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Australia has a federal system of government, with a national legislature that can pass laws on specific topics. The Australian Constitution establishes the federal government and outlines the relationship between the Commonwealth and the states. The country has three levels of government: the federal Parliament, six state parliaments, and two territory parliaments. While the federal Parliament makes laws for the entire country, each state and territory have their own parliaments and court systems, allowing them to create laws specific to their jurisdiction. This means that Australian states do have some differences in their laws, particularly in areas like education, health, housing, and transport, where the federal government also has influence due to its funding powers. The legal system in Australia is a combination of inherited laws from Britain, known as English common law, and the statutes enacted by state and federal governments.
| Characteristics | Values |
|---|---|
| Number of levels of government | 3 |
| Number of states | 6 |
| Number of territories | 2 |
| Law-making power | Federal Parliament, State/Territory Parliaments, Local Councils |
| Federal funding grants | Make up about half of the states' total revenue |
| Federal government influence | Education, health, housing, transport |
| Legislative independence | Established by the Australia Act 1986 |
| Common law | Uniform across all states |
| Constitutional law | Affected by the structure of the Australian Constitution |
| Separation of Powers | Yes |
| Bill of Rights | No |
| Indigenous law recognition | Post-colonial Australian courts recognised Indigenous legal systems as important |
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What You'll Learn
The Australian Constitution
Australia has three levels of government that work together to provide services to its citizens. The Federal Parliament, located in Canberra, makes laws for the entire country. Six state parliaments and two territory parliaments make laws for their respective states or territories. In addition, there are over 500 local councils that make local laws (by-laws) for their respective regions or districts.
The Constitution is divided into eight chapters and 128 sections. It was drafted between 1891 and 1898 at a series of conventions by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The final draft was then approved by each state in a series of referendums from 1898 to 1900. The Commonwealth of Australia Constitution Act, also known as the covering act, received royal assent on July 9, 1900, and came into effect on January 1, 1901.
The Constitution can only be changed with the approval of the Australian people. A proposed change must be approved by Parliament and then voted on by Australians in a referendum. The High Court interprets the Constitution and decides its meaning, as well as settling disputes between the Australian and state governments.
While the Australian Constitution sets out the basis for relations between the Commonwealth and the states, the federal government's law-making powers have expanded over time to address social and technological changes. For example, under Section 51(v) of the Constitution, the federal Parliament has responsibility for "postal, telegraphic, telephonic and other like services," which now includes modern technologies such as the internet. Additionally, under Section 96, the federal Parliament can grant funding to states with conditions, allowing it to influence areas like education, health, housing, and transport, which are primarily state responsibilities.
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Federal vs. state laws
Australia has a federal system of government, with a national legislature that can pass laws on various topics. The states are separate jurisdictions with their own court systems and parliaments, and they have plenary power. The Federal Parliament makes laws for the entire country, while the six state parliaments and two territory parliaments make laws for their respective states or territories. Australians aged 18 and over vote to elect representatives to federal, state, and territory parliaments, as well as local councils, ensuring they have representation at each level of government.
The Australian Constitution, contained within the Commonwealth of Australia Constitution Act (Imp), establishes the federal government and outlines the relationship between the Commonwealth and the states. It defines the roles and powers of the legislature, executive, and judiciary, and establishes a Separation of Powers doctrine. The federal government's law-making powers have expanded over time to address social and technological changes, such as those related to digital advancements.
While the High Court has declared that Australia's common law is uniform across all states, the states do have some autonomy in creating their own laws. This is because the federal nature of the government allows state and territory governments to have a significant degree of control over the laws in their jurisdictions. The states' laws are a combination of inherited laws from Britain, known as English common law, and statutes enacted by their own state governments.
The laws passed by state parliaments can differ from each other, but case law, or laws interpreted by judges, tends to be similar across the states. This is because case law is mostly inherited from English common law, which has been progressively repealed and replaced by state laws over time. As society changes, case law can also evolve through different interpretations by judges.
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Local laws
Australia has a federal system of government, with a national legislature that can pass laws on various topics. The country has six states and two territories, each with its own system of courts and parliaments, and plenary power. The federal and state governments work together, and this collaboration is sometimes referred to as the division of powers. The federal government can influence state decision-making in areas like education, health, housing, and transport, which are primarily state responsibilities, through the allocation of funding.
