Parliaments and Courts (VCE SSCE Legal Studies): Revision Notes
Parliaments and courts
Introduction to Australian law-making
Australia has two main sources of law: statute law and common law. Understanding these sources requires knowledge of Australia's parliaments and courts. This note provides an essential overview of how Australia's legal institutions are structured and how they function within the legal system.
The relationship between parliaments and courts is fundamental to understanding how Australia's legal system operates. Parliaments create the laws, while courts interpret and apply them when resolving disputes.
Parliaments in Australia
What is a parliament?
A parliament is a formal assembly consisting of elected representatives of the people who gather together to create laws. These representatives are chosen by citizens through democratic elections and carry the responsibility of law-making on behalf of their constituents.
The nine parliaments
Australia operates nine separate parliaments, each with distinct geographical jurisdiction:
- One Commonwealth Parliament (also called the Federal Parliament or Parliament of Australia)
- Six state parliaments (New South Wales, Victoria, Queensland, Western Australia, South Australia, and Tasmania)
- Two territory parliaments (Australian Capital Territory and Northern Territory)
Each parliament functions as a supreme law-making body within its designated area of power. This means each parliament has the authority to create or amend laws within its jurisdiction, though this power is subject to certain constitutional restrictions.
Distribution of law-making powers
The Australian Constitution establishes and defines the areas of law-making power for each parliament:
Commonwealth Parliament:
- Has jurisdiction over specific areas outlined in the Australian Constitution that affect the whole nation
- Examples include: defence, currency, immigration, postal services, and telecommunications
- These are matters that require national consistency and coordination
Six state parliaments:
- Create laws in all areas except those exclusively reserved for the Commonwealth Parliament
- Their laws apply only within their state boundaries
- Examples of state law areas include: schools, crime, forestry, health, and education
Two territory parliaments:
- Possess state-like law-making powers
- The Commonwealth Parliament granted self-government to the Northern Territory (1978) and the Australian Capital Territory (1988)
- Function similarly to state parliaments but technically remain under Commonwealth authority
Concurrent powers: Some areas of law-making are shared between Commonwealth and state parliaments, meaning both levels can create laws in these areas. Examples include marriage and taxation, which explains why Australia has both Commonwealth taxes and state taxes.
Structure of Australian parliaments
Most Australian parliaments share a common three-part structure:
- The King – serves as the head of parliament (represented by the Governor-General at Commonwealth level and by governors at state level)
- Upper house – one chamber of parliament
- Lower house – the second chamber of parliament
The bicameral system
Australia's system of having two houses of parliament is called a bicameral parliament. This structure is based on the principle that laws should be examined and approved by two separate groups of people sitting in two different chambers. This system provides checks and balances in the law-making process.
Bicameral parliaments in Australia:
- Commonwealth Parliament: Senate (upper house) and House of Representatives (lower house)
- Victorian Parliament: Legislative Council (upper house) and Legislative Assembly (lower house)
- Most other state parliaments follow similar structures
Unicameral exceptions: Three Australian parliaments operate with only one chamber:
- Queensland Parliament (only one house)
- Australian Capital Territory Legislative Assembly
- Northern Territory Legislative Assembly
Parliamentary representatives
Houses of parliament consist of elected members called parliamentarians or members of parliament (MPs). These representatives fall into two categories:
Political party members: Most parliamentarians belong to a political party – an organisation representing people with shared values, ideas, and political objectives. Political parties aim to have their members elected to parliament to implement their policies.
The main political parties in Australia are:
- Australian Labor Party
- Liberal Party
- National Party
- Australian Greens
Independents: Some parliamentarians are independents – individuals who stand for election or are elected to parliament but do not belong to any political party. They make decisions based on their own judgement rather than party policy.
Constitutional monarchy
Australia operates as a constitutional monarchy, meaning the King (monarch) serves as the head of state, but the parliamentary system is governed by the Australian Constitution. At the Commonwealth level, the King is represented by the Governor-General, while at state level, the King is represented by a governor.
Courts in Australia
The role of courts
Courts serve the primary function of resolving disputes and cases brought before them. Australia has multiple courts operating at both federal and state levels, each dealing with different types of legal matters.
While parliaments create laws through their legislative function, courts perform the judicial function by interpreting and applying these laws to resolve disputes between parties.
Federal and state court systems
Federal courts generally handle issues arising under federal (Commonwealth) law, while state courts typically deal with matters arising under state law. This division reflects Australia's federal system of government.
Federal courts
Australia has three federal courts:
-
High Court of Australia:
- Established by the Australian Constitution
- The highest court in Australia
- Serves as the final court of appeal for all matters
-
Federal Court of Australia:
- Handles complex federal law matters
- Deals with areas such as corporations, taxation, and intellectual property
-
Federal Circuit and Family Court of Australia:
- Handles family law matters and less complex federal law cases
- Aims to provide faster, less formal resolution of disputes
Victorian courts
Victoria operates three main courts plus specialist courts:
Main Victorian courts:
-
Supreme Court of Victoria:
- Highest court in Victoria's hierarchy
- Has two divisions: Trial Division and Court of Appeal
- Hears the most serious criminal and civil cases
-
County Court of Victoria:
- Middle-level court
- Handles serious criminal cases and significant civil disputes
-
Magistrates' Court of Victoria:
- Lowest court in Victoria's hierarchy
- Handles less serious criminal matters and smaller civil claims
- Deals with the majority of Victorian court cases
Specialist Victorian courts:
- Coroners Court of Victoria: Investigates reportable deaths and fires
- Children's Court of Victoria: Deals with matters involving young people under 18
The Koori Court
The Koori Court is a specialist division operating within the Magistrates' Court and County Court (and Children's Court). It sentences Aboriginal offenders using a culturally appropriate process.
Purpose of Koori Court:
- Reduces inequality that First Nations Victorians experience in the court system
- Provides a culturally safe environment for First Nations people
- Allows Aboriginal offenders to tell their story in a more supportive setting
- Involves Elders and Respected Persons in the sentencing process
Court hierarchy
Courts are arranged in a court hierarchy – a ranking system from lowest to highest based on the seriousness and complexity of matters they handle.
Victorian court hierarchy (highest to lowest):
- Supreme Court of Victoria
- County Court of Victoria
- Magistrates' Court of Victoria
This hierarchical structure exists for several important reasons:
Why do we have a court hierarchy?
- Ensures matters are heard at the appropriate court level
- Allows for appeals to higher courts
- Provides specialisation (lower courts handle high volumes of less complex matters)
- Creates consistency in legal interpretation through appeals
Exam technique: Distinguishing parliaments and courts
When answering exam questions, clearly distinguish between:
- Parliaments – make laws (legislative function)
- Courts – resolve disputes and interpret laws (judicial function)
Examiners look for accurate use of terminology and understanding of the separation of powers between these institutions. Always use the correct terms and be clear about which institution performs which function.
Remember!
Key Points to Remember:
- Nine parliaments operate in Australia: 1 Commonwealth, 6 state, and 2 territory parliaments
- Each parliament is a supreme law-making body within its area of power, as defined by the Australian Constitution
- Most Australian parliaments are bicameral (two houses), except Queensland and the two territories
- Political parties represent groups with shared values, while independents do not belong to any party
- Australia has federal courts (High Court, Federal Court, Federal Circuit and Family Court) and state courts (Supreme, County, Magistrates' in Victoria)
- Courts are arranged in a hierarchy based on the seriousness and complexity of cases
- The Koori Court provides culturally appropriate sentencing for Aboriginal offenders to reduce inequality in the justice system