Report On Victoria And Australia’s Law-Making Systems & Legal Structures

Part A: Report on the legal systems and structures of Australia and the state of Victoria:

The aim of the report is to understand political system of Australia. Different branches of constitution, legislature, executive and judiciary are highlighted and discussed in this report. It also analyzes the role of criminal law within the society along with the discussion of rights and duties under this law of individuals. This report is helpful to understand different components of a valid contract and the remedies available to any party in case of breach of contract by the counter party.

The Constitution

1 Relationship between States and Commonwealth

The sovereign nations have an association, wherein they support and help each other and work towards attaining common goals. This body is also known as Commonwealth. Commonwealth countries work together and share common heritage in culture, language, law and democratic values. Commonwealth has no formal constitutional system (Commonwealth Governance for Development, 2017).

Australia is a federal parliamentary democracy. The Australian constitution, the institutions and the government practices are influenced by the North American and British models. However, the Australian model is unique too. In Australia, there exists three levels of government: the federal government, the state government and the local government. The constitution of Australia has established federal government which forms the basis of Commonwealth-State relation (Treasury Corporation of Victoria, 2017).The Commonwealth parliament can take decisions related to extern al affairs, defence, trade and commerce, banking, taxation and currency. The economic management of Australia is monitored by the Commonwealth parliament. It is responsible for income tax and general revenue grants (grants paid by Commonwealth to States).

The Commonwealth of Australia was established in year 1901 by the parliament act of the Britain known as Commonwealth of Australia Constitution Act. According to the Australian constitution, there is a distribution of decision making power between the federal government and state governments. It has clearly stated the powers of the federal government. Theremaining powers are meant for the state government. They are known as residual powers (decisions related to law and order, education, housing, commerce and industry etc.)

The position of governor general came into existence after enactment of the Commonwealth of Australia Constitution Act, 1901. the Queen of Britain appoints the governor general of Australia. The Queen’s decision is based on recommendation of Prime minister. The governor general is expected to take the Oath of Allegiance and Oath of Office in the beginning of the term. The term of governor general is not fixed. Governor General can be considered as representative of the Crown. According to section 61 of the Australian constitution, the executive powers of the queen are exercised by the representative of the queen, that is, the governor general. The powers extends implementation of the constitutional acts and laws of the federal government.(Governor-General of the Commonwealth of Australia, 2017).

Relationship between States and Commonwealth

The political system of Australia is constitutional monarchy with a federal parliament and representative democracy. The queen of Britain is the head of the state (hence constitutional monarchy). The federal parliament has three components:TheHouse of Representatives, the senators and the queen of Britain. The house of representatives is an elected body (hence representative democracy).

The federal or the commonwealth parliament of Australia is similar to the parliament of Britain. The parliament has two houses: House of Representatives, the senate and the Queen (governor-general is representative of the queen). The House of Representatives and the Senateform the legislative body (Sydney TAFE, 2006). The bills can be proposed by either senate or house of representative. For bill to be considered as law, it needs to be passed by both the houses and the queen. Different structures are discussed below.

Senate: There are 76 members in the senate. Each state elects 12 senators for 6 years’ term. The Australian Capital Territory and Northern Territory elect total of 4 senators for 3 years’ term. The senate is a powerful body. It has well developed committee system (Parliament of Australia, 2017).

House of Representative: This house consists of 150 members. The members are elected for 3 years. Political party with majority in the House forms the government(Roberson and Das, 2016). The governments’ accountability is demonstrated in every session especially during question time. Members of this house are involved in committee work and law making.  

Queen: The governor general is representative of the queen. The queen selects the governor general on recommendation of the prime minister. The powers of the queen are exercised by the governor general.

Australia as discussed above is a representative democracy. The election commission conducts elections periodically for the house of representative and the senate. The members of the house of representative are elected every 3 years (the term can be shorter, depending on the prime minister). the members for the senate are elected every 6 years. the elections are organised by Australian Electoral Commission. Australia follows the principle of universal adult franchise, that is, every citizen who is 18 years or above has right to vote (Parliamentary Education Office, 2017).

A commonwealth or national law can be passed only by federal parliament. The federal parliament can make laws only on foreign affairs, defence, international trade, taxation, immigration, insurance, currency and marriage(Flynn and Hodgson, 2017). The state governments have power to make laws related to education, roads, transportation and hospitals.A bill is a draft of law or act. A bill becomes a law when both the houses pass it and the governor general approves it (Parliament of Australia, 2017). Bill is drafted by Office of Parliamentary Counsel. In a house of parliament, the bill passes through several stages where it is discussed, amended, debated and voted.

