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![CHAPTER 2 The Australian legal system 33
JOHNNY AND ASH
[Johnny and Ash are still together in the bar from chapter 1. The bar has become louder as the hour
has become later and the occupants have become drunker. Ash and Johnny have moved to a quieter
table at the back of the bar.]
Ash — So, what do you know about the Australian legal system?
Johnny — [He answers confidently.] I know enough. I know that it is a confusing mess. I know that
there are too many rules, but nobody knows where they are or what they mean. I know we’ve got a
bunch of politicians, a Prime Minister, premiers and ministers — too many if you ask me. I know that
it costs an arm and a leg to take someone to court, and if someone else takes you to court you will
probably lose both arms and both legs. What more do I need to know?
Ash — Well, let’s see if you can answer four simple questions. Who is in charge?
Johnny — That’s easy. The Premier. No, wait, do you mean just in this State or in charge of the whole
country? If you mean the whole country, that would be the Prime Minister, right? Or is it the Queen?
The Governor-General? The president? No, that’s not right . . .
Ash — Okay, stop. What about this one? What is the relationship between the Federal government
and the various State governments?
Johnny — I don‘t know. Don‘t the State governments just do what the Federal government tells them
to do? Are the State governments sort of local branches of the Federal government?
Ash — Uh-huh. Question three. What does the parliament do?
Johnny — [He is starting to look confused.] The parliament? Is that the same thing as the
government? I think I’ve seen shots of parliament on TV, a big room full of people shouting at each
other. What do they do? Argue a lot, apparently. And shout annoying insults while someone is trying to
make a speech. Seriously, I suppose they do something. Do they make law?
Ash — I’m asking the questions. Question four. Do judges make law?
Johnny — Do judges make law? I’ve never really thought about that before. I know judges make
decisions. They decide whether or not someone should go to jail or whether or not they should pay
millions of dollars to the person who is suing them. But I thought they found the law in the law books.
Ash — The law books?
Johnny — Yeah, the law books. You know, the big books where all the laws are written down?
Big, old, dusty books . . .
Ash — Go and buy another round of drinks. We have a lot to talk about.
CHAPTER PROBLEM
As you make your way through this chapter, consider how you would answer the four questions asked
by Ash. Try to answer them now, and then try again after reading this chapter. Compare your two sets
of answers.
Introduction
This chapter and the next present a comprehensive description of Australia’s legal system. Before looking
at the particular laws that regulate business in Australia today, it is important that you learn about the
regulatory environment within which those laws operate. You need to understand how the Australian
Constitution sets out how the Federal system is to operate, and the important role played by each of the
three arms of government: the legislature, the executive and the judiciary.
After working through this chapter and the next, you will not only better understand Australia’s legal
system, but you will also be able to better appreciate and understand what you read and see in the media
about the statements and activities of parliaments, politicians and judges.
James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089.
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![CHAPTER 2 The Australian legal system 49
LAW IN CONTEXT: LAW IN POLITICS
Why do Australians hate politics?
While for some Australians the recent leadership spill will be viewed as a simple act of restorative
justice, many others would have spectated on events in Canberra with an equal measure of indifference
and disdain. Is it any wonder that Australians hate politics?
In February of [2013] we asked a representative sample of 1377 Australians to consider various issues
regarding Australian politics and their role in making democracy work. Our findings should give all
democrats pause for thought.
Australians feel they are observers rather than participants in formal politics. Nine in ten of those
interviewed regard themselves as without influence over the federal government and seven in ten feel
the same about other levels of government. There is widespread evidence of negative attitudes towards
politics and politicians. comparable to those found in other democracies like Britain, the United States
and Finland. Yet Australian negativity has emerged in a relatively well-off economic period.
Over a quarter of Australians combine a specific set of negative attitudes towards politics and poli-
ticians. We are irritated by politicians talking rather than acting, annoyed with the compromises of poli-
tics, and supportive of a greater role for non-political actors in public decision-making.
Other findings give reason for hope about the future of Australian democracy. Elements of malaise in
Australian politics linger but the core issue appears to be with the politics currently on offer. We show
that most Australians do not hold the ideals of the democracy in contempt. They show strong support
for its processes such as consultation, compromise and democratic judgement.
Citizens also display a considerable understanding of its complex processes and could be up for a
more extended role if a different politics was on offer that was more participatory, open and perhaps
local.
Rather, democratic decline in contemporary Australian politics is increasingly attributed to the poli-
ticians. Our findings draw attention to two important issues for Australia’s political class. First, that
citizens view politicians and democratic politics as one and the same — anti-politics equals anti-party
politics.
Also, the artificial separation of representative and participatory democracy has reinforced a culture
of anti-politics at the heart of the Australian political system. Our findings show that citizens have com-
plex feelings towards democracy. There is support for a new participatory politics, but with the aim of
reducing representative democracy and developing a more integrated, inclusive and responsive system.
The reform process would need to proceed on the basis of four fundamental principles — politicians
as the key agents of change, non-partisanship, institutional strengthening and connecting the citizen
with the Canberra village. The first principle assumes that politicians should act as the bridge between
representative and participatory democracy. The second follows the understanding that anti-politics is
about the health of Australian democracy and is a problem for all politicians regardless of party politics.
The third principle is based on the idea that it makes sense to use existing parties which already have
public legitimacy and trust to build the new politics. This would also show care from a financial perspec-
tive in an austerity climate. The fourth principle is rooted in the popular perception that the Canberra
‘bubble’ is disconnected from the everyday lives of Australian citizens, and changes are needed to bring
Canberra closer to the people.
The following reforms flow from these principles: including lay representation on parliamentary select
committees; establishing public sector juries managed through the criminal jury system and chaired by
MPs; providing advisory referenda through online petitions managed by a cross-bench committee of
MPs; establishing a single-member constituency link to encourage greater MP responsiveness to com-
munity needs; and introducing a new localism starting with constitutional recognition for local govern-
ment. The details of these reforms would need to be thought through carefully.
Our research shows there’s need for reform although its outcome is of course a question of pol-
itical choice. The proposals in our report are in keeping with our evidence about the multifaceted way
Australians imagine their democracy. Citizens are clear about what they do not like about what’s cur-
rently on offer.
The issue is whether elected leaders are listening. These leaders will have a critical role to play as
agents of change, or else the reform process will be doomed to failure.
Source: Mark Evans, 11 July 2013, http://theconversation.com/why-do-australians-hate-politics-15543.
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![56 PART 1 Foundations
Commonwealth v Tasmania (1983) 158 CLR 1
In 1980, the Federal government sought to prevent the Tasmanian government from building a hydro-
electric dam on the Gordon and Franklin Rivers in Tasmania. The Federal Parliament passed legislation
prohibiting the project, and Tasmania challenged the constitutional validity of that legislation. The High
Court decided once again that the Federal legislation was constitutionally valid under the external affairs
power in section 51. Australia had ratified an environmental treaty, the UNESCO Convention Concerning
the Protection of the World Cultural and Natural Heritage, in 1974, and this permitted the Federal Parlia-
ment to make laws on environmental matters.
ACTIVITY 2.7 — REFLECT
What are the consequences of the High Court’s reasoning in the above cases for the distribution of
power between the Federal and State governments as set out in the Australian Constitution?
On the other hand, the High Court has also on occasion interpreted section 51 rather strictly.
New South Wales v Commonwealth (1990) 169 CLR 482
In 1989, the Federal Parliament passed the Corporations Act 1989, an Act that attempted to establish a
national scheme for the regulation of corporations in Australia. The States challenged the legislation in
the High Court. The Federal government argued that the legislation was valid because it fell under the
power set out in paragraph (xx) of section 51. The High Court decided that paragraph (xx) only allowed the
Federal Parliament to make laws in relation to companies that had already been formed; it did not permit
the Federal Parliament to make rules regulating the initial incorporation of companies. The court decided
that the Federal legislation was therefore unconstitutional and invalid. [The States have since then volun-
tarily transferred to the Federal Parliament under section 51(xxxvii) the power to regulate corporations,
which are now regulated by Federal legislation.]
Generally speaking, the High Court’s approach to interpreting the powers in section 51 has seen a steady
expansion since Federation in the authority of the Federal government at the expense of the States.
The Federal Government has also been able to extend the scope of its legislative power beyond the
exclusive and concurrent powers set out in the Constitution through the use of section 96 of the Con-
stitution. According to section 96, the Federal Parliament has the power to grant money to any State
‘on such terms and conditions as the parliament thinks fit’. This enables the Federal Government to
make financial grants to the States — known as tied grants — conditional upon the States cooperating
with the Federal Government’s policies in areas technically beyond the Federal Government’s legislative
authority. It has, for example, allowed the Federal Government in recent years to influence State regu-
lation of hospitals and schools, both of which fall within the residual powers of the States.
Residual powers
Anything not expressly identified as an exclusive power or a concurrent power in the Australian Consti-
tution is a residual power of the States. The residual powers of the States, therefore, include the power
to make laws with respect to:
•• education,
•• health,
•• criminal law,
•• contracts and torts,
•• transport,
•• property and land, and
•• local government.
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![58 PART 1 Foundations
Regulating the Territories
The Australian Constitution empowers the Federal Parliament to make laws in relation to Territories that
have been ‘surrendered’ by the States or that have otherwise been acquired by the Commonwealth.27
In addition to the two major Territories — the Australian Capital Territory (ACT) and the Northern
Territory — there are eight other Territories:
•• Ashmore and Cartier Islands,
•• Christmas Island,
•• Cocos (Keeling) Islands,
•• Coral Sea Islands,
•• Jervis Bay Territory,
•• Norfolk Island,
•• Territory of Heard Island and McDonald Islands, and
•• the Australian Antarctic Territory.
In relation to these ten Territories, the Federal Parliament can make laws on any subject; it does not
share its law-making power with the State parliaments as it does in relation to the rest of Australia.
The Federal Parliament has conferred a large degree of self-government on the two major territories, the
ACT and the Northern Territory, and on Norfolk Island. In most respects, these Territories function similarly
to the States, but the Federal Parliament can override any legislation of their parliaments. For example, in
1995 the Northern Territory Parliament legalised euthanasia in the Territory with the passing of the Rights of
the Terminally Ill Act 1995 (NT). In March 1997, the Commonwealth passed the Euthanasia Laws Act 1997
(Cth). This law stripped the Northern Territory (along with the other self-governing territories) of the power
to pass legislation on euthanasia. This resulted in the Northern Territory legislation being rendered ineffec-
tive, as it was no longer within the legislative competence of the Northern Territory’s LegislativeAssembly.
LAW IN CONTEXT: LAW IN THE MEDIA
Northern Territory could become Australia’s seventh state by 2018
The remote territory known for its crocodiles and steamy weather might finally lose its status as
‘second-class citizen’, becoming the country’s seventh state.
State leaders at the Council of Australian Governments meeting on Thursday unanimously agreed
with Northern Territory Chief Minister Adam Giles that the territory should become its own state by
July 1, 2018, according to a communique issued by [former] Prime Minister Tony Abbott.
Speaking from Sydney, Mr Giles said the Northern Territory was a ‘second class citizen’ that had a
‘second-tier status in the nation’.
If the change occurs, Parliament House in Canberra could gain an additional number of politicians in
the House of Representatives and the Senate. The state could even get a name change.
The Territory, which has a population of 243 700, currently has two senators in Canberra: Indigenous
Affairs Minister Nigel Scullion and Labor’s Nova Peris. It also has two members in the House of Repre-
sentatives: Labor’s Warren Snowdon and the Country Liberal’s Natasha Griggs.
Senator Peris said she backed a change, but only if it benefited everyone.
‘Aboriginal land rights need to be protected, our children need to be educated, our cost of living
needs to be lower and our standard of healthcare needs to be higher. That’s what statehood needs to
help achieve’, she said.
But not all Australian leaders are in favour of the decision. Treasurer Joe Hockey scoffed at the idea
when asked about it in Sydney on Thursday.
‘Haven’t we heard this before?’ he laughed.
When told that the idea had unanimous support at COAG, Mr Hockey replied: ‘Look, I think we had a
referendum not too long ago in the NT on that specific issue and they chose not to go down that path.
So we’ll leave it at that.’
27 Australian Constitution s 122.
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![CHAPTER 2 The Australian legal system 59
Northern Land Council president Joe Morrison also raised concerns about the security of land rights
for Aboriginal people, who comprise 30 per cent of the population, if a referendum was to go ahead.
‘The reality is, there haven’t been any plans for [statehood] and 2018 is pretty ambitious’, he said.
‘There is a number of very important questions’, he said. ‘It’s one thing to say we’re going to go to
a referendum, but it’s another to go to the public.’
In 1998, the Northern Territory held a referendum that was defeated by a 51.3 per cent ‘no vote’.
The issue of statehood resurfaced in 2012, when Northern Territory leaders drafted a constitution that
suggested the territory become a state. The plan was then put on hold.
Professor George Williams from the University of NSW said the statehood proposal was a ‘sensible,
overdue change’.
‘This is an issue that has kept popping up, but the difference this time is that they have nominated a
date and that might finally invest the process with some urgency and purpose’, he said.
‘Three years is not far away. What they need to do is generate popular support, draft a consti-
tution and negotiate with the Commonwealth.’
‘If you’re living in the Territory you’re treated as a second-class citizen’, he said.
And as for the new name of the state?
‘There was a process they ran to ask what the new name of the state should be and the most popular
name was “State of the Northern Territory”’. Professor Williams said.
‘There were certainly some weird and wonderful suggestions, including Deathstar. Surely, there is
room for imagination.’
Source: Sarah Whyte, 23 July 2015, http://www.smh.com.au/federal-politics/political-news/northern-territory-could-
become-australias-seventh-state-by-2018-20150723-giino4.html.
The other seven territories are directly regulated by the Federal Government, usually through an
Administrator.
Changing the Constitution
The Constitution sets out how the Constitution can be amended.28
Changing the Constitution requires more than a simple Act of Parliament; otherwise any government
would be able to restructure the entire legal system. The proposed amendment must:
1. be passed by an absolute majority of both Houses of Parliament,
2. be put to the Australian voters in the form of a referendum, and passed by a majority of voters, and
a majority of the States, and
3. receive Assent.
If the proposed amendment is passed by one House of Parliament, rejected by the other house,
passed again by the first house after three months and rejected a second time by the other house, the
Governor-General may nevertheless choose to put the proposed amendment to the Australian voters.
Forty-four amendments to the Australian Constitution have been proposed since Federation, but only
eight of these have been successful at referendum.
•• 1906 — Section 13 was amended to alter the length and dates of senators’ terms of office.
•• 1910 — Section 105 was amended to extend the power of the Commonwealth to take over pre-existing
State debts to debts incurred by a State at any time.
•• 1928 — Section 105A was inserted to ensure the constitutional validity of a financial agreement
reached between the Commonwealth and State governments in 1927.
•• 1946 — Section 51(xxiiiA) was inserted to extend the power of the Commonwealth Government over
a range of social services.
•• 1967 — Section 51 (xxvi) was amended to extend to Aborigines the power of the Commonwealth
Government to legislate for people of any race, and section 127 (which stated that Aborigines were
not to be counted in any Commonwealth or State census) was repealed.
