Introduction to the Australian Legal System 2018 Student Workbook (WSUIC) PDF

Introduction to the Australian Legal System 700216/900083 2018 Student Workbook  Last amended: December 2017 ACKNOWLEDGEMENTS Contributor: Karen Rex, Andrew Malin © Western Sydney University International College Pty Limited Except as provided by...

Introduction to the Australian Legal System 700216/900083 2018 Student Workbook  Last amended: December 2017 ACKNOWLEDGEMENTS Contributor: Karen Rex, Andrew Malin © Western Sydney University International College Pty Limited Except as provided by the Copyright Act 1968, no part of this publication may be produced, stored in a retrieval system, or transmitted in any form or by any means without the prior written permission of Western Sydney University International College Pty Limited. This workbook is to be used for educational purposes only. Students should not make this publication available commercially or redistribute it by any technological means. Students must not record lectures or tutorials via any technology unless they obtain the express consent of the lecturer prior to the lecture being given. 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Provider Number 00917K. © Western Sydney University International College 2022 Page 2 of 4 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Table of contents Topic 3: Federation 57 Introduction 57 Australia's federal system 58 Exercise 1: From colonies to states 59 Reasons for federation 60 Free trade 60 Defence 60 National pride 61 The process of federation 61 1891 Federation Convention: Drafting a constitution 61 The people's conventions 62 1897–1898 Federation Convention 62 First referendum: 1898 62 'Secret' premiers' conference 63 Second referendum: 1899 63 Constitution Act 63 Exercise 2: Federation 64 Exercise 3: Fast facts 64 Exercise 4: Multiple choice 64 Exercise 5: Cloze passage 65 The Constitution 67 Features of the Australian Constitution 67 Changing the Australian Constitution 68 Exercise 6 68 Three levels of government 71 The division of powers 72 Concurrent power 73 Residual power 73 Delegated legislation 73 Exercise 7 75 The separation of powers 76 Separation of roles 76 The role of the High Court in relation to the Constitution 77 Exercise 8 77 Study Cam: Revise this topic by answering the following questions 78 © Western Sydney University International College 2022 Page 3 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Revision 82 Topic 1: Basic legal notions 82 Topic 2: History of the Australian legal system 85 Topic 3: Federation 88 How to use this workbook: Your workbook has been designed to complement the power points, available on Moodle, for each topic in this unit. Under each topic heading you will find: Þ a lead-in question designed to generate discussion among your class members Þ a brief introduction to the topic Þ an outline of the legal principle, legislation, and cases necessary to achieve the learning outcomes for this topic (where appropriate) Þ revision exercises designed to complement and reinforce your understanding of the legal principles necessary to achieve the learning outcomes Þ an exit question designed to test your understanding of the material, and Þ a study guide to assist with your exam preparation. Revise your work by accessing online apps such as Quizlet © Western Sydney University International College 2022 Page 4 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook TOPIC 3: FEDERATION Commence your study of this topic by considering the following question: What is a federal system of government? ZOOM IN Answer: Introduction Before 1901, Australia was not a nation. At that time, the continent consisted of six British colonies which were partly self-governing, but subject to the law-making power of the British Parliament. Each colony had its own government and laws, including its own railway system, postage stamps and tariffs (taxes). This caused a lot of problems and people began to think about the benefits of uniting as one nation, under a federal system of governance. In this topic it is essential that you understand the following concepts: PRINCIPLES What is a federal system of KNOWLEDGE government Reasons for federation The Constitution The division and separation of powers The role of the High Court in relation to the Constitution LEGISLATION Commonwealth of Australia Constitution Act 1900 (UK) During the 1890s, each colony sent representatives to special meetings, called conventions, to try to agree about how to form a new federation. Eventually the delegates agreed on the rules for a federal system and a draft constitution. The people of the colonies voted in a series of referendums to accept this new Australian Constitution. It was then passed as a British Act of Parliament in 1900, called the Commonwealth of Australia Constitution Act, which came into effect on 1 January 1901. The Constitution established a federal parliament which could make laws on behalf of the new Australian nation. The colonies of New South Wales, Victoria, Queensland, South Australia and Tasmania united and became states of Australia, known as the Commonwealth of Australia. Western Australia was not a party to the initial agreement but also agreed to join the federation before 1 January 1901. In 1901, the two territories did not exist. The Constitution provided for the establishment of a national capital, to be located in New South Wales but at least 100 miles from Sydney. In 1911, the Australian Government created the Australian Capital Territory for this purpose. In the same year, the Northern Territory was also created. Until then, this area had been part of South Australia. Although part of the Commonwealth, the territories do not have the same legal status as states. When the Commonwealth of Australia was declared on 1 January 1901, a ceremony was held in Centennial Park in Sydney. The first Governor-General, Lord Hopetoun, was sworn in and the first Prime Minister, Sir Edmund Barton, and federal ministers took the oath of office. © Parliamentary Education Office (www.peo.gov.au) © Western Sydney University Enterprises Pty Limited 2018 57 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Australia's federal system Under the Australian Constitution, the new states united within the Commonwealth. Power was to be shared between the federal parliament and state parliaments. The federal parliament would make laws about national matters, such as defence, immigration, trade and the environment. The power to make and manage federal law would be divided between the parliament (which would make the law), the executive (which would put the law into action) and the judiciary (which would make judgments about the law). The federal parliament would be made up of the Queen (represented by the Governor-General), the Senate and the House of Representatives. Laws could only be passed or changed if agreed