3 Basic Principles of the Australian Legal System

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Australian constitutional law evolved from the interpretation of the Constitution by the High Court. In addition to its textual provisions, the Constitution is supposed to contain various unwritten constitutional conventions and ideas of the Westminster system, one of which is responsible government. Although the 1900 Act initially derived its legal authority from the British Parliament, the current understanding of the Supreme Court and some academics is that it now derives its legal authority from the Australian people. [3] Other documents of constitutional importance to Australia are the Statute of Westminster and the Australia Act 1986. The Australian legal system is a combination of laws inherited from the United Kingdom, known as English common law, and the many laws enacted by the various states and federal governments since the Federation. Jurisdiction, i.e. laws interpreted by judges change over time as society changes and different interpretations are made in light of those changes. The Australian legal system is defined by the Australian Constitution. This establishes the lines of demarcation between the six states and the two territories and the federal government. In Australia, due to the federal nature of government, states and territorial governments have a good degree of control over the laws that exist in any jurisdiction. Each state and territory, as well as the federal government, has a bicameral parliament (House of Representatives and Senate) in which legislative amendments are discussed and passed if there is a majority of votes in favor of the amendment. Federal laws may override state laws in certain circumstances, such as: if it is in the interest of the nation as a whole. When Europeans arrived in Australia, they deemed the country “uninhabited” or “terra nullius”.

During the first two centuries of European colonization, existing Indigenous laws were completely ignored. The first colonies were in New South Wales and Tasmania, South Australia and Western Australia later settled separately. Queensland was originally considered part of New South Wales. A typical British legal system has been put in place. When Australia gained independence from Britain, it formed a federation and the basis of the Australian Constitution was established. “The law that governs – is the law according to the decisions of the courts, but it is applied in the offices and chambers of the legal profession. It is used in preparation and consultation; – The Honourable Sir Gerard Brennan AC, “Role of the Legal Profession in the Rule of Law”, Supreme Court, Brisbane, 31 August 2007. In 1895, the six prime ministers of the Australian colonies agreed to establish a new convention by referendum. The Convention met in one year from 1897 to 1898.

The meetings produced a new draft that contained essentially the same principles of government as the 1891 draft, but with additional provisions for responsible government. Some delegates to the 1898 Constitutional Convention were in favor of a section similar to the Bill of Rights of the United States Constitution, but this was rejected. Laws passed by state and federal parliaments change according to democratic principles. Elections decide the composition of parliaments and generally different political parties have their own preferences for legislative changes. It would be impossible to make major and dramatic legislative changes every time a new government is elected, and in practice, most laws are maintained, while new laws often take a long time to come into force, and even then they may never be adopted because of the oversight mechanisms inherent in bicameral parliaments. Most of the countries that were originally colonized by the British have legal systems derived from the British legal system that have been passed on to them. In most cases, when countries gained independence from Britain, laws were enacted specifically to meet the needs of society, even though elements of the British legal system persist. There is no uniform definition of the rule of law.

However, there is a basic definition that is almost universally accepted. As Professor Emeritus Geoffrey Walker wrote in his authoritative book on the rule of law in Australia, the Law Council`s job is to help neighbouring countries maintain equality before the law by advocating for measures that maintain and improve access to justice and representation. The judicial system of each state and territory is responsible for the majority of the laws of each jurisdiction, most of which are based on the English common law inherited from Britain after the colonization of Australia. After the Australian parliamentary crisis of 2017-2018, there were discussions about whether the current constitution should be maintained or replaced. [8] [9] Former Prime Minister Bob Hawke argued for “getting rid of the Constitution we have” and replacing the Constitution with a system that does not include states. [10] Everyone should have access to competent and independent legal advice; Four main principles are observed in the Australian legal system. Although the reigning monarch is Queen Elizabeth II,[28] her legal capacity as Queen of Australia is distinct from her abilities as monarch for other nations. [29] More information on these principles can be found in the Legal Council`s Rule of Law Policy Statement. A series of lectures on federalism were sponsored by the Premier of New South Wales, Henry Parkes; the first took place in Melbourne in 1890 and another in Sydney in 1891.

Most of the colonial leaders attended these conferences. The conference of 1891 gave impetus to the federalist cause. The discussion focused on what the right federal government system should be. A draft constitution was drafted at the conference chaired by Sir Samuel Griffith, but these meetings received no popular support. Another problem was that this draft constitution circumvented some crucial issues such as tariff policy. The 1891 draft was submitted to colonial parliaments, but became obsolete in New South Wales. After this event, other settlements were not willing to continue. The High Court also read a number of important legal implications in the document. One of them is the “freedom of political communication”, the other is the freedom to interfere in voting in elections. Both doctrines emerged from the demands of s7 and s24 that representatives of the Houses of Parliament must be “directly elected by the people”.

[25] [26] These implications, which limit the legislative power of the Commonwealth, have been characterized by Members of the High Court as “freedoms” or “guarantees” and the Court has refrained from calling them “implied rights” or “implied constitutional rights.” [27] Some scholars have argued that the Supreme Court`s purported distinction between a “right” and a “freedom” is misleading and/or little more than semantic, but it is still used by the Court. [27] Conventions derive primarily from unwritten parliamentary conventions within the Westminister system of responsible government.