28 Australian Constitution s 128.
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![70 PART 1 Foundations
REVISION QUESTIONS
Before proceeding, ensure that you can answer the following questions.
2.39 What is the role of the executive branch of government?
2.40 What is the Executive Council?
2.41 What is the role of the Crown representative within executive government?
2.42 What are the reserve powers of the Governor-General?
2.43 What is the Cabinet?
2.44 What is the public service?
2.45 How can a person challenge the decision of a government department or agency?
2.46 What is delegated legislation? What are its advantages and disadvantages?
In conclusion
•• Australia is a liberal democracy, a constitutional monarchy, a common law legal system and a feder-
ation. The constitutional framework seeks to balance the doctrine of separation of powers and the
doctrine of responsible government inherited from the British legal system. When the British first
settled Australia, the settlers ignored the Indigenous legal system. The colonies were initially closely
controlled by the British government but were gradually granted increasing levels of independence.
Each colony eventually became a separate, self-governing legal system. The colonies united to form a
federation in 1901, and today the Australian legal system is effectively separate from the British legal
system.
•• The Australian Constitution sets out how Australia’s federal system of government operates. Power is
divided between the Federal government and the various State and Territory governments.
•• The legal systems of the States, the Territories and the Commonwealth are administered by executive
governments. According to the various constitutions, an executive government consists of a council of
ministers who advise the Crown representative. The public service carries out the will of the executive
government.
JOHNNY AND ASH
[Johnny and Ash are sharing a taxi back to Ash’s apartment.]
Johnny — It’s worse than I thought! I thought the law was complicated before I started talking to you.
But there is so much that I don’t know.
Ash — You must have learned something after our conversation. Can you at least answer those four
questions now? Remember the first question: who is in charge?
Johnny — Well, there is no simple answer to that question. In the Federal government and in the State
and Territory governments, power is divided between the legislature, the executive and the judiciary.
The legislature is the Parliament, and the Parliament makes the law. The executive is the executive
government, the Prime Minister or Premier or Chief Minister and the ministers, and they run the State,
the Territory or the country. And the judiciary, the court system, interprets the law. So I guess you
could say that they are all in charge.
Ash — Good answer. Okay, so question two: what is the relationship between the Federal government
and the various State governments?
Johnny — Well, that’s all set out in the Australian Constitution. There are some things that only the
Federal government can do, there are some things that only the State government can do, and there
are some things that they can both do, but if there is a conflict between Federal and State law, the
Federal law will prevail.
Ash — Good work. And question three: what does the Parliament do?
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- 1. LEARNING OBJECTIVES 2.1 Whatare the main features of the Australian legal system, and why is it so complicated given our relatively small size? 2.2 How does the Australian Constitution regulate the relationship between the Federal government and the various State and Territory governments? 2.3 What is the role of the executive government? CHAPTER 2 The Australian legal system James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 2. CHAPTER 2 TheAustralian legal system 33 JOHNNY AND ASH [Johnny and Ash are still together in the bar from chapter 1. The bar has become louder as the hour has become later and the occupants have become drunker. Ash and Johnny have moved to a quieter table at the back of the bar.] Ash — So, what do you know about the Australian legal system? Johnny — [He answers confidently.] I know enough. I know that it is a confusing mess. I know that there are too many rules, but nobody knows where they are or what they mean. I know we’ve got a bunch of politicians, a Prime Minister, premiers and ministers — too many if you ask me. I know that it costs an arm and a leg to take someone to court, and if someone else takes you to court you will probably lose both arms and both legs. What more do I need to know? Ash — Well, let’s see if you can answer four simple questions. Who is in charge? Johnny — That’s easy. The Premier. No, wait, do you mean just in this State or in charge of the whole country? If you mean the whole country, that would be the Prime Minister, right? Or is it the Queen? The Governor-General? The president? No, that’s not right . . . Ash — Okay, stop. What about this one? What is the relationship between the Federal government and the various State governments? Johnny — I don‘t know. Don‘t the State governments just do what the Federal government tells them to do? Are the State governments sort of local branches of the Federal government? Ash — Uh-huh. Question three. What does the parliament do? Johnny — [He is starting to look confused.] The parliament? Is that the same thing as the government? I think I’ve seen shots of parliament on TV, a big room full of people shouting at each other. What do they do? Argue a lot, apparently. And shout annoying insults while someone is trying to make a speech. Seriously, I suppose they do something. Do they make law? Ash — I’m asking the questions. Question four. Do judges make law? Johnny — Do judges make law? I’ve never really thought about that before. I know judges make decisions. They decide whether or not someone should go to jail or whether or not they should pay millions of dollars to the person who is suing them. But I thought they found the law in the law books. Ash — The law books? Johnny — Yeah, the law books. You know, the big books where all the laws are written down? Big, old, dusty books . . . Ash — Go and buy another round of drinks. We have a lot to talk about. CHAPTER PROBLEM As you make your way through this chapter, consider how you would answer the four questions asked by Ash. Try to answer them now, and then try again after reading this chapter. Compare your two sets of answers. Introduction This chapter and the next present a comprehensive description of Australia’s legal system. Before looking at the particular laws that regulate business in Australia today, it is important that you learn about the regulatory environment within which those laws operate. You need to understand how the Australian Constitution sets out how the Federal system is to operate, and the important role played by each of the three arms of government: the legislature, the executive and the judiciary. After working through this chapter and the next, you will not only better understand Australia’s legal system, but you will also be able to better appreciate and understand what you read and see in the media about the statements and activities of parliaments, politicians and judges. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 3. 34 PART 1Foundations 2.1 The Australian legal system LEARNING OBJECTIVE 2.1 What are the main features of the Australian legal system, and why is it so complicated given our relatively small size? The nation of Australia, with its relatively small population of approximately 23 million people, has a surprisingly complex legal system. Australia is governed by a Federal, or Commonwealth, government located in the national capital of Canberra. (The terms ‘Federal’ and ‘Commonwealth’ are used inter- changeably throughout this text.) Australia also consists of six States — New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia — and two major mainland Territories — the Australian Capital Territory and the Northern Territory — each of which has its own government. Within each State and mainland Territory there are various local governments, each with their own jurisdiction (except the Australian Capital Territory which has no separate local government). Some aspects of business law are regulated by Federal law; some aspects are regulated by State law; some aspects are regulated by a combination of the two; and some aspects are regulated by local government. Some laws are made by parliament; these laws are called legislation, statutes or Acts of Parliament. Other laws are made by judges; these laws are called case law or common law. Key characteristics of the system Before you begin your step-by-step journey through the intricacies of the Australian legal system, you will in this section learn about the system as a whole. The six key characteristics of the Australian legal system are set out in figure 2.1. A liberal democracy Australia is a liberal democracy. It is a representative democracy in which laws are made by, and the executive government consists of, elected representatives who exercise their power subject to the rule of law and to the various Federal and State constitutions. It is a ‘liberal’ democracy because of the emphasis placed upon individual freedom and other liberal values. Liberal democracy Constitutional monarchy Federation Australian legal system Separation of powers Common law legal system Responsible government FIGURE 2.1 The six key characteristics of the Australian legal system James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 4. CHAPTER 2 TheAustralian legal system 35 Democracy Democracy is a form of government in which citizens have a say in the decisions that affect their lives, including participation in the proposal, development and passing of legislation. The democratic entitle- ment to participate in government (including voting in elections) may be limited to a relatively small section of the total population, such as wealthy males, or it can be extended to include all adult citizens regardless of wealth, gender or race. In Australia nearly all adult members of the community have the right to participate in the political process. Any Australian citizen aged 18 years or more can vote in an election as long as they are val- idly enrolled on the electoral roll and not disqualified from voting. Persons disqualified from voting in Australia include: •• persons in prison serving a sentence of 3 years or more,1 •• persons of unsound mind,2 and •• persons convicted of treason or treachery.3 Voting in Federal and State/Territory elections is compulsory. Representative democracy Representative democracy is one of the possible forms of democracy. In a representative democracy the citizens vote for officials who represent them when engaging in the legislative (law-making) and executive (administrative) aspects of government. Representative democracy can be contrasted with direct democracy, where the citizens participate directly in the processes of government, including law making, changing the constitution and overriding the decisions of government officials. Australia has a system of representative democracy where the members of the various Federal and State parliaments are elected by the citizens of various electorates, and who represent those citizens when engaging in the processes of government. The Australian legal system also incorporates some aspects of direct democracy: Australian citizens are occasionally called upon to vote directly in referenda in order to decide whether a constitution should be amended (e.g. to transform Australia from a monarchy into a republic) or to express a community view about an important political issue (e.g. daylight saving). Liberal democracy A liberal democracy is one of the possible forms of representative democracy. In a liberal democracy the will of the majority and the decision-making power of the elected representatives are constrained by the rule of law and by a constitution that emphasises and protects the individual rights and liberties of citizens. According to one scholar, the principal characteristics of a liberal democracy include the following. •• The citizens determine the outcomes of elections, and any group that complies with constitutional principles is entitled to form a political party and contest an election. •• The military and other democratically unaccountable institutions are subordinate to and answerable to the authority of elected representatives. •• Citizens have substantial freedom of belief, opinion, discussion, speech, publication, assembly, dem- onstration and petition. •• Executive power is constrained by government institutions such as an independent judiciary and parliament. •• Civil liberties are effectively protected by an independent and non-discriminatory judiciary whose decisions are respected and enforced by other arms of government. •• Citizens are politically equal under the law. •• Minority groups are not oppressed. •• The rule of law protects citizens from human right abuses. •• The constitution is supreme.4 1 Commonwealth Electoral Act 1918 (Cth) s 93(8AA). 2 Commonwealth Electoral Act 1918 (Cth) s 93(8)(a). 3 Commonwealth Electoral Act 1918 (Cth) s 93(8)(b). 4 Larry Diamond, Developing Democracy: Toward Consolidation (Johns Hopkins University Press, 1999) 7–8. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 5. 36 PART 1Foundations A constitution is the set of rules determining how the state will be governed, and how and by whom the legislative, executive and judicial powers will be exercised. A constitution may be in the form of a written document, as in Australia, Canada and the United States. Other states have an unwritten consti- tution, such as the United Kingdom and New Zealand, where the constitution is composed of legislation, case law and custom. The constitutions of some states — such as the United States — include or are accompanied by a bill of rights. Other countries — such as Australia — do not have a written bill of rights and instead rely upon courts finding implied rights and civil liberties within the constitution. A common law legal system There are, generally speaking, two main types of legal system: common law legal systems and civil law legal systems. Australia’s legal system is a common law legal system. The common law legal system is named as such because of the emphasis placed within the system upon ‘common law’. Common law, or case law, is law made by judges and is recognised in Australia as one of the two sources of law, the other being legislation (law made by parliaments). Many of the recognised laws in common law legal systems were established by judges in the course of resolving legal disputes and issuing detailed written judgments, a process described in more detail in the next chapter. The body of judicial decisions is called ‘common’ law because the rules established by judges are consistent across the relevant jurisdiction; that is, they do not vary from place to place or from person to person. The model of law in common law countries is the British model. Countries that were settled or colo- nised by the British — such as Australia — generally have a common law legal system. Civil law legal systems are the most common type of legal system. The primary source of law in civil law legal systems is legislation in the form of codes, statutes and constitutions. Case law is generally not recorded and is not recognised as a source of law. The model of law in civil law legal systems is the Roman model. Most countries in western Europe have a civil law legal system, as do those countries that were settled or colonised by western European countries including many countries in Central America and South-East Asia. Table 2.1 lists the countries with each type of legal system. TABLE 2.1 Legal systems of the world Civil law Common law Religious law Civil and common law Civil and religious law Common and religious law Albania American Samoa Bangladesh Botswana Afghanistan Bangladesh Angola Antigua and Barbuda Gambia Cameroon Algeria Brunei Argentina Australia Ghana Cyprus Bahrain Gambia Andorra Bahamas Iran Israel Comoros Malaysia Armenia Barbados Libya Jersey Djibouti Nigeria Aruba Belize Mauritania Lesotho Egypt Pakistan Austria Bhutan Morocco Malta Eritrea Azerbaijan British Virgin Islands Nigeria Mauritius Indonesia Belarus Canada Oman Namibia Jordan Belgium Dominica Saudi Arabia Philippines Morocco Benin England Sudan Saint Lucia Oman Bolivia Fiji Vatican City Scotland Qatar James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 6. CHAPTER 2 TheAustralian legal system 37 Civil law Common law Religious law Civil and common law Civil and religious law Common and religious law Bosnia and Herzegovina Gibraltar Yemen Seychelles Syria Brazil Ghana South Africa United Arab Emirates Bulgaria Grenada Sri Lanka Burkina Faso Hong Kong Swaziland Burundi India Thailand Chad Ireland Vanuatu China Jamaica Zimbabwe Congo Kiribati Cote D’Ivoire Marshall Cambodia Islands Cape Verde Myanmar Central African Republic Nauru Chile New Zealand Colombia Northern Ireland Costa Rica Palau Croatia Pakistan Cuba Saint Kitts and Nevis Cyprus Saint Vincent and the Grenadines Czech Republic Singapore Democratic Republic of the Congo Tonga Denmark Trinidad and Tobago Dominican Republic Tuvalu Ecuador Uganda EI Salvador United States Estonia Wales Finland France Egypt Equatorial Guinea Ethiopia Gabon Guinea Guinea-Bissau (continued) James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 7. 38 PART 1Foundations TABLE 2.1 (continued) Civil law Common law Religious law Civil and common law Civil and religious law Common and religious law Georgia Germany Greece Guatemala Haiti Honduras Hungary Iceland Italy Japan Latvia Lebanon Lithuania Luxemburg Macau Mexico Mongolia Montenegro Netherlands Norway Panama Paraguay Peru Poland Portugal Romania Russia Sao Tome and Principe Serbia Slovakia Slovenia Spain Sweden Switzerland Taiwan Turkey Ukraine Uruguay Uzbekistan Vietnam James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 8. CHAPTER 2 TheAustralian legal system 39 It would appear that the distinction between common law legal systems and civil law legal systems is becoming less clear. Countries with civil law legal systems are increasingly recognising the importance of consistency in judicial decision making and the value of a system of binding precedent, while coun- tries with common law legal systems are enacting more and more legislation such that members of the judiciary now spend most of their time interpreting and applying statutes. ACTIVITY 2.1 — REFLECT Why does Australia’s legal system differ from the legal systems of other countries? CAUTION! The terms common law and civil law are both potentially confusing, because they can have different meanings depending on the context. ‘Civil law’, as used previously, refers to a type of legal system where the law is based primarily on Roman law. However, the term can also refer to one of the two fundamental categories of law within any legal system described earlier in the text: civil law and criminal law. ‘Common law’ is even more confusing, because it has more possible meanings. As used above, the term refers to a type of legal system based on British law, but the term is also used: • in an historical sense to refer to the law common to the whole of England as opposed to laws of only local application, • to refer to case law developed by the common law courts in England, as opposed to the courts of equity (this is explained in more detail in the next chapter), and • to refer to case law generally. Whenever you see the term ‘common law’ you should check the context carefully to ascertain the intended meaning. A constitutional monarchy Australia is a constitutional monarchy. The head of state of the Commonwealth of Australia and of the various States is the king or queen of England. They are described as a constitutional monarch because they hold that position not by force of arms but according to the will of the Australian people as expressed in the Australian Constitution. (And they can therefore be removed as monarch by an amend- ment to the Australian Constitution.) The king or queen of England is represented in Australia by various Crown representatives: the Governor-General in the Federal government and the State Governors in the various State govern- ments (see table 2.2). TABLE 2.2 Crown representatives Jurisdiction Crown representative Website Commonwealth Governor-General www.gg.gov.au New South Wales Governor www.governor.nsw.gov.au Queensland Governor www.govhouse.qld.gov.au South Australia Governor www.governor.sa.gov.au Tasmania Governor www.dpac.tas.gov.au/governor Victoria Governor www.governor.vic.gov.au Western Australia Governor www.govhouse.wa.gov.au James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 9. 