Overview
This lecture introduces the main features of the Australian legal system, focusing on its structure and the relationship between the government and its citizens.
Key Characteristics of the Australian Legal System
- Australia uses a common law legal system, inherited from the UK, where case law is a recognized source of law.
- In common law systems, court decisions create new law, unlike civil law systems which rely on legislation.
- The rule of law requires government power to be exercised according to established, public, and fairly made laws.
- Dicey’s standards for the rule of law include equality before the law, protection of personal rights by courts, and no punishment without legal basis.
- The separation of powers divides government into three arms: legislature (parliament), executive (administration), and judiciary (courts).
- Each arm of government should have distinct roles to prevent abuse of power, but sometimes the same individuals perform multiple roles.
- Australia is a federation, creating two main layers of law: the federal (Commonwealth) and state levels.
- The Australian Constitution (effective 1901) defines the federal system and divides powers between the Commonwealth and states.
- Legislative powers are categorized as exclusive (federal only), concurrent (shared), and residual (state only).
- Section 109 of the Constitution states that federal law overrides inconsistent state law if both govern the same subject.
- Courts interpret legislative powers, often favoring federal authority in disputes over the scope of federal power.
- The Commonwealth can use financial grants to influence state policies, even outside its formal constitutional powers.
- Residual powers include areas like education, health, and criminal law, which are controlled by states and may differ between them.
The Power of the People and Government Accountability
- Citizens can challenge executive decisions by appealing to ombudsmen or requesting government information (Freedom of Information).
- Administrative Appeals Tribunals review the merits of administrative decisions and can substitute their own decisions.
- Judicial review allows courts to ensure the executive acts within the law, but courts cannot substitute their decision for the executive’s.
- The separation of powers means courts cannot make administrative decisions, maintaining a balance between branches of government.
Key Terms & Definitions
- Common Law — law developed by judges through court decisions, forming precedents.
- Rule of Law — principle that all are subject to law applied fairly and consistently.
- Separation of Powers — division of government responsibilities into legislative, executive, and judicial branches.
- Federation — union of states under a central (federal) government.
- Exclusive Powers — legislative powers only the federal government holds.
- Concurrent Powers — powers shared by federal and state governments.
- Residual Powers — powers left to the states.
- Judicial Review — court process reviewing the lawfulness of government actions.
Action Items / Next Steps
- Review your own state’s constitution and assess its clarity compared to the federal constitution.
- Consider and reflect on the balance of power in the Australian legal system and potential reforms.