to by both houses. The Australian federal system took some of its features from the British Parliament and some from the United States system of governance. © Parliamentary Education Office (www.peo.gov.au) Australia became a nation on 1 January 1901 when six British colonies — New South Wales, Victoria, Queensland, South Australia, Western Australia and Tasmania — united to form the Commonwealth of Australia. This process is known as federation. Australia's federation came about through a process of deliberation, consultation and debate, unlike many other nations that unified as a result of war or conflict. Federation only went ahead with the approval of the people in a referendum (vote of the people). Barriers between brothers. A sketch published in The Argus newspaper in 1898 urged the colonies to federate. The Argus, 1 June 1898, p 5, National Library of Australia, NX11. © Parliamentary Education Office (www.peo.gov.au) © Western Sydney University Enterprises Pty Limited 2018 58 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook EXERCISE 1: FROM COLONIES TO STATES © Western Sydney University Enterprises Pty Limited 2018 59 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook © 2013 Education Services Australia Ltd REASONS FOR FEDERATION Before 1901, Australia did not exist as a nation. It was a collection of six British colonies which were partly self-governing, but under the law-making power of the British Parliament. The colonies were almost like six separate countries; for example, each had its own government and laws, its own defence force, issued its own stamps and collected tariffs (taxes) on goods that crossed its borders. The colonies had even built railways using different gauges, which complicated the transport of goods across the continent. By the 1880s the inefficiency of this system, a growing unity among colonists and a belief that a national government was needed to deal with issues such as trade, defence and immigration saw popular support for federation grow. Sir Robert Garran, who was active in the federation movement, later reflected that the colonies were united by a combination of “fear, national sentiment and self-interest”. FREE TRADE While tariffs provided the colonial governments with much revenue, they restricted trade and movement between the colonies. Tariffs increased the cost of goods and made it hard for manufacturers based outside a colony to compete with local producers. Trade restrictions also inconvenienced travellers; the train journey between Melbourne and Sydney was delayed at the border in Albury while customs officials searched passengers' luggage. Free traders were among the most vocal supporters of federation, arguing that it would strengthen the economy by abolishing tariffs and creating a single market. DEFENCE Prior to federation, the colonies were ill-equipped to defend themselves. Each colony had its own militia consisting of a small permanent force and volunteers, but they all relied on the British Navy to periodically patrol the vast Australian coastline. Increasingly, people feared the Australian colonies could be vulnerable to attack from nations such as Germany, France and Russia, who had already colonised parts of the Pacific. Australia's position as a sparsely populated continent close to Asia also gave rise to concerns that countries such as China and Japan, with their larger populations and greater military might, could overrun the colonies. Alfred Deakin, then Chief Secretary of Victoria, warned: “The Asiatic wave which has threatened to engulf us is only suspended for a short time, but if the colonies do not federate our comparatively trifling white population will be swept before it like a feather.” The argument that a united defence force could better protect Australia was strengthened by a report released in 1889 by British Major-General Sir J Bevan Edwards. It found that the colonies did not have © Western Sydney University Enterprises Pty Limited 2018 60 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook enough soldiers, arms or even ammunition to adequately defend themselves. The report recommended that a federal or centralised defence force be established. NATIONAL PRIDE Colonists mostly shared a common language, culture and heritage, and increasingly began to identify as Australian rather than British. New South Wales Premier, Sir Henry Parkes, referred to this as “the crimson thread of kinship that runs through us all”. In fact, by the time of Federation over three quarters of the population were Australian born. Many people moved between the colonies to find work and sporting teams had begun to represent Australia. In 1899 soldiers from the colonies who went to the Boer War in South Africa served together as Australians. The shift was apparent in contemporary songs and poems which celebrated Australia and Australians: Beneath our radiant Southern Cross We'll toil with hearts and hands; To make this Commonwealth of ours Renowned of all the lands From ‘Advance Australia Fair’ by Peter Dodds McCormick © Parliamentary Education Office (www.peo.gov.au) THE PROCESS OF FEDERATION 1891 FEDERATION CONVENTION: DRAFTING A CONSTITUTION Members of the Australasian Federation Conference, 1890 Back row: Andrew Inglis Clark, Captain William Russell (New Zealand), Sir Samuel Griffith, Sir Henry Parkes, Thomas Playford, Alfred Deakin, Bolton Stafford Bird, George Jenkins (Secretary to the Conference) Seated: William McMillan, Sir John Hall (New Zealand), John Macrossan, Duncan Gillies, Dr John Cockburn, Sir James Lee Steere National Library of Australia, an14292110 The first National Australasian Convention was held in Sydney in March and April 1891, and was attended by delegates from each of the colonies and the New Zealand Parliament. During the convention, Edmund Barton, who was to become Australia's first Prime Minister, made famous the catchcry “a nation for a continent and a continent for a nation”. The convention spent five weeks discussing and then composing a draft constitution, which became the basis for the constitution we have today. © Western Sydney University Enterprises Pty Limited 2018 61 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Under the draft constitution the colonies would unite as separate states within the Commonwealth, with power shared between a federal parliament and state parliaments. This would give Australia a federal system of government. The federal parliament would have responsibility for areas which affected the whole nation, such as trade, defence, immigration, postal and telegraphic services, marriage and divorce. A High Court would interpret the constitution and resolve disputes between the federal and state governments. Federal parliament would comprise the Queen (represented by the Governor-General), the Senate and the House of Representatives. The two houses would have similar law-making