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Legal Briefing Note: Australia

Memorandum

From: Lloyd Duhaime, Barrister & Solicitor
Date: June 22, 1996

 

Introduction

Originally settled as an English colony, Australia is now organized as a federal parliamentary state. Australia is still a member of the Commonwealth and retains the British Queen as Head of State (so it is sometimes called a "constitutional monarchy").

The population of Australia was 18-million as of 1994. Ethnic composition is 95% Caucasian, 4% Asian and 1% aboriginal or other. English is the official language. The capital is Canberra. Australia is the world's smallest continent but 6th largest country. It's major trading partner is Japan, followed by the USA.

The Constitution and the Federal Government

The constitution was adopted on July 9, 1900 and came into force on January 1, 1901, bringing together former United Kingdom colonies into a political federation, the "Commonwealth of Australia." The Australian constitution created a parliamentary system which gives law-making powers to two groups: a Senate and a House of Representatives. Senators have six-year terms and are elected by popular vote.

The Senate has limited legislative powers. The bulk of the legislative work is done in the House of Representatives. Members of the House are elected; voting is compulsory in Australia. A "governor-general" is appointed to act as the Queen's representative but, much as in Canada, the position is entirely ceremonial with the incumbent required to follow direction given to him (or her) from parliament or the federal cabinet, the latter directed led by a prime minister and comprised of members of either the Senate or the House of Representatives.

The Constitution lists the powers that the federal government has at section 51. The states and territories have all those legislative powers not specifically given to the federal government under the constitution. For example, the Constitution prohibits Australian state governments from coining money or from raising a military or naval force. The federal government also has legislative powers for taxation, citizenship, copyright, railways, marriage and divorce.

The States

The states of Australia are New South Wales (NSW), Queensland (QLD), South Australia (SA), Tasmania (TAS), Victoria (VIC) and Western Australia (WA). The territories are Australian Capital Territory (ACT) and Northern Territory (NT). Most have local government infrastructure that mirrors the federal state, with two assemblies, although some, such as QLD and NT, have only one legislative body. NSW, VIC and QLD are the most populous of the states or territories, in that order.

Legal System Notes

The High Court is the final court of appeal (the right to appeal to the Judicial Committee of the United Kingdom's Privy Council was repealed in 1986). For complete information on Australia's High Court, please see the WWLIA's page on the High Court of Australia. There is also a Federal Court, a Family Court and a Bankruptcy Court.

The general basis for Australian law is the common law. The practice of law remains somewhat divided between barristers (those that appear in court) and solicitors (those which meet with clients and give legal advice). Almost all states admit a third category of legal professionals called "notaries" which authenticate documents.

A foreign Judgements Act 1991 is in place to ensure partial enforcement of foreign judgements. Reciprocal enforcement legislation is also in place in most states and territories.

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