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BSBLEG413A IDENTIFY AND APPLY THE LEGAL FRAMEWORK. LESSON 1 : MAIN INSTITUTIONS OF GOVERNMENT
PRESENTATION OBJECTIVE
At the end of this presentation you will be able to:
• Identify the main institutions of government in Australia
IDENTIFY SOURCES OF LAW
1.1 Identify the main institutions of government in Australia
• Australia’s system of government is founded in the liberal
democratic tradition.
• It is based on the values of religious tolerance, freedom of speech
and association, and the rule of law.
• Australia’s institutions and practices of government reflect the
British Westminster system of government, which was also
adopted as a model in Canada and the United States of America.
• The Commonwealth of Australia was created in 1901 when its
former colonies, now the six states, agreed to federate.
IDENTIFY SOURCES OF LAW
• The Australian Constitution provides the basic rules for the
government of Australia, and binds not only the Commonwealth
Parliament but also the parliament of each state and its citizens.
• The first three chapters of the Commonwealth Constitution create
the institutions of government – parliament, the executive and the
judiciary
• These three institutions will be discussed further in following
slides.
• There is little mention of individual rights in the Commonwealth
Constitution, except for the right to vote, a right to trial by judge
and jury, freedom of religion, reasonable compensation where the
Crown acquires a person’s property
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The Federal Structure
• The Constitution establishes a federal system of government. It is for
this reason that the establishment of the Commonwealth in 1901 is
often referred to as ‘federation’.
• Under a federal system, powers are distributed between a central
government and regional governments.
• In Australia, that distribution is between the Commonwealth and the
six States.
• As well as being a federation, Australia is a constitutional monarchy.
Under this system of government the head of State of a country is
the Queen who is represented by the Governor General.
• The functions of the Governor General is regulated by the
Constitution.
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• The Constitution confers the legislative, executive, and judicial
powers of the Commonwealth on three different bodies which are
established by the Constitution – These include the:-
i. Legislative power vested in Parliament (s 1)
ii. Executive power of Parliament (s 61)
iii. Judicial power vested in the High Court, other Federal courts,
and State courts (s 71)
• The function of the Legislative power is: -
i. to make laws of the Commonwealth of Australia and States
ii. The capacity to change existing laws
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• The Executive power is the power to administer laws and carry out
the business of government, through such bodies as government
departments, statutory authorities and the defence forces. This
also applies at State level.
• Judicial power is the power to conclusively determine legal
disputes, traditionally exercised by courts in criminal trials and
civil litigation.
• These powers are considered under the Westminster System of
Government such as Australia as the Doctrine of Separation of
Powers.
.
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• The doctrines of the Rule of Law and the Separation of Powers are the
cornerstone of the Australian Constitution, establishing the federalist
system under which we are governed.
• The separation of powers doctrine suggests there are three arms of the
Government (executive, judicature and legislative) that are separate,
and their respective powers are mutually exclusive?
• This federal notion of the separation of powers was influenced by
modern social theorists such as Locke and Montesquieu.
• Montesquieu was a liberal constitutionalist, who distinguished between
the three powers.
• Montesquieu saw the need to keep the judicial power, and its role in
interpreting the role of the legislature and executive, as independent as
possible, and completely distinct from the other two arms of
government.
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• The High Court of Australia is very strict in ensuring that the
judicial power is not given to other bodies and that non-judicial
power is not given to the courts.
• The rationale behind this is that there should and must be at all
times checks and balances and judicial independence within both
Federal and State level of government.
• A fundamental principle of law and government is the rule of law.
• The nation is governed by laws, not by brute force, thuggery, or
even nepotism – all people are bound by the law. No person is
above the law.
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• There are 3 levels of government in Australia — local, state and
federal.
• The 3 levels of government work together to ensure all Australians
are able to live, work and participate fully in our community.
• The federal (or Commonwealth) government is responsible for
general taxation and economic matters, and the larger issues like
national security, communications and welfare. As well as
providing services and collecting taxes, the federal government
provides funding to both state and local government.
