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Module 4 – Institutions of the Australian Legal System
(Courts and Parliament)
Objectives
On successful completion of this module you should be able to:
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understand the doctrine of separation of powers and the rule of law
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have a basic understanding of Australian Federalism
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understand the role and functions of Parliament and the Executive
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understand the hierarchy of the courts
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be aware that information technology is increasingly influencing access to institutions of law and
justice
Reading activity
Marinac et al, Learning Law, Chapter 4
Two principles upon which Australian institutions are based
1. The doctrine of the separation of powers
2. The rule of law
1. The doctrine of the separation of powers
The doctrine of the separation of powers has its origins in Greek and French political philosophy:
Aristotle and Baron de Montesquieu.
The powers relate to:
1. The power to make laws – the legislative power – exercised by Parliament
2. The power to execute (carry out) laws – the executive power – exercised by the government
of the day
3. The power to judge laws – the judicial power – exercised by the courts
‘Responsible government’
Australia inherited the Westminster style of government. This means that in Australia, the Executive
is drawn from members of the legislature. In this ‘model of government’ the executive is called to
account to the parliament for its actions, decisions and exercise of powers. In other words, Australia
does not have a strict separation of powers. Instead, the executive in placed within the parliament.
The judiciary, however, is strictly separate.
© Caroline Hart 2018 revised by Lisa Sylvester November 2020
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The Australian Constitution reflects ‘responsible government’.
2. The rule of law
The second Australian ‘ideal’ is based on the rule of law: this means that all members of society are
equal before the law, and no one is above it.
The ‘fourth branch of government’
In addition to the three powers of legislative, Executive and judiciary, there is a ‘fourth branch of
government’ – the ‘oversight’ branch. This has developed more recently through independent
oversight bodies including agencies established by government and the free and independent media.
Australian Federalism
Australia became a federation following the passing of the Australian Constitution by the British
Parliament.
Federalism is about sharing sovereignty and dividing powers between two levels of government – the
newly created ‘federal parliament’ and the pre-existing states.
The Australian Constitution follows the US model that uses a single list of areas over which the
federal parliament can make laws, leaving all other laws for the states to govern. This was originally
drafted to ensure the states retained power.
In Australia, however, there has been a shift in power from the states to the federal parliament. How
did that happen?
Reading activity
Marinac et al, Learning Law, Chapter 4, 105
The role and functions of parliament
Reading activity
Marinac et al, Learning Law, Chapter 4, 109
© Caroline Hart 2018 revised by Lisa Sylvester November 2020
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Parliament has four main functions:
1. Make laws – legislation
2. Act on behalf of voters and citizens – representation
3. Make government accountable through examination (and parliamentary committees) –
scrutiny
4. Form government
Federal parliament is comprised of the House of Representatives and the Senate.
The House of Representatives is where ‘government’ is formed.
The Senate is where the interests of the states are held.
State and territory parliaments continue under the Australian federal system. There are many
differences amongst these parliaments.
Executive Government
Reading activity
Marinac et al, Learning Law, Chapter 4, 114
The Australian Constitution provides for the executive government. It derives its powers from three
sources:
1. Section 61, Constitution
2. Commonwealth legislation
3. Common law prerogative powers (discretionary powers of the Crown established by common
law)
Scope of the executive government
What are the limits or boundaries on the executive power? In Administrative Law you will
investigate how the executive power is kept in check. Executive powers can be discretionary and
expansive. Three ways in which this power is kept in check is through:
1. Limiting it by the ‘subject matter’ of the Constitution
2. Limiting it by notions of ‘nationhood’
3. Restricting it to ‘executing’ laws rather than creating laws
The people of executive government
Reading activity
Marinac et al, Learning Law, Chapter 4, p 117 - 120
© Caroline Hart 2018 revised by Lisa Sylvester November 2020
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The federal executive government includes:
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Prime Minister
Cabinet
Ministry
Government departments
Federal Executive Council
Hierarchy of the courts
Reading activity
Marinac et al, Learning Law, Chapter 5 ‘The courts’. Review Figure 5.2, ‘The Court
Hierarchy’ on page 129.
It is vital that you understand the hierarchy of the courts because it underpins the doctrine of
precedent (covered in Chapter 8, Learning Law). We will look at the doctrine of precedent as part of
Module 5.
Learning activity
After completing the reading above, make sure you understand the following terms relating
to the hierarchy of the courts:
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Jurisdiction
Geographic jurisdiction
Subject matter jurisdiction
Monetary jurisdiction
Original jurisdiction
Appellate jurisdiction
Inherent jurisdiction
Cross-vesting
The High Court of Australia is the custodian of one common law in
Australia
Although there are nine court hierarchies in Australia, there is only one body of common law and it is
uniform throughout the states and territories.
The nine court hierarchies include:
 Six state hierarchies (New South Wales; Queensland; Victoria; Tasmania; South Australia;
Western Australia)
 Two territory hierarchies (Australian Capital Territory; Northern Territory)
 One Federal hierarchy
© Caroline Hart 2018 revised by Lisa Sylvester November 2020
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Learning activity
Marinac et al, Learning Law, Chapter 5, Table 5.2, The state and territory court hierarchies
and tribunals.
Review the hierarchies of the six states and two territories. Note that they are divided in
descending order beginning with: Superior Courts (or ‘courts of record’); Intermediate Courts;
Lower Courts; Tribunals. There is considerable variation of terminology on how each of the
courts are described between the states and territories.
Accessing courts using information technology
Access to the institutions of law and justice (the courts) is now no longer only achieved through
physical structures. Information technologies are increasingly being used by governments to provide
this access. There are both advantages and disadvantages to this access. During your lifetime as a
lawyer, you will both participate and influence how technologies will increasingly be relied upon.
Reading Activity
Selected Reading 4.1: Caroline Hart, “Better Justice?” or “Shambolic Justice?”:
Governments’ use of information technology for access to law and justice and the impact
on regional and rural legal practitioners’ (2017) 1 International Journal of Rural Law and
Policy, 1 – 21.
Summary of this module
Now that you have completed this module, you should be able to:
●
Understand the doctrine of separation of powers and the rule of law
●
Have a basic understanding of Australian Federalism
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Understand the role and functions of Parliament and the Executive, and the people within these
institutions
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Understand the hierarchy of the courts in Australia
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Be aware that information technology is increasingly influencing access to institutions of law and
justice
© Caroline Hart 2018 revised by Lisa Sylvester November 2020