Introduction to Australian Government and Legal System
Australia by world standards is a wealthy nation, (ranked 8th in the world2) with a gross domestic product equivalent to $US37,564.67 per capita. Australia is also one of the world’s most developed countries, and is ranked second (behind Norway) in the United Nations Human Development Index.3
A pluralist democracy, Australia is recognised for its enduring political stability.4 It has a federal system with a central Commonwealth government and six states and three territories. Australia’s federal system of government is enshrined in the Australian Constitution and provides limited powers to the Commonwealth. The Australian Constitution contains a series of ‘enumerated powers’, which circumscribe the limits of Commonwealth legislative competence. The Commonwealth government has legislative responsibility as outlined in section 515 of the Constitution and in particular section 51(xxix) (the ‘external affairs’ power) which enlivens Australia’s obligations under human rights treaties.
It is under this external affairs power that the Commonwealth government can undertake international obligations and pass domestic legislation to give effect to those obligations. The Constitution does not incorporate a set of codified rights but is the source of six explicit and some implied rights. The explicit rights enshrined in the Constitution include the right to trial by jury, to vote and freedom of religion.6 The courts over time have established areas of implied constitutional limitations on government’s action. These areas of implied rights — or more correctly freedoms — include freedom of political communication.7 The Australian Constitution contains no provisions for, and makes no explicit reference to, disability or persons with disability.
As the Australian Constitution does not incorporate a statement of rights the source of human rights in Australia is through the external affairs power and the Federal Government’s signing and ratification of seven of the nine core human rights treaties.8 Australia does not have a constitutional Bill of Rights or legislative Human Rights Act9 and is currently the only common law country without some form of comprehensive legal protection of human rights.10
Those powers that are not enumerated in the Australian Constitution remain within the legislative competence of the states, which is plenary in nature and are limited only by what is necessary for “peace, order and good government” of the State.11 Australia also has three self-governing territories, each of which also has plenary power. However, the source of their self-government is Commonwealth legislation rather than constitutional power. In the self-governing territories the Commonwealth parliament retains the full power to legislate, and can override laws made by the territorial institutions, which it has done on rare occasions. Under the Federation, the criminal law, policing and the provision of health, education and social services, are principally the responsibility of the Australian State and Territory governments.
To address issues in relation to federalism the Council of Australian Governments (COAG) was formed as the key intergovernmental forum in Australia. COAG comprises the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government Association (ALGA). Established in 1992, the role of COAG is to initiate, develop and monitor the implementation of policy reforms that are of national significance and which require cooperative action by Australian governments.12
