systems respond to the various environments in which they operate.
The different environments create a number of different perspectives
or ways to view legal systems. These include:
A Systematic Collection of Principles
and Rules of Law: These should be
distinguished from principles and rules of morality, politics or
physics. Under this paradigm an analysis of law would be an inquiry
into legal rules to determine what is permitted and what is
An Independent System of the
Government: The legal system should be
separate from the government which possesses 'ultimate law making
and governmental authority'. Under this perspective legal systems are
viewed externally, from the outside. For the system to survive it
requires a level of coherence necessary for viability in the
international community, irrespective of whether the mode of
government is democratic, autocratic or oligarchic.
A Collection of Institutions within a
Geographic Area: The collection
typically includes a legislature which
makes laws, an executive department
which implements the legislature's
policy, courts which
resolve disputes between persons subject to the laws, and a police
force to enforce the law and to
prevent breaches. The collection is bound together into one system by
its common recognition of an ultimate source of authority (eg the
AUSTRALIAN LEGAL SYSTEM
Australian legal system has its base in the English legal system. The
UK parliament had sovereign or unlimited power to make laws, and
therefore, could legislate for colonies, and establish movements in
colonies. The crown (the king or queen) had an inherent power to
operate in colonies and therefore, could establish representatives (a
Governor or Governor General) and endow them with formidable
executive powers called prerogatives.
However, the power of the crown was inferior to, and subject to, that
the Australian legal system all constitutional power is derived from
the UK Parliament and Australian institutions of government are
modeled on those of Britain (crown, parliaments, executive, courts).
However, an important difference which is basic to Australian law is
that, unlike Britain, which has a unitary
form of government, Australia has a
of government (Commonwealth, State and Territory governments).
Further, Australia has a written constitution, which Britain does not
have. A major similarity is that Australian law, like British law,
consists of statutes, delegated legislation, and the common law (also
known case law or judge made law).
OF AUSTRALIAN LAW
source of law is grounded in cultural custom (for example, Roman
civil law or Anglo Saxon custom) which suggests that the idea of
a particular rule of law may be traced to a point of development when
taken into the legal system. That is, the substance of a rule may be
traced to a material source as a matter of history. Therefore, such
sources are referred to as material
sources of law. The material
content of Australian rules of law
(for example, ideas, standards, principles and purposes) as distinct
from their formal validity as enforceable law, has a variety of
has been little borrowing of other overseas law such as that in the
USA over the years. This is despite the fact that some sections in
the Australian Constitution are taken almost word perfect for some
sections the Constitution of the United States of America and there
are other examples. Source of law refers to a source in any
particular legal system that has the authority to declare a rule to
be a law. Such sources are known as authoritative
sources to distinguish as opposed to
SOURCES OF LAW
are three sources of law:
1. COMMON LAW: That part of the law of England formulated, developed
and administrated by the old Common Law Courts. It was originally based
on the common customs of the country but unwritten. The commonsense of
the community, crystallized and formulated by forefathers.
is basically tribal custom. For example, for real estate, the tribe
in question was the Norman conquerors of England, who imposed on
England Norman ideas of land holdings, the feudal
system. These medieval concepts still
form the basis of Real Property Law in Australia.
term Common Law; has 3 distinct meanings:
- Common law
rather than local law (its original meaning). That is, a law for ALL
- Common Law
rather than the law under Equity (see later)
- Common Law
rather than Statute Law.
would be fair to say that until recently case law was the main source
of law, statutes being of a relatively minor importance. However,
today the roles have been reversed. This is because in today's modern
and complex society there is a greater need for government
intervention. Statutes have become the dominant source of law,
particularly inasmuch as statute law can amend or repeal the common
law, and therefore, has priority over it. The main problem with the
common law is that it has been too slow to meet the needs of today's
the other hand, sometimes the common law leads society for example,
When this happens it is called "positive law". Common law
is still with us, but its luxuriant growth has been severely trimmed.
faced with a contradictory statute, the common law must yield, but
frequently statutes vest wide discretions in courts and a new common
law develops as courts interpret and apply these discretions. As
well, the common law stands in sharp contrast to statute law.
Statutes emanate from parliament and are generally aimed at the
future, for active intervention in our lives. Their terms are readily
ascertainable from the statute. However, the common law, being
judgemade law, operates retrospectively
on the parties in a case. It is made
in response to a dispute and because it is concerned with the
particular facts of the subject case it is often difficult to
translate to other or more general circumstances.