40 PART 1Foundations ACTIVITY 2.2 — RESEARCH Name and prepare a brief biography of (1) the present Governor-General of Australia, and (2) the present Governor of your State. A constitutional monarchy is just one of many possible forms of government. The major forms of government are set out in figure 2.2. Forms of government Monarchies Presidential systems Parliamentary republics Theocracies One party states FIGURE 2.2 Forms of government •• Monarchies — a monarchy is a country where the head of state is a king or queen. There are two types of monarchy: constitutional monarchies and absolute monarchies. In an absolute monarchy the head of state is a king or queen who exercises executive power directly. Examples of absolute monarchies include the United Arab Emirates, Saudi Arabia and Brunei. In a constitutional monarchy, the head of state holds that position subject to the constitution and with the consent of the people, and exercises little or no actual political power. Executive power is usually exercised by a ministerial council led by a prime minister who is also leader of the legislature. Examples of constitutional monarchies include Japan, Malaysia, Cambodia and, of course, Australia. Commonwealth countries are constitutional monarchies where the head of state is the king or queen of England. Examples of Commonwealth countries include the United Kingdom, Australia and New Zealand. •• Presidential systems — a presidential system is a country where the head of state is a president rather than a monarch. There are two types of presidential system: full presidential systems and semi-pres- idential systems. In a full presidential system, the president is both head of state and head of the executive government, and there is no prime minister. Examples of full presidential systems include the United States of America, Indonesia and the Philippines. In a semi-presidential system, the presi- dent is head of state and exercises some executive power, but executive power is also exercised by a ministerial council led by a prime minister who is also leader of the legislature. Examples of semi-presidential systems include France, Russia and Pakistan. •• Parliamentary republics — in a parliamentary republic, the head of state is a president who exercises little or no executive power, and is primarily a figurehead. Instead, executive power is actively exer- cised by a ministerial council led by a prime minister who is also leader of the legislature. Examples of parliamentary republics include Italy, Singapore and East Timor. •• Theocracies — in a theocracy, the head of state is determined by the rules of the state religion. Examples of theocracies include Iran and Vatican City. •• One party states — in a one party state, political power is exercised by a single political party. Examples of one party states include China, the Democratic People’s Republic of Korea (North Korea), and Vietnam. A federation Australia is a federation. This means that in addition to being the national government — referred to as either the Commonwealth government or the Federal government — there are various State James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 10. CHAPTER 2 TheAustralian legal system 41 governments. The State governments are not subordinate to the Federal government. Rather, the two levels of government are ‘partners’, and power is shared by these governments in accordance with the Australian Constitution. In Australia, the Federal government is granted certain powers under the Australian Constitution, and the residual powers remain vested in the State governments. This can be contrasted with the alternative arrangement, such as the Canadian federal model, where certain powers are vested in the State govern- ments and the residual powers are vested in the Federal government. A federal system of government can be contrasted with a unitary system of government, where a single government is responsible for the entire jurisdiction (although it may delegate some of its responsibilities to local authorities). New Zealand, for example, has a unitary system of government. Australia’s federal system is described in more detail later in this chapter. Separation of powers Both the Federal government and the various State and Territory governments operate in a manner generally consistent with the doctrine of separation of powers. A distinction is usually made between the power to make law, the power to administer law and the power to interpret law (see figure 2.3). Legislative power is the power to make law. It is exercised by the legislature, which in Australia takes the form of the Federal Parliament and the various State and Territory parliaments. A parliament is a body of elected representatives that makes laws on behalf of the citizens. Most parliaments are bicameral, that is, they consist of two ‘houses’, each of which must vote upon and pass the law for it to be valid. The parliaments of Queensland, the ACT and the Northern Territory are unicameral, that is, they consist of a single house. Executive power is the power to administer the law. It is exercised by the executive, which in Australia consists of a Prime Minister and other ministers (within the Federal government), a Premier and other ministers (within the State governments) or a Chief Minister and other ministers (within the Territory governments). The role of the executive can best be understood as being responsibility for the day-to-day governance of the state. The executive proposes most of the legislation to be passed by the legislature, manages the state’s relationships with other states, and oversees the various departments of the public service. Judicial power is the power to interpret the law. It is exercised by the judiciary, that is, the system of courts. In some countries the power of the judiciary is limited to interpretation of the law made by the legislature, while in Australia and other common law legal systems the judiciary plays a more active role in the creation of law by way of the doctrine of precedent. In many coun- tries the judiciary has the power to declare law made by the legislature to be unconstitutional and invalid. Judiciary Government Legislature Executive Makes law Administers law Interprets law FIGURE 2.3 The three branches of government James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 11. 42 PART 1Foundations The doctrine of separation of powers is the notion that the legislature, the executive and the judiciary should as far as possible remain functionally separate. This means that: •• the same person should not form part of more than one of the three branches of government, •• one branch of government should not control or interfere with the functioning of another branch of government, and •• one branch of government should not exercise a function of another branch of government. In most states the legislative, executive and judicial powers are separated into either two or three dis- crete bodies. In the United States, the legislature (the Congress), the executive (the President and the Secretaries of State) and the judiciary (the Supreme Court) are strictly separate. In Australia, on the other hand, members of the executive (the Prime Minister/Premier/Chief Minister and the other Ministers) are also members of the legislature (the parliament), which means that the legislature and the executive are not strictly separate. ACTIVITY 2.3 — REFLECT How does the separation of powers protect the community from injustice and oppression? It is important to distinguish the ‘separation of powers’ from the ‘division of power’ under Australia’s federal system of government described above. ‘Division of power’ refers to the division of law-making power between the Federal government and the various State governments. ‘Separation of powers’ refers to the separation of legislative, executive and judicial power between various bodies within each level of government (see figure 2.4). Federal legislative power State legislative power State executive power State judicial power Separation of powers Division of power Federal executive power Federal judicial power FIGURE 2.4 Division of power versus separation of powers Responsible government The Australian legal system is similar to the British legal system in that it seeks to incorporate not only the doctrine of separation of powers but also the doctrine of responsible government. According to the doctrine of responsible government, the executive branch of government is respon- sible (accountable) to the legislature rather than to the monarch. In Australia, the ministers comprising the various Federal, State and Territory Executive Councils are elected representatives who are also members of the relevant parliament and as such are answerable to that parliament. As a consequence, the members of the executive government are ultimately answerable to the citizens who elected them; if the citizens are unhappy with the performance of the executive government generally or of particular members of the executive government, they can vote them out at the next election. This does mean, how- ever, that the legislature and the executive are not completely separate. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 12. CHAPTER 2 TheAustralian legal system 43 In practice the accountability of the executive to the legislature manifests in several ways. •• Each Minister must report to the parliament about their executive decisions and about the performance of their department. This includes answering questions (during ‘Question Time’) about their perfor- mance from other members of the parliament, including members of the Opposition. •• While Ministers are officially appointed by the monarch (or the Governor-General/State Governor), they hold their position only while they have the ‘confidence’ of the lower house of the parliament. If the lower house passes a motion of ‘no confidence’ in the Minister they must resign from their position. •• While the monarch (or the Governor-General/State Governor) is head of state and officially in control of the executive government, they can act only through the Ministers who are, as explained earlier, members of the legislature. The head of state must act on the advice of the Ministers. The history of the system In this section we begin our examination of the complexity of the Australian legal system by considering the historical development of that system. Law and the first Australians In tracing the development of law in Australia it is necessary to acknowledge that for tens of thousands of years prior to British settlement there was in existence in Australia a sophisticated and effective legal system: the Indigenous Australian legal system. Features of this system included the following. •• The laws that regulated Indigenous behaviour were derived from ‘the Dreaming’. These laws deter- mined what foods could be eaten and how the food should be shared, and what punishments should be applied if laws were broken. They set out the rules for family, marriage, social organisation, looking after land, ceremonies and rituals. •• Indigenous peoples were taught about these laws through stories, music, art, dance and other cer- emonies. The most important thing they were taught was the appropriate way to behave towards the land and other people within the family. •• There were no formal governments or law courts. Instead, legal processes involved all members of the community. Disputes that could not be settled by the parties themselves were settled by elders. •• There were no jails. If a person engaged in theft, adultery, or unauthorised physical assault, or they neglected their family and clan obligations, they might be punished by ‘spearing’, or they might be obliged to compensate those they had harmed. •• Disputes between different Indigenous groups were settled by negotiation, ritual punishment or formal battles. Occasionally gatherings of Indigenous groups would take place, involving major ceremonies and the trade of materials and objects, the teaching of new songs and dances, and the settlement of disputes Unfortunately, the British did not recognise or acknowledge the Indigenous Australian legal system upon their arrival in the 1700s. The British were accustomed to associating a legal system with the pres- ence of constitutions, courts, legislatures and legal documents, and confronted with the absence of these things in Indigenous society the British decided that the Indigenous Australians were uncivilised and undeserving of legal recognition. British settlement The British colony of New South Wales was established on the east coast of Australia in 1788. The first Governor was Governor Arthur Phillip. Australia was declared to be terra nullius at the time the colony was established. Terra nullius means ‘empty land’ or ‘land belonging to no-one’; the Indigenous Australians were not recognised as ‘inhab- iting’ the land in a legal sense because they did not have a system of private property and had not developed or built permanent structures on the land. This meant that Australia was deemed to have been settled by Britain rather than conquered or acquired by treaty. This distinction has important James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 13. 44 PART 1Foundations consequences. When a new territory is conquered or acquired by treaty, the laws of the original inhabit- ants remain in place, subject to future alteration by the colonising power; but when a new territory is set- tled, the territory is regarded as previously unoccupied and the settlers bring with them the laws of their home country. As Sir William Blackstone explained in his 1765 commentaries on the Laws of England: If an uninhabited country be discovered and planted by English subjects all the English laws then in being which are the birthright of every English subject, are immediately there in force . . .5 This meant that in Australia the Indigenous legal system was ignored, and the British settlers brought British law with them; this is known as the doctrine of reception. This is why today the origins of Australia’s laws are traced back to the British legal system rather than the Indigenous legal system. More than 200 years later, in the decision of Mabo v Queensland (No 2) (1992) 175 CLR 1, the High Court of Australia finally rejected the fiction that Australia was terra nullius at the time of Britain’s colonisation, and acknowledged the prior existence of Indigenous customary law. This led to the recog- nition of native title in Australia. The High Court did not, however, reject the doctrine of reception. It confirmed that Australia was settled rather than conquered, and that Australia’s current laws derive their validity from the British legal system. Mabo v Queensland (No 2) (1992) 175 CLR 1 The Meriam people had occupied the Murray Islands in the Torres Strait between Australia and New Guinea since well before British settlement. In 1985 the Queensland Government sought to resolve uncertainty about the State’s ownership of the islands by enacting the Queensland Coast Islands Declaratory Act 1985. This Act sought to abolish any claims to ownership of the islands by the Murray Islanders. Three islanders, including Eddie Mabo, commenced a legal action challenging the validity of the Act, arguing that it was contrary to the Racial Discrimination Act 1975 (Cth) and therefore invalid under s 109 of the Constitution (see below). The Murray Islanders were successful and the Queensland Coast Islands Declaratory Act was subsequently repealed. In order to prevent further attempts by the Queensland Government to abolish any possible title of the Murray Islanders, a second legal action was brought by Mabo before the High Court in order to have the rights of the Meriam people formally declared. The High Court decided that: 1. the previous view that Australia was terra nullius at the time of British settlement was wrong, 2. as a result of their continuous and ongoing connection to and occupation of the land, the Meriam people had traditional title to the Murray Islands, which had survived British settlement, 3. other Indigenous Australians in a similar position could also have traditional title to their land formally recognised, 4. such traditional rights of ownership could be taken away at any time by express law to that effect, and 5. (by a narrow majority) where traditional rights of ownership were taken away by law, no compen- sation was payable. Unfortunately Eddie Mabo died before the High Court’s landmark decision was handed down. Colonial government The New South Wales colony and the other colonies subsequently established in Australia were initially controlled directly, and rather strictly, by the British government as represented by the colonial governor. The governors applied British law to colonial problems and disputes as appropriate. It was up to the governor to decide which British laws were to be applied, and how. As time passed, however, the British government, by a series of legislative enactments, granted the Australian colonies increasing levels of independence (see table 2.3). 5 Sir William Blackstone, Commentaries on the Laws of England (Strahan, Cadell & Prince, 1783) 77. