[3.1.1] What systems of government do we have in Australia?

Australia is a federation of six former British colonies: New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia. The Commonwealth of Australia was formed in 1901, after peaceful devolution of power from the Imperial British parliament. All vestiges of the power of the British parliament to change Australian law were finally removed in 1986.

Both Australia and its states are constitutional monarchies. The holder of the British crown also holds the crowns of Australia and all its states. The functions of the crown are given to vice-regal appointments: governors for the states, and a governor-general for the Commonwealth. The governors and governor-general are not democratically elected but are appointed by the British monarch on advice from the head of the relevant government.

The Commonwealth and all the states have a Westminster-model bicameral (‘two-housed’) legislature, with the exception of Queensland, which has one legislative house. The executive arm of government is not separate from the legislature. Australian governments employ a British cabinet-style of executive: see [3.1.2].

Power is shared between the federal governments and the states under the Commonwealth of Australia Constitution Act 1901 (Cth). Specific powers are granted to the federal government. Some exclusive power is given to the federal government (such as the power to coin money), but the vast majority of its powers are concurrent powers, shared by the states. If there is conflict between a valid federal law and a state law, the federal law prevails to the extent of the inconsistency.

In addition to the states there are two significant territories, which have self-government: the Australian Capital Territory (ACT) and the Northern Territory. These territories have their own legislatures, but they are subject to the power of the federal government, which can override their legislation on any matter. For example, the federal government was able to overturn the Northern Territory’s Rights of the Terminally Ill Act 1995 by passing the Euthanasia Laws Act 1997, which took away the territory’s power to legalise voluntary euthanasia.

[3.1.2] What is the separation of powers?

The separation of powers is a political principle that states that societies are safer if the executive, legislative and judicial functions of government are performed by separate arms of government, so that there are checks and balances on power.

The executive arm of government is responsible for the control of policies and directions in government. Because Australia is a constitutional monarchy, the executive function is shared between the queen’s vice-regal appointments (the governor-general, or the governor in the states) and the ministers of the government in power, in a body referred to as the executive council. As a matter of parliamentary convention the governor-general and the governors follow the advice of the leader of the government in parliament: either the prime minister of Australia, or the premier of a state. It is thus probably more accurate to describe the executive function as being performed in Australia by the cabinets of the various Australian parliaments. The cabinet is the group of high-ranking ministers who decide the policy aims and objectives of the government.

The legislative function in Australia is performed by the federal and state parliaments. In Australia, all members of parliament are elected.

The judicial function in Australia is served primarily by courts, although there is an increasing number of tribunals that act in a semi-judicial manner.

In the federal jurisdiction there is a strict separation between the legislative and judicial functions under the Australian Constitution. However, the executive and legislative functions are not separated, as members of the executive are chosen from the legislative arm.

In the states there is no constitutional requirement for a separation of powers. Members of the executive are chosen from the legislative arm, and it is possible for judicial functions to be taken over by the parliaments, although this is rare.

[3.2.1] Are indigenous Australians subject to federal and state laws, or do they have the sovereignty to make their own laws?

Indigenous Australians have been in occupation of the landmass now known as Australia for tens of thousands of years. At the time of contact with European explorers and annexation under British power, there were between 300,000 and 1 million indigenous Australians. Indigenous Australians are now known primarily by common language groups and geographic locations, including the Koori in New South Wales and Victoria, the Murri in Queensland, the Noongar in Western Australia, the Nunga and Anungu in South Australia, Western Australia and the Northern Territory, and the Palawah (or Pallawah) in Tasmania.

Within these groups there are further separations and divisions along cultural and language divides. There are also several groupings of peoples on islands in the Torres Strait between northern Australia and Papua New Guinea.

None of the former British colonies, or the federal government, ever entered into a treaty with indigenous Australians. As such there is no recognition of their former sovereignty. Given the failure of the legal systems to recognise the sovereignty of indigenous Australians, no war was ever declared against them and the continent is treated at law as having been peaceably settled (even though this is substantially at odds with fact). According to international law, a settled colony is subject to the laws of the colonising power. In the fledgling Australian colonies this meant that the law was British law, as far as it could be sensibly applied to colonial conditions. In law, indigenous Australians were not recognised as Australian citizens until 1967.

There was no recognition of the pre-colonisation property rights of indigenous peoples until 1992. Before that time Australia was treated as a ‘terra nullius’, effectively a ‘no man’s land’. In Mabo v The State of Queensland (1992) 175 CLR 1 the High Court rejected the concept of terra nullius, and recognised that indigenous land rights could survive, but only when they had not been extinguished by British powers, colonial authorities or, later, Australian governments.

