BSBLEG413A Presentation 1

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.


• 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


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.


• 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


• 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.

.


• 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.


• 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.


• 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.


• 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.


• 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.


• 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 .


• 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.


• 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.


• 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.


• 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.


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

BSBLEG413A Presentation 1

Education

Transcript of BSBLEG413A Presentation 1