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 14. CHAPTER 2 TheAustralian legal system 45 TABLE 2.3 Important legislation pre-Federation Date Act Effect 1787 Letters Patent and First Charter of Justice • officially established penal colony of NSW under complete control of British Parliament • established NSW colonial court with limited civil and criminal jurisdiction 1803 Letters Patent • officially established penal colony of Van Diemen’s Land (later called Tasmania) 1814 Letters Patent and Second Charter of Justice • established Supreme Court of NSW with more extensive civil and criminal jurisdiction 1823 New South Wales Act (Imp) and Third Charter of Justice • established NSW as a full colony • established comprehensive court system in NSW • established a Legislative Council consisting of NSW residents appointed by the Governor and empowered to make laws consistent with those of Britain (and subject to being overridden by the British Parliament) 1828 Australian Courts Act (Imp) • increased the size of the Legislative Council • required the Governor to consult with the Legislative Council • provided that all British statutes and common law up to 1828 applied in NSW and Tasmania; British statutes passed after 1828 would only apply to NSW and Tasmania if expressly stated to do so 1829 Western Australia Act (Imp) • established the colony of Western Australia with its own Supreme Court and Legislative Council 1834 South Australia Act (Imp) • set out the conditions for establishing the province of South Australia with its own Supreme Court and Legislative Council 1836 Letters Patent • established the province of South Australia, using the enabling provisions in the South Australia Act 1834 (Imp) 1842 New South Wales Constitution Act (Imp) • increased the size of the Legislative Councils • required that two-thirds of the Legislative Councils be elected 1850 Australian Constitutions Act (Imp) • established the colony of Victoria with its own Supreme Court and Legislative Council • gave the various Legislative Councils the power to create local parliaments that had the power to regulate the right to vote, grant membership of the Councils and make laws for the ‘peace, welfare and good government’ of the colonies • provided a basic format for the drawing up of colonial Constitutions 1855 New South Wales Constitution Act (Imp) • transformed NSW into a self-governing colony • established a constitution for NSW • created a bicameral NSW Parliament consisting of a Legislative Assembly, a Legislative Council and the Governor as Crown representative 1855 Victoria Constitution Act (Imp) • transformed Victoria into a self-governing colony • established a constitution for Victoria • created a bicameral Victorian Parliament consisting of a Legislative Assembly, a Legislative Council and the Governor as Crown representative 1855 Constitution Act (Tas) • transformed Tasmania into a self-governing colony • established a constitution for Tasmania • created a bicameral Tasmanian Parliament consisting of a House of Assembly, a Legislative Council and the Governor as Crown representative 1856 Constitution Act (SA) • transformed South Australia into a self-governing province • established a constitution for South Australia • created a bicameral South Australian Parliament consisting of a House of Assembly, a Legislative Council and the Governor as Crown representative (continued) James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 15. 46 PART 1Foundations TABLE 2.3 (continued) Date Act Effect 1859 Letters Patent • established the self-governing colony of Queensland with its own Supreme Court and Legislative Council 1865 Colonial Laws Validity Act (Imp) • confirmed the ability of the colonial parliaments to amend their own constitutions • permitted colonial parliaments to amend or repeal pre-1828 British laws as far as they applied to the colony • declared that the colonial parliaments had no power to pass laws inconsistent with British laws directly applicable to the colony (i.e. the British government could still pass laws overriding colonial laws) 1867 Constitution Act (Qld) • established a constitution for Queensland • created a bicameral Queensland Parliament consisting of a Legislative Assembly, a Legislative Council and the Governor as Crown representative 1885 Federal Council of Australasia Act (Imp) • established the Federal Council of Australasia, which met every 2 years to pass laws on matters of common interest 1890 West Australia Constitution Act (Imp) • established a constitution for Western Australia • created a bicameral Western Australian Parliament consisting of a Legislative Assembly, a Legislative Council and the Governor as Crown representative ACTIVITY 2.4 — RESEARCH Go to the Documenting Democracy website at www.foundingdocs.gov.au and look at the oldest document relating to your State or Territory. According to the site, what is the significance of this document? Federation By the late 1800s, six relatively independent self-governing colonies existed on the Australian continent, each with its own constitution, legislature and court system. It was widely recognised that, given the similarities and the common interests of the six colonies, some form of unifying legal system should be established. The sources of pressure for unification included: •• the perceived need to defend the continent during wartime, •• trade disputes provoked by customs barriers between the colonies, and •• the need for a consistent and effective immigration policy. According to Sir Henry Parkes — the Australian politician often referred to as the ‘Father of Federation’ — in 1890: The great question to consider is whether the time has not now come for the creation of this Australian government as distinct from the local governments now in existence. In other words, to make myself as plain as possible, Australia has a population of three and a half millions; when they formed the great Commonwealth of the United States, the numbers were about the same, and surely what the Americans have done by war the Australians could bring about in peace without breaking the ties that hold them to the mother country. Believing as I do that it is essential to preserve the security and integrity of these colonies that the whole of their forces should be amalgamated into one great Federal army, whenever necessary — it seems to me that the time is close at hand when they ought to set about creating this great national government for Australia.6 6 C Cluff 2007, ‘Great rural speeches — Sir Henry Parkes’, ABC Rural, www.abc.net.au. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 16. CHAPTER 2 TheAustralian legal system 47 A National Australasian Convention was held in Sydney in 1891. Delegates from each colony met to draft a constitution for a proposed Commonwealth of Australia. Two more conventions were subse- quently held in Adelaide and Sydney, and in 1898 a fourth and final convention was held in Melbourne to revise and update the proposed Constitution Bill. It was decided that, rather than abolish the colonial governments and replace them with a single Australian government, a federal model would be adopted. The colonial governments would remain, with their individual constitutions, legislatures and court systems, but each colony would become a State within a Federation and a new, Federal level of government would be created to exercise legislative, executive and judicial power in relation to issues of national importance. In 1899 a referendum was held, and a majority of the colonies voted in favour of federation. On 5 July 1900, the British Parliament passed the Commonwealth of Australia Constitution Act (Imp), and the Commonwealth of Australia came into existence on 1 January 1901. Each of the colonies, now States, gave up certain powers and rights to the new Federal government, and at the same time retained their individual identities and substantial legislative authority. The Colonial Laws Validity Act 1865 (Imp) initially ensured that the British Parliament still had the power to make law regulating Australia and to override laws made by the Australian parliaments. How- ever, since 1900, Australia has continued to become increasingly independent (see table 2.4), and today, Federal, State and Territory governments in Australia are free from interference by the British Parliament. TABLE 2.4 Important legislation post-Federation Date Act Effect 1900 Commonwealth of Australia Constitution Act (Imp) • established Commonwealth of Australia • established Australian Constitution 1902 Constitution Act (NSW) • established a constitution for NSW 1922 Constitution Act Amendment Act (Qld) • abolished the Upper House of the Queensland Parliament (so that it is now a unicameral rather than a bicameral legislature) 1931 Statute of Westminster (Imp) • permitted Australia’s Federal Parliament to assume ‘full legislative competence’ and, if necessary, override UK laws as far as they applied to Australia 1942 Statute of Westminster Adoption Act (Cth) • repealed Colonial Laws Validity Act 1865 (Imp) as far as it applied to Federal Parliament; British Parliament no longer able to override Federal laws or make laws applying to Australia 1968 Privy Council (Limitation of Appeals) Act (Cth) • abolished appeals from the High Court of Australia to the Privy Council in London on matters involving Federal law 1975 Privy Council (Appeals from the High Court) Act (Cth) • abolished appeals from the High Court of Australia to the Privy Council in London on all matters 1986 Australia Act (Cth) and Australia Act (UK) • repealed Colonial Laws Validity Act 1865 (Imp) as far as it applied to States; British Parliament no longer able to override State laws • authorised Australian parliaments to pass laws with extra-territorial application provided a sufficient connection exists between the territory and the subject of the law • abolished appeals from the State Supreme Courts to the Privy Council in London on all matters ACTIVITY 2.5 — RESEARCH Conduct some online research into Australia’s history and answer the following questions. 1. Who was Sir Samuel Griffith and what role did he play in the lead up to Federation? 2. Who was Australia’s first Governor-General? 3. Who was Australia’s first Prime Minister? James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 17. 48 PART 1Foundations Local government Local governments are established by State and Territory governments to take responsibility for commu- nity and local services. As such they are a branch of State or Territory government rather than a separate level of government in their own right. The first local government in Australia was the Adelaide Corporation, which was created by South Australia in October 1840. The City of Sydney and the Town of Melbourne followed in 1842. There are now 561 local governments in Australia in all States and Territories other than the ACT (see table 2.5). TABLE 2.5 Number of local governments Jurisdiction Number of local governments Australian Capital Territory — New South Wales 152 Northern Territory 21 Queensland 74 South Australia 64 Tasmania 29 Victoria 79 Western Australia 142 Local governments have a legislature and an executive but no judiciary. The legislature is a council of elected representatives led by a mayor, and the executive is a subset of the council comprised of key office holders. The responsibilities of local governments are defined by the State or Territory legislation that estab- lishes them. These responsibilities are typically limited to the provision of community facilities such as libraries and parks, the maintenance of local roads, planning regulation, and the provision of local ser- vices such as waste disposal. Political parties Although they are not expressly referred to in any of the Federal or State constitutions, political parties are an important feature of the political landscape in Australia. Most members of the Lower House and of the Upper House of the various parliaments are members of a political party and are elected to parliament based, not on their individual views and characteristics, but on the basis of their membership of that party. The main political parties in Australia are the Liberal Party and the National Party (which at present form the Liberal–National coalition), the Australian Labor Party, and the Greens (see table 2.6). TABLE 2.6 Australian political parties Political party Website Australian Greens www.greens.org.au Australian Labor Party www.alp.org.au Liberal Party of Australia www.liberal.org.au National Party of Australia www.nationals.org.au James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 18. CHAPTER 2 TheAustralian legal system 49 LAW IN CONTEXT: LAW IN POLITICS Why do Australians hate politics? While for some Australians the recent leadership spill will be viewed as a simple act of restorative justice, many others would have spectated on events in Canberra with an equal measure of indifference and disdain. Is it any wonder that Australians hate politics? In February of [2013] we asked a representative sample of 1377 Australians to consider various issues regarding Australian politics and their role in making democracy work. Our findings should give all democrats pause for thought. Australians feel they are observers rather than participants in formal politics. Nine in ten of those interviewed regard themselves as without influence over the federal government and seven in ten feel the same about other levels of government. There is widespread evidence of negative attitudes towards politics and politicians. comparable to those found in other democracies like Britain, the United States and Finland. Yet Australian negativity has emerged in a relatively well-off economic period. Over a quarter of Australians combine a specific set of negative attitudes towards politics and poli- ticians. We are irritated by politicians talking rather than acting, annoyed with the compromises of poli- tics, and supportive of a greater role for non-political actors in public decision-making. Other findings give reason for hope about the future of Australian democracy. Elements of malaise in Australian politics linger but the core issue appears to be with the politics currently on offer. We show that most Australians do not hold the ideals of the democracy in contempt. They show strong support for its processes such as consultation, compromise and democratic judgement. Citizens also display a considerable understanding of its complex processes and could be up for a more extended role if a different politics was on offer that was more participatory, open and perhaps local. Rather, democratic decline in contemporary Australian politics is increasingly attributed to the poli- ticians. Our findings draw attention to two important issues for Australia’s political class. First, that citizens view politicians and democratic politics as one and the same — anti-politics equals anti-party politics. Also, the artificial separation of representative and participatory democracy has reinforced a culture of anti-politics at the heart of the Australian political system. Our findings show that citizens have com- plex feelings towards democracy. There is support for a new participatory politics, but with the aim of reducing representative democracy and developing a more integrated, inclusive and responsive system. The reform process would need to proceed on the basis of four fundamental principles — politicians as the key agents of change, non-partisanship, institutional strengthening and connecting the citizen with the Canberra village. The first principle assumes that politicians should act as the bridge between representative and participatory democracy. The second follows the understanding that anti-politics is about the health of Australian democracy and is a problem for all politicians regardless of party politics. The third principle is based on the idea that it makes sense to use existing parties which already have public legitimacy and trust to build the new politics. This would also show care from a financial perspec- tive in an austerity climate. The fourth principle is rooted in the popular perception that the Canberra ‘bubble’ is disconnected from the everyday lives of Australian citizens, and changes are needed to bring Canberra closer to the people. The following reforms flow from these principles: including lay representation on parliamentary select committees; establishing public sector juries managed through the criminal jury system and chaired by MPs; providing advisory referenda through online petitions managed by a cross-bench committee of MPs; establishing a single-member constituency link to encourage greater MP responsiveness to com- munity needs; and introducing a new localism starting with constitutional recognition for local govern- ment. The details of these reforms would need to be thought through carefully. Our research shows there’s need for reform although its outcome is of course a question of pol- itical choice. The proposals in our report are in keeping with our evidence about the multifaceted way Australians imagine their democracy. Citizens are clear about what they do not like about what’s cur- rently on offer. The issue is whether elected leaders are listening. These leaders will have a critical role to play as agents of change, or else the reform process will be doomed to failure. Source: Mark Evans, 11 July 2013, http://theconversation.com/why-do-australians-hate-politics-15543. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 19. 50 PART 1Foundations REVISION QUESTIONS Before proceeding, ensure that you can answer the following questions. 2.1 What are the three levels of government in Australia? 2.2 What are the six key characteristics of the Australian legal system? 2.3 What is a democracy? 2.4 What is representative democracy? 2.5 What is a liberal democracy? 2.6 What are the differences between a ‘common law’ legal system and a ‘civil law’ legal system? 2.7 What are the various meanings of the term ‘civil law’? 2.8 What are the various meanings of the term ‘common law’? 2.9 What is a constitutional monarchy? 2.10 What are the major forms of government? Explain each of these and the differences between them. 2.11 What is a federation and what is the relationship between the Federal government and the State governments in Australia? 2.12 What is the ‘legislature’ and what is its role? 2.13 What is the ‘executive’ and what is its role? 2.14 What is the ‘judiciary’ and what is its role? 2.15 What is the doctrine of separation of powers? 2.16 What is the doctrine of responsible government and how does it relate to the doctrine of separation of powers? 2.17 To what extent did the British recognise the Indigenous legal system? 2.18 What is terra nullius? 2.19 What is the doctrine of reception? 2.20 What was the significance of the Mabo decision in 1992? 2.21 What were the significant stages in Australia’s increasing independence from Britain in the years prior to Federation? 2.22 What is the Federal model adopted by the Australian colonies? Briefly explain this model. 2.23 What were the significant stages in Australia’s increasing independence from Britain in the years following Federation? 2.24 What is local government and how does it fit in with the Federal system? 2.25 What are the key responsibilities of local government? 2.26 What is the role played by political parties in parliament? 2.2 The Australian Constitution LEARNING OBJECTIVE 2.2 How does the Australian Constitution regulate the relationship between the Federal government and the various State and Territory governments? In this section we examine the Australian Constitution more closely, focusing on the way in which it regu- lates the relationship between the Federal government and the various State and Territory governments. An understanding of this relationship is essential to having an understanding of business law inAustralia.As you saw earlier, some aspects of business are regulated by Federal law and other aspects of business are regulated by State or Territory law, and it is important to understand the relationship between the two. ACTIVITY 2.6 — RESEARCH Download a copy of the Australian Constitution from www.comlaw.gov.au and answer the following questions. 1. How often must the Federal Parliament sit? 2. What is the term of a senator, and when does the term commence? James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 20. CHAPTER 2 TheAustralian legal system 51 3. How is the number of members of the House of Representatives determined? 4. Who is qualified to be a member of the House of Representatives? 5. Who is the Commander in Chief of the naval and military forces of the Commonwealth? 6. When do Justices of the High Court have to retire? 