Australian Constitution the Creation of Federal Laws

Australian Constitution

The Creation of Federal Laws in Australia

The Commonwealth of Australia was created with the 1901 unification of six recently independent British colonies. All were solidified under the authorship of a Constitution that same year which predicated the form of government and the legal orientation of the new nation. (AG, p. 1) In doing so, it also vested the power to create federal laws in Australian Parliament and, in one sense, gave it exclusive authority to do so. And in this sense, one might render the interpretation that "one advantage Australia has is that it has a written constitution which gives nearly all the power to make laws for Australia to the Commonwealth Parliament." However, a more complete understanding of the structure of Australian law suggests that this is a great understatement and one which does not make full accounting for the roles played either by the states that are confederated to make up Australia or by the judicial branch of the federal government. A consideration of the roles played by Parliament, the states and the court systems reveals that in fact, while the power to legislate laws is entrusted in Australian parliament, this entitlement is only possible through an interdependence with these other dimensions of the government.

First, it is appropriate to examine the conditions that will have allowed for one to make the blanket statement quoted here above. Namely, the Australian Government (AG)(2011) documents that Section 51 of the Constitution, describes three 'arms' of the government. While the executive is charged with signing laws into action and the judiciary is charged with assessing them in a civil or criminal context, "the legislature (or parliament) is responsible for debating and voting on new laws to be introduced under the power of section 51." (AG, p. 1) This promotes on one level the appearance that the legislative arm of the government has sole authority over how laws are prioritized and established. This appearance is further reinforced by the hierarchy in which federal rules inherently supercede laws established at lower tiers of government where any such conflict might arise. And this appearance is appropriate to the extent that certain broad infrastructural and ideological challenges relating to the maintenance of a unified state must be addressed at the federal level. To this end, according to Skwirk (2010), "in general, acts of parliament command, prohibit, or declare policy on various matters. Parliament can also be responsible for the implementation of a broad range of official orders, regulations and rules across many organisations, institutions and areas of society. The political party that has the balance of power in parliament will usually succeed in passing its proposed legislation." (Swirk, p. 1)

That said, the reality of every day life in Australia is likely to be far more directly effected by legislation created at the state and local levels. According to the Government of South Australia (GSA), its rights to make laws at the state level are generally unencumbered unless these specifically diverge from the laws made at the federal level. The Government of South Australia's state constitution reports that "the Parliament of South Australia is entitled to legislate on any matter for the peace, welfare and good government of the people of the State of South Australia. There is no principle of separation of powers in the State constitution nor is the State's legislative power subject to a requirement to preserve fundamental human rights." (GSA, p. 1) This provides a position roughly equivalent to that maintain at the state level in each of Australia's states and territories. And it also demonstrates that in reality, the laws enacted by federal parliament are not by a long shot the only legislation impacting life in Australia. And perhaps even more than this, it is appropriate to suggest that laws made at increasingly localized tiers are more likely to be felt by members of the public.

Even this balance of power between federal, state and local tiers of legislation does not sufficiently illustrate the manner in which Australia's governmental power is distributed. Beyond this, mechanisms do exist within this system as a way of balancing the manner in which laws are employed, enforced and interpreted. Indeed, this is a primary feature of the common law system and provides a basis for the role played by a judiciary in the practice of legislation. According to the Department of Foreign Affairs and Trade (DFAT)(2011), Australia's common law system is similar to a number of others in democratic sphere. DFAT reports that "the common law system, as developed in the United Kingdom, forms the basis of Australian jurisprudence. It is distinct from the civil law systems that operate in Europe, South America and Japan, which are derived from Roman law. Other countries that employ variations of the common law system are the United States, Canada, New Zealand, Malaysia and India. The chief feature of the common law system is that judges' decisions in pending cases are informed by the decisions of previously settled cases." (DFAT, p. 1)

This mode of establishing precedents creates a scenario in which the judiciary role helps to create a state of constant evolution in the Australian rule of law. In the judiciary examination of instances where parliamentary legislation is placed under closer scrutiny, there is an opportunity to ensure that legislation continues to reflect the cultural, political and ideological positions pertinent to the times even as this legislation ages. Quite in fact, absent of such a system, one might be harder pressed to place so much unfettered power in the hands of a single branch of the government. The role played by the judiciary helps to construct a system of checks and balances which yet allows parliament to perform in its function without interference.

The reasons stated above are sufficient to suggest that defining Australia's power structure as being invested in a single branch of the federal government is based on a misunderstanding of the country's government. But even beyond that, we are assisted by the Parliamentary Education Office (PEO)(2010), which identifies a distinct interdependence of all tiers of government which states that the federal, state and local levels are more likely to cooperate than conflict on the creation of laws. PEO denotes that "as law and law administration become more complicated the members of the federal, state and local executive are required to work cooperatively in order to solve problems. For example, road funding and construction might require funds from all levels even though the state owns the finished road. And of course executive government can only administer law according to the written word as passed by the parliament or council." (PEO, p. 1)