EQUITY: Equity is primarily concerned with “fairness” or natural
justice. It is a comparatively new
body or rules founded on distinct principles but claiming to
superiority to the common law because of its superior sanctity
inherent in those principles. It was originally the body of rules
formulated and administered by the Court of Chancery to supplement
and provide relief to the strict rules and procedures of the common
law. It evolved out of church law and therefore, has taken the high
idea of a Court of Chancery was attractive to the King as it allowed
the remedy of defects in the administration of justice through the
established courts. Originally, it had a general mandate to provide
justice in all cases, but over the centuries, the rules of Equity
became fixed. It is sometimes important to distinguish between Equity
and Common Law, but they are similar in being both; judgemade law.
STATUTE LAW: Statute Law includes both direct legislation passed by
Parliament (Acts) and delegated legislation such as bylaws and
regulations initiated by a government body. If there is a conflict
between the three laws, statute law is the superior law.
new legislation is passed there is a hiatus caused by the fact that
the law has not been tested or sufficiently determined by the courts.
This is the case with the Native Title Act. However, over a period of
time the legislation is tested and interpreted in court cases and
becomes more settled. When the legal system is reasonably assured of
what the legislation means because of case law, then the law is
“certain” or “settled”.
statutory definition of site value
for property tax purposes rating values is certain or settled law
because its meaning has been explored and determined by a long line
Case law on interpretation of one section of an Act may converts a
couple of lines (or even words) into a detailed explanation. For
example, the willing seller willing
seller theory of market value
law in Australia gradually became Australian law over time. The
introduction of Torrens Title
through the various Real Property Acts (RPAs), was quite
revolutionary and overturned well established and old principles of
law that applied to old system
title. However, in the early days of implementation (late 19th
century) some courts, particularly the Privy Council (a UK Court that
was the highest court of appeal before 1975), could not believe that
an Australian Parliament really meant what the legislation said. The
consequences of this are still with use in terms of a confused
property law still based on feudal notions. This is one reason that
the law became vernacular (more Australian) particularly, after the
abolition of appeals to the Privy Council in 1975 (Privy Council
(Appeals from the High Court) Act, 1975).
problem with statute law, is that a large amount of law is unclear,
ambiguous or it means not what the legislators intended it to mean
because of poor drafting. Some of the problems of understanding
legislation have been addressed by a trend towards plain
good example of inherently unclear law is the question of what
to land and thus pass with the sale of the land? Clearly, a car
driven onto the land does not become part of the land. A pile of
bricks on the land will most likely not become part of the land.
However, what if the bricks are stacked in such a way that they
support a substantial barbecue in a special barbecue area?
definition of such simple words such as fixtures
can only be determined by complex law including complex legislation.
A typical answer is that it depends on the “circumstances of the
courts are in a hierarchy, and as successive appeals are made against
a lower court decision, a litigant moves up the hierarchy, and in the
end may reach the highest court for Australian law; the High
Court of Australia.
are three main reasons for having a hierarchy of courts:
1. ADMINISTRATIVE EFFICIENCY: The hierarchy system functions as a
filter, with a large number of lower level courts dealing with the bulk
of minor usually not contested cases. Therefore, only a small number of
cases, those raising contentious public policy issues reach the higher
courts. However, constitutional cases are heard from the outset by the
2. PRECEDENT: The more senior and hopefully more talented judges in the
higher courts are better able to decide what principles should become
binding precedents. If all the courts were of the same importance,
there would be no certainty as to which principles of law should be
followed. Inferior courts are bound by the decisions of a higher appeal
court. The courts in ACT’s legal system (and in other states and
territories) are structured in order of seniority or importance. There
is only one superior court in each state, the Supreme
Court, where decisions and judgments
made are noted and used as precedents (examples) for future cases. All
other courts are known as inferior
J, a judge of the Federal Court could not overturn the legal fiction
of terra nullius
(empty land) in Millirpum
because he was bound by acceptance in a number of High Curt cases. It
was not until Mabo
(a High Court case) that the fiction was eventually overturned.
