Australian Legal System and Its Structure

Australian legal system

1.      The historical development of Australian legal system

The Australian legal system is based on fundamental foundations of independence of judiciary, rule of law and justice assurance. This describes a federal or common law system of governance. The legal institutions originated from Britain, established in 1824 by British parliament. Australians representative government came to being in 1840s and 1850s with highly pronounced autonomy in the second half of the nineteenth century. With time United Kingdom parliament expanded its colony and applied paramount force on Australians constitution by instilling female suffrage and secret ballots. The other doctrines of governance were the original from England, which are to some extend applied to date. Australian leadership was established in 1901 in a federal governance system, by distributing powers between the state and the federal government. Federal magistrate court was set up by federal parliament in 1999 and made its first sitting in July 2000 (Perlman, 1999, p.11).

2.      The structure of the legal system

Australians and non Australians are equally treated before the law and prevents unfair or arbitral treatment by the government or its officials. The fundamentals of the legal system are separation of powers, judicial precedent and procedural fairness. The governance is defined by concurrent powers and exclusive powers. Concurrent powers refer to scenarios in which the two tiers of government have the ability to enact laws whereas exclusive powers is bestowed on federal government with mandates to decide on issues such as defense, commerce, trade, citizenship, external affairs and taxation. Since then, Australia has nine legal systems comprising of one federal system and eight territory and state systems. Each state and federal systems comprise of judicial, executive and legislative branches. Laws are made by the parliament, which are administered by the executive government. Ultimately, the laws are applied and independently interpreted by the judiciary. The high court of Australia applies law, decides special federal significance cases and hears appeals from state, federal and territory courts. This is the highest court, with a chief justice and six other judges. The jurisdiction of federal court is broad for it summarizes criminal matters and happenings in the federal law system. Federal magistrate’s courts jurisdiction covers migration, industrial court, trade practices, copyrights, unlawful discrimination, family law and bankruptcy. Australian territory and state courts handle matters relating to territory laws, state laws and criminal matters in the above sections. In all the above scenarios, defendants are treated innocently till proven guilty beyond reasonable doubt. Australian police are responsible for keeping peace and order nationally. They may arrest people and give evidence in court, but can not decide whether people are guilty of crimes (Meek, 1994, p.43).

3.      The source of legal positions in Australia

Within the Australian constitution, there is no set out qualifications required by magistrates and federal judges. They follow laws that were set up by commonwealth parliament. These laws provide that, for one to be appointed as a federal judge, a person must have had at least five years being a legal practitioner, in order to qualify for an appointment as a judge in another court. Again a person must have been a legal practitioner for at least five years fro him or her to be appointed as a federal magistrate. To become a judge in Australians family court, a person must suitable in dealing with family law matters through personality, experience and training. Federal magistrates and judges are appointed to the age of seventy years. The Australian constitution spells out clearly that federal magistrates and judges can only be removed from office on accounts of proven incapacity or misbehavior. This can also be done if the senate and the House of Representatives instruct so in the same session. The constitution provides that as judges and magistrates hold their offices, their remuneration can not be reduced. This implies that remuneration and tenure guarantees help in securing judicial independence. The separation of courts from executive and legislative arms of government together with their independence is highly credited in Australia. Therefore judges applying and interpreting laws perform independently from the government (Gifford, 1998, p.13).

Source of changes in the legal systemRegarding reforms in the Australian judicial system, feminist movements have advocated for significant amendments of the judicial system. The reforms have partially positively impacted on women although they are still treated less equally to men. This inequality is a challenging and daunting task since understanding and articulations are based on dominating liberalism and patriarchy. Women activists argue that Australian constitution should accommodate cultural experiences and influences on women. Some of the reforms suggested in the Australian constitution have been implemented, especially the ones pertaining to women. In contrast, the expectation of the society regarding treatment of women has not been met. This means that the legal reforms are still being pushed further towards implementation jurisdictions, to enable reforms be effected within the little time possible. In general terms the judicial system of Australia is seemingly federal with several courts in different ranks. The constitution seems to be based on old commonwealth provisions. Women are not satisfied with it for they feel oppressed by the constitution. This ultimately implies that the judicial system is not yet stable, but still subjected to various reforms. Failure to treat women fairly means that the system of governance can not be trusted and may be associated with manipulations from special interests groups and institutions; it thus may not be fair and just (Meek, 1994, p.19).


Gifford Donald (1998). Understanding the Australian Legal System. London: Routledge, pp.13

Meek Michael (1994). The Australian Legal System. Australia: Law Book Company, pp.19, 43

Perlman Mark, 1999. The Australian arbitration system: An analytical description. Hawaii: University of Hawaii Press, p.11.