• The Queensland Constitution sets out the rules for how
Queensland is governed and, as a representative democracy, the
citizens of Queensland determine who governs through elections.
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• The Qld Constitution (Constitution of Queensland 2001) contains
the set of rules for how Queensland is governed.
• For example, the Queensland Constitution provides for the law
making powers in Queensland and sets out the role of the
Governor in how government works.
• Qld parliament is the only state parliament in Australia without an
Upper House. This makes it a 'unicameral' parliament, meaning
that it has just one House - the Legislative Assembly.
• Members of the Legislative Assembly make decisions about new
laws and proposed changes to legislation.
• As part of the democratic process, members also debate the key
issues of the day and ask questions of Ministers.
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• The High Court sits at the apex of both the federal and state court
hierarchies. This is because the High Court is the highest court in
the country.
• The High Court was created by s 71 of the Commonwealth
Constitution. It has original jurisdiction in constitutional matters,
and appellate jurisdiction in federal and state matters.
• The Federal Court of Australia was created by the Federal Court of
Australia Act 1976. The Federal Court has original jurisdiction in
cases involving bankruptcy, trade practices, administrative law,
corporations law and industrial relations law.
• The Family Court is Federal Court created by the Family Law Act
1975. The Family Court was created with the aim of less
adversarial, and emphasising conciliation in resolving disputes.
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• The Federal Magistrates Court was established by the Federal
Magistrates Act 1999 of Australia. The aim was to reduce the
workload of the Federal Court and Family Court particularly in
straight forward matters, and to provide cheaper, quicker and
simpler options for litigants.
• The following slide will illustrate a diagram of the Commonwealth
Court hierarchy .
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• The State court hierarchy is different to that of the Commonwealth
court hierarchy.
• The Supreme Court of Qld is regulated by the Supreme Court Act
1995. This court is divided into the trial division which hears
criminal and civil matters in the first instance, and the appellate
division which hears appeal matters.
• The Supreme Court can hear the most serious of criminal matters
(this will be discussed in more detail in the Criminal law subject)
and civil matters of unlimited monetary value.
• The District Court in Qld is regulated by the District Court of
Queensland Act 1967.
IDENTIFY SOURCES OF LAW
• This court has both criminal and civil jurisdiction. In its civil
jurisdiction the Court can hear civil disputes involving amounts
between $150,000 and $750,000.
• In its criminal jurisdiction it can hear serious criminal cases such
as serious assault, rape, armed robbery and fraud which are sent
to the District Court after being committed to trial in a Magistrates
Court. Criminal trials are commonly heard before a jury of 12
people.
• The Qld Magistrates Court is regulated by the Magistrates Courts
Act 1921.
• The Magistrates Court is the first level of court jurisdiction in the
Queensland justice system and the busiest of all courts in the
State.
IDENTIFY SOURCES OF LAW
• If someone commits a criminal offence, under Queensland law
they must be brought before the Magistrates Court as soon as
practicable.
• Less serious offences such as burglary, assault, drug and traffic
offences are usually dealt with summarily. ‘Summarily’ means the
case can be decided by the Magistrate based on the evidence (to
be discussed in more detail in the Criminal law unit).
• In its civil jurisdiction the court can hear cases of more than
$25,000 and up to $150,000.
• The Magistrates Court also comprises of the Childrens Court for
offences committed by juveniles and Coroners Court for hearing
inquiries into deaths that occur in unusual circumstances.
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• The Qld Civil Administrative Tribunal (QCAT) deals with many
minor civil disputes concerning small debts and many appeals
from administrative decisions of government. QCAT handles debt
disputes up to $25,000.
IDENTIFY SOURCES OF LAW
The 3 levels of State Courts
Supreme Court of state(single judge or full court)
District /county courts(single Judge)
Local / magistrates courts(single magistrate)
PRESENTATION SUMMARY
Now that you have completed this presentation you will be able to:
• Identify the main institutions of government in Australia