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 The Australian Constitution and Government |
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Author: Michael Kingsley Meek
of
Thirteenth Floor Chambers
This is an extract from Lawbook Company's Nutshell: The Australian Legal System by Michael Meek (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
From the earliest of times wherever people have been, they have gathered together with others to form groups for the purpose, amongst other things, of protection and mutual assistance. After forming a group, the members set up some structure for organising and regulating themselves. Some chief or leader is appointed and often a council of elders or wise people are chosen or elected to assist her or him. Rules to govern that body of people are made, certain of the members are given responsibility for carrying out and enforcing the rules, and provision is made for what is to happen when disputes occur. On a small scale that body of people is a community and on a larger scale such a body of people is a nation or a state .
An essential element of any system of rules regulating people is that it is not static but adapts to meet the needs of the community or state as it changes over time.
What is a legal system?
A legal system may be defined as that framework of rules and institutions within a community or a state, which at any given point in time, the citizens have agreed will regulate and be binding upon themselves in their relations with one another and the community or the state.
This book will in a basic way outline the framework of rules and institutions that characterise the Australian legal system.
In the world there are various types of states. Some nations are unitary states, eg England and New Zealand, in which there is just one legal system for that country. However, Australia is a federal state like the USA and Canada in which there are two legal systems for each citizen of the country. The type of state a particular body of people is, has certain consequences on the rights and duties of those people in international law.
What is a constitution?
Each state will have a constitution which, put simply, is a document or group of documents, laws and conventions (rules of political practice though not having the force of law) which outline the system of government for that state.
What is a government?
A government is that structure set up by the constitution for regulating the society. In a simple community it consists of a chief and council of elders. In a state it often has three main parts:
(1) the legislature: that body which makes laws;
(2) the executive: that body which administers and polices the law; and
(3) the judiciary: that body which declares what the law is or what
people's rights are under the law.
Types of constitutions
The constitution is the fundamental basis on which the structure of government rests. Some states have unwritten constitutions in the sense that there is no formal constitution written in one particular document. Rather, their constitutional rules are derived from a number of sources, all of which have contributed over time to defining the structure of government for that country. For instance, Britain has no formal constitution. The sources of its constitution include a number of important statutes such as the Magna Carta, and principles decided in legal cases and conventions.
Other states have written constitutions in which the structure of government is defined and the respective powers of the nation and the States are substantially set out in one single document.
Some constitutions are flexible and can be amended without any special procedure. For instance, the New Zealand constitution can be amended simply by a majority vote of its Parliament. Other states have a rigid constitution in the sense that a special procedure must be followed before it can be changed.
The Australian Constitution and Government
Australia has a written constitution contained in an Act of Parliament passed in 1900 named the Commonwealth of Australia Constitution Act . It is a rigid constitution (requiring a special procedure for amendment under s 128).
The Australian Constitution makes provision for the three arms of government namely the legislature (chapter I Constitution), the executive (chapter II Constitution) and the judiciary (chapter III Constitution).
1999
March, 2001
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