Australias legal heritage Adversarial & Inquisitorial
system
Slide 2
Adversarial System of trial The way in which court cases are
conducted Used for both Criminal and Civil proceedings Adversary
means. How might this relate to court proceedings? In a trial the
two sides of the case try to prove their version of the facts and
disprove the version of the other side. The defendant in a criminal
trial does not have to prove anything, as they are assumed to be
innocent until proven guilty (however, most accused will retain
services of a legal team).
Slide 3
Inquisitorial system The court is involved in determining the
way in which the competing claims are presented. Different from
Adversarial where the court acts as an impartial referee. This
civil system involves a judges (or group), who investigate the case
before. Indonesia uses this system for criminal trials! Evidence
can be admitted before the case Witnesses are pre-approved Can call
for outside testimony that has not been requested by either
side
Slide 4
Common Law Development of common law, Development of equity
& Precedent
Slide 5
Definitions Court-made law (as opposed to laws made by
parliament) Law developed by the courts as common law, as distinct
from the courts of equity The system of court-based law used in the
UK and many of its former colonies (incl. Australia, New Zealand,
Canada and USA)
Slide 6
Development of Common Law The British legal system itself was
developed from a number of sources. Anglo-saxons Based on local
custom Norman Travelling Judges who applied common laws all over
England. Petitions were received from people who felt the laws were
unjust. Judges provided precedents for later cases. This system was
the one brought over Australia with the first fleet.
Slide 7
Development of Equity Anglo-saxon times if a party failed to
follow the prescribed steps, he could lose the case Later, common
law would hold that a person was bound by contract, even if he was
tricked into signing it. 15 th Century, petitions to the King were
brought forward, saying that common law courts made unjust
decisions. Chancellors were priests as well as judges, so didnt
base decisions on precedents, instead based on Christian
principals. The body of law that developed to deal with injustices,
became known as Equity. The moral principals on which equitable
decisions were based were called the rules (or maxims) of equity,
still used today.
Slide 8
Precedent Common law, or case law, is the law developed by
judges when deciding cases. Read page 21,22 Make notes on: Making
and following precedent Rules of precedent Binding precedent
Persuasive precedent Complete The origins of common law &
Procedures for Precedent worksheets (wiki)
Slide 9
Statute Law The role and structure of parliament, the
legislative process - passing legislation & delegated
legislation
Slide 10
Definitions Statute law is the law mad by parliament Also known
as legislation or acts of parliament In Australia, any parliament
has the power to make statute law: State Territory Federal
Slide 11
The role and structure of parliament Elected representatives
Debate proposed legislation passes or rejects and amends
legislation Bicameral All state (except Queensland) and Federal
Parliament are separated into two houses( chambers): Lower House of
Representatives The political party(ies) that has the majority of
seats (the government) and the remaining seats are the opposition
Upper Senate Senators are popularly elected under a system of
proportional representation (12 from each state, 2 from
territories) and have power to block legislation from the house of
representatives Assent - The Bill passed by the Upper House to the
Governor General or Governor for approval. If the Assent has been
given, the Bill will become law.
Slide 12
The legislative process passing legislation Most important
function of parliament Time consuming and difficult Most laws are
introduced by the government A proposed new law is known as a bill.
Anyone can introduce a bill If introduced by a member that is not a
minister (backbencher) private members bill Open to public scrutiny
well organised pressure groups and members of electorates that
influence parliamentarians options
Slide 13
The legislative process passing legislation Before a bill
passes and becomes federal law, it requires approval from both
houses and the Governor-General It then becomes an Act of
Parliament NSW and other states with bicameral parliaments is
generally the same for passing laws
Slide 14
Questions for your notes Define the term 'statute law What is
the bill? Describe the purpose of the first reading of the bill
What is Assent? Describe the role of parliament What is a
'bicameral parliament'? Outline the role of the House of
Representatives Describe the function of the Senate Explain the
role played by the Governor-General Explain the role of the courts
in interpreting statute law
Slide 15
Explain the role of the courts in interpreting statute law The
bill is regularly discussed between readings. The Bill is later on
repeated to the upper house of parliament which then is voted on
and returned to the lower house for amendment. If passed the Bill
is sent to the governor general for assent. Then it becomes a
law.
