legal

• High Court of Australia


  Deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws
• Appellate jurisdiction of High Court


  Deals with appeals from the Federal Court of Australia, the Family Court of Australia, and the state and territory Supreme Courts
• Regulations


  Laws made by the Governor-General, state governors or members of the Executive Council
• Ordinances


  Laws made for Australian territories (e.g. Norfolk Island and the Australian Antarctic Territory)
• Rules


  Legislation made for government departments, usually by the department involved
• By-laws


  Laws made by local councils, which are restricted to the area governed by that council
• The people making the legislation are usually experts in that field
• Delegated legislation


  • Frees up parliamentary time for very serious issues
  • Easier to amend and, thus, more flexible
• Disadvantages of delegated legislation


  • Elected members of parliament do not have the time or expertise to fully check it
  • Many different bodies involved, can be inconsistencies
  • Little publicity, public cannot voice views
• Australia consisted of six colonies, which were independent of each other with the right to govern within their own borders


  Prior to the constitution
• Federation


  The process of uniting several states to form a single national government
• Referendum


  The referral of a particular issue to the electorate for a vote
• The Constitution itself is section 9 of the Commonwealth of Australia Constitution Act 1900(UK)
• Role of the Senate

  Provides a 'check' on the power of the House of Representatives
• Senate as the 'states' house'

  The Senate has equal representation for all states with each state having 2 senators
• Senators per territory

  Each territory has 2 senators in the Senate
• Checks and balances of the constitution

  • Section 128 - Referendum and absolute majority required
  • Section 51 - Division of powers between states and Commonwealth
  • Senate provides a "check" of House of Reps
• Section 51


  Specifies the legislative powers of the federal parliament which has the power to make laws with respect to all of the matters listed
• Section 52


  Outlines the exclusive powers of the federal government
• Exclusive powers


  • Trade and commerce with other countries
  • Foreign relations ('external affairs')
  • National defence
• Section 109


  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
• Section 109 case study


  • Commonwealth v Tasmania [1983] HCA 21 ('Tasmanian dam case')
• Ultra vires


  (Latin) Beyond the power or authority legally held by a person, institution or statute to perform an act
• External affairs power


  The power of the Commonwealth to legislate on international matters involving Australia
• Key residual powers

  • De facto relationships
  • Crime
  • Hospitals
  • Environmental protection
  • Public transport
• Amending the constitution

  1. Proposed change must pass both houses with absolute majority

  ii) Proposed change must be put to electors 2-6 months later

  iii) Absolute majority of voters Australia-wide must approve

  iv) Majority of states must approve

  1. Alteration must go to Governor-General for royal assent
• Bipartisan


  Having the support of the two major political parties
• Separation of powers

  If one person/group controls all three organs of government, there is a risk of dictatorship. Independent arms act as a check on each other, protecting civil liberties.
• Civil liberties


  Basic rights of individuals that are protected by law, e.g. freedom of religion and freedom of speech
• The Australian constitution is only partially realised as some members of the executive are also members of the legislature
• Section 71 of the constitution


  Creates the High Court of Australia and specifies it must contain one Chief Justice and at least two other judges
• Section 72 of the constitution


  Outlines how High Court judges are appointed
• High Court judges must retire when they turn 70
• Most High Court judges come from the bench of the state Supreme Courts or the Federal Court
• Who chooses High Court judges

  They are chosen by the 'Governor-General in Council' - who is the government of the day
• Original jurisdiction of the High Court

  Cases that come under original jurisdiction begin in the High Court itself
• Section 76 of the constitution


  Matters relating to the interpretation of the Constitution, which had an enormous influence on determining the division of power between the states and the Commonwealth
• Mandamus


  A court order compelling a government official or organisation to perform a particular task
• Prohibition


  A court order that forbids a lower level court from hearing or taking further action in a case or matter
• Injunction


  A court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action