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Australia is a parliamentary democracy with a federal system of government. The Australian Constitution of 1901 established a distribution of powers between a national government (the Commonwealth) and the six states. The Constitution defines the boundaries of law-making powers between the Commonwealth and the States/Territories. The law-making process in Australia involves the creation of statutes, which begin as bills – written proposals for new laws or changes to existing laws. These bills are drafted, read, debated, and sometimes amended before being approved by both houses of parliament. The process also includes opportunities for scrutiny, with Senate and House committees investigating bills, seeking feedback from Australians, and making recommendations.
| Characteristics | Values |
|---|---|
| Country | Australia |
| Type of Government | Parliamentary Democracy |
| Legal System | Common Law |
| Legal Institutions | Inherited from English Legal System, superseding Indigenous Australian Customary Law |
| Law-making Powers | Shared between Commonwealth Parliament and each State Parliament |
| Law Sources | Australian Constitution, Federal Legislation, State Legislation, Common Law |
| Law-making Process | Bills are drafted, read, debated, amended, and approved in both houses of Parliament before being assented to by the sovereign's representative |
| Scrutiny | Senate and House Committees investigate bills, seek feedback from Australians, and make recommendations |
| Human Rights | Joint Committee on Human Rights checks all bills to ensure compliance with Australia's human rights commitments |
| Law Reform | Australian Law Reform Commission reviews laws and recommends changes to Parliament and Government |
| State Example: Victoria | Victorian Law Reform Commission, an independent body, develops, monitors, and coordinates law reform |
| Electoral Process | Australian Electoral Commission conducts federal elections, maintains Commonwealth electoral roll |
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What You'll Learn
The Australian Constitution
The Constitution sets out how the Australian and state parliaments share the power to make laws. It describes a bicameral Parliament, consisting of the King (represented by the Governor-General), the Senate, and the House of Representatives. It also outlines the roles of the executive government and the High Court of Australia, which is the final court of appeal.
The Constitution does not cover all features of Australia's system of government. Notably, it does not mention the Prime Minister or the Cabinet, and it does not include a bill of rights. Instead, the rights of Australian citizens are protected by common law (based on custom or court decisions) and statute law (written law made by Parliament). One of the rights outlined in the Constitution is the right to religious freedom.
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.
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Federal and state laws
Australia is a parliamentary democracy with a federal system of government. The Australian Constitution, which came into force on 1 January 1901, established a federal Parliament, outlining the boundaries of law-making powers between the Commonwealth and the states/territories. The Federal Parliament, located in Canberra, makes laws for the whole of Australia. The country has six state parliaments and two territory parliaments, which make laws for their respective state or territory.
The Federal Parliament consists of 226 members, with 76 in the Senate and 150 in the House of Representatives. Sections 51 and 52 of the Constitution outline the law-making powers of the federal Parliament. Section 51 lists 39 areas over which the federal Parliament has legislative power. These include defence, trade and commerce, taxation, and marriage. Under section 51, state parliaments can refer matters to the federal Parliament, requesting that they make laws about an issue that is a state responsibility. However, any federal law made about such an issue would only apply to the state or states that referred the matter or chose to adopt the law.
The state parliaments can also make laws in areas where the federal Parliament has legislative power, but in the event of conflicting laws on the same subject, the federal law overrides the state law or the conflicting part of the state law, as outlined in Section 109 of the Constitution. The state parliaments have plenary power to enact laws on any subject, and each state has its own system of courts and parliaments.
The process of creating a statute typically involves a Bill being drafted, which is then read, debated, and sometimes amended in both houses of parliament before being approved. Once passed, it must be assented to by the representative of the sovereign. This process of converting a Bill to an Act is overseen by the Parliament of Australia, which also maintains the separation of powers between the federal and state parliaments.
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Common law
In Australia, common law is developed by judges as they decide cases and refer to previous decisions for guidance on how the law is applied. Common law in Australia is based on the British legal tradition, which relies on common law to define and protect individual rights and liberties.
While Australia does not have a Constitutional Charter or Bill of Rights, common law courts have the power to provide significant protection of human rights principles, including the rule of law. The courts presume that Parliament does not intend to limit fundamental rights unless it clearly indicates this intention. This presumption constitutes a substantial level of protection for the "principle of legality".
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The law-making process
Australia is a parliamentary democracy with a federal system of government. The Australian Constitution of 1901 outlines the boundaries of law-making powers between the Commonwealth and the six States (New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia), as well as three self-governing territories (Australian Capital Territory, Northern Territory, and Norfolk Island). The power to make laws is shared between the Commonwealth Parliament and each state parliament.
The Federal Register of Legislation is the official website for Commonwealth legislation, containing the full text and details of individual laws and their relationships. Legislation may also be delegated to local councils, statutory authorities, or government departments, particularly for minor statute laws.
In addition to the formal law-making process, common law, developed by judges' decisions and precedents, also plays a significant role in the Australian legal system. The country's common law is uniform across the states and territories, providing a consistent framework for the application of legal principles.
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Indigenous Australian customary law
In Australia, the power to make laws is shared between the Commonwealth Parliament and each state parliament. However, Indigenous customary law has developed independently of this system and is based on different cultural norms and practices.
Indigenous customary law in Australia is not uniform across the country, and systems differ between language groups, clans, and regions. These laws are passed down orally and are intertwined with cultural customs, practices, and stories from the Dreamtime. They dictate the rules for interacting with the land and outline kinship and community relationships. The words "law" and "lore" are sometimes used within Aboriginal Australian communities to differentiate between the Indigenous and post-colonial legal systems. Lore refers to the Indigenous customary system, which has been passed down through generations via cultural works such as songlines, stories, and dance.
While the Australian legal system has historically ignored Indigenous customary law, there have been recent efforts to incorporate it more formally. Legislative bodies since the late 20th century have investigated the concept of recognising Indigenous laws in matters involving Aboriginal Australians. In the Northern Territory, some statutes and courts explicitly refer to customary law when useful in identifying relationships and social expectations. On 17 July 2020, the Queensland Government introduced a bill to legally recognise the Torres Strait Islander practice of traditional adoptions (kupai omasker), which was passed as the Meriba Omasker Kaziw Kazipa Act 2020.
Despite these advancements, challenges remain. Customary law can be controversial when it is imprecise or infringes upon human rights. Additionally, it has not been easily codified, making it difficult to incorporate into the existing legal framework. Nonetheless, reports by the Australian Law Reform Commission and the Law Reform Commission of Western Australia have discussed the importance of recognising Indigenous customary law.
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Frequently asked questions
Australia is a common-law jurisdiction with a federal system of government. The legal system includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system.
The two major sources of Australian law are cases (decisions made by judges in courts) and legislation (legal rules made by parliament and those to whom parliament has delegated authority).
Ideas for new laws can come from government departments, community groups, businesses, lobby groups, or political parties. Laws start as bills—written proposals for new laws or changes to existing laws. The bill is then read, debated, and sometimes amended in both houses of parliament before being approved. Once passed, it must be assented to by the representative of the sovereign.
The Australian Constitution of 1901 sets out the federal system of government and defines the boundaries of law-making powers between the Commonwealth and the States/Territories.
The High Court is Australia's apex court. It has the final say on the judicial determination of all legal matters and hears appeals from all other courts in the country.