The Mabo case did not recognise the sovereignty of indigenous Australians, who are therefore subject to the ordinary laws of Australia and have no right to their own legal systems. Judges have sometimes attempted to give limited recognition to indigenous legal practices in the application of the common law. In some areas, indigenous law may still be applied by the judge; for example, in punishments (such as spearing) for serious offences, particularly harm to other people.

While the Hawke labour government in the 1980s promised to recognise some form of limited sovereignty via a treaty with indigenous Australians, no such treaty has ever been entered into.

[3.3.1] Where do Australian laws come from?

There are four sources of law in Australia:

[3.3.2] What is common law?

The common law is a system of judge-made law inherited from England and Wales. During the reign of King Henry II (1154–89), royal courts were created to administer a uniform system of laws. The administration of justice was centralised in the King’s Council or Curia Regis, which consisted of high-ranking landowners and nobles. The King’s Council was responsible for all functions of government: executive, legislative and judicial.

Later King Edward I (Edward Longshanks, 1272–1307) split the judicial functions of the King’s Council into three courts: the Court of Common Pleas (dealing with civil actions), the Court of King’s Bench (dealing with crimes) and the Exchequer (dealing with taxation). Because these courts administered the law common to all the English people they became known as the common law courts.

The judgments of these courts were recorded from very early times, and it became their practice to follow their earlier decisions. This practice became entrenched, and is known as the doctrine of precedent: see [3.5.1].

The early popularity of the common law courts came from their flexibility and their ability to provide effective remedies to litigants. The primary remedies offered by common law were (and are) monetary damages, as well as orders for the return of personal property and land.

However, by the 14th century common law had become rigid, and was unable to provide remedies for new and emerging social and commercial relationships. Dissatisfaction with the common law system led to the emergence of the equitable jurisdiction: see [3.3.3].

English common law was brought to Australia in 1788 with the colonisation of New South Wales through the application of the doctrine of reception, a common law doctrine to the effect that when land is unoccupied, settlers can apply the laws of their country of origin. Because Australia was treated as having been peaceably settled, English law was therefore established, and sovereignty was recognised in the British Crown: see [3.1.1].

Notionally, there is one common law for Australia, based on the British law as adapted for Australian conditions over the last 220 years. Unlike the American states, Australian states and territories do not have individual systems of common law.

[3.3.3] What is equity?

Equity is a separate but equally important system of judge-made law. The laws of equity emerged out of the jurisdiction of the lord chancellor, a high-ranking court official who acted as the ‘keeper of the king’s conscience’. During the 14th century people dissatisfied with the common law system petitioned the king directly to resolve disputes. The lord chancellor was often asked to intervene on the king’s behalf.

In the early days of this jurisdiction the lord chancellor resolved disputes according to principles of Christian fairness and equity – undoubtedly a reflection of the fact that the early lord chancellors were trained priests. However, as time went on lord chancellors were appointed who were trained lawyers. This was particularly the case after the English Civil War, when, under Lord Nottingham’s chancellorship (1673–1682), the lord chancellor’s role became more fixed and orderly, and the system of precedent was adopted.

The laws of equity are therefore characterised as being supplementary to common law principles. Equity’s role is to reflect upon the common law and, if the common law is deficient, to provide a remedy when none may have been available.

Generally speaking, equitable principles are concerned with laws about property, trusts, contract, family law and commercial relationships (such as partnerships, corporations law and unconscionable conduct). They have no role to play in the criminal law.

Equity, like common law, was brought to Australia on the settlement of New South Wales.

[3.3.4] What if common law principles and equitable principles conflict?

King James I decreed that in the case of a conflict between common law and equitable principles, the equitable principle prevails. This is still the case.

[3.3.5] Are common law and equity still separate?

In the 19th century, increasing problems with the efficacy of both common law and equity led to a reform of court administration. During the 1870s the courts of common law and equity were disbanded and a new, unified court structure was created, called the Judicature Act system.

While the reforms created a unified court system, they did not fuse the two bodies of law together. This effectively meant that judges in the new system could call upon both common law and equitable principles to resolve disputes, but they could not mix the two bodies of law together by borrowing bits and pieces of both.

The Judicature Act reforms were accepted quickly in Australia, except in New South Wales (which did not adopt them until 1970). In Australia, judges are considered to have access to both common law and equity, on the proviso that the two bodies of law remain distinct. Nevertheless, it is possible that as the law develops further reform will lead to a relaxation of this distinction.