Remunerated and residual powers

The courts in Australia are arranged in a hierarchy as shown in the image. Both the federal courts and the state courts have their hierarchy.

Federal Courts:The highest form of court is the high court. The high court is part of both state and federal courts. The principle function is to interpret constitution of Australia. Full Court of the Federal Court is the appeals branch of federal court. Parties who are not satisfied with federal court decision can appeal in this court(Hufnagel, 2016). Federal court hears cases related to Commonwealth law. Family court is concerned with cases related to family law. It has jurisdiction over marital disputes, divorce etc. Federal Magistrates’ Court is the youngest Australian court formed in 1999. It deals with variety of cases related to administration, family law, bankruptcy, migration etc.

State Court Hierarchy: As discussed above, high court is part of state courts. Court of Appeal is appeal branch of Supreme Court. Highest level of court in each state is the supreme court. It deals with serious criminal cases as well as civil cases which are highly complex. County court also known as the District court is intermediate court which deals with criminal cases. The lowest form of court is the Magistrate court. It deals with minor offences. It deals with civil cases which do not involve huge sum of money (lawgovpol.com, 2014).

The jurisdiction in Australian courts can be divided into four parts. Original jurisdiction is the one where the case is first registered. Appellate jurisdiction is the highest form of jurisdiction within the same court. Appeals can be made to appellate jurisdiction in case of dissatisfaction with decisions of original jurisdiction. Criminal jurisdiction is involved in criminal cases whereas civil jurisdiction deals with civil cases. These jurisdictions can be either original or appellate.

Judges: Judge is the person, who handles cases in courts. They hear the case and make decision accordingly. In situations, where both jury and judge are involved, the judge will direct jury about the law. In such cases, the judge has the highest authority and will make decision accordingly. The judge is addressed as “Your Honour.” Judge’s associate is a person who assists judge helps to perform administrative and court duties.

Juries:Juries are the most important component of Australian courts. It consists of members who are randomly chosen citizens from electoral register. This allows the non-legal members or citizens who do not have a background in legal studies to participate in judicial system (Law Institute of Victoria, 2014). Juries play an important role in criminal and civil trials of County and Supreme courts. Criminal cases require a jury of 12 members. In case of civil cases, jury consists of 6 members.

The Governor General and Governor

Lawyers: Lawyers are known as the legal practitioners, who have in depth knowledge about law and judicial system. They have a specialisation in law, that is, have a law degree. There are two types of lawyers: solicitors or barristers. Solicitors are the “first point of contact.” The person with legal problem approaches them for advice. They deal with variety of cases. Barristers are assigned by the court as their representative. They handle referrals from solicitor (Court Services Victoria, 2017).

The adversarial system is dependent on advocacy of each party wherein the judge plays a passive role. It is basically battle of lawyers. The Australian legal system uses adversarial system. Both the opposing parties and adversaries present their case to an unbiased, independent court. Both try to defend and prove their affirmations. The procedures require both parties to build up their case with suitable and substantial proof. They submit their cases to the court.

The doctrine of precedent is a constraint on the judicial system in Australia. It expects the judges to consider and respect past judicial decisions while giving judgements and making decisions on current cases. It expects the judges to apply similar reasoning and “follow” previous decisions(Saunders, 2010). It can be considered as political ideal for judiciary and judicial system. This ensures consistency in decision making. This consistency is important for citizens to trust the system.

The prime minister is the most important member of executive body in Australia. PM is the member of House of Representatives and is responsible for composition of the government. He plays an important role in policy making. The ministry consists of those members of parliament who are selected by the Prime Minister(Harris, 2013). They have administrative role and role of policy makers. There is a list of conventions and codes of behaviours which monitors Australian cabinet.

The role of the executive is mostly administrative. It is responsible for everyday governance and administration. The primary role is to formulate bills and implement laws which are passed by the parliament. The executive controls House of Representatives to survive. It decides on the bills which need to be presented in the parliament. Another responsibility of the executive is to prepare budget and propose taxation (AustralianPolitics.com, 2017).

Governments have different departments which have different roles and responsibility. They are also responsible for different areas of work. Some of the government departments are mentioned below.

• Department of Communications and the Arts
• Department of Education and Training
• Department of Finance
• Department of Defence

• Department of Foreign Affairs and Trade
• Department of Health
• Department of Employment
• Department of Human Services
• Department of Social Services
• Department of Immigration and Border Protection

Civil servants and bureaucrats are important part of any government. Some of the public servants in Australia are Judges, Department of Health and Ageing, Australian Customs,Law enforcements, and Border Protection Service (Australian Government, 2017).

