Constitution comprise of rules which controls the power, authority and operation of a Parliament. In Australia, each State has its own constitution. The Commonwealth Constitution consists of federal government, the federal parliament, and the federal courts, the territories, and the creation of new states. Thus, the Commonwealth Constitution is the fundamental document of empowerment in the Australian political and legal systems. It establishes that, where the Commonwealth and a State pass conflicting laws, any valid Commonwealth law trumps (overpowers) the State legislation. States can pass laws on any subject matter.

The federal government has the power to enact legislation about certain areas given by the Constitution. In activities such as marriage, immigration and taxation the Commonwealth has the power to order the law. But in the buying and selling of property and criminal laws constitutional capacity of the Commonwealth Parliament could not do anything.

Division of Powers

“The law making powers which are not stated in the constitution as belonging to the commonwealth remains with the state”. A federation involves a division of powers between the constituent elements in Australia that is between the States and the federal body, the Commonwealth of Australia. One of the most important roles of the constitution is the division of powers between the Federal and state legislatures. The constitution confers a limited number of exclusive powers such as defence, foreign trade and immigration etc but most of the Commonwealth’s powers, granted under s. 51, are concurrent powers. These powers can be exercised by the Commonwealth and the states but, in the event of conflict, the Commonwealth law will prevail (s. 109). Powers which are not expressly mentioned in the Constitution, residual powers remain with the States.

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.

Thus, Legislative involves in making laws, executive administering laws and judicial applying laws to individual cases. “Under the Commonwealth Constitution, legislative power is formally allocated to the Commonwealth Parliament, executive power to the Crown (the Governor- General acting through the Federal Executive Council, effectively the government) and judicial power to the courts”.

The Federal Parliament

The Australian Federal Parliament consists of two houses: the House of Representatives and the Senate. The House of Representatives is called as the “lower house”, whereas the Senate is as the “upper house”.

The House of Representative

“At present, the House is made up of 150 single member electorates. There are 50 electorates in New South Wales, 37 in Victoria, 26 in Queensland, 15 in Western Australia, 12 in South Australia, 5 in Tasmania, 3 in the Australian Capital Territory and 2 in the Northern Territory”.

The Senate

“The Senate has 76 members composed of 12 from each State, plus two each from the territories. Thus, the two houses of Parliament comprise the Legislative arm of the Australian political system. The government is drawn from the party or parties that command a majority in the House of Representatives.

At present, the Liberal Party and the National Party govern in coalition. Legislation has to pass both houses in order to become law and, except in the case of money bills, the Senate has equal power with the House of Representatives”.