3. APPEAL SYSTEM: If a party is dissatisfied with a result (arising
from a wrong principle of law being applied or an extremely
unreasonable finding of fact), then that party may appeal to have the
case reconsidered by a higher court. If all courts were of equal
standing, and a second court hearing a case on appeal gave a different
verdict to the first instance court, there would be no basis to decide
which decision is the superior one.
court system in Australia is divided between the Commonwealth and the
States/Territories. To enable a more efficient and flexible system,
cross vesting is allowed (Jurisdiction
of Courts (Cross Vesting) Act 1987). This
enables the major courts of each jurisdiction (Commonwealth, States
and Territories) to deal with most Commonwealth matters.
the states’ court system are broadly similar, and perform much the
same functions they have different names. A number of courts, and
tribunals operate independently from the Commonwealth legal system,
even though because of the cross
vesting legislation they may hear and
decide some cases, (eg taxation) that comes under Commonwealth
legislation. Most State courts have what is known as a general
jurisdiction that means they will hear
any case providing it involves some state law.
Tribunals or boards are limited to a special jurisdiction and only
hear matters involving a limited and usually specialist area of
state/territory law. Tribunals are part of what is known as
Alternative Dispute Resolution (ADR) which is the used of non “legal”
bodies to try to resolve disputes because it gets into the court
CAPITAL TERRITORY COURTS
Courts in the ACT dealing with general law are:
the Supreme Courts in the various states and the ACT are only bound
by decisions of the High Court. However, the Supreme Court of the ACT
is not bound for example, by a High Court decision made on appeal
from the Supreme Court of Queensland. This is because the law in the
two states may be different. However, it would be most unusual for a
Supreme Court not to follow a High court precedent, and it would do
so only if there was a clear difference between the laws of the state
and the ACT.
judges of the Supreme Court are bound by decisions of the Full Court
and the High Court. The Full Court may overturn its own previous
decision, but is bound by previous High Court decisions. The High
Court is not bound by any precedents.
the High Court is not bound by the Supreme Court, it will usually
follow Supreme Court precedents, unless it thinks they are wrong.
Similarly, judges in the ACT will usually follow decisions of judges
in Victoria or England or even Massachusetts if they are considered
to be good and relevant law. The closer the legal systems and laws
in the two jurisdictions, the more likely it is that a nonbinding (or
persuasive) authority will be followed.
are reluctant to overturn long established precedents, on the basis
that people have been regulating their affairs on the basis of such
decisions for a long time, and it would be unfair to change the rules
in the middle of the game. However, no precedent is too venerable to
be overturned if necessary. Again, this is shown by Mabo’s
overturning of the concept of Terra Nullius as it applied to
is a generic term used to cover both parliamentary statutes or acts
and can be classified into delegated or
A statute will frequently authorize delegated legislation or
DELEGATED LEGISLATION: There are four types of statutes which apply
in Australia: Commonwealth, State, Territory, and UK statutes. The
first three categories are straight forward and the most important.
South Australia expressly received the British common law on its
foundation in 1836.
to the Australia Acts 1986,
if a State/Territory act came into conflict with an act of the United
Kingdom parliament, still in force in Australia, then technically the
State act gave way and was inoperative. However, since the Statute
of Westminster 1931, an act of the
Commonwealth parliament coming into conflict with an act of the UK
parliament, no longer gives way. It is likely that the very few UK
acts still in force in Australia will, in the wake of the Australia
Acts, be progressively replaced by
State or Commonwealth legislation, or simply be repealed.
Australia is a federal system, disputes will arise from time to time
about whether or not particular acts are actually within the legal
jurisdiction of the parliament which enacted them. Such
jurisdictional disputes between the States and the Commonwealth are,
in the last resort, resolved by the High Court. The process is called
SUBORDINATE LEGISLATION: Subordinate legislation is made under the
authority of acts of parliament which delegate powers to a person or
body of people to make laws in the form of regulations. Today, the
volume of written laws made under such delegated legislative
authority greatly exceeds those laws in acts of parliament.
Parliaments being somewhat unwieldy bodies, tend to limit their own
activities to that of determining broad matters of policy. Therefore,
there is an ever burgeoning mass of legal rules embedded in
regulations, by laws, orders in council and so forth. At the
quality of subordinate legislation produces one of the gravest
problems facing lawyers and citizens alike. The practical task of
keeping up with new regulations is a difficult one. Further, legal
issues arise when questions are raised whether or not regulations
have been validly made within the ambit of the powers to legislate.
Such questions often come before the courts for determination.