The Australian Constitution, established in 1901, sets out the demarcation lines between the states and territories and the federal government. The Constitution defines the role and powers of the legislature, executive, and judiciary, and establishes a Separation of Powers doctrine. The country's legal system is a combination of inherited laws from Britain, known as English common law, and the statutes enacted by state and federal governments.
While the High Court has declared that Australia's system of common law is uniform across all states, the country's federal nature gives state governments significant control over the laws in their jurisdiction. Each state has a bicameral parliament, consisting of a lower house of representatives and a Senate, where changes to the law are debated and passed by a plurality of votes.
In addition to the six state parliaments, there are over 500 local councils that make local laws, or by-laws, for their region or district. Australians aged 18 and over can elect representatives to these local councils, as well as to federal, state, and territory parliaments, ensuring they have representation at each level of government.
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Indigenous law recognition
Australia's states and territories have different laws, and some of these laws relate to Indigenous Australians. Indigenous intellectual and cultural property protocols, for example, seek to identify, acknowledge, and protect the rights of communities to their cultural and intellectual heritage. The Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (ATSIHP Act) enables the Australian Government to protect cultural heritage under threat if state or territory laws have failed to do so.
The recognition of Indigenous customary law in Australia has been described as a "slow experiment". The Mabo decision, which recognised the continued existence of Indigenous customary title, also recognised the customary law that determined that ownership as law. However, this fact is often ignored, and the recognition of Aboriginal Customary Law as having its own system of authority remains alien to the common law. The Family Provision legislation in NSW requires the court to consider "any relevant Aboriginal or Torres Strait Islander customary law" in the event of a family provision claim. However, the eligibility requirements for family provision are based on Western kinship rules, and significant people under customary kinship rules may therefore be excluded.
The Northern Territory, which has the highest proportion of Indigenous people in its population, has recognised Indigenous customary law in intestacy matters. However, this legislation only applied to Indigenous persons who had not been married under the Marriage Act 1961 (Cth), thus excluding many Indigenous people, and it has been rarely used.
Indigenous issues and Indigenous sentencing courts have also been incorporated into native title deliberations, with a 2007 amendment to the Native Title Act encouraging a negotiated outcome. The Victorian Aboriginal Justice Agreement provides the framework for initiatives and programs that aim to improve outcomes for Aboriginal people in the justice system.
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Legislative independence
Australia has three levels of government that work together to provide services to its citizens. The Federal Parliament, located in Canberra, makes laws for the entire country. The six state and two territory parliaments make laws for their respective states or territories. There are also over 500 local councils that make laws (by-laws) for their respective regions or districts.
The Australian Constitution, which came into force on 1 January 1901, establishes a federal system of government. It defines the demarcation lines between the six states, two territories, and the federal government. The Constitution also sets out the basis for relations between the Commonwealth and the states. While the federal government has powers to pass laws on certain topics, the states are separate jurisdictions with their own systems of courts and parliaments and are vested with plenary power.
Complete legislative independence was established by the Australia Act 1986, passed by the United Kingdom Parliament. This removed the possibility of legislation being enacted at the consent and request of a dominion, and applied to the states as well as the Commonwealth. It also abolished appeals to the Privy Council from any Australian court. The Act represented a symbolic break with Britain, emphasised by Queen Elizabeth II's visit to Australia to sign the legislation as the Queen of Australia.
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Frequently asked questions
Yes, Australian states have different laws, but the federal government can influence state laws through "tied" grants.
"Tied" grants are federal funding grants that make up about half of the states' total revenue. The federal government can attach conditions to these grants, thereby influencing how the states spend the money.
Australia's system of common law is uniform across all states. In contrast, the US has maintained distinct systems of common law within each state.
The two main types of laws in Australia are statutes (codified laws decided by state and federal parliaments) and case laws (interpreted by judges in the court system).
Australia's legal system has diverged from English common law, with many British laws repealed in state parliaments. The Australia Act of 1986 established complete legislative independence from the UK.