powers — laws could only be passed or changed with the approval of both houses. The power to make and manage federal law was to be divided between the parliament (which would make the law), the Executive (which would implement the law) and the judiciary (which would interpret the law). The House of Representatives was to be elected based on population (with members representing electorates made up of approximately the same amount of people) while the Senate would provide all states with equal representation. States with larger populations would have more electorates and greater representation in the House; the composition of the Senate was designed to ensure that these states did not dominate the parliament. Henry Parkes gave a rousing address at Tenterfield in 1889 calling for “a great national government for all Australians”. © Parliamentary Education Office (www.peo.gov.au) Parkes' call provided the momentum that led to Australia becoming a nation. Aware that popular support was not enough, Parkes lobbied his fellow premiers to back federation. On 6 February 1890, delegates from each of the colonial parliaments and the New Zealand Parliament met at the Australasian Federation Conference in Melbourne and agreed “the interests and prosperity of the Australian colonies would be served by an early union under the Crown”. It called for a national convention (formal meeting) to draft a constitution for the Commonwealth of Australia. THE PEOPLE'S CONVENTIONS In 1893 a people's conference was held in Corowa, New South Wales, which agreed “the best interests for the present and future prosperity of the Australian colonies will be promoted by their early federation”. A special Premiers’ Conference was held in Hobart in 1895 at which most of the colonies agreed to the proposal. Queensland, fearing federation might mean the loss of its Pacific Islander labour force, decided not to take part. By this stage, New Zealand had also opted out of the federation process. © Parliamentary Education Office (www.peo.gov.au) In March 1896 elections for convention delegates were held in New South Wales, Victoria, Tasmania and South Australia. 1897–1898 FEDERATION CONVENTION The second National Australasian Convention met three times during 1897 and 1898 in Adelaide, Sydney and Melbourne, and used the draft constitution as a starting point for deliberations. The convention comprised elected and appointed representatives from all the colonies except Queensland. Given that the Senate and the House of Representatives would have almost identical law-making powers, the delegates realised a provision was needed to break deadlocks between the two houses. Under this provision, disagreements could be resolved by dissolving both Houses of Parliament and calling an election. The newly elected parliament could then vote on the issue. If this failed to break the deadlock, it could be put to a vote in a joint sitting of both houses. On 16 March 1898 the convention agreed to the constitution in the form of a Draft Bill to Constitute the Commonwealth of Australia. After being endorsed by the colonial parliaments, the electors in each of the six colonies were then asked to approve the constitution in a referendum. FIRST REFERENDUM: 1898 In June 1898 referendums were held in New South Wales, Victoria, South Australia and Tasmania. Australia was the first nation to take a proposed constitution to the people for approval (Switzerland had held a referendum to approve changes to its constitution in 1874). Enthusiastic campaigns were waged urging people to vote either 'yes' or 'no'. Anti-federation groups argued that federation would weaken the colonial parliaments, and interstate free trade would lead to lower wages and a loss of jobs. The referendum was passed in Victoria, South Australia and Tasmania. However, while a majority of voters in New South Wales voted 'yes' to the referendum, it did not attract the 80,000 'yes' votes set by the New © Western Sydney University Enterprises Pty Limited 2018 62 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook South Wales colonial parliament as the minimum needed for it to agree to federation. Queensland and Western Australia, concerned federation would give New South Wales and Victoria an advantage over the less powerful states, did not hold referendums. Australia was the first nation in history to take a proposed constitution to the people for approval. 'SECRET' PREMIERS' CONFERENCE In January 1899 the colonial premiers met privately to find a way to bring about federation. Western Australian Premier John Forrest chose not to attend. In order to win the support of the New South Wales and Queensland colonial parliaments, the premiers made some further changes to the draft constitution. © Parliamentary Education Office (www.peo.gov.au) Among these was the decision that the Australian national capital would be established within New South Wales but at least 100 miles (160.9 km) from Sydney. SECOND REFERENDUM: 1899 People line up outside a polling station on referendum day, Brisbane, 1899. State Library of Queensland, Image no. 109589 Between April and July 1899 referendums were again held in Victoria, South Australia, New South Wales and Tasmania, with the result that all four colonies agreed to the proposed constitution. Western Australia still refused to take part. The following September, Queenslanders endorsed the constitution by the narrowest of margins, with just over 54 per cent voting 'yes'. Queensland had waited to see whether New South Wales would federate before it held the referendum. CONSTITUTION ACT The Constitution had to be agreed to by the British Parliament before federation could proceed. The Commonwealth of Australia Constitution Act was passed by the British Parliament on 5 July 1900. Queen Victoria signed the Act on 9 July 1900. It was one of the last Acts of parliament made during Victoria's reign. © Parliamentary Education Office (www.peo.gov.au) © Western Sydney University Enterprises Pty Limited 2018 63 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook EXERCISE 2: FEDERATION 1. What is a federation? 2. In what year did Australia become a federation? 3. Name two countries apart from Australia which have a federal system of government. EXERCISE 3: FAST FACTS Below are some facts about Australia in the 19th century: 1. In 1884 the Germans took over the administration of the northeast section of NSW. 2. There was no coordination of colonial armed forces. 3. There was no free trade between the Australian colonies. The parliaments of NSW, Victoria, South Australia, Tasmania, Queensland and later, Western Australia imposed customs duties on goods entering their territories and discriminated against goods of other colonies. 4. Quarantine regulations differed from colony to colony. 5. Working men feared that there would be an influx of cheap foreign labour. 