Fundamentals of Law III – Global Homework Experts

LAWS11030 Foundations of
Business Law
Fundamentals of Law III
The Australian Legal System
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Seminar Overview
A. Origins of Australian Law
B. Australia’s Constitutional System of Government
C. The Constitution and the Separation of Powers
D. The Australian Court and Tribunal System

A. Origins of Australian Law
Pre-European History
• Aboriginal and Torres Strait Islander people inhabited
most of Australian continent
• Complex social systems, highly developed traditions,
connection with land
• Customary laws – passed from generation to generation
Milirrpum v Nabalco (1971) 17 FLR 141 – one of the first
cases to look at customary law that acknowledged the
institutions and traditions of the indigenous plaintiff as a
system of law.

British Colonisation
• In 1770 Captain Cook claimed Australia on behalf of England à the
First Fleet arrived in 1788 and created a penal colony in Sydney
– British settlers claimed
terra nulius (the land belonged to no one)
applied to Australia
à imported British law to the colonies,
thereby displacing indigenous law and land ownership
• Settlement or invaders?
– Occupied: laws can only be enforced with consent of conquered
– Unoccupied: all laws of settling nation were regarded as coming
into force

• Australia started out as independent colonies. NSW was the first
colony followed by QLD, VIC, SA, TAS, WA
• Each colony was controlled by the British government and
represented by governor who had almost absolute power
• Over time that power was distributed and colonies set up own
parliaments and courts
• All modelled on British political legal system

Status of Indigenous Peoples in the Australian Legal
• At the time of federation in 1901 indigenous peoples were not citizens
of Australia
– No right to vote until legislative change in 1962
– Not included in the electorate
– Not counted in the census
– No protection from Commonwealth laws – eg. wages and social security
• In 1967 a referendum saw Constitutional change that allowed the
Commonwealth to make laws for indigenous peoples and include
indigenous peoples in the Constitution
à essentially created citizenship
for indigenous peoples
• The doctrine of terra nullius allowed the Australian government and
courts to fail to recognise indigenous law and land rights until it was
overturned in
Mabo v State of Queensland (No 2) (1992) 175 CLR 1
Impact of Mabo
Mabo resulted in indigenous law becoming part of the
Australian legal system and land rights legislation in the
Native Title Act 1993 (Cth)
• After
Mabo there other High Court cases that explored the
land rights of indigenous Australians eg.
• There are now specialised laws, courts and processes for
indigenous Australians in
some areas of law
• Indigenous Australians continue to push for better treatment,
improved legal rights and recognition of their soveriegnty eg.
Uluru Statement from the Heart

B. Australia’s Constitutional
System of Government

The Federation of Australia in 1901
• During the 1890s the colonies held a number of constitutional
conventions to create a federation.
• In 1901 the
Australian Constitution created the Commonwealth of
Australia – Constitutional Monarchy:
– Australia’s system of government is based on the British Westminster system and
adopts American
– Legislative power is divided between the Commonwealth and the States.
– The Constitution adopts the separation of powers doctrine by establishing three
branches of government: the executive, the legislature and the judiciary.
– Citizens are therefore generally subject to two legal systems – the State in which they
reside and the federal system
– Businesses may be subject to multiple legal systems if they conduct business in
multiple states or a national business

The Constitution and Types of Legislative Powers
• Different types of legislative power:
1. Exclusive powers
• Commonwealth powers only eg. defence and foreign affairs
2. Concurrent powers
• Powers exercised by both the Commonwealth and the States
• s 109 of the Constitution states that Commonwealth law
prevails when there is an inconsistency with State law eg. the
Tasmania Dams Case
3. Residual powers
• All other law-making powers not mentioned in the Constitution
and fall to the States

Section 51 of the Constitution
• Section 51 of Commonwealth Constitution is known as
the ‘heads of power’ and sets out 39 areas in which the
Commonwealth Parliament has power to legislate
– Wide interpretation of powers by the High Court in Amalgamated
Society of Engineers v Adelaide Steamship Co Ltd
(1920) 28
CLR 129
• Examples of federal legislative powers:
– Foreign trade: s 51(i)
– Defence: s 51(vi)
– Marriage: s 51(xxi)
– Immigration: s 51(xxvii)

Heads of Powers Related to Commerce
• Section 51 powers relevant to business include:
1. Foreign and interstate trade and commerce: s 51(i)
2. Taxation power: s 51(ii)
3. Corporations power: s 51(xx)
4. Conciliation and arbitration for the prevention and settlement of interstate
industrial disputes: s 51(xxv)
5. External affairs: s 51(xxix)
• These powers are limited in the Constitutional requirement for freedom of interstate
• States can refer their legislative powers to the federal government eg. employment in
2007, consumer credit and personal property in 2009

Constitutional Change
• Proposed constitutional amendments must:
1. Pass both Houses of Parliament by an absolute
2. Pass a referendum through a ‘double majority’:
i. A majority of voters
ii. A majority of the States.
• Since federation of the more than 40 attempts to amend
the Constitution only 8 have been successful.
C. The Constitution and the
Separation of Powers

