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The Ausrtalian Legal System

Australia is a federation of states with an  English style, legal and parliamentary system. This basic fact has a number of implications for a company expanding into Australia.

Australian legal jurisdictions

Australia combines some nine major jurisdictions, including six separate states: (i) New South Wales, (ii) Victoria, (iii) Queensland, (iv) Western Australia, (v) South Australia, (vi) Tasmania. There are also two Australian Territories within mainland Australia: (i) Northern Territory, (ii) Australian Capital Territory. The final jurisdiction is the Australian Commonwealth Government.

As per the Australian constitution, each state may make laws on almost any topic they wish. While the Commonwealth government can make laws on topics that fall within the powers granted it under the constitution. Where there is overlap between the powers of the individual States and the Commonwealth government, the States may still make laws, but those laws cannot contradict laws passed by the Commonwealth government.

Both of Australia’s two mainland territories also have their own parliaments, although the powers of such have no constitutional guarantee, and the Commonwealth government can legislate on any topic it wishes with regards to the territories.

Other Australian legal jurisdictions

It is worth noting that Australia also administers a range of small non-mainland territories. These include, but are not limited to: (i) Ashmore and Cartier Islands, (ii) Australian Antarctic Territory, (iii) Christmas Island, (iv) Cocos (Keeling) Islands, (v) Heard Island, (vi) McDonald Islands, (vii) Norfolk Island. Most of these are directly administered by the Commonwealth Government, each of them are likely to have explicit laws which may affect the way business is conducted.

Practical Consequences of Australia’s legal jurisdiction

There are a few practical consequences that this legal division creates for businesses expanding into Australia. In particular:

  • Wherever you set up business you are likely to have to satisfy two sets of laws on any issue. i.e a Commonwealth and a State. These sets of laws are often similar, but each may impose slightly different, or additional, obligations. For instance, in taxation there are a set of things that the Commonwealth government taxes, and a separate group of things that are taxed by the local state government.
  • On many issues you will have to satisfy two government bodies, that being a State and a Commonwealth body. For instance: Commonwealth tax is collected by the ‘Australian Tax Office’, while state taxes are collected by the Revenue Office of the particular state.
  • If your business expands, or moves, from one state to another, you may have to deal with an entirely new set of laws, and comply with the requirements of Commonwealth laws and department, as well as those of the State that you are currently in, and the State that you are moving to. However most States will try to ensure that such moves and expansions can be facilitated with maximum ease.

Australia’s legal System

By and large, Australia has a legal system derived from the English common law, or ‘case law’ system, meaning that law is predominantly based on legislation, which is interpreted in the same method, and the same outcome is to be drawn, as it was in cases of a similar factual nature.

Australia has three basic types of law that are likely to affect the operation of business:

  • Criminal law. This is a breach of the criminal codes, usually prosecuted by the Commonwealth or State.
  • Civil law. This is the law that exists between private litigants, where the issue is financial compensation.
  • Administrative law. This is the law that allows private individual’s to challenge government decisions.

Australia also has a complex system of courts. In basic the rule is that issues that are legislated on under commonwealth law are brought before the Federal Court system, issues that are legislated on under State law are brought before the State Court system. However, there are some three levels of courts within the Federal legal system and some four within the State legal system, each with its own original and appellate legal jurisdiction. Furthermore, most State courts can exercise the federal jurisdiction in particular instances.

Finally, most issues of Administrative law are generally dealt with within a separate tribunal system. A tribunal is not a court, but exercises power which, at least to the lay person, looks very similar.

n effect, the intricacies of the Australian legal system are significant, and you really must obtain legal advice, before deciding what to do, or where it needs to be done.

PLEASE NOTE: The following information has not been produced by a lawyer and is only for the purposes of guidance, it is not legal advice.

Contact our professional team for a confidential discussion about expanding your business into Australia on 02 9415 1118.

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