6. Manufacturers feared competition from overseas manufacturers. 7. Telegraph, postal and other communications services remained with the each colony. 8. The 1890s witnessed a period of economic decline. There was some concern that each of the colonies was able to issue currency and mint coins. Imagine that you are living in Australia in the 19th century and write down six reasons why the colonies should be formed into a federation. Refer to the box above. © Key Learning Systems and Emerald City Books 1998 EXERCISE 4: MULTIPLE CHOICE © Western Sydney University Enterprises Pty Limited 2018 64 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 1. The Australian federation came into being on: a. 1 January 1895 b. 1 January 1900 c. 26 January 1900 d. 1 January 1901 2. The Australian federation was created by: a. an Act of the federal parliament b. an Act of the British Parliament c. the Adelaide Convention of 1897 d. Henry Parkes 3. The first federal parliament met in: a. Melbourne b. Sydney c. Adelaide d. Tenterfield 4. The first Prime Minister of Australia was: a. Henry Parkes b. Alfred Deakin c. Billy Hughes d. Edmund Barton 5. The federal parliament’s first meeting in Canberra was in: a. 1927 b. 1905 c. 1918 d. 1925 6. The first King/Queen of Australia was: a. Queen Victoria b. King Edward VII c. King George V d. Queen Elizabeth II 7. A constitution is: a. a document that sets out the rights of citizens b. a set of rules that provides a framework for government c. a document produced by a constitutional convention d. a document setting up the judiciary 8. Under the Australian Constitution, parliament consists of: a. the Queen and the House of Representatives b. the Queen, the Senate and the House of Representatives c. the Senate and the House of Representatives d. the Senate, the House of Representatives and the Cabinet 9. Which of the following countries has a federal system of government? a. France b. Italy c. Portugal d. USA © Key Learning Systems and Emerald City Books 2000 EXERCISE 5: CLOZE PASSAGE © Western Sydney University Enterprises Pty Limited 2018 65 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook continent colonists South Australia government invasion create nationalism Imperial parliament functioning jurisdictions supportive parliaments legal system institutions Parkes opportunities Fill in the missing blanks in the following passage using words from the list above. Federation occurred in Australia after about two decades of discussion and debate. Interest in federating grew as the of the Australian continent began to feel concerned about the possibility of from a variety of other nations such as Russia, Germany and China. There was also an emerging sense of as artists, writers and journalists started to value and take pride in being “Australian”. Sir Henry began to encourage leaders from all the colonies to think about the possible advantages and that might arise from the six colonies joining together to a new nation. Some colonies were less enthusiastic about the process than others. Queensland, New South Wales and Victoria accused each other of “sinister plots” to gain control of the whole. Western Australia only agreed to join after the Commonwealth of Australia Constitution Act had passed through. The smallest colonies in population terms, Tasmania and bargained hard to alter the Constitution in order not to be swamped by the bigger and more powerful colonies. The federal system of offered some significant advantages for the colonies, as they existed. By adding a layer of national government over the already operating governmental structures meant that the colonies could keep operating as they had and did not need to restructure the that were already operating. The consequence of this has been that Australia has a large number of and two major court systems operating in tandem. This can lead to issues arising from disputes and to accusations of over-government. However by leaving the colonial government structures largely intact, the transition from six colonies to one nation was accomplished with a great deal less disruption. © Western Sydney University Enterprises Pty Limited 2018 66 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook The Constitution A constitution is a framework of rules that set out how an institution or a government is to be run. The Australian Constitution describes the composition, role and powers of the federal parliament. It sets out how the federal and state parliaments share the power to make laws. It also details the role of the executive government and the High Court and defines certain rights of Australian citizens, such as the right to religious freedom. © Parliamentary Education Office (www.peo.gov.au) The Australian Constitution provides for the following: establishment of federal parliament division of powers between state and federal governments separation of powers between legislature, the judiciary and the executive establishment of the High Court, and certain (limited) rights enjoyed by all Australians.11 The Constitution was passed as a British Act of Parliament in 1900, called the Commonwealth of Australia Constitution Act, which came into effect on 1 January 1901. Western Australia was not a party to the initial agreement but did agree to join the Federation before 1 January. © Parliamentary Education Office (www.peo.gov.au) Some countries have unwritten constitutions, which means there is no formal constitution written in one particular document, eg Britain. Australia, India and the United States are examples of countries with a written constitution. FEATURES OF THE AUSTRALIAN CONSTITUTION The Australian Constitution is divided into eight chapters and 128 sections. It sets out the basis for Australia's federal system of governance, the key features of which include: a federal parliament and government, responsible for national decision making and law making a bicameral parliament, including the Queen (represented by the Governor-General), the Senate and the House of Representatives six state governments, responsible for state matters power-sharing arrangements between the federal and state parliaments, and the High Court of Australia, which is the final court of appeal. The High Court interprets the Constitution and decides its meaning, as well as settling disputes between the federal and state governments. The Constitution does not cover all aspects of the governance of Australia. For example, the Prime Minister and the Cabinet are not mentioned in the Constitution. While central to the way government works, the Prime 11 Brassil, B & Brassil, D 2007, Excel legal studies, Pascal Press, Glebe. © Western Sydney University Enterprises Pty Limited 2018 67 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Minister and Cabinet operate by custom and convention, similar to the British system from which they were derived. The Constitution does not detail many of the