The Australian Legal System
All countries are a reflection of their histories and this is very much the case with governmental structures and the associated legal system. The Australian legal system is based on a fundamental belief in the rule of law, justice and the independence of the judiciary. All people—Australians and non-Australians alike—are treated equally before the law and safeguards exist to ensure that people are not treated arbitrarily or unfairly by governments or officials.
Principles such as procedural fairness, judicial precedent and the separation of powers are fundamental to Australia’s legal system.
The common law system, as developed in the United Kingdom, forms the basis of Australian jurisprudence. It is distinct from the civil law systems that operate in Europe, South America and Japan, which are derived from Roman law. Other countries that employ variations of the common law system are the United States, Canada, New Zealand, Malaysia and India.
The chief feature of the common law system is that judges’ decisions in pending cases are informed by the decisions of previously settled cases.
Australian law has evolved via many routes: customs of the people, legislation, case law and public opinion. And the major historical sources of law in Australia are the common law, the law of equity, statute based law and the law concerning native title.[i]
Australia is a federation with seven constitutions; one for each of the six States and one for the Commonwealth. These constitutions provide for a parliament for each of the States and a parliament for the Commonwealth of Australia.[ii] The Australian Constitution of 1901 established a federal system of government, under which powers are distributed between the federal government and the states. It defined exclusive powers (investing the federal government with the exclusive power to make laws on matters such as trade and commerce, taxation, defence, external affairs, and immigration and citizenship) and concurrent powers (where both tiers of government are able to enact laws). The states and territories have independent legislative power in all matters not specifically assigned to the federal government. Where there is any inconsistency between federal and state or territory laws, federal laws prevail. Federal laws apply to the whole of Australia.
In effect, Australia has nine legal systems—the eight state and territory systems and one federal system. However, it is the state and territory criminal laws that mainly affect the day-to-day lives of most Australians.
Each of the federal and state systems incorporates three separate branches of government—legislative, executive and judicial. Parliaments make the laws, the executive government administers the laws, and the judiciary independently interprets and applies them.
The Parliament of the Commonwealth is the federal legislature of Australia. The Australia Parliament is bicameral, consisting of the King or Queen and the two houses, the Senate (the Upper House) and the House of Representatives (the Lower House).[iii]
In Australia, executive authority is vested in the Government General, who is appointed by the British monarch on the advice of the Prime Minister---the head of the majority party in Parliament. The Government General is His or Her Majesty's representative in the Commonwealth. Under the Constitution, the Government General has many important constitutional, official and ceremonial duties to perform.
The judiciary is the government branch concerned with the administration of justice. It is absolutely separate from the executive branch and the legislature so as to check the concentration of government power. The Australia judiciary includes the High Court, the Federal Court, and the Family Court, and courts of the six states and two territories.
The High Court is the superior court in Australia. It has a Chief Justice and six other...
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