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Separation of Powers

Parliament - makes the law (legislature)

Executive council - administers the law

Judiciary - interprets and applies the law in particular cases

Theoretically, the Legislature, executive & judiciary should as far as possible remain functionally separate.

In Aus, members of executive (PM, premier, chief minister, ministers) are also members of legislature - meaning the legislature and executive are not strictly separate.


3 arms of power

Legislator - parliament (elected members - federal and state)

Executive - prime minister and various ministers

Judiciary - courts


Responsible Government

Separation of powers (aus style) ties into the notion of ‘responsible government’

Ministers comprising the executive are elected representatives who are also members of and answerable to the legislature. They report to parliament. Can be disciplined by parliament.



Tiers of government

- Federal (commonwealth) government (Cth)
- 6 States, 2 Territory governments

Local councils are not recognized in the Constitution
NZ - unitary constitution (1 level)


History of the Australian Legal System

British didn’t recognize or acknowledge Indigenous Australian legal system upon their arrival in 1788.

Australia was deemed to have been settled by Britain rather than conquered by Britain or acquired by treaty (Terra Nullius).

British settlers brought British law according to the doctrine of reception.

1788 - all English law received into Australia in so far as it was applicable to the colonies became Australian law.

NSW colony and other colonies subsequently established, initially controlled directly by British government as represented by the colonial governor.

Time passed, British government granted Australian colonies increasing levels of independence.

Colonial Laws Validity Act 1865 (Imp) - Australian colonies given power to pass their own legislation.

Late 1800’s - unifying legal system should be established for the 6 relatively independent colonies.

1898 - final constitutional convention
1899 - referendum
1st Jan 1901 - Commonwealth of Australia (federal government)
1931 - the Statute of Westminster (laws of Aus parliaments could not be declared invalid on ground that they were repugnant to the law of England)
1986 - the Australia Acts (passed by Commonwealth, each state, UK parliament - made Aus & states fully independent in law-making powers)


Mabo v Queensland (No. 2) 1992

Recognition was given that, in some circumstances, native title survived colonization, but only if there was:
1. A continuing connection
2. That had not been removed

Led to the Native Title Act 1993 (Cth)


The Australian Constitution


The Constitution created a Federation comprising the Commonwealth of Australia (new) and the States (formerly colonies)

Allocated legislative powers to the Commonweath & gave the States the residue

Created the office of Governor General with executive power

Created the judiciary

Continues to govern the relationship between the Commonwealth & the States


Federal and State Division of Power

Exclusive Powers - Commonwealth Only (parliament, customs, free trade between states, taking over state public debts, military forces, currency, government of federal territories)
Concurrent Powers - Shared Powers (insurance, banking, industrial relations)
Residual Powers - State only (education, local government, transport)


How can Commonwealth Power be expanded?

1. Referendum
2. Financial grants
3. Referral of Powers
4. HCA Constitutional Interpretation (e.g. External Affairs Power)

Referendum - req majority of ppl in majority of states (4). To date: 19 referenda, 44 suggested changes, 8 successful

Financial grants - attached conditions, thus has power to influence health, housing & education.

Referral of Powers - e.g. Corporations Act 2001 (Cth) States all agreed to refer the corporation Powers to the federal parliament.

By broader constitutional interpretation by the High Court e.g. The Tasmanian Dams (argued the external affairs power to sign a treaty which gave them the peg to hang the hat. To pass legislation that made the Franklin/Gordon River region a World Heritage area).


Successful Referendum (Aboriginal Australians)

1967 referendum Aboriginal Australians were now to be recognized in a census.

Commonwealth Parliament also given power to make laws regarding Aboriginal people.

Also gave the power to make laws for any race.


High Court of Australia

Established by the Constitution

Only court to hear cases on the Interpretation of the Constitution e.g. division of legislative powers

Highest court of appeal in Australia (no appeals from HC to Privy Council since 1975). Can no longer appeal to the Privy Council.


Big 3 Common Law Rules of statutory interpretation

1. The literal or plain meaning approach (read as whole, if it’s meaning plain, that is the end of the matter). No attempt by court to complicate matters.
2. The golden rule approach (used when the plain meaning is an absurdity, injustice, inconsistency e.g if action would lead to an absurd result)
3. The mischief approach (‘purposive, approach - where words/phrases are ambiguous, vague, uncertain e.g. prohibiting prostitution in the street, including anyone visible in the street)


Ways to challenge the executive

- ombudsman (agent or representative of the people - investigated complaints about administrative actions and governmental and commercial decision-making e.g. banking, telecommunications, ministries of defence, immigration, taxation, post)
- judicial review (common law prerogative writs)