Australian States/Territories, there are 4 types of statute that may
be applicable (plus of course rules, regulations and by laws
which may be made under any of these):
STATUTES: State and territory statutes are made by State and
Territory Parliament, while Federal statutes are made by the
Commonwealth Parliament. As well there are two types of statute made
by the United Kingdom Parliament may be relevant. These are known as
Imperial Statute and English Municipal Acts.
the British settled NSW in 1788 they brought their law and much of
that law remains law today. The law applicable to a new colony are
the common law of England, and such statutes that are appropriate to
the circumstances and condition of the colony.
UNITED KINGDOM’S MUNICIPAL ACTS: It is generally assumed that all
statutes in force in England in 1788 became part of NSW’s law on
settlement, except for those statutes that clearly do not apply to
Australia. For example, The Wolf Control Act of 1716 because the new
colony had no wolves. This includes English statutes made between
1066 and 1703 and United Kingdom statutes made between 1103 and 1788.
Some very old English statutes still apply for example, the Statute
of Frauds which applies to contracts over land.
IMPERIAL ACTS: Imperial Acts are also statutes passed by the UK
Parliament but in its capacity as the Parliament of the Empire rather
than Parliament of Britain.
LAWS VALIDITY ACT 1865: One of these, the Colonial Laws Validity Act
of 1865, is closely connected with the Real Property Act. When the
Real Property Act was first passed, it was bitterly opposed by the
local profession, who persuaded the colonial judge, Mr Justice
Boothby, to declare it invalid being inconsistent with English Law.
He was promptly dismissed by the Governor on the address of the
Legislative Council, and a new judge appointed. Boothby refused to
go, and for several months, the two judges worked not quite side by
side, since each held that the other had no authority. Eventually,
the decision of the Colonial Office in London arrived Boothby
was no longer judge and Boothby left for England to appeal.
Colonial Laws Validity Act was passed in 1865 to settle any doubts
which may have existed that colonial parliaments throughout the
Empire could indeed make laws, as everyone but Boothby knew anyway.
Several Imperial Acts still apply. The most important is the
Commonwealth of Australia Constitution Act, under which Australia’s
two Parliaments derive their authority. Some Imperial legislation
including insurance, shipping and a few other topics remain in force.
OF WESTMINSTER: In 1932, the Imperial Parliament passed a statute
known as the Statute of Westminster, in which it declared that no
Imperial Acts would apply to the Dominions without the consent of
these dominions. In theory, the British Parliament could perhaps
repeal that statute at any time, and make new laws for Australia, but
in practice it is unlikely. The status of pre 1932 Imperial
legislation is debatable and unclear, but fortunately of little
relevance to those concerned with commercial law.
FEDERAL AND STATE AND TERRITORY STATUTES: The distinction between
Federal and State/Territory statutes is important but complex.
under their Constitution a State Parliament has power to make laws
for the "peace order and good government of the province"
(South Australia). This has been held to mean any law that the State
or Territory Parliament thinks fit to pass. The Commonwealth
Parliament however has only those powers listed in the Federal
Constitution under s51, and cannot make any laws except by reference
to those powers. The High Court has authority to declare void any
statute or law passed by the Federal Parliament, if that statute or
law is not a valid exercise of the powers granted to under s51.
1955 for example, Prime Minister Menzies passed the Communist Party
Dissolution Act, that would have enabled the government to declare
any opponent a communist, and thereby disqualify him from holding any
office and liable to summary imprisonment. It was held by the High
Court, that this was not a valid exercise of the Commonwealth's
defence power and therefore was void. A similar problem arose more
recently with the Commonwealth’s attempt to try “war criminals”
(Polyukhovich v Comm
(1991) 54 CLR 521).
if a Commonwealth Act is valid, it overrides any State Act which is
inconsistent with it. Precisely what is meant by "inconsistent"
is a question of enormous financial significance to the legal
profession. The rule applies equally to Commonwealth Acts of
Parliament and to Commonwealth delegated legislation. For example,
regulations made under the Commonwealth Air Navigation Act would
override inconsistent State legislation.
are therefore a few problems with statute law in a federated
collection of former colonies. Generally, these will not bother those
involved in commercial law, but any person who
works with laws should be aware that
there are circumstances in which the apparent law is not the law. The
decision of whether or not a law is valid is usually one for a legal
NULLIUS AND THE SETTLED COLONIES THEORY
the perspective and context has changed as the legal validity and
significance of English settlement of Australia is under close
scrutiny. This is shown particularly by the Mabo
decision of the High Court. The historical problem which has largely
been remedied by Mabo
was the legal fiction that when Australia was first colonised it was
terra nullius (empty
land), and therefore, was treated as a settled
colony, as distinct from a conquered
the other hand in New Zealand the UK Parliament was obliged to sign a
treaty with the Maoris.
