Understanding the Australian Legal System Essays

Submitted By alanating
Words: 1527
Pages: 7
Open Document
Chapter 2
Understanding the Australian legal system

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

The Australian Constitution
The legislature
The executive
The judiciary

The Australian Constitution
Chapter 2
Understanding the Australian legal system

Structure of the Australian
Constitution

Table 2.1

Federal / State relations
Exclusive powers

Concurrent powers

Residual powers

Federal Parliament only

Federal and State
Parliaments

State Parliaments only

Examples
Customs
Defence
Currency
Territories

Examples
Taxation
Marriage
Banking
External affairs

Examples
Education
Property
Crime
Health

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

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

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

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

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

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

The structure of parliament

Table 2.3

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

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

The parliamentary process

Pressure to change the law

Three readings of a Bill

Figure 2.4

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

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

Related Documents: Understanding the Australian Legal System Essays

Indigenous Voice Case Study

The term indigenous voice refers to a proposed tool that is aimed at ensuring that Indigenous Australians have a direct and meaningful say in the government decision-making process that affects their lives and communities. This includes several forms of representation, consultation and engagement constructed to strengthen the indigenous voices and perspectives within the political system. The Indigenous voice seeks to address the past demoted and the exclusion of Indigenous peoples left out of the…

Words 2011 - Pages 9

Tutorial 2 Essay

Tutorial 2: Australian Legal System In class test (first 20 minutes) Material comes from the first 2 lectures and associated readings. What you need to do to prepare for this tutorial Review the Session 1 and 2 lecture material and read - Latimer Chapter 1 Learning outcomes This topic will start your learning and understanding of the Australian Legal System Key concepts 1. Court Hierarchy 2. State and Federal Courts 3. Statute Law 4. Case Law and Precedent 5. Ratio decidendi and obiter dicta…

Words 370 - Pages 2

Adversarial System: The Criminal Justice System In Australia

The criminal justice system in Australia is based on an adversarial system of law. It consists of two opposing sides, each presenting their case to an impartial judge or jury. In criminal law, the adversary system pits the prosecution against the accused, who will usually be represented by a solicitor or barrister who provides legal advice and presents the case in court. The judge, or jury in indictable offences, acts as an impartial observer who determines the accused’s guilt or innocence based…

Words 696 - Pages 3

Mabo Case

Indigenous peoples. Three such pivotal moments are the 1967 referendum, the landmark Mabo decision in 1992, and the apology to the Stolen Generations made by Kevin Rudd in 2008. The 1967 referendum amended the Australian Constitution, empowering the federal government to legislate for Indigenous Australians and including them in the census. This vote marked a turning point in the recognition of Indigenous rights and laid the groundwork for subsequent legislative reforms. Similarly, the Mabo decision overturned…

Words 1331 - Pages 6

sources of law Essay

Part I: The legal system Principal focus: Students develop an understanding of the nature and functions of law through the examination of the law-making processes and institutions. Sources of contemporary Australian law common law Students learn about Description including main characteristics/features British origins of the Australian Legal System including the development of common law Students learn…

Words 976 - Pages 4

Constitutional: Law and ‘the Rule Essay examples

different era’s in time. Despite being widely claimed to be the most important element that underpins the Australian legal system, legal theorist constantly struggle to conjure up a succinct definition for ‘the rule of law.’ There are many legal theorists who have offered their own interpretations on the concept of ‘the rule of law.’ This essay examines the explanation that has been developed by many legal philosophers such as AV Dicey, in Introduction to the study of the law of the Constitution. Furthermore…

Words 1719 - Pages 7

Power Relation

Understanding the relationship between power relations and how we define, measure and respond to crime and harm is crucial. Power relations can take on a variety of different forms depending not only on the situation, but the perspective of each party involved. In particular, power relations involving patriarchy, government power and racism demonstrate how crime and harm can look vastly different even when following the same principles. One theory in understanding crime both in and out of the home…

Words 974 - Pages 4

New Racism In Australia

Racism has persisted in Australian society despite decades-long efforts to condemn the behaviour. Although prima facie illegal, polarising views about racism are built on complex layers that are not directly prohibited by law. Those who exhibit racist behaviour may not be breaking the law, but their conduct is still considered deviant under societal expectations. The following analysis argues that Australian society’s concept of racism has been misconstrued by colourblind ideology, which is a symptom…

Words 1525 - Pages 7

A Guide To Australia's Stolen Generation Analysis

More than 370 million indigenous people are living and spreading across 70 countries worldwide. In Australia, Aboriginal are the first nation of the Australian continent. The Aboriginals have been living on the Australian continent for at least 50,000 years, rooting the culture and background of the country. In 1788, when European settlers first arrived in Australia, it had a great impact on the indigenous people’s life, their land has been taken away, and have been exposure to new diseases, the…

Words 1002 - Pages 5

Ethics and Melanie Essay

look at each of four fundamental patterns of knowing in nursing and how they apply to this practically scenario. Also identified are clear key ethical issues present in this scenario, and the relevant bioethical principles in this case. Lastly the legal responsibilities and current legislation will be defined and explained. ANMC codes that justified her decision-making. 1. Ways of Knowing There are four fundamental patterns of knowing that are functional to the nursing profession. First up we…

Words 2032 - Pages 9