Chapter 2
Understanding the Australian legal system

Chapter 2 | Understanding the Australian legal system
1.
2.
3.
4.

The Australian Constitution
The legislature
The executive
The judiciary

The Australian Constitution
Chapter 2
Understanding the Australian legal system

Structure of the Australian
Constitution

Table 2.1

Federal / State relations
Exclusive powers

Concurrent powers

Residual powers

Federal Parliament only

Federal and State
Parliaments

State Parliaments only

Examples
Customs
Defence
Currency
Territories

Examples
Taxation
Marriage
Banking
External affairs

Examples
Education
Property
Crime
Health

Federal / State relations
•If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States.
•If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the
Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid.

Federal / State relations
•Exclusive powers – those powers exercised only by the
Federal Parliament.
•Concurrent powers – most of the powers granted to the Federal Parliament under the constitution are concurrent powers with the states.

Federal / State relations
•Generous interpretations of s 51 by the High Court have seen a steady expansion in Federal power at the expense of the States:
– Koowarta v Bjelke-Petersen (1982)
– Commonwealth v Tasmania (1983)
•Residual powers – anything not expressly identified in the constitution is a residual power of the states.

Changing the Constitution
•The proposed amendment must:
– be passed by an absolute majority of both Houses of
Parliament, and
– be put to the Australian voters in the form of a referendum, and passed by:
• a majority of voters, and
• a majority of the States.

•Of the more than 40 attempts to amend the
Constitution made since Federation, only 8 have been successful. The legislature
Chapter 2
Understanding the Australian legal system

The legislature
•Legislative power is the power to make law, and in
Australia is exercised by the Federal Parliament and the various State and Territory parliaments.
•The supremacy of parliament means that it is the
‘sovereign lawmaker’ within Australia.

The structure of parliament

Table 2.3

Lower House – Federal Parliament
•The House of Representatives is the ‘people’s house’, providing equal representation for the people of
Australia.
•Australia is divided into electorates – about 150 – with roughly equal numbers of voters, each of which elects a representative. •The political party with the majority of members in the
House of Representatives forms executive government.
•The Prime Minister is traditionally a member of the lower house.

Upper House – Federal Parliament
•The Senate is the ‘States’ house’; it protects the rights of the States.
•There is an equal number of Senators from each State
(12) in order to protect the interests of the less populous
States; the Territories are represented by 2 Senators each.
•The founders of the Constitution recognised the danger that the Lower House would favour those States, and the composition of the Upper House addressed that risk by giving the other States the opportunity to oppose any biased legislation.

The parliamentary process

Pressure to change the law

Three readings of a Bill

Figure 2.4

Parliament in operation
•A Bill that has been successfully passed by both
Houses of Parliament is not law until it receives the
Royal Assent of the Crown Representative.
•Traditionally, the Crown Representative acts on the advice of the executive government.

Parliament in operation
•The Act will commence:
– from the date specified in the Act, or
– a date to be fixed by proclamation, or
– if the Act is silent as to its commencement:
• from the date of Royal Assent (State acts), or