rights of the Australian people. Australia's Constitution does not include a bill of rights, such as the right to free speech. In Australia these rights are protected by common law (made by the decisions of the courts) and laws made by parliament (statute law). In addition to the national Constitution, each Australian state has its own constitution. The Australian Capital Territory and Northern Territory have self-government Acts which were passed by the Australian parliament. © Parliamentary Education Office (www.peo.gov.au) CHANGING THE AUSTRALIAN CONSTITUTION The Australian Constitution can only be changed with the approval of the Australian people. A proposed change must be approved by the federal parliament and then be put to Australians in a referendum. All Australian citizens on the electoral roll vote ‘yes’ or ‘no’ to the proposed change. A referendum is only passed if it is approved by a majority of voters in a majority of states, and by a majority of voters across the nation. This is known as a double majority. Territory voters are only counted in the national majority. Since 1901, 19 referendums have proposed 44 changes to the Constitution; only eight changes have been agreed to. © Parliamentary Education Office (www.peo.gov.au) EXERCISE 6 Question 1: Question 2: © Western Sydney University Enterprises Pty Limited 2018 68 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Question 3: Question 4: Question 5: © Key Learning Systems and Emerald City Books 1998 © Western Sydney University Enterprises Pty Limited 2018 69 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook © Western Sydney University Enterprises Pty Limited 2018 70 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook THREE LEVELS OF GOVERNMENT For federation to happen, it was necessary to find a way to unite the colonies as a nation with a central or national government, while allowing the colonial parliaments to maintain their authority. The Australian Constitution, which sets out the legal framework by which Australia is governed, resolved this issue by giving Australia a federal system of government. This means power is shared between the federal government and state governments. Under the Constitution the states kept their own parliaments and most of their existing powers but the federal parliament was given responsibility for areas that affected the whole nation. State parliaments in turn gave councils the task of looking after the particular needs of their local communities. Australia has three levels of law-making—sometimes referred to as three levels of government— that work together to provide Australians with the services they need. Three levels of law making in Australia The three levels are: Federal parliament—legislates, or makes laws, for the whole of Australia. Six state and two mainland territory parliaments—make laws for their state or territory. Over 560 local councils—make local laws, called by-laws, for their region or district. Each level of government has its own responsibilities, although in some cases these responsibilities overlap. © Parliamentary Education Office (www.peo.gov.au) The Constitution determines which level of government is responsible for law-making power through the doctrine of the division of powers. © Western Sydney University Enterprises Pty Limited 2018 71 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook The doctrine of the division of powers divides the power to make laws between the Commonwealth and state/territory governments. THE DIVISION OF POWERS Section 51 Legislative power exercised by Commonwealth Government Section 52 Exclusive power exercised by Commonwealth Government KNOWLEDGE Concurrent power Shared power between Commonwealth and HUB state/territory governments Residual power Power exercised by state and territory governments Delegated Power delegated to subordinate legislation bodies to make law Sections 51 and 52 of the Constitution describe the law-making powers of the FEDERAL PARLIAMENT. Section 51 of the Australian Constitution gives the federal parliament the “power to make laws for the peace, order, and good government of the Commonwealth” in relation to certain matters. Section 51 lists 40 areas over which the federal parliament has legislative (law-making) power. These include: trade and commerce postal and telecommunications services foreign policy taxation census and statistics weights and measures bankruptcy and insolvency quarantine lighthouses, lightships, beacons and buoys fisheries currency copyright marriage immigration, and defence. The power to make law in these areas was given to the Commonwealth or federal parliament at the time of Federation and is called legislative power. Under s 51 of the Constitution, state parliaments can refer matters to the federal parliament. That is, they can ask the federal parliament to make laws about an issue that is otherwise a state responsibility. Any federal law then made about the issue only applies in the state or states that referred the matter to federal parliament or that decide to adopt the law. When the federal parliament makes a law using its power under section 51 of the Constitution, the law is binding on ALL Australians. Section 52 of the Constitution stops state parliaments from making laws in some areas, including defence and communication. This means the federal parliament has exclusive power to make laws in these areas. States are also barred from charging customs duties, which guarantees free trade within Australia. © Western Sydney University Enterprises Pty Limited 2018 72 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook The creation of a single Australian market was a key reason for federation. Before 1901 each colony taxed goods imported from the other colonies, which made trade difficult and was considered bad for their economies. CONCURRENT POWER On some matters, listed in s 51 of the Constitution, the federal parliament and the state parliaments may make laws about the same things, for example, roads and health. This is called exercising concurrent or shared power. This may lead to a conflict between a Commonwealth and state/territory law. However, s 109 of the Australian Constitution states that if the federal parliament and a state parliament pass conflicting laws on the same subject, then the federal law overrides the state law, or the part of the state law that is inconsistent with it. RESIDUAL POWER Australia has six state parliaments. It also has two territory parliaments, known as Legislative Assemblies. These parliaments are located in Australia's eight capital cities: Northern Territory — Darwin Queensland — Brisbane New South Wales — Sydney Australian Capital Territory — Canberra Victoria —– Melbourne Tasmania — Hobart South Australia — Adelaide Western Australia —Perth. State and territory parliaments make laws that are enforced within their state or territory. By