Construction Law: Legal System and Contract

Running head: CONSTRUCTION LAW
Property Law
Author Name(s)
Institution
Author Note
Assignment 1 – Legal System and Contract

CONSTRUCTION LAW 1
Legal System and Contract
Overview of the Australian Legal System
Australia’s legal system (ALS) is made up various legal units which include the laws,
procedures for making the laws, the courts and tribunals that interpret them, and the legal
personnel for enforcing the laws. Australia has a written constitution which is the supreme law.
The ALS is built on key principles which are the belief on adherence to the rule of law, justice
for all, and judicial independence. The entire system is based on common law legal system where
it is drawn from the strong concept of separation of powers(Chisholm, Nettheim, & Chisholm,
2012). This is a legal doctrine under the constitutional law where the powers and responsibilities
of the government are divided into three bodies, the judicial, executive, and legislative with each
body being independent of the other. Nevertheless, the executive and legislative are not
completely separate since the parliamentarians are the ones who elect the ministers who head
government departments which falls under the executive. In the case of (Re Canavan and others,
2017), the High Court of Australia (HCA) upheld the constitutional supremacy and the
separation of powers.
The HCA renders unconstitutional and invalid any attempt for any branch of government
to encroach the powers of the other. For instance, in the Boilermakers' Case, The HCA ruled that
the executive powers vested in the arbitration body did not give it judicial powers (R v Kirby; Ex
parte Boilermakers’ Society of Australia, 1956). The ALS developed from the Britain Legal
system since Australia was a Britain colony. It was not until the late 19th century when all the
colonies (Queensland, New South Wales, South Australia, Victoria, Tasmania, and Western
Australia) agreed through a referendum to create a central government for the entire country.
With one constitution in place, the country moved to independence forming the Commonwealth

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of Australia. All the states together formed the ‘federation’ state hence the government is
Australia adopts a federal system of government. Under this system, power is divided between
the states as its components under the Commonwealth of Australia Constitution Act 1900 (UK).
Since Australian government is a federal system, the laws are composed of federal laws and state
law. In addition, there are ten territories which also have territorial laws.
Despite having a federal system, the entire state uses a common law system with the
Constitution, legislation, case law, and state legislation as the main sources of law (Chisholm et
al., 2012). Case law is made through following the doctrine of precedent where the decision
made in court are made following the principles held in an earlier binding decision. In general,
decisions from the higher court in the hierarchy are adopted as binding to the lower courts. The
decisions of the full court are also binding on single judges.
The Australian Court System
The Constitution of Australia only creates the HCA, but it bestows the power of creating
other federal courts to the parliament (Commonwealth of Australia Constitution Act ., 1900, sec.
75). The parliament also has the powers to regulate the powers of the territory and state
courts.The HCA is Australia’s highest court. It can decide on all relate to constitutional
provisions and interpretation. The HCA also handles matters that involve international laws and
any appeal coming from other courts down the hierarchy (Chisholm et al., 2012). Other functions
of the HCA include hearing cases of federal importance such as those pertaining validity of the
law in relation to the constitutional.
The HCA seats at Canberra, and it is under the mandate of the chief justice with the help
of six other justices. Any subject matter decided by HC traverses the entire Australian law, and
the decisions become the law for Australia. However, the HC as the highest court can always

CONSTRUCTION LAW 3
overturn its prior decision since it is not bound by it. For instance, in (Imbree v McNeilly, 2008),
the court refused to uphold the principle it had held earlier in the case of following the decision it
had ruled earlier in (Cook v Cook, 1986) stating that Cook v Cook was not a good law for the
case.
After the HCA, down the hierarchy are three federal courts which are the Federal Court,
Family Court, and the Federal Circuit Court. The Federal Court presides on all civil matters
apply to the provisions of federal laws (Chisholm et al., 2012). It also hears criminal cases,
especially that involve federal offenses. The civil disputes solved by the federal court include
issues of industrial relations, corporations, taxation, bankruptcy, native titles, and consumer law.
The Federal Court can also hear appeals coming courts down the hierarchy such as the Federal
Circuit Court.
The Family Court is a specialist court that hears matters pertaining to family issues and
family law. These matters are mainly the family disputes which fall within the provisions of the
Family Law Act 1975 (Cth). Federal Circuit Courts were formally called the Federal Magistrates
Courts. The courts deal with less complex disputes arising from issues of child support,
administrative law; human rights; industrial law; admiralty law; copyright; consumer law,
bankruptcy, and privacy. When it comes to State Courts, their hierarchies vary from one state to
the other. Similarly, territorial courts vary as you move from one territory to another. Despite
that, all have a similar structure which consists of a higher court which is superior to the rest
down the hierarchy (Chisholm et al., 2012). The higher court is then followed by an intermediate
court and a lower court. For instance, in New South Wales (NSW) the Supreme Court is the
superior court, followed District Court, and the Local Court.