Terra Nullius was an entirely convenient doctrine to support white
settlement in Australia, for on that basis the British could claim
both sovereignty and ownership of the land. This, led to the
dispossession of the original Aboriginal inhabitants of their land.
although Britain had "radical" title to Australia, it did
not inherently have "beneficial" title over native lands
and therefore native title remains intact where land was not
alienated or used for a purpose contrary to native title.
general principles for the introduction of British law into a
'settled', as distinct from a 'conquered', colony were articulated by
Blackstone in 1765, and Blackburn J in Milirrpum
described the distinction as follows:
is a distinction between settled colonies, where the land being
desert and uncultivated, is claimed by right of occupancy, and
conquered a ceded colonies. The words 'desert and uncultivated' are
Blackstone's own; they have always been taken to include territory in
which live uncivilized inhabitants in a primitive state of society.
The difference between the laws of the two kinds of colony is that in
those of the former kind all the English laws which are applicable to
the colony are immediately in force there upon its foundation. In
those of the latter kind, the colony already having law of its own,
the law remains in force until altered.
distinction had originally been confirmed by the British Privy
Council in Cooper v Stuart (1889)
14 App 286 at 291 where it was pointed out that NSW had been regarded
as a 'tract of territory, practically unoccupied, without settled
inhabitants or settled land, at the time when it was peacefully
annexed to the British dominions'. What this meant, of course, was
that Aboriginal tribal law and land rights could be conveniently
disregarded. Murphy J of the High Court had scant respect for the
the Privy Council referred in Cooper v
Stuart to peaceful annexation, the
Aborigines did not give up their lands peacefully; they were killed
or removed forcibly from the lands by United Kingdom forces or the
European colonists in what amounted to attempted (and in Tasmania
almost complete) genocide. The statement by the Privy Council may be
regarded as either having been made in ignorance or as a convenient
falsehood to justify the taking of Aboriginal land (Coe
v Commonwealth (1979) 24 ALR 118 at
related problem of early colonization was the question of Aborigines
in relation to the law, and this question too, hinged on the settled
colony theory. Since Australia was
deemed to be 'uninhabited' (however bizarre this might seem) there
could obviously be no prior existing Aboriginal law, so it was taken
as axiomatic that British law came to Australia as part of the
'invisible and inescapable cargo' of settlers. The context of law was
mentioned above and the history of Aboriginal land rights claims in
the courts well illustrates the gradually changing community
attitudes towards these basic claims.
its landmark 6 1 judgment in Mabo
v Queensland (1992) 66 ALJR 408, the
High Court finally put an end to the elaborate fiction of terra
nullius. Mabo is now the law in
Australia so that Aborigines did possess property rights prior to
British settlement, and still have property rights as native title
where their claims have not been overridden by subsequent government
actions and land uses:
the Crown has validly alienated land by granting an interest that is
wholly or partially inconsistent with a continuing right to enjoy
native title, native title is extinguished to the extent of the
inconsistency. Thus native title has been extinguished by grants of
estates of freehold or of leases but not necessarily by the grant of
lesser interests (eg authorities to prospect for minerals) (Mabo
v Queensland (1992) 66 ALJR 408 at
the Commonwealth of Australia came into existence in 1901 as a result
of the Commonwealth of Australia
Constitution Act (an act of the
Kingdom parliament passed in 1900), the six self governing
colonies became States within the Australian federation. The UK
origin of the Act (an Imperial Act) is shown by its preamble and
first 4 sections:
& 64 VICTORIA, CHAPTER 12)
Act to constitute the Commonwealth of Australia.
the people of New South Wales, Victoria, South Australia, Queensland;
and Tasmania, humbly relying on the blessing of Almighty God, have
agreed to unite in one indissoluble Federal Commonwealth under the
Crown of the United Kingdom of Great Britain and Ireland, and under
the Constitution hereby established:
whereas it is expedient to provide for the admission into the
Commonwealth of other Australasian Colonies and possessions of the
it therefore enacted by the Queen's most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows:--
This Act may be cited as the Commonwealth of Australia Constitution
Act. (Short title).
