Lecture 4 - Law-Making Functions of the Legislature,

Executive and Judiciary

Federation in Australia
Consideration about federating the states began in the mid-1850s. Events like the Eureka
Stockade and growing independence of the States meant that desire for separation was
growing. A Federation Bill was passed in the 1860s, but nothing came of it.
Federation became high on the political agenda during the 1890s, so there was considerable
discussion about how to federate, the political institutions that would need to be created
and how the powers would be allocated between the States and Commonwealth. Many
Federation conferences were held that decade.

Finally, the Commonwealth of Australia Constitution Act 1900 (UK) was passed, which
contained the Constitution. It may be interesting to note that Western Australia is not
mentioned in the Act because, at the time it was passed, it was still unclear whether they
would join the Commonwealth. The inauguration of the Commonwealth occurred on the 1
January 1901.
Treaty of Versailles
The Treaty of Versailles 1919 was the first political treaty signed by Australian Government
officials. The treaty recognised Australia as an independent, sovereign nation.
Statute of Westminster Adoption Act 1942 (Cth)
The Act gave Australia more independence. It provided that no law passed in the UK would
apply to Australia unless by their consent. The repugnancy rule from the Colonial Laws
Validity Act 1864 (Imp) no longer applied.

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The Constitution of Australia

The Constitution sets out the political institutions of Australia.
The Legislature
Parliament consists of the Queen, the House of Representatives and the Senate. The
Governor-General is the Queens representative in Australia. The Senate is elected by
proportional representation. The Senate is intended to represent the states and examine
the proposed laws from a different standing point.
The House of Representatives is composed of members directly chosen by the people, with
twice the number of members as there are senators. The House may continue for up to
three years. The House makes the laws. The party with the most members in the House
becomes the governing party.
The Judiciary
There is one High Court for the whole of Australia. There are also six systems of state courts,
and two territory court systems. The hierarchy of the courts determined precedent:
precedent is binding downwards, so lower courts must follow the higher courts.
The High Court has original jurisdiction. It can hear matters concerning constitutional
interpretation, matters between states, and matters between the state and federal
governments. It also has appellate jurisdiction from lower courts. The High Court is in
Canberra.
In Queensland, the lowest court is the Magistrates Court. Matters are heard before a
magistrate with no jury. The matter include summary offences and minor criminal offences,
or civil cases where the damages sought are less than $50,000.
Next is the District Court, which has both a judge and jury. The court deals with serious
criminal offenders and civil cases for damages of $50,000-$250,000 in dispute.
The Supreme Court has a judge and jury. The matter include serious criminal matters and
civil matters where there is more than $250,000 in dispute.
The Queensland Court of Appeal is an appeal division of the High Court. It has three or five
Supreme Court judges.

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Judicial Independence
The decisions of the judiciary should be impartial and not influenced by government, private
or political interests. This is secured by giving judges:

Long tenure: the term of office is the holders lifetime or 70 years old, whichever
comes first. Judges cannot be threatened with unemployment.

Not easily removable: Parliament can withdraw the commission of a judge only if
they are mentally incapable or commit a criminal offence.

Selection: Judges are selected by the Government on the recommendations made by

the Attorney-General.

Judicial Power
The power is vested in the High Court, the Federal Courts made by Parliament and other
courts appointed by the Governor-General.
They have the power to enforce awards by penalties. They make enforceable decisions
which they have the power to impose. There should be no agreement between parties to go
to court: there needs to be a conflict. Judicial power is appointed through the Constitution.
Non-Judicial Power
These powers are used in proceedings without compulsive force: both parties agree to sort
out the dispute. It may include an arbitration court. It does not exist to settle existing rights
but it can create a right.

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Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985)

Facts
Kirmani claimed damages for personal injury sustained as a fare-paying passenger on the
vessel the Captain Cook II in Sydney Harbour. She claimed that the injuries were due to
negligence by the defendant.
The ship was not a sea-going vessel within the meaning of the International Convention
relating to the limitation of the liability of owners of sea-going ships signed at Brussels.
Consequently, the Navigation Act 1912 (Cth) did not apply. Thus, the defendant relied on
the Merchant Shipping Act 1894 (Imp) and pleaded that their liability could not exceed
15 per tonnage of the ship.
Kirmani argued that the provisions had been repealed by Commonwealth Parliament; the
defendant argued that the Parliament did not have the authority to do so. The AttorneyGeneral intervened to support the plaintiff, arguing that the Navigation Amendment Act
1979 (Cth) was a valid exercise of Parliaments legislative power.
Legal Issues
Was the Merchant Shipping Act 1894 (Imp) valid?
Ruling
After the enactment of the Statute of Westminster Adoption Act 1942 (Cth), the Colonial
Laws Validity Act 1865 (Imp) no longer applied to Commonwealth legislation, but it still
applied to State legislation. This was all prior to the enactment of the Australia Act 1986
(Cth).
The release from the application of the Colonial Laws Validity Act, while symbolically
important, did not have a great practical effect as little Imperial legislation remained
binding on the States. The States did not have the authority to repeal or amend the
Merchant Shipping Act, as it required the concurrence of the Imperial government. So,
Navigation Amendment Act was enacted on a matter which was outside the authority of
the States.
Brennan J: An amending law takes its character in part from the amended law and in part
from its own terms. If it makes a substantial amendment, it may not be correct to
describe the amending law as a law on the same matter as the matter on which the
amended law was made. But if the matter on which the amending law is made is properly
identified as the matter on which the amended Imperial law was made, the Colonial Laws
Validity Act does not exclude the matter from the authority of the States once the
amending law comes into force.

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