Ruqayyah Snyder
Laws are rules that have legal consequences and allow the Australian Government to act. The power to make laws in Australia is shared between the Commonwealth Parliament and each state parliament. Laws start as bills – proposals for a new law or a change to an existing law – and ideas for these can come from many different places, including government departments, community groups, businesses, lobby groups, and political parties. Bills are then introduced into Parliament, where they are debated and voted on. They are also scrutinised by Senate and House committees, which seek feedback from Australians and make recommendations. If a bill is agreed to by both the Senate and the House of Representatives, and signed by the Governor-General, it becomes a law.
| Characteristics | Values |
|---|---|
| Law-making process | Bills must be agreed to by both the Senate and House of Representatives, and signed by the Governor-General |
| The Australian Constitution gives the Australian Parliament the power to make laws in particular areas | |
| Laws start as bills—proposals for a new law or a change to an existing law | |
| Bills are first introduced into the House of Representatives | |
| Senate and House committees can investigate bills, seek feedback from Australians, and make recommendations | |
| All bills introduced into Parliament are checked by the Joint Committee on Human Rights to ensure they meet Australia's human rights commitments | |
| The power to make laws is shared between the Commonwealth Parliament and each state parliament | |
| Common law is developed by judges as they decide cases and refer to previous decisions for guidance on how the law is applied | |
| The Australian Law Reform Commission reviews Australia's laws and provides recommendations to Parliament and the Government to implement changes | |
| The Victorian Law Reform Commission is an independent, government-funded organisation that develops, monitors, and coordinates law reform in Victoria | |
| Criminal law regulates conduct in society to protect the community and sanction those who commit crimes | |
| Civil law regulates the rights and responsibilities of individuals, groups, and organisations in their interactions |
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What You'll Learn
The Australian Constitution
The Constitution was drafted between 1891 and 1898 at a series of conventions attended by representatives of the six self-governing British colonies in Australia: New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania. The 1891 draft was submitted to colonial parliaments, but it lapsed in New South Wales, leading to other colonies being unwilling to proceed. In 1895, the six premiers of the Australian colonies agreed to establish a new convention by popular vote, and the new draft produced from 1897 to 1898 contained substantially the same principles of government but with added provisions for responsible government.
The final draft of the Constitution was then approved by each state in a series of referendums from 1898 to 1900. It also had to be agreed on by the British Parliament. The Commonwealth of Australia Constitution Act 1900 was passed in Britain in 1900 and came into effect on 1 January 1901. The colonies became Australian states, and the new Australian Parliament was formed. The Constitution is divided into 8 chapters and 128 sections, with the power to make laws shared between the federal and state parliaments.
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, decides its meaning, and settles disputes between the Australian and state governments. While the Constitution outlines some key features of Australia's system of government, it does not cover all aspects. For example, the Prime Minister and Cabinet operate by custom and tradition, similar to the British system, and are not mentioned in the Constitution.
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Federal and state parliament
The Parliament of Australia, also known as the Federal Parliament, is the federal legislature of Australia. It consists of three elements: the monarch of Australia (represented by the) governor-general, the Senate (the upper house), and the House of Representatives (the lower house).
The Senate, or the upper house, consists of 76 members: twelve for each state and two for each of the self-governing territories. Senators are elected using the proportional representation system, which has resulted in a multitude of parties represented in the Senate. The House of Representatives, on the other hand, has 151 members, with each state allocated seats based on its population. The House has a maximum term of three years, although it can be dissolved early, while the Senate has fixed terms, with half of the state senators' terms expiring every three years.
The Australian Parliament combines elements from the British Westminster system, where the party with a majority in the lower house forms the government, and the United States Congress, which affords equal representation to each state and scrutinises legislation before it becomes law. In Australia, the governor-general exercises the constitutional functions of the King and shares law-making powers with the Senate and House of Representatives. Royal assent, usually expressed by the governor-general, is required for a bill to become an act and part of the law.
In addition to the Federal Parliament, each state has its own parliament. For example, in Victoria, laws come from the Australian Constitution, federal legislation, Victorian legislation, and common law. The Victorian Law Reform Commission is an independent, government-funded organisation that oversees law reform in the state.
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Common law
The Australian legal system is a mix of common law, statute law, and constitutional law. Common law is a significant aspect of the Australian legal system, with a long history dating back to the country's colonisation by the British.
