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section heading icon     Overview

This profile considers constitutional aspects of Australian law and public administration, particularly in relation to cyberspace.

It covers -

  • shape - an outline of the national and state/territory Constitutions, statute law and common law
  • federation - nation-building, compromises and constitutional cages at the turn of the century
  • history - the development of the Constitution since 1901 and intergovernmental relationships in the era of the GII
  • states and the national government
  • territories and the national government
  • rights - the nature of human rights under federal and state/territory law
  • legislature - making sense of the national parliament and the state/territory legislatures
  • courts - Australian courts, tribunals and policing
  • executive - departments, statutory authorities and other executive agencies
  • external - the 'external affairs' power, treaties and Australia's interaction with bodies such as the UN and OSCE
  • defence and security - intelligence, surveillance and armed forces
  • revenue - taxation and spending in a global economy
  • business - including international and interstate trade, commerce and corporations law
  • society - health, welfare, divides and Indigenous peoples
  • culture and education
  • media, transport and communications - telecommunications, broadcasting, posts and publishing
  • the net - Australian law, government, business and the net
  • crimes - crime in federal and state/territory law
  • republic - Australia's uneven movement towards a republic
  • HC cases - selected constitutional law cases
  • landmarks - key points in Australian law and the net

Context about the Australian legal system is provided in a note here, which discusses policing, punishment, legislatures, courts, the legal profession and other matters.

The profile supplements the thematic guides elsewhere on this site (eg on censorship, on taxation and on privacy). It also supplements notes and profiles on specific issues such as Australasian telecommunications, domain name regulation, cyberstalking and bombmaking.

section marker     orientations

Points of entry to the large literature on constitutional and other law include Bede Harris' lucid A New Constitution for Australia (London: Cavendish 2002) and Essential Constitutional Law (London: Cavendish 2004), Helen Irving's Five Things To Know About The Australian Constitution (Cambridge: Cambridge Uni Press 2004), Leslie Zines' The High Court & the Constitution (Sydney: Butterworths 1997), Cowen & Zines Federal Jurisdiction in Australia (Leichhardt: Federation Press 2002) and Constitutional Change in the Commonwealth (Cambridge: Cambridge Uni Press 1991), Criminal Laws in Australia (Leichhardt: Federation Press 2006) edited by David Lanham, Bronwyn Bartal, Robert Evans & David Wood and Reflections on the Australian Constitution (Leichhardt: Federation Press 2003) edited by Robert French, Geoffrey Lyndell & Cheryl Saunders.

Works on specific areas are highlighted in the following pages.

section marker     at a glance

Life in Australia is bounded by federal and state/territory law. There is no single enactment or set of enactments that provide comprehensive coverage of all online activity, for example electronic commerce, domain name registration, identity theft and censorship. All aspects of the internet in Australia are not addressed through telecommunications law or through a broader lex informatica. Australian law, with some exceptions, does not extend overseas or cover activity (online and offline) in other jurisdictions.

The Australian regime instead encompasses -

  • the national Constitution, essentially constitutional law centred on relations between the state/territory governments and the federal government (and which does not feature a Bill of Rights)
  • federal and state/territory enactments and delegated legislation, with significant variation apparent at times between the different Australian jurisdictions
  • common law, ie precedent-based decisions by courts on a wide range of matters
  • co-regulatory schemes that feature standards and codes of practice developed and implemented by industry bodies with the sanction of government
  • federal and state/territory legislatures, courts, tribunals and commissions of inquiry
  • changing expectations about government accountability ('rule of law' rather than 'rule by law'), a free market and a 'social safety net'
  • delegation of responsibility to nongovernment entities such as internet service providers
  • commitments under international law, in particular through multinational instruments that have been formally adopted through federal enactments and that on occasion have been construed as providing rights under the national Constitution
  • differences to overseas legal regimes such as China, France and the USA, with for example an adversarial rather than inquisitorial judicial process, no established church, strong expectations about official accountability and no fundamental right to bear arms
  • a national government that in terms of literal wording of the 1901 Constitution is formally weaker than many of its peers but, through the 'money power', is able to coordinate the state/territory governments - the entities that most directly affect the lives of Australian residents on a day by day basis
  • a national government whose powers under that Constitution have been progressively expanded and strengthened by the High Court.

That regime involves the interaction of different entities, which change over time. It embodies a patchwork of law. Some enactments and common law precedents are more recent than others; some indeed, such as those regarding criminal blasphemy, have arguably expired through desuetude and are inconsistent with contemporary attitudes.

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version of June 2007
© Bruce Arnold | caslon analytics