defining federal powers, the Australian Constitution reserved or left most other law-making powers to the states. As a rule, if it is not listed in sections 51 and 52 of the Constitution, it is an area of state responsibility. State laws relate to matters that are primarily of state interest, such as: schools hospitals roads and railways public transport utilities such as electricity and water supply mining and agriculture forests community services consumer affairs police prisons, and ambulance services. When state or territory parliaments make laws they are exercising what is called residual power. Section 122 of the Constitution allows the federal parliament to override a territory law at any time. The federal parliament has only used its power under s 122 on a few occasions and only in cases where the territory law has created much debate or controversy within the Australian community. DELEGATED LEGISLATION There are over 560 local government bodies, or councils, across Australia. A local council (local government) is an example, among others, of a subordinate body. On average, each council has 10 elected members who are usually called councillors or aldermen, while the chair or head of the council is usually called the mayor or president. These smaller legislative bodies make by-laws about local matters and provide services. This is called delegated legislation. State and territory governments delegate power (through enabling Acts) to subordinate bodies such as councils to make laws relevant to their responsibilities. While these Acts vary from state to state, in general they cover how councils are elected and their power to make and enforce local laws, known as by-laws. © Western Sydney University Enterprises Pty Limited 2018 73 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook A by-law is a form of delegated legislation because the state government gives, or delegates, to councils the authority to make laws on specific matters. As councils derive their powers from state parliaments, council by-laws may be overruled by state laws. One of the main tasks of local government is to regulate or manage services and activities. For example, councils are responsible for traffic lights, and dog and cat management. These tasks would be difficult for a state government to manage because they are local issues. Councils can deliver services adapted to the needs of the community they serve. For example, councils are responsible for: local roads, footpaths, cycle ways, street signage and lighting waste management, including rubbish collection and recycling parking recreational facilities such as parks, sports fields and swimming pools cultural facilities, including libraries, art galleries and museums services such as childcare, aged care and accommodation sewerage town planning building approvals and inspections land and coast care programs, and domestic animal regulation. However, the needs of residents in inner-city Sydney will be different to those of people living in rural Queensland. By providing these services and facilities, councils make sure local communities work well from day to day. From the 1840s, colonial parliaments began to hand over responsibility for local issues to local councils. The first council was established in Adelaide in 1840, followed in 1842 by the City of Sydney and Town of Melbourne councils. From the 1850s onwards, the number of elected councils grew rapidly. Today, local authorities include city councils in metropolitan and regional urban centres, and shire councils which serve rural areas. Local councils are not mentioned in the Australian Constitution, although each state has a Local Government Act (law) that provides the rules for the creation and operation of councils. © Parliamentary Education Office (www.peo.gov.au) © Western Sydney University Enterprises Pty Limited 2018 74 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook EXERCISE 7 Question 1: Question 2: a. Which areas of law making do you think were given exclusively to the Commonwealth? Write down three. b. List four areas of concurrent power. c. What rule applies if there is a clash between state law and federal law in an area of concurrent power? (Hint: look at s 109 of the Constitution.) d. List four areas of residual law-making power. Question 3: © Key Learning Systems and Emerald City Books 1998 Question 4: © Key Learning Systems and Emerald City Books 1998 © Western Sydney University Enterprises Pty Limited 2018 75 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook THE SEPARATION OF POWERS The first three chapters of the Constitution define three largely separate groups — the legislature (parliament), the executive and the judiciary (courts) – and the roles they play in Australian governance. The power to make and manage federal law is divided between these three groups. This division is based on the principle of the “separation of powers”. The origins of the principle of the separation of powers can be traced back as far as ancient Greece. It was made popular much later by French philosopher Charles de Montesquieu in 1748 in his work L'Esprit des Lois (The Spirit of the Laws). He wrote that a nation's freedom depended on the three powers of governance — legislative, executive and judicial — each having their own separate institution. This principle has been widely used in the development of many democracies since that time. © Parliamentary Education Office (www.peo.gov.au) The diagram above illustrates the separation of powers in Australia. The parliament has the power to make and change law. The executive government has the power to put law into action. The judiciary has the power to make judgments on law. Under this principle, the power to govern should be distributed between the parliament, the executive and the judiciary to avoid one group having all the power. Each group should work within defined areas of responsibility so that each keeps a check on the actions of the others. © Parliamentary Education Office (www.peo.gov.au) SEPARATION OF ROLES Power Role Composition Parliament The parliament makes Parliament (also referred to as the legislature) is made and amends the law up of the Queen (represented by the Governor-General), the Senate and the House of Representatives. Executive The executive puts the The executive is made up of the Queen (represented by law into action the Governor-General), Prime Minister and ministers. Judiciary The judiciary makes The judiciary is made up of the High Court and other judgments about the law federal courts. Australia does not have a complete separation of powers because some of the roles of the parliament, the executive and the judiciary overlap. For example, the Prime Minister and ministers are part of the executive and the parliament. High Court judges, the Prime Minister and ministers are officially appointed by the Governor-General, who is part of the