7. How does the Constitution provide for the government of the Territories? Structure of the Constitution The Australian Constitution came into force on 1 January 1901. The Australian Constitution is in fact contained in section 9 of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the British Parliament that became law on 9 July 1900. (9 July is now celebrated in Australia as ‘Constitution Day’, but it is not a public holiday, which is why you may not have heard of it.) Although contained in a British Act, the British Parliament no longer has the authority to amend the Australian Constitution, as a result of the passing in 1986 of the Australia Acts by both the Australian and British parliaments. The Australian Constitution is divided into eight chapters and contains 128 sections (see table 2.7). TABLE 2.7 Structure of the Australian Constitution Chapter Heading Content Chapter I The Parliament • Part I vests legislative power in the Federal Parliament. • Part II deals with the upper house of the Federal Parliament, the Senate. • Part III deals with the lower house of the Federal Parliament, the House of Representatives. • Part IV deals with eligibility for voting and election to parliament, parliamentary allowances, parliamentary rules and related matters. • Part V sets out the exclusive and concurrent legislative powers of the parliament. Chapter II The Executive Government • Sections 61–62 vest executive power in the Governor-General acting on the advice of the Federal Executive Council consisting of Ministers of State who must also be Members of Parliament. Chapter III The Judicature • Section 71 vests the Federal judicial power in the High Court of Australia and in other Federal courts. • Sections 73 and 75–78 set out the original and appellate jurisdiction of the High Court. • Section 80 guarantees trial by jury for indictable offences against the Commonwealth. Chapter IV Finance and Trade • Section 90 grants exclusive power to the Federal Parliament over customs and excise duties. • Section 92 provides that ‘trade, commerce and intercourse among the States . . . shall be absolutely free’. (There has been considerable debate about the meaning of this particular section.) • Section 96 empowers the Commonwealth to make financial grants to the States ‘on such terms and conditions as the parliament thinks fit’. Chapter V The States • Sections 106–108 preserve the State constitutions, the powers of the State parliaments, and State laws. • Section 109 resolves inconsistencies between Federal and State laws. • Section 111 allows a State to surrender part of a State to the Commonwealth. (This occurred, for example, when South Australia surrendered to the Commonwealth that part of the continent that became the Northern Territory.) • Section 114 forbids the States from raising military forces. • Section 115 prohibits the States from coining money. • Section 116 prohibits the Commonwealth from making any law for the establishment of a religion, imposing any religious observance, prohibiting the exercise of a religion, or imposing a religious test for a Commonwealth office. (continued) James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 21. 52 PART 1Foundations TABLE 2.7 (continued) Chapter Heading Content Chapter VI New States • This Chapter provides for new States to be appended to the Commonwealth. (No new States have been created since Federation.) • Section 122 establishes the Federal Parliament’s power to make laws with respect to the Territories. Chapter VII Miscellaneous • Section 126 states that the seat of government of the Commonwealth (i.e. the national capital, Canberra) shall be located in NSW no less than 100 miles from Sydney. • Section 127 originally provided that Aboriginals were not to be counted in any Commonwealth or State census. This section was repealed in 1967. Chapter VIII Alteration of the Constitution • Section 128 sets out how the Constitution may be amended. Constitutional conventions The express terms of the Australian Constitution are supplemented by constitutional conventions. These are unwritten rules based upon decades of tradition that dictate how the Constitution should be interpreted and how it should operate in practice. It is constitutional convention, for example, that dictates that the leader of the political party with the most seats in the lower house should become the Prime Minister, the head of the Cabinet and the country’s political leader — in fact, the position of ‘Prime Minister’ is not explicitly referred to in the Australian Constitution at all. It is also constitutional convention that obliges the Governor-General to act on the advice of the Prime Minister when exercising his or her executive authority. Because they are unwritten, the precise content and scope of constitutional conventions are subject to considerable debate. There can be situations where the operation of the convention is unclear, where there is no generally agreed convention or where there are inconsistent conventions. Such a situation arose in 1975 when the Governor-General, Sir John Kerr, dismissed the Prime Minister, Gough Whitlam, after the Senate (which was not controlled by the executive government) blocked the passage of the Supply Bill in an attempt to deprive the Whitlam Government of the funds needed to govern. (A Supply Bill is a Bill authorising the expenditure of funds on government activities for a particular period.) The Senate’s actions were inconsistent with the convention that a Senate that is not controlled by the party that con- trols the House of Representatives should not block supply. Regarding the Governor-General’s dismissal of the Prime Minister — an action that is part of the recognised authority of a Governor-General — some argue that Kerr acted properly because it was consistent with the convention that a Prime Minister who cannot obtain supply should either seek a general election or resign; others argue that the dismissal of Whitlam was inconsistent with the convention that a person who retains majority support in the House of Representatives, as Whitlam did, is entitled to remain Prime Minister. Federal and State relations The Australian Constitution sets out how legislative power is shared between the Federal Parliament and the various State parliaments (see figure 2.5). There are some matters in relation to which only the Federal Parliament may make laws; these are referred to as the exclusive powers of the Federal Parliament. There are other matters in relation to which only the State parliaments may make laws; these are referred to as the residual powers of the State parliaments. And there is a comprehensive list of matters in relation to which both the Federal and the State parliaments may make laws; these are referred to as concurrent powers. Disputes between the Federal and State governments about the interpretation of the Australian Consti- tution are resolved by the High Court of Australia under section 76 of the Constitution. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 22. CHAPTER 2 TheAustralian legal system 53 Exclusive powers Concurrent powers Residual powers Federal Parliament State parliaments FIGURE 2.5 Sharing of legislative power CAUTION! The State governments are not answerable to the Federal government, as many people assume. Rather, the Federal and the State governments work together in partnership to make, administer and interpret law in Australia. Exclusive powers The exclusive powers are those powers able to be exercised only by the Federal Parliament. The list of the exclusive powers in the Australian Constitution is relatively short. They include: •• the establishment of the seat of government of the Commonwealth and oversight of the Common- wealth public service,7 •• the imposition of customs and excise duties,8 •• the raising and maintaining of any naval or military force,9 •• the coining of money,10 and •• the government of the Territories.11 Concurrent powers Most of the powers granted to the Federal Parliament under the Constitution are concurrent powers. The concurrent powers are those powers able to be exercised by both the Federal Parliament and the State parliaments. At the time the Constitution was enacted it was not feasible for the new Federal Parliament to assume control of all the areas for which it was thought that Federal regulation would be appropriate, so it was decided to identify them as concurrent powers so that the States could retain control until such time as the Federal Parliament was in a position to assume control. Section 51 of the Australian Constitution sets out 40 concurrent ‘heads of power’. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) Trade and commerce with other countries, and among the States; (ii) Taxation; but so as not to discriminate between States or parts of States; (iii) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth; (iv) Borrowing money on the public credit of the Commonwealth; (v) Postal, telegraphic, telephonic, and other like services; (vi) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; 7 Australian Constitution s 52. 8 Australian Constitution s 90. 9 Australian Constitution s 114. 10 Australian Constitution s 115. 11 Australian Constitution s 122. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 23. 54 PART 1Foundations (vii) Lighthouses, lightships, beacons and buoys; (viii) Astronomical and meteorological observations; (ix) Quarantine; (x) Fisheries in Australian waters beyond territorial limits; (xi) Census and statistics; (xii) Currency, coinage, and legal tender; (xiii) Banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money; (xiv) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned; (xv) Weights and measures; (xvi) Bills of exchanging and promissory notes; (xvii) Bankruptcy and insolvency; (xviii) Copyrights, patents of inventions and designs, and trademarks; (xix) Naturalisation and aliens; (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; (xxi) Marriage; (xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants; (xxiii) Invalid and old-age pensions; (xxiiiA) The provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances; (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States; (xxv) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States; (xxvi) The people of any race, for whom it is deemed necessary to make special laws; (xxvii) Immigration and emigration; (xxviii) The influx of criminals; (xxix) External affairs; (xxx) The relations of the Commonwealth with the islands of the Pacific; (xxxi) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws; (xxxii) The control of railways with respect to transport for the naval and military purposes of the Commonwealth; (xxxiii) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) Railway construction and extension in any State with the consent of that State; (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; (xxxvi) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 24. CHAPTER 2 TheAustralian legal system 55 In practice the most significant heads of power are: •• s 51(i) — interstate and international trade and commerce, •• s 51(ii) — taxation, •• s 51(xx) — corporations, and •• s 51(xxix) — external affairs; that is, the relationship between Australia and other countries. If the Federal Parliament has not legislated in relation to any of the matters listed in section 51, then that matter remains within the regulatory authority of the States. But if a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then section 109 of the Australian Constitution provides that: When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. If it appears that the Federal Parliament has intended that its law ‘cover the field’ it will override the State law. One Justice of the High Court explained the operation of the section as follows: If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited . . . The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the para- mount legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal law discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.12 Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 Wallis engaged Downard-Pickford (DP), a removalist company, to transport his goods. When DP caused damage to the goods, Wallis claimed compensation. Wallis sought to rely upon Federal legislation, the Trade Practices Act 1974 (Cth), which entitled him to compensation in full of $1663. DP sought to rely upon Queensland legislation, the Carriage of Goods by Land (Carrier’s Liabilities) Act 1967 (Qld), which limited DP’s liability to no more than $200. The High Court decided that the Queensland Act was incon- sistent with the Federal Act and that under section 109 of the Australian Constitution the Queensland Act was invalid. Wallis was entitled to compensation in full. In interpreting the wording of section 51 of the Australian Constitution, the High Court of Australia has often done so in a way that favours Federal legislation by declaring it to be valid, sometimes in surprising ways. Koowarta v Bjelke-Petersen (1982) 153 CLR 168 In 1982, the Queensland government challenged the constitutional validity of the Racial Discrimination Act 1975 (Cth), arguing that racial discrimination was not one of the powers listed in section 51 of the Australian Constitution. The High Court decided that the Act fell under the ‘external affairs’ power in section 51(xxix). Australia was a party to an international treaty that prohibited racial discrimination and therefore a law implementing the goals of the treaty was a law in furtherance of the external affairs power. 12 Ex parte McLean (1930) 43 CLR 472 at 483; (Dixon J). James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 25. 56 PART 1Foundations Commonwealth v Tasmania (1983) 158 CLR 1 In 1980, the Federal government sought to prevent the Tasmanian government from building a hydro- electric dam on the Gordon and Franklin Rivers in Tasmania. The Federal Parliament passed legislation prohibiting the project, and Tasmania challenged the constitutional validity of that legislation. The High Court decided once again that the Federal legislation was constitutionally valid under the external affairs power in section 51. Australia had ratified an environmental treaty, the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, in 1974, and this permitted the Federal Parlia- ment to make laws on environmental matters. ACTIVITY 2.7 — REFLECT What are the consequences of the High Court’s reasoning in the above cases for the distribution of power between the Federal and State governments as set out in the Australian Constitution? On the other hand, the High Court has also on occasion interpreted section 51 rather strictly. New South Wales v Commonwealth (1990) 169 CLR 482 In 1989, the Federal Parliament passed the Corporations Act 1989, an Act that attempted to establish a national scheme for the regulation of corporations in Australia. The States challenged the legislation in the High Court. The Federal government argued that the legislation was valid because it fell under the power set out in paragraph (xx) of section 51. The High Court decided that paragraph (xx) only allowed the Federal Parliament to make laws in relation to companies that had already been formed; it did not permit the Federal Parliament to make rules regulating the initial incorporation of companies. The court decided that the Federal legislation was therefore unconstitutional and invalid. [The States have since then volun- tarily transferred to the Federal Parliament under section 51(xxxvii) the power to regulate corporations, which are now regulated by Federal legislation.] Generally speaking, the High Court’s approach to interpreting the powers in section 51 has seen a steady expansion since Federation in the authority of the Federal government at the expense of the States. The Federal Government has also been able to extend the scope of its legislative power beyond the exclusive and concurrent powers set out in the Constitution through the use of section 96 of the Con- stitution. According to section 96, the Federal Parliament has the power to grant money to any State ‘on such terms and conditions as the parliament thinks fit’. This enables the Federal Government to make financial grants to the States — known as tied grants — conditional upon the States cooperating with the Federal Government’s policies in areas technically beyond the Federal Government’s legislative authority. It has, for example, allowed the Federal Government in recent years to influence State regu- lation of hospitals and schools, both of which fall within the residual powers of the States. Residual powers Anything not expressly identified as an exclusive power or a concurrent power in the Australian Consti- tution is a residual power of the States. The residual powers of the States, therefore, include the power to make laws with respect to: •• education, •• health, •• criminal law, •• contracts and torts, •• transport, •• property and land, and •• local government. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 26. CHAPTER 2 TheAustralian legal system 57 This explains, for example, why each State has a slightly different schooling system — education is regulated by the States. Similarly, the road traffic rules differ slightly from State to State because trans- port is regulated by the States. ACTIVITY 2.8 — REFLECT Why should matters such as defence, external affairs and marriage be placed within the jurisdiction of the Federal Parliament, and matters such as education and crime be left within the jurisdiction of the State parliaments? Limitations The Australian Constitution places a number of important limitations upon the powers of the Common- wealth. The Commonwealth: •• cannot prefer one State over another in relation to taxation,13 •• cannot acquire property without just (fair) compensation,14 •• must try by jury a person charged with an offence under Commonwealth law and the trial must be held in the State where the offence was committed,15 •• cannot restrict free trade between the States,16 •• cannot prefer one State over another in relation to trade, commerce or revenue,17 •• cannot make any law establishing, imposing or prohibiting any religion,18 •• must prevent residents of States being discriminated against within other States,19 and •• must protect every State against invasion.20 The Australian Constitution also places a number of important limitations upon the powers of the States. The States: •• cannot levy customs and excise duties,21 •• must ensure that trade between the States is free,22 •• cannot raise military forces,23 and •• cannot coin money.24 The High Court of Australia has also stated that the Australian Constitution contains a number of implied limitations upon the powers of the Commonwealth. The Commonwealth: •• cannot make a law that discriminates against the States or impairs their continued existence,25 and •• cannot make a law that is in conflict with the freedom of communication about political, governmental and public affairs implied into the Constitution as a result of the system of government established by the Constitution.26 13 Australian Constitution s 51(ii). 14 Australian Constitution s 51(xxxi). 15 Australian Constitution s 80. 16 Australian Constitution s 92. 17 Australian Constitution s 99. 18 Australian Constitution s 116. 19 Australian Constitution s 117. 20 Australian Constitution s 119. 21 Australian Constitution s 90. 22 Australian Constitution s 92. 23 Australian Constitution s 109. 24 Australian Constitution s 115. 25 Koowarta v Bjelke-Petersen (1982) 153 CLR 168. 