Australia’s Constitutional System of Government
The Executive Government
Powers of the Executive Government
• The executive power of the Commonwealth is vested in the
Queen and is exercisable by the Governor-General as the
Queen’s representative: s 61 Constitution.
– Constitutional convention requires the Governor-General to act on
the advice of the Prime Minister – exception is the dismissal of the
Whitlam government
• Constitutional convention is the Governor-General asking the
leader of the political party with a majority in the House of
Representatives to form government
• The Cabinet comprises those members of the ministry
responsible for determining the policy and objectives of the
government and are appointed by the Governor-General

Responsible Government
• Responsible government is a principle that is
related to the separation of powers doctrines
and requires ministers in the executive to be
elected representatives who are also members
of and are answerable to the legislature
– Demonstrates some overlap between the three branches of
government and limitations on the operation of the separation of
powers doctrine
The Legislature
• The federal legislature or Parliament of Australia
composed of two houses:
1. House of Representatives
2. Senate
• Differences exist between each chamber:
1. Election of members.
2. Legislative function.
3. Committees.

Delegated Legislation
• Parliaments make law called statutes or legislation.
• Often the parliament will pass legislation setting out
the overarching principles and objectives of a
particular regulatory scheme, but then delegate to a
branch of the executive government the authority to
make the detailed rules, regulations or by-laws,
referred to collectively as delegated legislation.
Judicial Power
• Judicial power is the power to interpret the law
and to apply it in the resolution of particular
• Judicial power is exercised by the courts and
allocated by the Constitution.
The Judiciary
• The High Court of Australia is now the highest court in Australia and
has seven justices.
• Functions of the High Court:
1. Interpret the Constitution.
2. Act as an appellate court from other courts exercising federal
3. Hear appeals from the Supreme Courts of the States.
4. Act as a court of original jurisdiction in certain cases eg. eligibility of
• The Court also safeguards the separation of judicial and
non-judicial powers.

D. The Australian Court and
Tribunal System

Federal and State Court Jurisdiction
• Federal courts may only exercise the jurisdiction that is conferred upon
them by the Constitution or by a federal Act – no power to deal with matters
falling within State jurisdiction
• State courts cannot exercise federal jurisdiction unless empowered to do so
by a federal Act
– The
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) vested State
and Territory Supreme Courts with federal civil jurisdiction. However, the
purported vesting of State jurisdiction in the Federal Court was invalid:
Re Wakim; Ex parte McNally (1999) 198 CLR 511
• Jurisdiction for courts within a State/Territory system are based on the
monetary value of a claim in civil matters and the nature of an offence and
procedure in criminal matters

The High Court of Australia
• The High Court of Australia is the highest court in
Australia and sits at the apex of the judiciary system
– Litigants must seek leave to appeal to the High Court: ss
Judiciary Act 1903 (Cth)
• Appeals from the High Court to the Privy Council
were abolished by the
Australia Act 1986 (Cth)
• The High Court functions as:
1. Final appeals court for all courts and jurisdictions
2. Court of first instance eg. eligibility of federal politicians
and election matters

Federal Courts
Federal Court of Australia
– Established in 1976 and has two courts: trials and appeals
– Jurisdiction: immigration law, competition and consumer law,
anti-doping laws in sport and concurrent powers on bankruptcy
and intellectual property
Federal Circuit Court of Australia
– Established in 1999 and merged with the Family Court in 2018
– Jurisdiction: family law, migration law and general federal law
(eg. minor bankruptcy, consumer matters, etc)

State and Territory Supreme Courts
• Supreme Courts are the highest court in a State or
Territory and is composed of:
– Trial court
– Appeals court: single judge or full bench
• Jurisdiction involves serious criminal offences and
complex civil matters
Supreme Court of Queensland
Supreme Court of Victoria
Supreme Court of New South Wales
District or County Courts
• Most States have intermediate courts known as District
Courts and the Country Court in Victoria
– Civil jurisdiction is based on the subject matter and property in the
dispute and States may limit the monetary claim or have unlimited
– Criminal jurisdiction involves more complex offences and longer
trials than the lower courts
District Court of Queensland
County Court of Victoria
District Court of New South Wales
Local or Magistrates’ Courts
• Lower courts in Australia are known either as Local Court or
Magistrates’ Courts
– Deal with minor criminal matters and initial proceedings in more
serious criminal matters
– Civil jurisdiction is limited based on the amount of the claim and
ranges from $50,000 to $150,000 in the States and a maximum of
$250,000 in the Territories
Queensland Magistrates’ Court
Magistrates’ Court of Victoria
Local Court of New South Wales
Specialist Tribunals
• A number of State/Territory and federal tribunals
were established under legislation, exercise
quasi-judicial powers and are specialist tribunals
Administrative Appeals Tribunal
Victoria Civila and Administratrive Appeals Tribunal
Fair Work Commission

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