The provisions of this Act referring to the Queen shall extend to
Her Majesty's heirs and successors in the sovereignty of the United
It shall be lawful for the Queen, with the advice of the Privy Council,
to declare by proclamation that, on and after a day therein appointed,
not being later than one year after the passing of this Act, the people
of New South Wales, Victoria, South Australia, Queensland, and
Tasmania, and also, if Her Majesty is satisfied that the people of
Western Australia have agreed thereto, of Western Australia, shall be
united in a Federal Commonwealth under the name of the Commonwealth of
the Queen may, at any time after the proclamation, appoint a
Governor General for the Commonwealth.
The Commonwealth shall be established, and the Constitution Commence
of the Commonwealth shall take effect, on and after the day so
appointed. But the Parliaments of the several colonies may at any
time after the passing of this Act make any such laws, to come into
operation on the day so appointed, as they might have made if the
Constitution had taken effect at the passing of this Act.
part of the agreement or compact between the colonies prior to the
establishment of the federal system under the Constitution, the
States agreed to surrender some of their law making powers to
the Commonwealth. Some powers surrendered by the States were to be
exercised exclusively by the Commonwealth, while other powers, though
given to the Commonwealth were not withdrawn from the states, but
could be exercised by the States as well as the Commonwealth (joint
powers). However, under the Constitution s109 is most important:
When a law of a State is inconsistent with a law of the Commonwealth,
the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid.
Commonwealth can only make laws under the powers listed in the
Constitution. S51 of the Constitution deals with most (though not
all) of the legislative powers of the Commonwealth parliament:
V.--POWERS OF THE PARLIAMENT.
The Parliament shall, subject to this Constitution, have power to
make laws for the peace, order, and good government of the of
Commonwealth with respect to:--
(i) Trade and
commerce with other countries, and among the States:
(ii) Taxation; but
so as not to discriminate between States or parts of
Bounties on the production or export of goods, but so that such
bounties shall be uniform throughout the Commonwealth:
Borrowing money on the public credit of the Commonwealth:
Postal, telegraphic, telephonic, and other like services:
The naval and military defence of the Commonwealth and of the
several States, and the control of the forces to execute and maintain
the laws of the Commonwealth:
Lighthouses, lightships, beacons and buoys:
Astronomical and meteorological observations:
(x) Fisheries in
Australian waters beyond territorial limits:
Census and statistics:
Currency, coinage, and legal tender
Banking, other than State banking; also State banking extending
beyond the limits of the State concerned, the incorporation of
banks, and the issue of paper money:
other than State insurance; also State insurance extending beyond the
limits of the State concerned:
Weights and measures:
Bills of exchange and promissory notes:
Bankruptcy and insolvency:
Copyrights, patents of inventions and designs, and trade marks:
Naturalization and aliens:
corporations, and trading or financial corporations formed
within the limits of the Commonwealth:
Divorce and matrimonial causes; and in relation thereto, parental
rights, and the custody and guardianship of infants:
xxiii) Invalid and old age pensions:
The provision of maternity allowances, widows' pensions, child
endowment, unemployment, pharmaceutical, sickness and hospital
benefits, medical and dental services (but not so as to authorize
any form of civil conscription), benefits to students and family
The service and execution throughout the Commonwealth of the civil
and criminal process and the judgments of the courts of the States:
The recognition throughout the Commonwealth of the laws, the public
Acts and records, and the judicial proceedings of the States:
xxvi) The people of any race for whom it is deemed necessary to make
Immigration and emigration:
The influx of criminals:
The relations of the Commonwealth with the islands of the Pacific:
The acquisition of property on just terms from any State or person
for any purpose in respect of which the Parliament has power to make
The control of railways with respect to transport for the naval and
military purposes of the Commonwealth:
The acquisition, with the consent of a State, of any railways of the
State on terms arranged between the Commonwealth and the State:
Railway construction and extension in any State with the consent of
Conciliation and arbitration for the prevention and settlement of
industrial disputes extending beyond the limits of any one State:
Matters in respect of which this Constitution makes provision until
the Parliament otherwise provides:
Matters referred to the Parliament of the Commonwealth by the
Parliament or Parliaments of any State or States, but so that the
law shall extend only to States by whose Parliaments the matter is
referred, or which afterwards adopt the law:
The exercise within the Commonwealth, at the request or with the
concurrence of the Parliaments of all the States directly concerned,
of any power which can at the establishment of this Constitution be
exercised only by the Parliament of the United Kingdom or by the
Federal Council of Australasia:
Matters incidental to the execution of any power vested by this
Constitution in the Parliament or in either House thereof, or in the
Government of the Commonwealth, or in the Federal Judicature, or in
any department or officer of the Commonwealth.
