1

Chapter 2

The Australian legal system

Copyright © Nelson Australia Pty Ltd 2003

2

Outline

1. The origins of the Australian legal system2. An outline of the Australian legal system

today3. The constitutional development of the

Australian colonies4. The move to Federation and an Australian

Constitution

3

Outline

5. The current sources of Australian law6. The continuing evolution of the Australian

legal system7. A Bill of Rights?

4

2.1

The origins of the Australian legal system

5

The reception of English law

• Terra nullius• Australia was settled by England, rather than

conquered.• CASE: Cooper v Stuart (1889)• CASE: Mabo v Queensland (No 2) (1992)

6

2.2

An outline of the Australian legal system today

7

Federal system

• 1900: The Australian Constitution united the colonies in a federation.

• Federation involves a division of powers between the States and the Commonwealth.

• Exclusive powers, concurrent powers, residual powers

8

Common law legal system

• Based on the traditions, procedures, rules and institutions developed in England

• Common law systems vs civil law systems

9

The Westminster system

• A constitutional monarchy• Separation of powers• Responsible government• The rule of law

10

A constitutional monarchy

• Monarchy – The head of state is the Queen.• Constitutional – She holds that position

pursuant to underlying constitutional arrangements rather than by force of arms.

11

The separation of powers

• The functions of government are allocated to different institutions:• Legislative functions• Executive functions• Judicial functions.

• Under the Westminster system the separation of powers is not absolute.

12

Responsible government

• The executive government is responsible to the legislature.

‘[Responsible government is] a form of government which is responsive to public opinion and answerable to the

electorate.’

D Walker, Oxford Companion to Law, 1980

13

The rule of law

• The means of maintaining the balance between personal freedom and legislative power in a modern democracy.

‘It means more than that the government maintains and enforces law and order, but that the government is, itself,

subject to rules of law and cannot itself disregard the law or remake it to suit itself.’

D Walker, Oxford Companion to Law, 1980

14

2.3

The constitutional development of the Australian colonies

15

Colonial legal systems

• 1788:• First colonists arrive in New South Wales.• Colonists ‘carry with them only so much of

the English law, as is applicable to their own situation and the condition of an infant colony.’ (Blackstone)

• Early 1800s:• The Governor is subject to the direction of

the colonial office in London.• Charter of Justice establishes colonial courts

with civil and criminal jurisdiction.

16

Colonial legal systems

• 1814: Second Charter of Justice establishes a Supreme Court with civil jurisdiction and a rudimentary subordinate structure.

• 1823: • Third Charter of Justice establishes a

comprehensive court system with both civil and criminal jurisdiction.

• British parliament establishes NSW as a full colony with a Legislative Council appointed by the Crown.

17

Colonial legal systems

• 1828: British parliament passes Australian Courts Act (Imp), which increases the size of the Legislative Council, and provides that the laws of England in force in 1828 have effect in NSW.

• 1842: Australian Constitutions Act (No. 1) (Imp) increases the size of the Legislative Council, and provides that two thirds of its members must be elected.

18

Colonial legal systems

• 1850: Australian Constitutions Act (No. 2) (Imp) creates the colony of Victoria, and allows colonies to establish parliaments with two houses.

19

Colonial legal systems

• 1855: • New South Wales Constitution Act (Imp)

changes the constitutional structure to give NSW a Parliament with two houses with representative and responsible government.

• Victoria Constitution Act (Imp) is passed.• Tasmania’s Constitution Act (Tas) is passed.

20

Colonial legal systems

• 1856: South Australia’s Constitution Act (SA) is passed.

• 1867: Queensland’s Constitution Act (Qld) is passed.

• 1890: West Australia Constitution Act (Imp) is passed.

21

Colonial legal systems

• 1865: Colonial Laws Validity Act (Imp) confirms the ability of colonial legislatures to amend their own constitutions, but declares that colonial parliaments have no power to pass laws ‘repugnant’ to English laws directly applicable to the colony in question.

22

2.4

The move to Federation and an Australian Constitution

23

The background to Federation

• 1847: ‘[T]hose colonies have many common interests, the regulation of which, in some uniform manner and by some single authority, may be essential to the welfare of them all.’ (Earl Grey, Secretary of State for the Colonies)

• 1890: ‘The great question … to consider is whether the time has not now come for the creation of this Australian government as distinct from the local governments now in existence.’ (Sir Henry Parkes)

24

The background to Federation

• 1891: The first national convention is held in Sydney.

• 1897: Conventions in Adelaide, Sydney and Melbourne consider a draft Constitution.

• 1899: Constitution is put to referendum and approved.

25

The Australian Constitution

• 1900: British Parliament passes the Australian Constitution Act.

• 1901: Commonwealth of Australia comes into existence on 1 January.

• The colonies (now States) give up powers, rights and duties to the new central government, but retain their individual identities and a great deal of legislative authority.

26

Breaking the colonial ties

• 1931: Statute of Westminster Act (Imp) provides for dominion parliaments to assume full legislative competency.

• 1942: Statute of Westminster Adoption Act (Cth) provides that the Colonial Laws Validity Act 1865 (Imp) no longer applies to the Commonwealth of Australia.

• 1986: Australia Act (Imp) and Australia Act (Cth) repeal the Colonial Laws Validity Act 1865 so that it no longer binds the States.

27

2.5

The current sources of Australian law

28

Current sources of law

• Legislation – Law enacted by the Federal and State parliaments

• Common law – Law that has evolved through judicial decision and practice

29

2.6

The continuing evolution of the Australian legal system

30

Commonwealth–State relations

• The balance of power between the Commonwealth and the States has shifted in favour of the Commonwealth because of:• Generous interpretations of the Australian

Constitution by the High Court• The Commonwealth’s use of conditional

grants to the States.

31

The parliamentary system and the role of the executive

• Two dominant issues are:• The role of upper houses• The dominance by the executive.

32

The changing role of the High Court

• Recent High Court decisions indicate its willingness to seek a greater role in the development of the law.

33

The increasing Australianness of Australian law

‘The ability of the common law to adapt itself to the differing circumstances of the countries in which it has taken root is

not a weakness but one of its great strengths. Were it not so the common law would not have flourished as it has, with all

the common law countries learning from each other.’

Lord Lloyd, Invercargill City Council v Hamlin [1996] 1 All ER 756 at 764–765

34

2.7

A Bill of Rights?

35

The case for a Bill of Rights

‘The founding fathers of our Constitution took it for granted that individual rights were secure under common law. But the experience of many countries and the growing power of

executive government and bureaucracies have lead to greater interest in the notion of incorporating constitutional

guarantees of individual rights and freedoms in some kind of Bill of Rights.’

Sir Ninian Steven, 1992

36

The case against a Bill of Rights

‘If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.’

Sir Harry Gibbs, 1990

37

The role of the High Court

• Are certain fundamental rights implied in the Australian Constitution?

• CASE: Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992)