Australia/ 5.1 General legislation  

5.1.1 Constitution

Australian law is based upon English common law.  The Australian legal system is underpinned by the Constitution of Australia, which describes the legal and governmental systems of Australia.  Until the 1970s Australian law remained closely linked with British law, as the High Court of Australia took rulings of the British House of Lords as being binding.  This link was formally severed in 1978 followed, in 1986, by the abolition of the right of appeal to the British Privy Council by parties not accepting of an Australian High Court ruling. Australian law is largely silent about pre-existing Indigenous governance and law. 

The Australian Constitution speaks of the particular powers that are exclusive to the Commonwealth[1], in particular those relating to customs and excise and, of particular significance for the cultural sector, communications, which in practice includes broadcasting.  Most other powers are listed in the constitution as concurrent, and this was done so that the newly federated states could maintain their existing laws until such time as the Federal Parliament enacted new ones.  A separate section of the Constitution requires that, should there be a conflict between a Commonwealth and a state law, that of the Commonwealth will prevail.

 Over the years, and particularly since the Commonwealth took over the power to levy income tax during World War II, the Commonwealth government has either taken on powers formerly held by individual colonies, such as defence and foreign policy, higher education, aged care, and national transport policy, and newer powers such as broadcasting and communications, or has shared powers with the states, such as in schools, hospitals, roads and rail, and many others, including the support of cultural activities.  The assumption of the power to levy income tax and, in recent years, the introduction of a Goods and Services Tax, have both meant that the financial weight lies with the Commonwealth Government.

For more detailed coverage of the Australian constitutional framework see http://australia.gov.au/about-australia/our-government/commonwealth-government



[1] In Australia the term “Commonwealth” is used as both a noun but also as an adjective interchangeably with the term “Federal”, the latter being used more frequently in reference to actions, policies and issues associated with the Government of the Commonwealth. 


Chapter published: 27-12-2013


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