parliament and the executive. Section 61 of the Constitution states that “the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative”. This means that the Governor- © Western Sydney University Enterprises Pty Limited 2018 76 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook General has been given certain powers to act on behalf of the Queen. However, the role of the Governor- General is not just defined by the Constitution, but also by custom and tradition. The separation of powers works together with another principle known as responsible government, to guide the way law is made and managed. Responsible government means that a party, or coalition of parties, must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the executive, ensuring they remain accountable to the parliament and do not abuse their power. © Parliamentary Education Office (www.peo.gov.au) THE ROLE OF THE HIGH COURT IN RELATION TO THE CONSTITUTION The High Court occupies a unique position in the Australian legal system. Not only is it the highest court in the hierarchy of Australian courts, but also its creation did not depend upon the Australian parliament. The High Court was created by the Commonwealth of Australian Constitution Act 1900 (UK) and under s 76 of the Act the High Court is given the power to interpret the wording of the Constitution. It must also decide any disputes between the Commonwealth and the states, and between one state and another. EXERCISE 8 Research the following questions and answer in the spaces provided. 1. How many colonies joined to form the Australian federation? 2. What role did each of the following play in the creation of the Australian federation? a. Edmund Barton b. Queen Victoria c. Lord Hopetoun d. Sir Henry Parkes e. Sir Samuel Griffiths 3. When did federation occur? 4. What is Australia’s official name? 5. List some factors that promoted an increasing sense of nationalism. 6. Defence was a big problem for the colonies — why? © Western Sydney University Enterprises Pty Limited 2018 77 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 7. The Convention of 1891 led to the creation of which important document? 8. Which colonies were against federation? What were their concerns about the suggested structure? 9. Where did federal parliament first sit? 10. When did Canberra become Australia’s national capital? Why was an alternative capital decided upon? 11. In what year did federal parliament begin sitting in Canberra? STUDY CAM Revise your understanding of this topic by answering the following questions. 1. What is federation? 2. Give two other examples of countries that are federations. 3. What type of forces made the six colonies look towards federation? © Western Sydney University Enterprises Pty Limited 2018 78 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 4. Who is known as the Father of Federation? 5. Describe briefly the journey to federation. 6. Which states were reluctant to join the federation? 7. Where was the Australian Constitution passed? 8. When did Australia become a federation? 9. Define the word “constitution”. 10. What type of constitution does Australia have? 11. The Commonwealth Constitution creates a division of power between the state and federal government into exclusive, concurrent and residual powers. a. What are the exclusive powers? b. Which level of government uses exclusive powers? c. Give an example of an exclusive power. d. What are concurrent powers? © Western Sydney University Enterprises Pty Limited 2018 79 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook e. Which levels of government use residual powers? f. Give an example of a residual power. 12. What is the doctrine of the separation of powers? 13. Outline the role of the three arms of government: the executive, the judiciary and the legislature. 14. Why is Australia called a “constitutional monarchy”? 15. Describe the role of the High Court in relation to the Commonwealth Constitution. 16. How can the Commonwealth Constitution be changed? 17. Why is it so difficult to achieve constitutional change? © Western Sydney University Enterprises Pty Limited 2018 80 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 18. What power does the Governor-General have in Australian politics? © Western Sydney University Enterprises Pty Limited 2018 81 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook REVISION You will soon be required to undertake a topic test covering the first three topics of this unit. Begin your preparation for this test by revising the following material. TOPIC 1: BASIC LEGAL NOTIONS 1. What is the definition of a law? 2. Why do societies develop rules and laws? 3. Name five functions of the law. 4. What are the characteristics of law? 5. What is an example of public law? 6. What is an example of private law? 7. What is the difference between public and private law? 8. What is common law? © Western Sydney University Enterprises Pty Limited 2018 82 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 9. What is a rule? 10. What is an example of a rule? 11. What is statute law? 12. What is a custom? 13. What is an example of customary law? 14. What does anarchy mean? 15. What is a moral? 16. What is justice? 17. What are the rules of natural justice? 18. What does procedural fairness mean? 19. What are ethics? © Western Sydney University Enterprises Pty Limited 2018 83 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 20. Name the five (5) factors said to explain why people disobey the law. 21. What are the sources of our law? 22. Name three differences between criminal and civil law. 23. What is the difference between federal and state law? 24. What is the difference between international and domestic law? Score: © Western Sydney University Enterprises Pty Limited 2018 84 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook TOPIC 2: HISTORY OF THE AUSTRALIAN LEGAL SYSTEM 12 matching questions: Pre-1788 Select from answers A to L and enter your choice in each of the boxes provided. 1. When was the first English parliament formed by King Edward I? 2. What important document was signed in 1215? 3. Which significant person died in 1660? 4. Who were offered the monarchy in 1689? 5. What conditions were attached to the Declaration of Rights 1689 signed by William of Orange? 6. What happened in the "Glorious Revolution” of 1688? 7. Why was the document signed in 1215 significant? 8. What happened in 1615? 9. What is equity? 