History of Common Law in Australia
The common law system in Australia was inherited from the British legal system, which had evolved over centuries with the common law emerging after the 1200s. Through colonisation, the British introduced their legal system to Australia, and by 1824, a court system modelled on the English system was established through Acts of the British Parliament. The New South Wales Act 1823 established a Supreme Court with jurisdiction over criminal and civil matters, mirroring the authority of the Court of King's Bench in Westminster.
Development of Common Law in Australia
Sources of Common Law
The Australian Constitution, federal legislation, and state legislation, including Victorian legislation, are all sources of common law in Australia. The Australian Courts Act 1828, enacted by the Imperial Parliament, ensured that English common and statute law up to a specific date applied in New South Wales, Tasmania, and later Victoria and Queensland. Similar statutes were enacted for Western Australia and South Australia, specifying the dates on which English law would take effect in those colonies.
It is important to acknowledge that prior to colonisation, the only legal systems in Australia were the diverse customary laws of Indigenous Australians. However, these Indigenous legal systems were largely ignored by the colonial legal framework and have only been partially recognised in the post-colonial era.
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Civil and criminal law
In Australia, the law-making powers are shared between the Commonwealth Parliament and each state parliament. The law is categorised into criminal law and civil law.
Criminal Law
Criminal law regulates conduct in society to protect the community and sanction those who commit crimes. It deals with behaviour that can be construed as an offence against the public, society, or the state. Criminal law is guided by the penal code. Examples of criminal offences include murder, assault, theft, drunken driving, and sexual assault. These offences are established by the government, and punishment for serious charges often consists of imprisonment or fines paid to the government. To secure conviction, the prosecution must establish the guilt of the defendant "beyond a reasonable doubt".
Civil Law
Civil law, on the other hand, regulates the rights and responsibilities of individuals, groups, and organisations in their interactions. It deals with behaviour that constitutes an injury to an individual or other private parties, such as corporations. Examples of civil cases include defamation (libel and slander), breach of contract, negligence resulting in injury or death, and property damage. Civil cases are initiated by a private party (the plaintiff), and punishment almost always consists of monetary awards, never imprisonment. The burden of proof in civil cases is lower than in criminal cases and is usually based on the "preponderance of evidence" or "clear and convincing" standards.
It is important to note that a single wrongful act may constitute both a public offence and a private injury, giving rise to both criminal and civil charges.
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The law-making process
Idea Generation
Ideas for new laws can originate from various sources. Government departments may identify problems that need addressing and propose solutions through legislative changes. Community groups, businesses, or lobby groups may advocate for changes or improvements to existing laws. Political parties also play a role by introducing bills that reflect their governing ideas. The Parliament may establish committees to examine current issues and recommend introducing bills if necessary.
Bill Introduction
Once an idea for a new law or a change to an existing law is proposed, it starts as a bill. Most bills are first introduced into the House of Representatives. Members of Parliament debate the bill and may propose amendments. The bill then moves to the Senate, where it undergoes further discussion and scrutiny.
Scrutiny and Feedback
An essential part of the law-making process is the scrutiny of bills. Senate and House committees investigate bills, seeking feedback from Australians and making recommendations. The Joint Committee on Human Rights checks all bills introduced into Parliament to ensure they align with Australia's human rights commitments.
Agreement and Signing
For a bill to become a law, it must be agreed upon by both the Senate and the House of Representatives. After passing through both houses, the bill is signed by the Governor-General. At this point, the new law becomes an Act of Parliament.
Implementation
The commencement date of the new law is specified within the legislation or, if no date is given, it comes into effect 28 days after Royal Assent. The Australian Constitution grants the Australian Parliament the authority to make laws in designated areas. These laws can be criminal or civil in nature, regulating conduct, defining rights and responsibilities, and empowering the government to act on behalf of Australians.
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Frequently asked questions
Laws start as bills—proposals for a new law or a change to an existing law. A bill must be agreed upon by both the Senate and the House of Representatives and signed by the Governor-General to become a law.
Ideas for new laws can come from various sources. A government department may inform its minister about a problem that needs fixing, or a community, business, or lobby group may be interested in changing or improving an area of Australian law. Political parties also have their own ideas about how Australia should be governed and introduce bills in Parliament to put their ideas into action.
In addition to introducing and debating bills, Parliament plays a crucial role in scrutinising and examining proposed bills. Senate and House committees can investigate bills, seek feedback from Australians, and make recommendations. All bills introduced into Parliament are checked by the Joint Committee on Human Rights to ensure they meet Australia's human rights commitments.
Criminal law regulates conduct in society to protect the community and sanction those who commit crimes. Civil law, on the other hand, regulates the rights and responsibilities of individuals, groups, and organisations in their interactions.