Slide 16
The legislative process delegated legislation Delegated
legislation is made by non-parliamentary bodies. Less important
laws that parliament doesnt have time to draft, consider and pass.
These are subordinate bodies, such as government departments or
local councils These groups are able to perform this law-making
process through the Enabling Act Types of legislation involved
Regulations G-G, state governors, executive council Ordinances For
Australian territories (Norfolk Is. & Antarctica) Rules For
government departments By-laws By local councils, restricted to
that area
Slide 17
Tasks Construct and A3 poster of the passage of a bill through
parliament diagram (page 30) List the advantages and disadvantages
of delegated legislation
Slide 18
The Constitution Division of Powers, Separation of Powers, Role
of the High Court
Slide 19
The Constitution 1 st January 1901 Australia gained a
Commonwealth Constitution Framework and rules that apply to the
governance of Australia Previously six independent colonies,
governing within their own boarders, answerable only to Britain
Federation The process of uniting several states to form a single
national government
Slide 20
The Constitution Constitution document was formed through a
series of referendums Referendums the referral of a particular
issue to the electorate for a vote 1898, 1899, 1900 referendums
comprised the proposed constitution Approval of the British
parliament Commonwealth of Australia Constitution Act 1900 (UK)
State the key features of the British Act (p32)
Slide 21
Division of power What powers would the state have? What powers
would the federal government have? Chapter 1, Part v, s 51 to 60 -
The constitution dived up the powers between federal and the
states. Legislative Powers: division of powers.docxdivision of
powers.docx Section 51: Concurrent Powers & Residual Powers NSW
v. Commonwealth [2006] (P50, Pearsons) Section 52 : Exclusive
Powers Commonwealth v Tasmania [1983] (P35, Cambridge)
Constitutional interpretation is the role of the High Court
constitution.docx Complete for Homework constitution.docx
Slide 22
Amending the Australian Constitution Statutes & Common law
can be changed easily Constitution (technically a statute) has a
unique process Alterations of the Constitution Chapter VII, s 128
44 proposed amendments, 8 successful (in bold or deleted parts
ruled through) List the specifics in s 128 (p36) Provide TWO
examples of successful and ONE example of failed referendums
Slide 23
Separation of Powers (doctrine) Three arms of government: 1.
The legislature the law makers (House of representatives & the
senate) 2. The executive the ministers of government departments
who administer the laws made by parliament (GG, PM, Cabinet) 3. The
judiciary The courts who interpret and apply law Each arm check
each other ensuring civil liberties are protected basic individual
rights, such as freedom of speech and religion, which are protected
by law First three chapters of the constitution: I. The Paliament (
s 1 to 60 ) II. The Executive ( s 61 to 70 ) III. The Judicature (
s 71 to 80 ) Not a true doctorine as ministers and PM are members
of executive and legislature. The key feature is distinguishing
between judiciary and other arms. Protecting the judiciary is a
corner-stone of democracy. Evident when court make decisions not in
accordance with government policy. Australian Communist Party v.
Commonwealth of Australia [1951]
Slide 24
High Court Jurisdiction Interpretation of the constitution
Slide 25
Role of the High Court in interpreting the Constitution Section
71 Creates the High Court of Australia; allows Commonwealth
Parliament to create other courts (i.e. Family Court, Federal Court
& Federal Magistrates Court) Section 72 How High Court judges
are appointed (1977, referendum retiring at age of 70)
Slide 26
Role of the High Court in interpreting the Constitution The
High Court has both original and appellate jurisdiction. Original
Jurisdiction : Summarise Section 75 & 76 (page 39) S 76(i)
Matters relating to the interpretation of the Constitution;
enormous influence on determining the division of power between
states and the Commonwealth.