26 Australian Capital Television Pty Ltd & New South Wales v Commonwealth (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 27. 58 PART 1Foundations Regulating the Territories The Australian Constitution empowers the Federal Parliament to make laws in relation to Territories that have been ‘surrendered’ by the States or that have otherwise been acquired by the Commonwealth.27 In addition to the two major Territories — the Australian Capital Territory (ACT) and the Northern Territory — there are eight other Territories: •• Ashmore and Cartier Islands, •• Christmas Island, •• Cocos (Keeling) Islands, •• Coral Sea Islands, •• Jervis Bay Territory, •• Norfolk Island, •• Territory of Heard Island and McDonald Islands, and •• the Australian Antarctic Territory. In relation to these ten Territories, the Federal Parliament can make laws on any subject; it does not share its law-making power with the State parliaments as it does in relation to the rest of Australia. The Federal Parliament has conferred a large degree of self-government on the two major territories, the ACT and the Northern Territory, and on Norfolk Island. In most respects, these Territories function similarly to the States, but the Federal Parliament can override any legislation of their parliaments. For example, in 1995 the Northern Territory Parliament legalised euthanasia in the Territory with the passing of the Rights of the Terminally Ill Act 1995 (NT). In March 1997, the Commonwealth passed the Euthanasia Laws Act 1997 (Cth). This law stripped the Northern Territory (along with the other self-governing territories) of the power to pass legislation on euthanasia. This resulted in the Northern Territory legislation being rendered ineffec- tive, as it was no longer within the legislative competence of the Northern Territory’s LegislativeAssembly. LAW IN CONTEXT: LAW IN THE MEDIA Northern Territory could become Australia’s seventh state by 2018 The remote territory known for its crocodiles and steamy weather might finally lose its status as ‘second-class citizen’, becoming the country’s seventh state. State leaders at the Council of Australian Governments meeting on Thursday unanimously agreed with Northern Territory Chief Minister Adam Giles that the territory should become its own state by July 1, 2018, according to a communique issued by [former] Prime Minister Tony Abbott. Speaking from Sydney, Mr Giles said the Northern Territory was a ‘second class citizen’ that had a ‘second-tier status in the nation’. If the change occurs, Parliament House in Canberra could gain an additional number of politicians in the House of Representatives and the Senate. The state could even get a name change. The Territory, which has a population of 243 700, currently has two senators in Canberra: Indigenous Affairs Minister Nigel Scullion and Labor’s Nova Peris. It also has two members in the House of Repre- sentatives: Labor’s Warren Snowdon and the Country Liberal’s Natasha Griggs. Senator Peris said she backed a change, but only if it benefited everyone. ‘Aboriginal land rights need to be protected, our children need to be educated, our cost of living needs to be lower and our standard of healthcare needs to be higher. That’s what statehood needs to help achieve’, she said. But not all Australian leaders are in favour of the decision. Treasurer Joe Hockey scoffed at the idea when asked about it in Sydney on Thursday. ‘Haven’t we heard this before?’ he laughed. When told that the idea had unanimous support at COAG, Mr Hockey replied: ‘Look, I think we had a referendum not too long ago in the NT on that specific issue and they chose not to go down that path. So we’ll leave it at that.’ 27 Australian Constitution s 122. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 28. CHAPTER 2 TheAustralian legal system 59 Northern Land Council president Joe Morrison also raised concerns about the security of land rights for Aboriginal people, who comprise 30 per cent of the population, if a referendum was to go ahead. ‘The reality is, there haven’t been any plans for [statehood] and 2018 is pretty ambitious’, he said. ‘There is a number of very important questions’, he said. ‘It’s one thing to say we’re going to go to a referendum, but it’s another to go to the public.’ In 1998, the Northern Territory held a referendum that was defeated by a 51.3 per cent ‘no vote’. The issue of statehood resurfaced in 2012, when Northern Territory leaders drafted a constitution that suggested the territory become a state. The plan was then put on hold. Professor George Williams from the University of NSW said the statehood proposal was a ‘sensible, overdue change’. ‘This is an issue that has kept popping up, but the difference this time is that they have nominated a date and that might finally invest the process with some urgency and purpose’, he said. ‘Three years is not far away. What they need to do is generate popular support, draft a consti- tution and negotiate with the Commonwealth.’ ‘If you’re living in the Territory you’re treated as a second-class citizen’, he said. And as for the new name of the state? ‘There was a process they ran to ask what the new name of the state should be and the most popular name was “State of the Northern Territory”’. Professor Williams said. ‘There were certainly some weird and wonderful suggestions, including Deathstar. Surely, there is room for imagination.’ Source: Sarah Whyte, 23 July 2015, http://www.smh.com.au/federal-politics/political-news/northern-territory-could- become-australias-seventh-state-by-2018-20150723-giino4.html. The other seven territories are directly regulated by the Federal Government, usually through an Administrator. Changing the Constitution The Constitution sets out how the Constitution can be amended.28 Changing the Constitution requires more than a simple Act of Parliament; otherwise any government would be able to restructure the entire legal system. The proposed amendment must: 1. be passed by an absolute majority of both Houses of Parliament, 2. be put to the Australian voters in the form of a referendum, and passed by a majority of voters, and a majority of the States, and 3. receive Assent. If the proposed amendment is passed by one House of Parliament, rejected by the other house, passed again by the first house after three months and rejected a second time by the other house, the Governor-General may nevertheless choose to put the proposed amendment to the Australian voters. Forty-four amendments to the Australian Constitution have been proposed since Federation, but only eight of these have been successful at referendum. •• 1906 — Section 13 was amended to alter the length and dates of senators’ terms of office. •• 1910 — Section 105 was amended to extend the power of the Commonwealth to take over pre-existing State debts to debts incurred by a State at any time. •• 1928 — Section 105A was inserted to ensure the constitutional validity of a financial agreement reached between the Commonwealth and State governments in 1927. •• 1946 — Section 51(xxiiiA) was inserted to extend the power of the Commonwealth Government over a range of social services. •• 1967 — Section 51 (xxvi) was amended to extend to Aborigines the power of the Commonwealth Government to legislate for people of any race, and section 127 (which stated that Aborigines were not to be counted in any Commonwealth or State census) was repealed. 28 Australian Constitution s 128. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 29. 60 PART 1Foundations •• 1977 — This amendment formalised the convention that, when a casual vacancy arises in the Senate, the parliament of the relevant State, if it chooses to fill the vacancy, must choose the replacement from the same political party as the departing senator if that party still exists. •• 1977 — Section 128 was amended to allow residents of the Territories to vote in referendums and be counted towards the national total. •• 1977 — Section 72 was amended to impose a retirement age of 70 upon judges in Federal courts. The most recent attempt to amend the Australian Constitution was on 6 November 1999 when the Australian voters were asked to decide whether Australia should become a republic. The pro- posal was that the Queen be removed as head of state and that the Governor-General be replaced by a President appointed by a two-thirds majority of the Federal Parliament. That attempt was unsuccessful. REVISION QUESTIONS Before proceeding, ensure that you can answer the following questions. 2.27 Why is the Commonwealth of Australia Constitution Act an Act of the British Parliament? 2.28 How is the Australian Constitution structured? 2.29 What are ‘constitutional conventions’? 2.30 What are the differences between exclusive powers, concurrent powers and residual powers? 2.31 What are the exclusive powers of the Federal Parliament? 2.32 What are the concurrent powers set out in the Australian Constitution? 2.33 What happens if a Federal law and a State law conflict? 2.34 How has the external relations power in section 51 been used to expand the power of the Federal Parliament? 2.35 What matters fall within the residual powers of the States? 2.36 What limitations are imposed by the Australian Constitution upon (a) the Federal Parliament; and (b) the State parliaments? 2.37 How are the Territories regulated? 2.38 How can the Australian Constitution be amended? 2.3 The executive government LEARNING OBJECTIVE 2.3 What is the role of the executive government? In this section we consider in detail the executive branch of government. The other two branches of government — the legislature and the judiciary — are considered in detail in the next chapter. Executive power is the power to administer the law, carry on the business of government, and maintain order and security. It is the executive branch of government that collects the taxes, pays the welfare, runs the hospitals and schools, maintains the roads and plans the cities. Strictly speaking, the executive branch of government includes the many thousands of employees working for the various departments of the public service. In practice, the term ‘executive government’ is usually intended to refer to the Ministers responsible for oversight of those depart- ments of the public service, or even to the subset of those Ministers known as the ‘Cabinet’ (see below). Constitutionally, it is the monarch or their representative who wields executive power. For example, according to section 61 of the Australian Constitution: The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 30. CHAPTER 2 TheAustralian legal system 61 However, the monarch is obliged to act on the advice of the Ministers. According to section 62 of the Australian Constitution, the Governor-General acts on the advice of the Federal Executive Council consisting of the various Ministers: There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure. These Ministers are members of Parliament appointed by the Governor-General on the advice of the Prime Minister to administer the various departments of the Federal public service. Similarly, the various State constitutions vest executive power in the Governor as advised by an Execu- tive Council consisting of the Premier and the Ministers. In the Northern Territory executive power is vested in the Administrator as advised by an Executive Council consisting of the Chief Minister and the other Ministers; in the Australian Capital Territory executive power is vested directly in the Executive Council. Constitutional convention requires that the Crown representative not only be advised by the Executive Council, but also must act on that advice. Thus, although executive power may be formally vested in the Crown representative, in practice it is the Executive Council and the public service that exercise exec- utive power. This power is considerable. Not only is the executive branch of government responsible for the administration of the law on a daily basis, parliaments typically delegate to the executive government considerable law-making power of its own (discussed later in this chapter). As explained earlier, according to the doctrine of responsible government, the members of the exec- utive are also members of the parliament and are answerable to the parliament. However, the party political system ensures that the members of the executive government have a significant influence in the parliament, at least in the Lower House. Consequently, and contrary to the doctrine of separation of powers, there is little effective separation between the executive and the legislature in Australia. The Governor-General and the State Governors Under both the Australian Constitution and the various State constitutions, executive power is formally vested in the monarch and exercised by the monarch’s representatives in Australia: the Governor-General and the various State Governors. In practice the Governor-General and the State Governors do not participate in the political process. The Governor-General and the various Governors are appointed and removed by the monarch on the advice of the Prime Minister or relevant Premier. (The Prime Minister or Premier usually confers with the Leader of the Opposition to ensure that the chosen Crown representative is acceptable to both major political parties.) While there are no explicit qualifications for a Governor-General or State Governor, many appointees have legal or political backgrounds. The Crown representative is not appointed for a fixed period; rather, they hold office ‘at the Queen’s pleasure’. Most serve for about five years. The Crown representative plays two important roles. The first role is a ceremonial one: they represent the nation or the State at important functions, host visiting parliamentary and trade delegations, open important buildings, attend important community events, award honours and declarations, and so on. ACTIVITY 2.9 — RESEARCH Read about the role of the Governor-General at www.gg.gov.au. What are the ceremonial duties per- formed by the Governor-General? The second role is a legal one: they open and close parliamentary sessions, they grant Royal Assent to all new legislation, they approve the appointment of senior judges and other officials, and, in the case of the Governor-General, they are the formal Commander-in-Chief of the Australian armed forces. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 31. 62 PART 1Foundations The constitutional powers of the various Crown representatives can be divided into: •• formal powers, and •• reserve powers. The formal powers of the Governor-General and State Governors are those explicitly granted by the relevant constitution or by legislation, such as the power to call elections, appoint Ministers and judges, summon and dissolve parliament, pardon criminals and so on. The Australian Constitution grants signifi- cant executive powers to the Governor-General. The various State constitutions are less clear, and much less consistent, about the extent of the State Governors’ formal powers. ACTIVITY 2.10 — RESEARCH What are the formal powers of the Governor of your State as set out in your State’s constitution? As already noted, according to constitutional convention, the Governor-General and the State Governors act only on the advice of the relevant Executive Council in the exercise of their formal powers. The reserve powers of the Governor-General and the State Governors can be exercised independently of the advice of the Executive Council. These powers are not explicitly referred to in the constitution and exist as a result of convention. Because the reserve powers are unwritten there is wide disagreement about their nature and extent. The reserve powers of the Governor-General include: •• the power to appoint a Prime Minister, •• the power to dismiss a Prime Minister, and •• the power to refuse to dissolve the parliament when advised to do so by the Prime Minister. Apart from the first power, the reserve powers are rarely exercised, and only in extraordinary circumstances. In exercising their reserve powers, the Governor-General and the State Governors are expected to act in accordance with constitutional convention. For example, when appointing a Prime Minister, the Governor-General must appoint the parliamentary leader of the party or coalition of parties that has a majority of seats in the House of Representatives. This requirement is not set out in the Australian Constitution but it would be almost unthinkable for the Governor-General to do otherwise. ACTIVITY 2.11 — RESEARCH Read about the role of the Governor-General at www.gg.gov.au. What are the ceremonial duties per- formed by the Governor-General? LAW IN CONTEXT: LAW IN THE MEDIA Cosgrove promises to listen but avoid public controversy Governor-General designate Peter Cosgrove wants to visit ‘stressed’ Indigenous communities in tandem with Australian of the Year Adam Goodes to see what their conditions are like. But Cosgrove, 66, whose long-expected appointment was formally announced today, indicated he would be careful to avoid political controversy, saying the governor-general’s responsibility was ‘to shine light but not to generate heat’. ‘You’ve got to listen a lot and take in everything that you see but you’re not a participant in the pol- itical process’, he told a joint news conference with prime minister Tony Abbott. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 32. CHAPTER 2 TheAustralian legal system 63 His caution was evident when asked his views on the monarchy and a possible future republic. Retiring governor-general Quentin Bryce spoke up for a republic late last year. ‘I’ve been labelled as a staunch this and that and a closet something else . . . I would say I’m a very staunch Australian.’ ‘The will of the people is always the overriding governor of what my responses will be. I’ve served a particular system since I was a lad. And if the Australian people retain that system, that will be my guiding light, and it is now. If they ever change at some future time, then the will of the people will prevail.’ Cosgrove made it clear he did not want to be typecast by his military background, which included serving as chief of the Australian Defence Force from 2002 to 2005. Cosgrove became widely known for his much praised role commanding the international force that oversaw East Timor’s transition to independence. While he was identified with the military and the centenary of World War 1 would be a special part of the social landscape, he stressed he would be a governor-general for every part of the community. His appointment saluted the men and women of the defence forces and he would visit them ‘but only as part of my duties in the wider community’. Goodes’ selection had reminded him of his own period as Australian of the Year when he had trav- elled widely in Australia and gained insight into ‘the strength and spirit of out communities, far and wide, large and small’. Asked what went through his head when first offered the post, Cosgrove recalled that he’d said over the years that he didn’t see himself as governor-general. ‘I thought, “wow, somebody else does!”’. When ‘there’s a call to arms, so to speak, as an old soldier, you just get on with it’. Abbott said: ‘General Cosgrove has dedicated his life to serving and supporting the Australian community’. He said the governor-general’s task was to ‘provide leadership beyond politics’. ‘The governor-general has important constitutional responsibilities, is looked to by community groups and their members throughout the length and breadth of our country for support and encouragement, and — in Sir Zelman Cowen’s words — can help to interpret our nation to itself.’ Acting Opposition leader Tanya Plibersek welcomed the appointment. Cosgrove takes office in March. Both he and Abbott paid tribute to Bryce, with the PM saying she had carried out her duties with ‘distinction and grace’. Source: Michelle Grattan, 28 January 2014, http://theconversation.com/cosgrove-promises-to-listen-but-avoid-public- controversy-22478. The Executive Council and the Cabinet Given that the role of the Crown representative is largely a symbolic one, true executive power is exer- cised by the Executive Councils. Each Minister on the various Executive Councils is responsible for a particular portfolio and government department. Ministers responsible for the more important portfolios are called Senior Ministers. Ministers responsible for the less important portfolios are called Junior Ministers. A Minister may be a member of either House of Parliament. Members of the majority political party who are not allocated a ministerial position are known as backbenchers. The political party with next-to-largest number of seats in the Lower House is known as the Oppo- sition. The Leader of the Opposition will appoint Shadow Ministers from within the Opposition Party to form a Shadow Cabinet to scrutinise and challenge the decisions and actions of the executive government. On a day-to-day basis, executive power is exercised not by the entire Executive Council/Governor in Council but by a subset of that council, consisting of the Senior Ministers and referred to as the Cabinet (see figure 2.6). It is the Cabinet that meets regularly to formulate government policy. Ministers who are not members of the Cabinet are described as being in the Outer Ministry. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 33. 64 PART 1Foundations Cabinet Senior Ministers Executive Council/Governor in Council Senior Ministers and Junior Ministers Executive government Executive Council/Governor in Council and public service FIGURE 2.6 The executive government ACTIVITY 2.12 — RESEARCH Go to the Australian Government Directory at www.directory.gov.au and prepare a list of the Federal ministers in (a) the Cabinet and (b) the Outer Ministry. The policies and decisions of the Executive Council/Governor in Council and of the Cabinet are implemented by the various departments and agencies of the Federal, State or Territory public service. It is the public service that is the aspect of the executive government with which a businessperson is most likely to directly interact. Challenging the executive government What can a person do if they are not happy with a decision made by a government department or agency? There are a number of ways that the person can challenge the decision. Ombudsman The word ‘ombudsman’ means agent or representative of the people. An ombudsman is the link between the citizen and the bureaucracy of government. They investigate complaints about administrative actions and decisions made by government departments, statutory bodies, local authorities and certain commer- cial organisations. The Commonwealth Ombudsman liaises between the public and the Commonwealth bureaucracy. Each State and Territory also has its own ombudsman (see table 2.8). TABLE 2.8 Commonwealth and State/Territory ombudsmen Jurisdiction Ombudsman website Commonwealth www.ombudsman.gov.au Australian Capital Territory www.ombudsman.act.gov.au New South Wales www.ombo.nsw.gov.au Northern Territory www.ombudsman.nt.gov.au Queensland www.ombudsman.qld.gov.au South Australia www.ombudsman.sa.gov.au Tasmania www.ombudsman.tas.gov.au Victoria www.ombudsman.vic.gov.au Western Australia www.ombudsman.wa.gov.au James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 34. CHAPTER 2 TheAustralian legal system 65 Other ombudsmen are responsible for particular industries (see table 2.9). TABLE 2.9 Industry ombudsmen Ombudsman Website Credit Ombudsman Service www.cio.org.au Fair Work Ombudsman www.fairwork.gov.au Financial Ombudsman Service www.fos.org.au Private Health Insurance Ombudsman www.phio.org.au Telecommunications Industry Ombudsman www.tio.com.au ACTIVITY 2.13 — RESEARCH Visit the websites of (a) the Commonwealth Ombudsman; (b) the ombudsman of your State or Territory; and (c) one industry ombudsman, and prepare a brief summary of the services offered by each. Freedom of information The Freedom of Information Act 1982 (Cth) gives individuals the right to access documents and infor- mation held about them by any Federal department or agency. Most Australian States and Territories have passed similar freedom of information (FOI) legislation, and have FOI websites (see table 2.10). TABLE 2.10 Freedom of information websites Jurisdiction Freedom of information website Commonwealth www.oaic.gov.au Australian Capital Territory www.justice.act.gov.au/protection_of_rights/ freedom_of_information New South Wales www.ipc.nsw.gov.au Northern Territory www.foi.nt.gov.au Queensland www.rti.qld.gov.au South Australia www.archives.sa.gov.au/content/foi-in-sa Tasmania www.ombudsman.tas.gov.au/right_to_information/ freedom_of_information_decisions Victoria www.foi.vic.gov.au Western Australia www.foi.wa.gov.au LAW IN CONTEXT: LAW IN THE MEDIA Information tied up despite FOI reform Reforms to Freedom of Information law in 2010 have proved ineffective, with delays continuing and complaints rising. The Department of Immigration, which receives more FOI requests than any other government depart- ment, is failing to handle 80 per cent of FOI requests within the statutory 45 calendar day time frame, Information Commissioner John McMillan revealed this week. In a report on the processing of non-routine FOI requests by the department, Professor McMillan found changes to the department’s handling of FOI requests were required, in addition to the recruit- ment of additional staff to help overcome unacceptable delays. There had been high hopes that the Federal Government reforms of FOI in 2010 would change attitudes towards information ownership said Johan Lidberg, senior lecturer in journalism at Monash University. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 35. 66 PART 1Foundations ‘This report is yet again pointing to a culture where a department doesn’t really see it as important to be information access facilitators. It’s way down their list of priorities, which is clearly not in the spirit of the Act’, Dr Lidberg said. In fact, getting interesting and sensitive documents today is much more difficult than the few years following the introduction of FOI said Bill Birnbauer, senior lecturer in journalism at Monash University, and one of the first reporters to use FOI when the legislation was introduced in 1982. ‘The various Acts specify that requests should be dealt with within 30 or 45 days — in my experi- ence that’s fantasy world stuff and farcical in practice — it generally does not happen except for council requests’, Mr Birnbauer said. ‘My feeling is the whole process today is far more politicised, expensive, frustrating and that you almost have to be legally trained to know how to respond to knockbacks or request a review of a decision.’ Dr Lidberg said with no punitive tools or measures to wield, there was really no incentive for depart- ments to follow the time frame requirements within the Act. ‘If governments cannot comply with these times, they should increase the resources for processing FOI claims, but, of course, it suits their purposes not to do that’, Mr Birnbauer said. Dr Lidberg said it would probably take a bill of rights in Australia to enshrine and make access to information easier. He also said the government should drop all exemptions, such as those that apply to entire agencies. ‘The fact that we have any exempt agencies at all sends the wrong signals.’ He pointed out that even the CIA was not exempt from FOI requests in the US, with important infor- mation emerging such as CIA interrogation manuals. Dr Lidberg would also like to see fees dropped from FOI applications. ‘I can’t see why the public and why citizens should pay to get access to information held on our behalf.’ Mr Birnbauer said FOI had always been a battle, but was a key to information that was otherwise not accessible unless someone blew a whistle. ‘It’s a rusty old key, and the only one we’ve got, so all journalists — in fact everyone — should use it.’ Dr Lidberg said with FOI an internal tool reliant on government agencies, whistleblower platforms like WikiLeaks were critical. ‘WikiLeaks and other mechanisms like that are really needed as a complement to FOI.’ Source: Charis Palmer, 28 September 2012, http://theconversation.com/information-tied-up-despite-foi-reform-9861. Administrative Appeals Tribunal The Administrative Appeals Tribunal (AAT) was created by the Administrative Appeals Tribunal Act 1975 (Cth). The AAT hears appeals from the decisions of Federal government ministers, officials and agencies. However, the AAT is not a court. It is a part of the executive government and exercises admin- istrative authority rather than judicial authority. In reviewing a decision, the AAT substitutes its own decision in place of the original decision. The Australian Capital Territory, New South Wales, Queensland, Victoria, Western Australia and the Northern Territory have equivalent tribunals. In South Australia and Tasmania the functions of the tribunal are performed by courts (see table 2.11). TABLE 2.11 Administrative appeals Jurisdiction Authority Website Commonwealth Administrative Appeals Tribunal www.aat.gov.au Australian Capital Territory ACT Civil and Administrative Tribunal www.acat.act.gov.au New South Wales NSW Civil and Administrative Tribunal www.ncat.nsw.gov.au Northern Territory Northern Territory Civil and Administrative Tribunal www.ntcat.nt.gov.au Queensland Queensland Civil and Administrative Tribunal www.qcat.qld.gov.au James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 36. CHAPTER 2 TheAustralian legal system 67 Jurisdiction Authority Website South Australia District Court www.courts.sa.gov.au/OurCourts/DistrictCourt/ Pages/Appeals-and-Tribunals.aspx Tasmania Magistrates Court www.magistratescourt.tas.gov.au/divisions/ administrative_appeals_division Victoria Victorian Civil and Administrative Tribunal www.vcat.vic.gov.au Western Australia State Administrative Tribunal www.sat.justice.wa.gov.au Judicial review The common law has traditionally offered remedies to those who have suffered damage as the result of an incorrect administrative decision. The remedy is for the court to issue a prerogative writ, which is an order of the court ordering an administrative officer or tribunal to act or to refrain from acting in a particular manner. The four types of prerogative writ are: •• habeus corpus (where a person imprisoning another is directed to bring that other person before a court of law), •• mandamus (where the court orders someone to perform their administrative duties), •• certiorari (where the court orders that a record of an administrative decision be produced), and •• prohibition (where the court prohibits an administrative officer or tribunal from exceeding its powers). Courts are given additional powers by the Administrative Decisions (Judicial Review) Act 1977 (Cth) to review decisions by Federal government bodies. Equivalent powers are granted in relation to adminis- trative decisions in the Australian Capital Territory, Queensland, Tasmania and Victoria under the corre- sponding State or Territory legislation (see table 2.12). TABLE 2.12 Statutory judicial review Jurisdiction Legislation Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth) Australian Capital Territory Administrative Decisions (Judicial Review) Act 1989 (ACT) Queensland Judicial Review Act 1991 (Qld) Tasmania Judicial Review Act 2000 (Tas) Victoria Administrative Law Act 1978 (Vic) Under this legislation a court can review an administrative decision where: •• a breach of the rules of natural justice has occurred in connection with the making of the decision, •• procedures that were required by law to be observed in connection with the making of the decision were not observed, •• the person who purported to make the decision did not have the jurisdiction to do so, •• the decision was not authorised by the legislation in pursuance of which it was purported to be made, •• the making of the decision was an improper exercise of the power conferred by the legislation, •• the decision involved an error of law, •• the decision was induced or affected by fraud, •• there was no evidence or other material to justify the making of the decision, or •• the decision was otherwise contrary to law.29 The court may quash (cancel) the earlier decision, order the decision maker to remake the decision in accordance with the law, or make a new order declaring the rights of the parties, or ordering them to refrain from doing something or to perform some act.30 29 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5. 30 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 16. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 37. 68 PART 1Foundations Delegated legislation Many of the legal rules regulating business and personal lives today are not made by the Federal and State/Territory parliaments. Instead the parliament passes ‘parent legislation’ setting out the over arching principles and objectives of a particular regulatory scheme, and then delegates authority to make delegated legislation or ‘legislative instruments’ containing the detailed rules, regulations and by-laws to a branch of the executive government such as: •• the Governor-General/Governor, •• the Executive Council, •• an individual Minister, •• a local authority, •• a government department, or •• a government agency. (Parliaments also delegate to courts the authority to make their own rules regulating court procedures.) Making delegated legislation The process by which delegated legislation may be created is set out in: •• the parent legislation itself, or •• legislation passed by the relevant parliament regulating the creation of delegated legislation (see table 2.13). TABLE 2.13 Legislation regulating creation of delegated legislation Jurisdiction Legislation Commonwealth Legislative Instruments Act 2003 (Cth) Australian Capital Territory Legislation Act 2001 (ACT) New South Wales Subordinate Legislation Act 1989 (NSW) Northern Territory Interpretation Act 1978 (NT) Queensland Statutory Instruments Act 1992 (Qld) South Australia Subordinate Legislation Act 1978 (SA) Tasmania Subordinate Legislation Act 1992 (Tas) Victoria Subordinate Legislation Act 1994 (Vic) Western Australia Interpretation Act 1984 (WA) The most common form of delegated legislation is regulations. While the specific content of the regu- lations is usually determined by the government department or other branch of the executive to which authority has been delegated, the regulations are usually required to be tabled in parliament. This means that, in theory at least, the legislature retains some control over the creation of the delegated legislation. If the par- liament decides that the regulations should be disallowed, they are effectively repealed and do not become law. Legislation in most Australian jurisdictions requires that the process of creating certain delegated legislation include the preparation of a regulatory impact statement and consultation with the public.31 Commonwealth delegated legislation commences on the day after registration of the delegated legis- lation in the legislative instruments register.32 State and Territory delegated legislation usually com- mences on the date specified in the regulations or on the date of publication of the delegated legislation in the Government Gazette.33 31 Legislative Instruments Act 2003 (Cth) pt 3; Legislation Act 2001 (ACT) ch 5; Subordinate Legislation Act 1989 (NSW) pt 2; Subordinate Legislation Act 1992 (Tas) ss 5, 6; Subordinate Legislation Act 1994 (Vic) pt 2. 32 Legislative Instruments Act 2003 (Cth) s 12. 33 Legislation Act 2001 (ACT) s 73; Interpretation Act 1987 (NSW) s 39; Interpretation Act 1978 (NT) s 63; Statutory Instruments Act 1992 (Qld) ss 32–34; Subordinate Legislation Act 1978 (SA) s 10AA; Subordinate Legislation Act 1992 (Tas) s 12; Subordinate Legislation Act 1994 (Vic) s 16; Interpretation Act 1984 (WA) s 41. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 38. CHAPTER 2 TheAustralian legal system 69 In most jurisdictions, delegated legislation is automatically repealed upon the expiry of a fixed period after being made. These automatic ‘sunset clauses’ are intended to avoid the unnecessary build-up of regulations by forcing the executive to periodically consider whether the continuation of the regulations is justified.34 Delegated legislation is also automatically repealed upon the repeal of the parent legislation, unless the delegated legislation is not inconsistent with the new legislation replacing the repealed legislation.35 Evaluating delegated legislation The need for delegated legislation seems unavoidable. Parliaments do not have the time or the expertise to debate and vote upon every rule and regulation deemed necessary in an ever more complex society. Complex and technical rules and regulations are best made not by politicians but by appropriately qualified experts. Government departments, courts and local authorities are usually closer to the problem that gave rise to the need for the new laws, and are thus better able to construct a solution. Rules, forms and pro- cedures often require variation or correction, and it is much easier and quicker for the executive to amend a legislative instrument than it is for parliament itself to debate and agree upon amendments to legislation. However, there are some significant concerns about the nature of delegated legislation. One is the undemocratic nature of the process. Within a liberal democracy, laws are supposed to be made by elected representatives in a way that is open to public scrutiny, but when a parliament delegates law-making authority to the executive government, the laws are made by unelected officials, frequently behind closed doors and without consultation with members of the public. Clauses in legislation permitting the dele- gated authority to amend the parent legislation itself — ‘Henry VIII clauses’ — are particularly prob- lematic. Delegated legislation is usually subordinate to the legislation under which it is enacted in the sense that the specific provisions in the legislative instrument must be consistent with the more general provisions in the parent legislation. It is possible, however, for the parent legislation to explicitly provide that the delegated legislation can contain provisions that modify the parent legislation. The process of delegating legislative authority to the executive also facilitates the making of more rules and regulations, and contributes to what was described in the previous chapter as the overregulation of business and of the community generally. LAW IN CONTEXT: LAW AND CRITIQUE Executive dictatorship? According to the principle of responsible government, the executive government is answerable to the legislature. However, as a result of the party political system and political reality, it often appears that the parliament is the servant of the executive government. The political party with the majority of seats in the Lower House forms executive government. This means that in practice the members of the exec- utive government are able to use their political majority to control the parliament. According to one commentator, supporters often describe the Australian Westminister system as ‘parliamentary democracy’ and ‘responsible government’. However, there are significant weaknesses in terms of its democracy. In theory, Parliament is supposed to be master and the executive the servant. The system no longer works that way, and hasn’t for a long time. In reality, premiers and their cabinets — not to mention prime ministers and theirs — now form a sort of executive dictatorship, with vast and often unchecked powers.36 34 Legislative Instruments Act 2003 (Cth) pt 6; Subordinate Legislation Act 1989 (NSW) pt 3; Statutory Instruments Act 1992 (Qld) pt 7; Subordinate Legislation Act 1978 (SA) pt 3A; Subordinate Legislation Act 1992 (Tas) s 11; Subordinate Legislation Act 1994 (Vic) s 5. 