Examine the above
powers in s51. What powers do you think would affect the property
The External Affairs
power? Yes. To find the reasons for this - read on!
other important section concerned with the law making powers of the
Commonwealth is s52:
The Parliament shall, subject to this Constitution, have exclusive
power to make laws for the peace, order, and good government of the
Commonwealth with respect to--
The seat of government of the Commonwealth, and all places acquired
by the Commonwealth for public purposes:
Matters relating to any department of the public service the
control of which is by this Constitution transferred to the
Executive Government of the Commonwealth:
Other matters declared by this Constitution to be within the
exclusive power of the Parliament.
the Commonwealth is empowered to make laws with respect to specified
and limited subject matters and are only valid if intra
vires the Constitution, that is, it
must fall under one the above heads in s51. This apparent limitation
on the power of the Commonwealth is not as restrictive as it may at
first appear. For example, the use of the external
affairs power which is the power that
validates the Racial Discrimination Act 1975 (an act central to the
debate). However, there is some concern in the High Court as to the
extent that matters even tenuously related to external affairs, can
be used to validate Commonwealth legislation.
Constitution is Australia's fundamental law, but the various
Constitutions of the states are also imperial legislation, which at
least in theory, can still be amended by the UK parliament prior to
the Australia Acts 1986.
A state's constitution can be amended by state parliament (if in the
correct form) but the Commonwealth's Constitution can only be amended
by way of a referendum as laid down in the Constitution. It has
proved very difficult to amend the Constitution as it requires
consistent consensus throughout Australia.
DEVELOPING INDEPENDENCE OF THE AUSTRALIAN GOVERNMENT
Colonial Laws Validity Act 1865
(CLVA) was applicable to all the colonies, and also to the
Commonwealth parliament when it was established in 1901 (Commonwealth
of Australia Constitution Act (1901))
passed by the UK Parliament. The CLVA granted limited forms of power
to the state parliaments but always subject to the paramount
force that is, the ultimate power of
the UK parliament. This, produced the anomaly that while the
Commonwealth could participate in the international community as an
independent nation, at the same time it could still be subject to
constitutional restrictions arising from Australia's original
colonial status. However, the anomaly was removed in 1942 when the
Commonwealth government passed the Statute
of Westminster Adoption Act (Cth),
which in turn adopted the Statute of
Westminster 1931 (UK), and backdated
the adoption to 3 September 1939 ( the outbreak of World War II).
the Statute of Westminster removed
anomalies so far as the Commonwealth was concerned, it was not until
the passing of the Australia Acts 1986
that the remaining anomalies relating to the States and Territories
were removed. Although appeals from the High Court to the British
Privy Council were abolished in 1975, it was only with the passing of
the Australia Acts in
1986 that appeals from the State Supreme Courts to the Privy Council
were also abolished.
has a federal system of government whereby power is shared between
the Commonwealth, States and Territories, and in which there is a
separation of powers
between the legislature, executive, and
The major institutions of this system of government are:
- The crown
- The parliament
- The executive
- The courts.
the crown is undoubtedly an important element in Australian
government, it is not of central concern to us, and it will not be
considered in detail.
two basic functions of parliament are to legislate
and to supervise the
executive. Legislation comprises two
forms: passing statutes, and overseeing the making of 'delegated
1. COMMONWEALTH PARLIAMENT: The legislative powers of the Commonwealth
are defined in two broad ways:
- By the conferment of power (what
the Commonwealth is permitted to do).
the imposition of prohibitions (what the Commonwealth is forbidden to do).
power of the Commonwealth can be extended a number of ways. For
example, the Constitution does not endow the Commonwealth with
specific educational legislative power except for the 'Benefits of
Students' provision in s51 (xxiiiA). However, despite the lack of
specific constitutional powers, the Commonwealth has a considerable
influence over educational policy making, especially by virtue of
financial grants made by the Commonwealth for educational purposes of
various kinds. The power of the “purse strings”!
