Australia
The justice system of Australia
A federation in which the Commonwealth has only enumerated powers, the states retain the residue, and — with no national criminal code — each state and territory writes its own criminal law.
Facts on this page were checked against their sources on .
Australia is a federation under the Commonwealth of Australia Constitution Act, which took effect on 1 January 1901. The Commonwealth (federal) Parliament has only the legislative powers the Constitution enumerates: section 51 gives it "power to make laws for the peace, order, and good government of the Commonwealth with respect to" a list of subject matters. Criminal law is not among them as a general head.
- Enumerated Commonwealth power
- The Commonwealth may legislate only on the subjects section 51 lists (and a few others). Where a valid state law is inconsistent with a valid Commonwealth law, section 109 makes the Commonwealth law prevail to the extent of the inconsistency — the mechanism that resolves overlap.
- States and territories
- The six states have their powers saved by the Constitution (s.107). The territories are different: the Australian Capital Territory and the Northern Territory are self-governing under Commonwealth statutes (the ACT Self-Government Act 1988 and the NT Self-Government Act 1978), which the Commonwealth Parliament can amend — so their self-government is conferred, not constitutionally entrenched.
- Courts borrowed for federal work
- The Commonwealth did not build a full parallel court system. Section 77(iii) lets it invest a state court with federal jurisdiction, so state and territory courts hear much federal work alongside their own — the "autochthonous expedient".
The same idea, explained generally
- What is justice?
Justice is the principle that people should be treated according to rules that apply equally to everyone, decided by bodies that are authorised, constrained, and answerable. This guide explains what that means institutionally.
- What is the rule of law?
The rule of law is the principle that everyone, including the government, is subject to law that is public, applied equally, and interpreted by independent courts. This guide explains what it requires and what it does not.
- What do courts do?
Courts resolve disputes, test the state’s case against individuals, interpret law, and review public decisions. This guide explains those functions and why judicial independence is structural.
Sources
Sources
Commonwealth of Australia Constitution Act (the Australian Constitution)
Parliament of Australia (aph.gov.au) / Federal Register of Legislation · Legislation · 1901-01-01 · link verified 2026-07-26
The founding instrument, read verbatim from the official Parliament of Australia consolidated PDF. Supports: s.51, the ENUMERATED legislative powers of the Commonwealth ('The Parliament shall ... have power to make laws for the peace, order, and good government of the Commonwealth with respect to' 39 heads) — there is NO general criminal-law head; s.107 (Saving of Power of State Parliaments): 'Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue' — so residual power is RESERVED to the States (the US model, the inverse of Canada); s.71 (the judicial power of the Commonwealth vested in the High Court of Australia and other courts); s.77(iii) (the Commonwealth may invest a State court with federal jurisdiction); and s.122 (the territories power). Establishes that criminal law is largely a State/Territory matter with no national code. WAVE 20 ADDITION. Read from the same Federal Register of Legislation text. Supports Commonwealth of Australia Constitution Act, s. 51(vi): “(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth:”. Supports Commonwealth of Australia Constitution Act, s. 61: “The executive power of the Commonwealth is vested in the Queen and is exerciseable by the Governor-General as the Queen's representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”. Supports Commonwealth of Australia Constitution Act, s. 119: “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.”. Cited for the constitutional footing of Commonwealth defence and protective power and for the State-application condition in s. 119. It supports no claim about State or Territory emergency law, none of which was read, and no claim about any other country.