Legislature – Law-Making Systems:

Conclusion

The report highlights different aspects of the Australian constitution, legislature, judiciary and executive. Australia is a federal parliamentary democracy. The Australian constitution, the institutions and the government practices are influenced by the North American and British models. The Queen of Britain is the head of the state. Governor General is the representative of the queen. There is a division of power between the federal government and the state governments. The parliament of Australia has two houses: the senate and the House of Representatives. The elections to the houses are held regularly. For a bill to become law, it needs to be passed by both the houses. In Australia, there is a hierarchy of federal courts and state courts. High court of Australia is part of both federal courts and state courts. Different legal personnel in the Australian courts are: judge, jury and lawyers.There are different executives within the legal system of Australia such as Prime Minister, Ministers, and different departments such as Department of Defence, Department of Education and Training,Department of Communications and the Arts,Department of Finance, Department of Employment, etc. The Legal system of Australia and Sri Lanka are quite different. For example, Sri Lanka is a socialist democracy. On the other hand, Australia is both a constitutional monarchy and representative democracy.

References

Australian Government(2017) How Government Works. [Online]. Available at: https://www.australia.gov.au/about-government/how-government-works (Accessed: 30 August 2017).

Australian Government (2017)List of departments and agencies. [Online]. Available at: https://www.australia.gov.au/about-government/departments-and-agencies/list-of-departments-and-agencies (Accessed: 30 August 2017).

AustralianPolitics.com (2017) Executive Government – Overview. [Online]. Available at: https://australianpolitics.com/executive/overview (Accessed: 30 August 20170.

Commonwealth Governance for Development (2017) The Commonwealth. [Online]. Available at: https://www.commonwealthgovernance.org/commonwealth-governance/the-commonwealth/ (Accessed: 30 August 2017).

Constitution net(2016) Constitutional history of Sri Lanka. [Online]. Available at: https://www.constitutionnet.org/country/constitutional-history-sri-lanka (Accessed: 30 August 2017).

Court Services Victoria (2017) Roles in court. [Online]. Available at: https://www.courts.vic.gov.au/court-system/appearing-court/roles-court (Accessed: 30 August 2017).

Flynn, A. and Hodgson, J. (2017) Access to Justice and Legal Aid: Comparative Perspectives on Unmet Legal Need. USA: Bloomsbury Publishing.

Governor-General of the Commonwealth of Australia (2017) Governor-General’s Role. [Online]. Available at: https://www.gg.gov.au/governor-generals-role (Accessed: 30 August 2017).

Harris, B. (2013) A New Constitution for Australia. UK: Routledge.

Hufnagel, S. (2016)Policing Cooperation Across Borders: Comparative Perspectives on Law Enforcement Within the EU and Australia. UK: Routledge.

Law Institute of Victoria(2014) Victorian Legal System. [Online]. Available at: https://www.liv.asn.au/LIV-Home/For-the-Community/Victorian-Legal-System (Accessed: 30 August 2017).

lawgovpol.com (2014) Court hierarchies. [Online]. Available at: https://lawgovpol.com/court-hierarchies (Accessed: 30 August 2017).

Parliament of Australia (2017) Commonwealth of Australia Constitution Act. [Online]. Available at: https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Constitution.aspx (Accessed: 30 August 2017).

Parliament of Australia (2017) Making laws. [Online]. Available at: https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-_Making_laws (Accessed: 30 August 2017).

Parliament of Australia(2017) Parliament and Government. [Online]. Available at: https://www.aph.gov.au/About_Parliament/Work_of_the_Parliament/Forming_and_Governing_a_Nation/parl (Accessed: 30 August 2017).

Parliamentary Education Office (2017) Election processes and systems of representation. [Online]. Available at: https://www.peo.gov.au/learning/closer-look/parliament-and-congress/election-processes-and-systems-of-representation.html (Accessed: 30 August 2017).

Roberson, C. and Das, D.K. (2016) An Introduction to Comparative Legal Models of Criminal Justice.2^ndEdition. USA: CRC Press.

Saunders, C. (2010) The Constitution of Australia: A Contextual Analysis. USA: Bloomsbury Publishing.

Sydney TAFE (2006)Unit 1 The Australian legal system: Topic 3 Powers of the Commonwealth and State Parliaments to make laws. [Online]. Available at: https://sielearning.tafensw.edu.au/MBA/19194J/commerc_law/lo/u1_t3_parlaw/u1_t3_parlaw_02.htm (Accessed: 30 August 2017).

Treasury Corporation of Victoria (2017) State & Commonwealth Relationship. [Online]. Available at: https://www.tcv.vic.gov.au/page/Victorias_Economy/State__Commonwealth_Relationship/ (Accessed: 30 August 2017).

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