Fundamentals of Law (BL502)

Week 1

The Australian Legal System

Fundamentals of Law (BL502)

Guy Harley Bachelor of Law (University of Adelaide – 1978) Barrister and Solicitor in Adelaide for 18 years Master of Business (eBusiness) (university of SA

2001) External Relations Manager Australian Legal

Information Institute Contact Information

• (02) 9514 3170• guy@austlii.edu.au

Fundamentals of Law (BL502)

WHAT IS ‘LAW’? A definition: A set of rules which citizens must obey

or else suffer a penalty More complex in reality as the ‘rules’ are affected by

social, economic, political and international considerations

There are various ‘theories of law’ (C3-4) Law regulates our everyday lives as well as when we

are engaged in business Looking at the various classifications of law can help

us understand how law affects us

Fundamentals of Law (BL502)

SOURCES OF LAW The law which might govern a transaction or an

offence can be found by consulting:• customary law (very limited)• common law• equity• statutes• delegated legislation• international law

Fundamentals of Law (BL502)

COMMON LAW The oldest source of law Developed over centuries in England by judges Relies on the Doctrine of Precedent supported by

Law Reports Eventually two strands evolved: common law (CL)

and equity Equity prevails over inconsistent CL

Fundamentals of Law (BL502)

LEGISLATION Law made by Parliament and bodies it delegates to STATUTES or ACTS contain the broad policy and

are debated in Parliament Sometimes the Act will delegate power to another

body eg Governor, Minister, Council to pass more detailed rules

These are called DELEGATED LEGISLATION and can take the form of Regulations, Ordinances etc.

Fundamentals of Law (BL502)

LEGISLATION (Cont.) Legislation overrides inconsistent Case Law However one important role of Judges is to interpret

ambiguous legislation There is continuing debate about who should ‘make’

the law: only Parliamentarians as elected representatives of the people? BUT the precedent system historically has enabled judges to develop the law in new directions. Negligence law is a good example.

Fundamentals of Law (BL502)

The English Legal System Rule of Law Feudal System Kings Courts Court of Exchequer Role of Parliament

Fundamentals of Law (BL502)

Public & Private Law Public Law

Relations between citizens and the state Private Law

Relations between citizens

Fundamentals of Law (BL502)

Public & Private Law - Examples Public Law

Criminal Administrative Constitutional Revenue industrial

Private Law Contract Tort Family Property Wills

Fundamentals of Law (BL502)

Civil & Criminal Law Criminal Law

The rules of statute and common law which direct that certain actions are punishable by the state.

Offences against the community A penalty is imposed on the wrongdoer

Civil Law Anything not criminal Protection and enforcement of personal rights Does not impose penalties

Fundamentals of Law (BL502)

Reception of English Law Conquered\Ceded

Law of territory continued unless inconsistent with fundamental principles of English law

Settled Terra Nullius Laws of England as at date of settlement

received into territory unless plainly impracticable

Fundamentals of Law (BL502)

Reception of English Law in Australia Australia was ‘settled’ not conquered Doctrine of Terra Nullius - Aboriginal laws not

recognised Doctrine of Reception - English laws applied

so far as ‘practical’ Note – English Law English Law in force at date of settlement

Fundamentals of Law (BL502)

Reception of English Law (cont.) Mabo’s case – 1992

High Court rejected doctrine of ‘terra nullius’ Gave partial recognition to aboriginal land rights Aboriginal title recognised unless subsequent

exercise of control by parliament over land Court raised possibility that other aboriginal law

might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”

Fundamentals of Law (BL502)

Reception of English Law (cont.) Native Title legislation – 1993

Complimentary State and Federal legislation

Confirms existing freehold and leasehold land grants

Provides a system for proving native tile

Fundamentals of Law (BL502)

Timeline 1828 Australian Courts Act 1865 Colonial Laws Validity Act 1901 Reasons for and impact of Federation 1931 Statute of Westminster 1986 Australia Act 1992 Mabo case 1993 Native Title Act

Fundamentals of Law (BL502)

THE LAW IN AUSTRALIA Federal Acts & Regulations Territory Ordinances State Acts & Regulations Common law

Fundamentals of Law (BL502)

Federal System of Government History

Separate States Trade between the States State Rights Federation – 1901

Fundamentals of Law (BL502)

Federal System of Government (cont.) The Constitution

• Australian Constitution Act 1900• Statute of Westminster• Australia Act

3 Branches of Government• Separation of Powers• The Governor-General (Queen’s rep)• Federal Parliament: House of Representatives &

the Senate• The Courts

Fundamentals of Law (BL502)

Parliament Division of Legislative Power between the

States and the Commonwealth Commonwealth Powers – ss 51 & 52 of the

Constitution s.109 - Commonwealth legislation prevails

over inconsistent State legislation States retain balance of legislative areas

Fundamentals of Law (BL502)

Executive Governor General

Little information in Constitution Reserve Powers Constitutional Convention Acts on advice from Ministers

Fundamentals of Law (BL502)

Other Constitutional Provisions A Common Market Amending the Constitution

Fundamentals of Law (BL502)

Making Australian Legislation Draft Bill prepared Passed by both Houses of Parliament

First reading – bill formally introduced Second reading – principles of bill debated Committee stage – bill debated in detail.

Amendments made. Third reading - Bill formally passed or defeated

Royal Assent by Governor General\Governor Commencement

Fundamentals of Law (BL502)

Courts The hierarchy of courts Role of the High Court

• Original Jurisdiction• Appellate jurisdiction• Conferred jurisdiction

Federal Courts

Fundamentals of Law (BL502)

Courts (cont.) State Courts Tribunals English Courts Alternative Dispute Resolution

Fundamentals of Law (BL502)

High Court

Federal Court Family Court

Federal Magistrates Service

Court of Appeal

County Court

Magistrates Court

Supreme Court

FEDERAL COURTS VICTORIAN COURTS

Fundamentals of Law (BL502)

The Role of the Courts (cont.) Judge-made law

Parliament is not the sole repository of law Life is too complex for definitive legislation

on all aspects Common law

legally enforceable rules that have been fashioned and adapted by the Courts throughout the ages

Rules are not made ad hoc Process of slow adaptation