10. What is common law? 11. Which English king is known as the father of the common law? 12. What body developed equity? © Western Sydney University Enterprises Pty Limited 2018 85 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Answers: A. The court of Chancery which was run by the Church. B. 1254 C. The Magna Carta was signed by King John at Runnymede on 15 June 1215. D. It enshrined various rights of citizens (through the barons) and constrained the power of the King. It embodied some early important human rights. E. King James I decided that equity would take precedence over the common law. F. Judge-made law G. William and Mary of Orange, on the condition that they accept a Bill of Rights limiting their power. H. Henry II I. King James II attempted to override parliament and restore the supremacy of the monarchy. He was forced to flee the country after a three-year reign in a bloodless coup, known as the “Glorious Revolution”. J. Laws could not be made without reference to parliament. Catholicism could not be reintroduced. K. Oliver Cromwell who ran the government for 11 years through parliament. There was no monarchy. L. A body of rules developed to supplement the common law which was considered harsh and inflexible. 13 matching questions: Post-1788 Select from answers A to N and enter your choice in each of the boxes provided. 1. Name some punishments that were features of the Aboriginal customary system. 2. After colonisation, what was the first type of law established in the penal colonies? 3. What was the basis of the High Court's decision in Mabo No 2? 4. Define “customary law”. 5. Who was the first Governor of the colony? 6. What type of law was introduced after agreement with the imperial authorities in London? 7. What does “terra nullius” mean? 8. Name some characteristics of Aboriginal tribal society. 9. What was the title of the person who was in control of the colony? © Western Sydney University Enterprises Pty Limited 2018 86 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 10. Name the four internationally recognised ways of acquiring new territories used by European powers in the 17th and 18th centuries. 11. What was the method used by the British to colonise Australia? 12. Give an example of a customary law system. 13. Which Act was passed by the Commonwealth Parliament as a result of the decision in Mabo No 2? Answers: A. Death , spearing, individual 'duelling' with spears, boomerangs or fighting sticks, collective 'duelling' (including specially structured encounters such as the makarrata, shaming or public ridicule, more rigorous forms of initiation or teaching , certain arrangements for compensation (eg through adoption or marriage) , exclusion from the community (eg to a particular outstation or another community, or more rarely, total exclusion). B. Native Title Act 1993 (Cth) C. Aboriginal tribal law or English customary law D. Governor E. Arthur Phillip F. Culturally diverse, hunters and gatherers, religion and spirituality formed an important G. Component of their existence, male-dominated society, complex rules of kinship H. British military law I. Latin phrase meaning “land belonging to no one” J. Law based on usual customs or traditions K. Inheritance, conquest, purchase, settlement L. Australia was not “terra nullius” when the British colonised it. Previously existing land rights continued. The general law would recognise native title to land where the Indigenous owners could show a continuing relationship with the land. M. Settlement N. Modified English civil law Score: © Western Sydney University Enterprises Pty Limited 2018 87 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook TOPIC 3: FEDERATION 15 written questions 1. How can the Constitution be changed? 2. Which Act of Parliament was passed to create the Commonwealth of Australia? 3. Under the division of powers, what power is exercised by the Commonwealth Government? 4. Name the three separate arms of government referred to in the separation of powers. 5. What was Australia like prior to 1901? 6. What is the name of the doctrine contained within the Constitution which separates the functions of government in three separate arms? 7. What is the name for the Queen's representative at the state level? 8. How did the colonies agree to federate? 9. Who is known as the Father of Federation? © Western Sydney University Enterprises Pty Limited 2018 88 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 10. What section of the Constitution resolves the issue of disputes between federal and state laws? 11. What section of the Constitution created the High Court? 12. What is a subordinate body? 13. When did the Constitution and the Commonwealth of Australia come into effect? 14. What type of law is created by subordinate bodies? 15. Name some key features of the Constitution. 14 matching questions Match the questions below to the answers that follow. A. What is concurrent power? B. What does representative government mean? C. What is a constitution? D. What is the role of the Governor-General? E. How many sections are in the Commonwealth Constitution? F. What is the purpose of each arm of government under the separation of powers doctrine? G. What is the name of the doctrine contained within the Constitution which divides the power to make laws between the Commonwealth and the states? H. What were some of the reasons put forward in favour of federation? I. Why is the Constitution often referred to as the “birth certificate” of our nation? J. What were some of the arguments against federation? K. Which section contains specific heads (or list) of legislative powers given to the Commonwealth? L. When and where did the High Court first sit? M. What type of power is exercised by state and territory governments? N. What is 'federation'? © Western Sydney University Enterprises Pty Limited 2018 89 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook Answers: 1. Residual power 2. Shared power to make laws between the Commonwealth and state/territory governments. 3. 6 October 1903 in Melbourne 4. The Constitution established a federal system of government. 5. Section 51 6. Legislature (parliament) makes the law. Executive (Governor-General, Prime Minister, Cabinet and government departments) administers the law. Judiciary (courts) interprets and apply the law. 7. The division of powers 8. Some of the reasons against federation were trade, fear, apathy, expense and retention of cheap labour. 9. The Governor-General is the Queen's representative at the federal or Commonwealth level. 10. A constitution is a set of rules by which a country or state is run. 11. Some of the reasons put forward in favour of federation were economics, transport, defence, nationalism and racial purity 12. The Constitution contains 128 sections. 13. Representative government is a system where the people elect members of parliament to represent them. © Western Sydney University Enterprises Pty Limited 2018 90 700216/900083 Introduction to the Australian Legal System 2018 Student Workbook 14. A system of government with one central government and state governments underneath. Score: Didn’t do so well? Take a minute to think about and list below the areas you need to work on before your topic test! Basic legal notions History Federation © Western Sydney University Enterprises Pty Limited 2018 91