grants are designated for specific purposes, since the Commonwealth
stipulates how the money shall be spent. In addition, s51(xxxix)
(External Affairs power) potentially endows the Commonwealth with the
formidable power to legislate in a number of areas otherwise outside
Are the reverse of powers, and serve to deprive the Commonwealth of
power to legislate in certain areas. For example, s92 of the
Constitution which ostensibly protects freedom of trade between the
States. However, there are some express
prohibitions in the Constitution which preclude certain sorts of
legislation by the Commonwealth. For example:
The Commonwealth shall not make any law for establishing any
religion, or for imposing any religious observance, or for
prohibiting the free exercise of any religion, and not religious
test shall be required as a qualification for any office or public
trust under the Commonwealth.
section was crucial in the DOGS (Defence of Government Schools) case:
AG (Vic); ex re Black v Commonwealth
(1980) 33 ALR 321 which is the leading
case in the history of the State aid to private schools debate.
STATE PARLIAMENTS: Whereas the majority of the powers of the
Commonwealth parliament are conferred by the Constitution, most of
the legislative powers of the States are in a single section.
Commonwealth powers are specific,
those of the States are general
powers. For example, s5 of the
Constitution Act 1902 (NSW) is a 'power to make laws for the peace
welfare and good government' of the State 'in all cases whatsoever'.
DISPUTES OVER LEGISLATION
common feature of the federal system is the challenge by the
Commonwealth and State governments to the legislation of the other.
Legislation which the High Court rules as invalid because it
oversteps the constitutional reach of a particular parliament is
described as being ultra vires (
'beyond the power') as distinct from intra
vires ('within the power'). A
Commonwealth law can be challenged on 3 grounds:
- That the
Commonwealth parliament has acted ultra
vires. The doctrine of ultra vires (outside
the powers) constitutes a useful corrective to administrative excesses
and any regulations not within the scope of authority given by the
parent act, or failing to meet all of the terms of that Act, may be
found by a court to be ultra vires and therefore invalid.
- That the
statute, whilst otherwise authorised, is forbidden by one of the
express or implied prohibitions.
- That important
procedural requirements involving the making of the statute have not
been complied with.
laws can be challenged on the following grounds:
That the statute falls outside the general State
legislative powers. This is largely only a theoretically possible
challenge, since the States generally possess power to make laws for
the 'peace, welfare/order, good government', and although this appears
as though it may be challenged, Australian courts have held that the
question of peace, welfare/order, and good government is to be
determined by the parliament in question, not the court.
That the statute trespasses into an area of legislative
power which is exclusive to the Commonwealth.
That the statute is contrary to an expressed or implied
prohibition in the Commonwealth Constitution.
That in the area of concurrent power, the State statute
conflicts with a Commonwealth one, and is therefore invalid to the
extent of inconsistency under sl09 of the Constitution.
- That there has
been a failure to comply with an important or special procedural
requirement for making the statute.
executive consists of two bodies:
are composed of government ministers. Cabinet meetings are where the
government deliberates and comes to agreement about its political
decisions. Having reached such agreement, the cabinet ministers
reconvene as the Executive Council where the Governor (or
Governor General in Commonwealth matters) is formally advised of
the cabinet's decision.
Governor then acts to implement this decision which necessitates the
exercise of the Governor's statutory or prerogative powers. The
administration of government is carried out by the government
departments headed by a Minister as political head, and by a chief
executive officer public servant (for example, the Director General
of Education) as the permanent head.
Are the major source of executive power, and statutes confer
authority on the crown, ministers, public servants, and other
officers. Statutory powers are invariably cast in terms of a duty or
a discretion. With regard to duties, or mandatory powers as they are
also called, the Minister (or such other officer or group) is
actually required to do something. Legislation will mandate that the
Minister shall...'. On the other hand discretionary powers are
indicated by an expression such as: 'The Director General
may...'. However, discretionary powers should not be construed as an
open invitation for an official to act arbitrarily. This is the
province of Administrative Law.
SOMETHING TO DO
Length: 1000 words
operations of a typical real estate agent set up as a company in an
outer suburb of a large city. List 12 important laws that impinge on
his/her day to day running of the business. Which of those laws are
under Commonwealth legislation? For the Commonwealth laws determine
from an examination of s51 of the Constitution, the powers on which