35 Legislation Act 2001 (ACT) s 83; Interpretation Act 1987 (NSW) s 30; Interpretation Act 1978 (NT) ss 4, 11; Acts Interpretation Act 1954 (Qld) ss 7, 19; Acts Interpretation Act 1915 (SA) ss 11, 16; Acts Interpretation Act 1931 (Tas) ss 4, 14–16; Interpretation of Legislation Act 1984 (Vic) ss 4, 15; Interpretation Act 1984 (WA) ss 3, 38. 36 Patrick O’Brian, ‘The Fatal Flaw: Has the Westminster System Produced a Form of Executive Dictatorship?’ Time (South Pacific Edition) (Sydney), 16 September 1991, 52–4. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 39. 70 PART 1Foundations REVISION QUESTIONS Before proceeding, ensure that you can answer the following questions. 2.39 What is the role of the executive branch of government? 2.40 What is the Executive Council? 2.41 What is the role of the Crown representative within executive government? 2.42 What are the reserve powers of the Governor-General? 2.43 What is the Cabinet? 2.44 What is the public service? 2.45 How can a person challenge the decision of a government department or agency? 2.46 What is delegated legislation? What are its advantages and disadvantages? In conclusion •• Australia is a liberal democracy, a constitutional monarchy, a common law legal system and a feder- ation. The constitutional framework seeks to balance the doctrine of separation of powers and the doctrine of responsible government inherited from the British legal system. When the British first settled Australia, the settlers ignored the Indigenous legal system. The colonies were initially closely controlled by the British government but were gradually granted increasing levels of independence. Each colony eventually became a separate, self-governing legal system. The colonies united to form a federation in 1901, and today the Australian legal system is effectively separate from the British legal system. •• The Australian Constitution sets out how Australia’s federal system of government operates. Power is divided between the Federal government and the various State and Territory governments. •• The legal systems of the States, the Territories and the Commonwealth are administered by executive governments. According to the various constitutions, an executive government consists of a council of ministers who advise the Crown representative. The public service carries out the will of the executive government. JOHNNY AND ASH [Johnny and Ash are sharing a taxi back to Ash’s apartment.] Johnny — It’s worse than I thought! I thought the law was complicated before I started talking to you. But there is so much that I don’t know. Ash — You must have learned something after our conversation. Can you at least answer those four questions now? Remember the first question: who is in charge? Johnny — Well, there is no simple answer to that question. In the Federal government and in the State and Territory governments, power is divided between the legislature, the executive and the judiciary. The legislature is the Parliament, and the Parliament makes the law. The executive is the executive government, the Prime Minister or Premier or Chief Minister and the ministers, and they run the State, the Territory or the country. And the judiciary, the court system, interprets the law. So I guess you could say that they are all in charge. Ash — Good answer. Okay, so question two: what is the relationship between the Federal government and the various State governments? Johnny — Well, that’s all set out in the Australian Constitution. There are some things that only the Federal government can do, there are some things that only the State government can do, and there are some things that they can both do, but if there is a conflict between Federal and State law, the Federal law will prevail. Ash — Good work. And question three: what does the Parliament do? James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 40. CHAPTER 2 TheAustralian legal system 71 Johnny — The Parliament makes law, called legislation. Although I’m not really sure how they make law . . . Ash — Don’t worry, you are doing really well. And after all those beers too. Last question: do judges make law? Johnny — Do judges make law? I don’t think so. It is the politicians who make the law, not judges. That is what the doctrine of separation of powers tells us. But I also recall you telling me that there are two types of law in Australia: statute law and case law. Now I’m confused again! Ash — Okay, it’s time to talk about politicians and judges. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 41. 72 PART 1Foundations QUIZ 1 The term ‘common law’ refers to (a) a legal system based upon the British system. (b) the law made by judges. (c) a form of case law, distinct from ‘equity’. (d) all of the above. 2 Which of the following statements is not consistent with the notion of liberal democracy? (a) Democratically unaccountable institutions are subordinate to the authority of elected representatives. (b) The judiciary and the parliament are answerable to the executive government. (c) The constitution is supreme. (d) Civil liberties are protected by an independent and non-discriminatory judiciary. 3 According to the doctrine of responsible government (a) the legislature and the executive must remain functionally separate. (b) settlers of a new territory bring with them the law of their home country. (c) members of the judiciary should be elected, not appointed by the executive. (d) members of the executive must also be members of the legislature. 4 In the decision of Mabo v Queensland (No 2) (1992) 175 CLR 1, the High Court of Australia (a) rejected the notion that Australia was terra nullius. (b) rejected the doctrine of reception. (c) decided that Australian law was no longer based on British law. (d) all of the above. 5 Local government in Australia (a) is regulated by the Australian Constitution. (b) is a separate, third tier of government. (c) exercises the powers delegated to it by the Federal Parliament. (d) exercises the powers delegated to it by the relevant State or Territory parliament. 6 According to the Australian Constitution the Federal Parliament can exercise (a) exclusive powers. (b) concurrent powers. (c) residual powers. (d) exclusive and concurrent powers. (e) concurrent and residual powers. 7 According to section 109 of the Australian Constitution, in the event of a conflict between a Federal law and a State law (a) the law passed first will prevail. (b) the law passed most recently will prevail. (c) the Federal law will prevail. (d) the State law will prevail. 8 For the Australian Constitution to be amended, the amendment must be passed by (a) at least 75 per cent of the members of both Houses. (b) at least 75 per cent of the Australian electorate. (c) at least 75 per cent of the States. (d) all of the above. (e) none of the above. 9 The Federal Executive Council does not include (a) the Prime Minister. (b) the Junior Ministers. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 42. CHAPTER 2 TheAustralian legal system 73 (c) the Cabinet. (d) the Governor-General. 10 An ombudsman is someone who investigates complaints made about (a) government departments. (b) local authorities. (c) commercial organisations. (d) all of the above. (e) none of the above. EXERCISES EXERCISE 2.1 — THE AUSTRALIAN LEGAL SYSTEM According to Justice Brennan in the Mabo case, the High Court was not free ‘to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency’. What do you think he meant by this? EXERCISE 2.2 — THE AUSTRALIAN LEGAL SYSTEM What is the Australian Law Reform Commission, and how does the work of the Commission relate to the matters addressed in this chapter? EXERCISE 2.3 — LOCAL GOVERNMENT Locate the website for the local government in the area where you live and answer the following questions. (a) When was your local government established? (b) Is your local government called a city council, a shire council, a district council, a borough or some other term? (c) Who is your present mayor? (d) What services are provided by your local government? EXERCISE 2.4 — THE AUSTRALIAN CONSTITUTION How is power shared by the Federal, State and local governments? If one level of government had to be abolished, which one would you abolish, and why? EXERCISE 2.5 — THE AUSTRALIAN CONSTITUTION Why has political power since Federation generally shifted from the States to the Commonwealth? EXERCISE 2.6 — THE AUSTRALIAN CONSTITUTION A number of websites are devoted to the republic issue. Sites such as that of the Australian Repub- lican Movement (www.republic.org.au) support Australia becoming a republic, and sites such as that of Australians for a Constitutional Monarchy (www.norepublic.com.au) oppose such a move. Read these and other such websites and prepare a balanced answer to the question: Should Australia become a republic? EXERCISE 2.7 — THE EXECUTIVE GOVERNMENT Describe three different circumstances in which you might decide to take advantage of ‘freedom of information’ laws to access specific documents or information. EXERCISE 2.8 — THE EXECUTIVE GOVERNMENT Prepare a simple guide to appealing a decision of a government body by referring the matter to the administrative appeals tribunal (or equivalent body) in your State or Territory. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 43. 74 PART 1Foundations EXERCISE 2.9 — THE EXECUTIVE GOVERNMENT The proliferation of delegated legislation has been criticised as contributing to the overregulation of business in Australia. Outline the arguments for and against a reduction in the overall quantity of dele- gated legislation. EXERCISE 2.10 — THE EXECUTIVE GOVERNMENT What is ‘executive dictatorship’? Is it an unavoidable consequence of the Westminster system and res- ponsible government? KEY TERMS Administrator The officer responsible for administering a Territory on behalf of the Federal government. Assent The final stage in the passage of legislation, where the Crown representative formally approves the new law. Also known as ‘Royal Assent’. backbencher A member of the majority political party who is not a Minister. bicameral To be comprised of two parts; when used in reference to a parliament, indicates that the parliament consists of two Houses, an Upper House and a Lower House. Bill A draft Act of Parliament. bill of rights A document setting out the rights and liberties of citizens; may be constitutional or statutory. Cabinet A subset of the Executive Council consisting of the Senior Ministers. case law Law made by courts in accordance with the doctrine of precedent. Also known as ‘common law’. certiorari A prerogative writ ordering that a record of an administrative decision be produced. civil law legal system A type of legal system, based upon the Roman legal system, where the main source of law is legislation. common law (1) Law made by the courts in accordance with the doctrine of precedent. Also known as ‘case law’. (2) The category of those case law rules and principles developed by the common law courts in Britain. common law legal system A type of legal system, based upon the British legal system, where the two main sources of law are case law and legislation. Commonwealth (1) Pertaining to the nation of Australia, such as the Commonwealth Parliament or Commonwealth legislation. Also known as ‘Federal’. (2) Pertaining to the Commonwealth of Nations, those countries where the head of state is the king or queen of England. concurrent powers The legislative powers able to be exercised by both the Federal Parliament and the State parliaments. constitution The set of rules determining how (a) a nation or state, or (b) an organisation such as a corporation will be governed. constitutional conventions Unwritten rules based upon tradition that dictate how a constitution should be interpreted and how it should operate in practice. constitutional monarchy A country where the head of state is a king or queen who holds that position subject to the constitution and with the consent of the people, and who exercises little or no actual power. Crown representatives The monarch’s representative in government, e.g. the Governor-General in Federal government, and the Governor in State government. delegated legislation Legislation made by a body other than parliament, and to whom the parliament has delegated law-making power. democracy A form of government in which citizens have a say in the decisions that affect their lives, including participation in the proposal, development and passing of legislation. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 44. CHAPTER 2 TheAustralian legal system 75 direct democracy A form of democracy where the citizens participate directly in the processes of government, including law making, changing the constitution and overriding the decisions of government officials; cf. ‘representative democracy’. doctrine of precedent The principle that when deciding a question of law a court must do so consistently with the earlier decisions of higher courts within the court hierarchy. Also known as stare decisis. doctrine of reception The principle that settlers of a new territory bring with them the law of their home country. doctrine of responsible government The principle that the executive branch of government should be answerable to the legislature rather than the monarch. doctrine of separation of powers The principle that the legislature, the executive and the judiciary should as far as possible remain functionally separate. equity The category of case law rules and remedies based on fairness and justice, developed to supplement the common law. exclusive powers The legislative powers able to be exercised only by the Federal Parliament. executive The branch of government responsible for administering the legal system; in Australia the various executives take the form of councils of Ministers responsible for advising the relevant Crown representative. Executive Council The council of Ministers responsible for advising the Crown representative regarding the exercise of executive power. federation A system of government where legislative, executive and judicial power is shared between a national government and various State or regional governments; cf. ‘unitary system of government’. formal powers Those powers of the Crown representative explicitly granted by the relevant constitution or by legislation; cf. ‘reserve powers’. Government Gazette A weekly publication issued by the Attorney-General’s office containing important government notices. Governor The Crown representative in State government. Governor-General The Crown representative in Federal government. habeus corpus A prerogative writ directing a government official to bring a detained person before a court of law. judiciary The branch of government responsible for interpreting the law; in Australia the judiciary takes the form of the various court systems. Junior Minister A Minister responsible for one or more of the less important portfolios. legislation Law made by parliament. Also known as a ‘statute’ or ‘Act of Parliament’. legislature The branch of government primarily responsible for making the law; in Australia, the legislature takes the form of the various parliaments. liberal democracy A representative democracy in which laws are made by, and the executive government consists of, elected representatives who exercise their power subject to the rule of law and to the constitution. mandamus A prerogative writ directing a government official to perform their administrative duties. Minister A member of the Executive Council responsible for a particular portfolio and/or government department. monarchy A country where the head of state is a king or queen. native title Title to land based on a continuing traditional connection between the land and an Indigenous group. natural justice Extra-legal principles of procedural fairness. ombudsman A public official who investigates complaints about the government or an organisation. portfolio A field of endeavour administered by a particular Minister, e.g. the foreign affairs portfolio. prerogative writ An order of the court ordering an administrative officer or tribunal to act or to refrain from acting in a particular manner. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.
- 45. 76 PART 1Foundations prohibition A prerogative writ prohibiting an administrative officer or tribunal from exceeding its powers. Senior Minister A Minister responsible for one or more of the more important portfolios. referendum A vote on an issue or question by the electorate. regulation A form of delegated legislation, often setting out procedural aspects of matters regulated in more general terms by parent legislation. representative democracy A form of democracy where the citizens vote for officials who represent them when engaging in the legislative (law-making) and executive (administrative) aspects of government; cf. ‘direct democracy’. republic A system of government where the head of state is not a monarch. reserve powers Those powers of the Crown representative that can be exercised independently of the advice of the executive government; cf. ‘formal powers’. residual powers The legislative powers able to be exercised only by the State parliaments. rule of law The principle that governmental authority must be exercised only in accordance with written, publicly disclosed laws that have been adopted and are enforced in accordance with established procedure, and that all citizens, including those who make up the government, are ruled by laws rather than by personal discretion or arbitrary exercises of power. terra nullius (‘empty land’ or ‘land belonging to no-one’) The categorisation of territory as unowned and therefore able to be settled peacefully. unitary system of government A system of government where a single government is responsible for the entire jurisdiction (although it may delegate some of its responsibilities to local authorities); cf. ‘federation’. ACKNOWLEDGEMENTS Article: © The Conversation, Michelle Grattan, 28 January 2014, http://theconversation.com/ cosgrove-promises-to-listen-but-avoid-public-controversy-22478 Article: © The Conversation, Charis Palmer, 28 September 2012, http://theconversation.com/ information-tied-up-despite-foi-reform-9861 Article: © Sarah Whyte, 23 July 2015, http://www.smh.com.au/federal-politics/political-news/northern- territory-could-become-australias-seventh-state-by-2018-20150723-giino4.html Article: © The Conversation, Mark Evans, 11 July 2013, http://theconversation.com/ why-do-australians-hate-politics-15543 Extracts: © Sourced from the Federal Register of Legislation at April 1 2016. For the latest information on Australian Government law please go to https://www.legislation.gov.au. QUIZ ANSWERS 1. d. 2. b. 3. d. 4. a. 5. d. 6. d. 7. c. 8. c. 9. d. 10. d. James, Nickolas. <i>BUSINESS LAW 4E</i>, Wiley, 2014. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/uql/detail.action?docID=4748089. Created from uql on 2019-06-10 07:22:02. Copyright©2014.Wiley.Allrightsreserved.