Prior to 1901, today`s Australian states were separate colonies from what was then the British Empire. When the colonies decided to form a federation, representatives of each colony were elected to participate in assemblies (called constitutional conventions) to draft a constitution for the new nation. The draft constitution was then adopted by popular vote in referendums in each colony. After a series of constitutional conventions in the 1890s to develop a federal nation from the various colonies, the Commonwealth of Australia Constitution Act (United Kingdom) was passed, which came into force on January 1, 1901. Although it is a British law, it has become the constitution of Australia. The Australian legal system has several forms. It includes a written constitution, unwritten constitutional conventions, statutes, ordinances and the common law system established by the courts. Its legal institutions and traditions are essentially derived from those of the English legal system. [1] Australia is a common law jurisdiction whose judicial system has its origins in the common law system of English law. The common law of the country is applied uniformly in all states (subject to extension by law). [2] The Australian legal system evolved from the legal system of Great Britain brought to Australia as part of the process of establishing a colony in Australia, beginning in the 1770s. Between 1855 and 1890, the British Parliament granted each of the British colonies in Australia a limited right to establish a local system of government, generally referred to as “responsible government.” As each of the colonies obtained this right, it was able to develop its own laws and legal systems to deal with its particular situation.
Thus, the law and the legal system in each of the colonies began to develop separately. Australian republicanism emerged in the 1990s as a movement that ultimately aimed to transform Australia`s status as a constitutional monarchy into a republican form of government. In the Australian legal system, the main ways in which laws are made are through: The Commonwealth of Australia was formed by the Federation of Independent Colonies (which later became states). For this reason, we refer to the creation of the Commonwealth as a “federation” and our system of government in Australia as a “federal” system. In a federal system of government, power is shared between the federal government and the governments of the states or territories. At the end of the 19th century, there was a movement towards the creation of a central government for the whole country. Representatives of the six colonies (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia) met at a series of congresses in the 1890s to work on drafting a constitution. A referendum was held in each colony to approve the draft constitution. The Australian Constitution was passed as an Act of the British Parliament and came into force on 1 January 1901.
The creation of the Australian Constitution in 1901 was the beginning of an independent Australian legal system that is part of the Australian system of government. A proposal to amend the Constitution begins as a bill in both houses of parliament and can be introduced by any deputy or senator. A bill to amend the Constitution goes through the same phases and procedures in each House as any other bill (see Fact Sheet No. 7 Making Laws), with the important exception that its third reading must be passed by an “absolute majority”. An absolute majority means that it must be passed by more than half of the total number of members of the House – other bills only require the approval of the majority of MPs voting at that time (a “simple majority”). When Europeans arrived in Australia, they deemed the country “uninhabited” or “terra nullius”. During the first two centuries of European colonization, existing Indigenous laws were completely ignored. The first colonies were in New South Wales and Tasmania, South Australia and Western Australia later settled separately. Queensland was originally considered part of New South Wales.
A typical British legal system has been put in place. When Australia gained independence from Britain, it formed a federation and the basis of the Australian Constitution was established. The main source of Australian constitutional law is the Constitution, which is the supreme law of Australia. It is superior to legislation passed by the Commonwealth or state parliaments. If the Constitution is contrary to a common law doctrine, the Constitution prevails. It is also known that a number of unwritten constitutional conventions are included in the document. Like what. the constitutional doctrines of good governance and the Governor General`s obligation to accept the advice of the Prime Minister. A constitution is a set of rules that determine how an organization or country should be managed (governed), how the organization or country decides who will have power, how that power can be exercised. The constitution of a country establishes the system of government of that country. The full title of the Australian Constitution is the Commonwealth of Australia Constitution Act 1900.
The Australian legal system is defined by the Australian Constitution. This establishes the lines of demarcation between the six states and the two territories and the federal government. In Australia, due to the federal nature of government, states and territorial governments have a good degree of control over the laws that exist in any jurisdiction. Each state and territory, as well as the federal government, has a bicameral parliament (House of Representatives and Senate) in which legislative amendments are discussed and passed if there is a majority of votes in favor of the amendment. Federal laws may override state laws in certain circumstances, such as when it is in the interest of the nation as a whole. In addition to the text of the document, Australian constitutional law is influenced by the structure of the document. The division of the three branches of government into chapters is understood as establishing a doctrine of separation of powers in Australia. This means that since the Federation, all Australians are subject to the laws of two legal systems: federal laws and the laws of the state or territory in which they live. If a constitutional amendment bill has been passed by both houses, it will be voted on by the Australian people in a referendum (after two months, but within six months). In order to reduce costs, referendums usually take place at the same time as elections to the House of Representatives and/or the Senate. Rule 3.6 of AGLC4 prescribes citation.
The Constitution can be cited as the Constitution of the Commonwealth of Australia, the Australian Constitution, the Constitution of the Commonwealth or simply the Constitution if there is no ambiguity about the cited Constitution. The following references contain information about the Constitution as it affects Parliament and the processes involved in passing constitutional amendment laws: The High Court is the highest court in Australia. He has the final say on the judicial decision of all legal matters. It hears appeals from all other courts in the country and has the original jurisdiction. [4] The first civil and criminal courts established since the early days of the colony of New South Wales were rudimentary, adaptable and military. Although legality was not always respected, the courts limited the powers of the governor and the law of the colony was sometimes more egalitarian than in Britain. [12] Most countries originally colonized by the British have legal systems derived from the British legal system that have been passed on to them. In most cases, when countries gained independence from Britain, laws were enacted specifically to meet the needs of society, even though elements of the British legal system persist. Some of the central features of the Australian system of government (described as parliamentary government, cabinet or responsible government and also called Westminster-like system) are not defined in the Constitution, but are based on customs and conventions. These include the post of prime minister and the group of high-level ministers, known as cabinets, who make important political and administrative decisions and govern the country. Before colonization, the only legal systems that existed in Australia were the various customary law systems that belonged to indigenous Australians.
Indigenous legal systems were deliberately ignored by the colonial legal system and were recognized as legally important only to a limited extent by Australian courts in the post-colonial era. [5] The ANU Library provides access to a number of legal databases. The following list is very selective and covers only the main sources of case law and legislation. A more complete list of legal databases can be found here or in the Business, Journal Articles and Legislation tabs for other databases covering this type of information. The Constitution can only be amended by national referendum, a provision inspired by the Swiss cantonal system. The Australian Constitution is characterized by the fact that it does not contain a Bill of Rights and that explicit constitutional restrictions on Commonwealth power are minimal in number and scope.
