Legal 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:

1. 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 forbidden.

2. 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.

3. 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 crown).


The 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 of parliament.

Under 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 federal system 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).


The 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 sources.

There 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 material sources.


There 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.

It 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.

The term Common Law; has 3 distinct meanings:

It 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 society.

On the other hand, sometimes the common law leads society for example, in Mabo. When this happens it is called "positive law". Common law is still with us, but its luxuriant growth has been severely trimmed.

When 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.

2. 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 moral ground.

The 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.

3. 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.

After 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”.


The 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 of cases. 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 (Spencer’s case).


The 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).

One 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 English statutes.


A good example of inherently unclear law is the question of what constitutes fixtures 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?

The 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 case”.


Australian 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.

There 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 High Court.

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 courts.

Blackburn 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.

The 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.

Although 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: 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 system.


The Courts in the ACT dealing with general law are:

Civil Registry
Coroners Court
Juvenile Court
Magistrates Court
Small Claims Court
Supreme Court
High Court

Generally, 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.

Single 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.

Although 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.

Courts 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 Australia.


Legislation is a generic term used to cover both parliamentary statutes or acts and can be classified into delegated or subordinate legislation. A statute will frequently authorize delegated legislation or executive instruments.

1. 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.

Prior 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.

Since 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 'judicial review'.

2. 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 same time:

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.


In 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):

1. 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.

When 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.

2. 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.

3. 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.

COLONIAL 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.

The 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.

STATUTE 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.

4. FEDERAL AND STATE AND TERRITORY STATUTES: The distinction between Federal and State/Territory statutes is important but complex.

Typically 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.


In 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).

However, 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.

There 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 expert.


Today, 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 or ceded territory.

On 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. Under Mabo, 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.

The 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:

There 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.

This 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 settled colonies theory:

Although 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 138).

A 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.

In 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:

Where 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 422).


When the Commonwealth of Australia came into existence in 1901 as a result of the Commonwealth of Australia Constitution Act (an act of the United 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:

(63 & 64 VICTORIA, CHAPTER 12)
An Act to constitute the Commonwealth of Australia.
[9th July 1900]

WHEREAS 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:

And whereas it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be 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:--

1. This Act may be cited as the Commonwealth of Australia Constitution Act. (Short title).

2. The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom.

3. 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 Australia. But the Queen may, at any time after the proclamation, appoint a Governor General for the Commonwealth.

4. 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.

As 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:

S109: 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.

The 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:


s51. 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 States:
(iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Common­wealth:
(iv) Borrowing money on the public credit of the Common­wealth:
(v) Postal, telegraphic, telephonic, and other like services:
(vi) 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:
(vii) Lighthouses, lightships, beacons and buoys:
(viii) Astronomical and meteorological observations:
(ix) Quarantine:
(x) Fisheries in Australian waters beyond territorial limits:
(xi) Census and statistics:
(xii) Currency, coinage, and legal tender
(xiii) 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:
(xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:
(xv) Weights and measures:
(xvi) Bills of exchange and promissory notes:
(xvii) Bankruptcy and insolvency:
(xviii) Copyrights, patents of inventions and designs, and trade marks:
(xix) Naturalization and aliens:
(xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:
(xxi) Marriage:
(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:
( xxiii) Invalid and old age pensions:
(xxiiiA) 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 allowances:
(xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:
(xxv) 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 special laws:
(xxvii) Immigration and emigration:
(xxviii) The influx of criminals:
(xxix) External affairs:
(xxx) The relations of the Commonwealth with the islands of the Pacific:
(xxxi) 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 laws:
(xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:
(xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:
(xxxiv) Railway construction and extension in any State with the consent of that State:
(xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:
(xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:
(xxxvii) 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:
(xxxviii) 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:
(xxxix) 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 professional?

The External Affairs power? Yes. To find the reasons for this - read on!

The other important section concerned with the law making powers of the Commonwealth is s52:

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--

(i) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes:

(ii) 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:

(iii) Other matters declared by this Constitution to be within the ex­clusive power of the Parliament.

Therefore, 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 Mabo 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.

The 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.


The 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).

While 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.

Australia 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 courts. The major institutions of this system of government are:

Whilst 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.


The 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 legislation'.

1. COMMONWEALTH PARLIAMENT: The legislative powers of the Commonwealth are defined in two broad ways:
The 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”!

The 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 it’s domain.

PROHIBITIONS: 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:

s116: 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.

This 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.

2. 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, whereas 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'.


A 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:

State/territory laws can be challenged on the following grounds:


The executive consists of two bodies:

Both 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.

The 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.

STATUTES: 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.


Length: 1000 words

Consider the 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 they depend.