Slide 27
Role of the High Court in interpreting the Constitution
Summarise the following cases: South Australia v Commonwealth (the
First Uniform Tax case) [1942] Murphyores v The Commonwealth
(Fraser Island case) [1976] R v Brislan; Ex parte Williams [1935] R
Regina (Latin for Queen) Ex parte from one side, the other side is
unrepresented
Slide 28
Role of the High Court in interpreting the Constitution
Appellate jurisdiction : Section 73 High court has the jurisdiction
to hear and determine all judgments; the judgment of the High Court
in all such cases shall be final and conclusive. All appeal cases
must be granted special leave before the case will be heard by the
High Court. Appeals generally relate to questions of law, or a
matter of that is of such significance as to warrant the attention
of the High Court, or a dispute between the opinions of the high
court the requires final adjudication. Osland v R [1998]
Slide 29
Aboriginal & Torres Straight Islander Peoples customary
laws Characteristics, integration into Australian law
Slide 30
Aboriginal & Torres Straight Islander Peoples customary
laws Customary law Based on tradition, ritual and socially
acceptable conduct There is no single system of Aboriginal and
Torres Straight Islander law. The separate indigenous nations
developed their own laws, but there were common aspects. These laws
are spiritual and closely linked to the land.
Slide 31
Aboriginal & Torres Straight Islander Peoples customary
laws Aboriginal & Torres Straight Islander Peoples customary
laws vs British law Land ownership The right to posses property is
a key principal of English law Aboriginal & Torres Straight
Islander Peoples land is sacred and cannot be owned; custodians of
the land, looking after for future generations. This is the reason
why the British settled and impose British property law. They
considered Australia to be unoccupied land (terra nullius)
Slide 32
Aboriginal & Torres Straight Islander Peoples customary
laws Follow customary law questions.docx using Pearson pages
57-67customary law questions.docx diverse nature of customary laws
spiritual basis, significance of land and water family and kinship
ritual and oral traditions mediation and sanctions relevance to
contemporary Australian law
Slide 33
International law
Slide 34
Sources of International Law Customary International Law
Treaties Declarations Legal Decisions
Slide 35
Customary International Law This type of law is not written in
a single document, but it is known through long established
traditions and common practices. A bad thing about this form of law
is that they still need to be constantly changed to keep up with
There are many independent nations so it is hard to write a law
that can bind the entire nations together. Customary law has now
been replaced with treaty law. Treaty law is either bilateral of
multilateral. The more countries that sign a treaty the more
powerful it gets! Most laws prohibiting crimes against humanity
originated from customary law. Important examples include
condemnation and genocide.
Slide 36
Treaties A treaty is an international agreement concluded
between states in written form and governed by the guidelines of
international law. Treaties are the most commonly used source of
international law. The more nations that sign a treaty, the more
powerful that treaty will be. Treaties are used to make specific
laws and to control conduct and cooperation between and within
nations A treaty may also establish an international organization.
There is no set way of making a treaty, but most treaties are made
through direct negotiations between nations. If all parties
involved agree, the treaty with be signed.
Slide 37
Treaties Treaties can be either: Bilateral Between two nations.
For example the Agreement between Indonesia and Australia on
Framework for Security Cooperation, concerning their common
security and respective national security Multilateral Between many
nations. For example the Charter of the United Nations, this
established the UN and its organs and agencies. Each country that
is a signatory to this treaty that has a seat in the General
Assembly and participates in UN processes.
Slide 38
Declarations Declarations are also international instruments,
but they differ from treaties. Declarations state and clarify the
parties' position on particular issues, but do not impose legally
binding provisions that must be followed.
Slide 39
Declarations Example of a declaration: A famous example of a
declaration is the Universal Declaration of Human Rights. The
United Nation Commission on Human Rights was established, following
the Second World War. To draft the declaration - the first
universal statement on the basic principles of human rights. Among
its chief purpose was to define the meaning of the words
'fundamental freedoms' and 'human rights', which appear in the UN
Charter In 1948, the declaration was ratified by a proclamation by
the UN General Assembly and 48 countries voted in favor for it,
with none voting against it and only eight abstaining it. The
declaration is the foundation for two binding UN human rights
covenants: the International Covenant and Political Rights (ICCPR)
and the International Covenant of Economics, Social and Cultural
Rights (ICESCR). Its principles are contained in other treaties as
well
Slide 40
Legal Decisions Decisions made by the International Court of
Justice (ICJ) effect only the parties involved, outlined in s 59 in
the Statute of the International Court of Justice Other courts such
as the International Criminal Court (ICC), set up to deal with the
two most serious crimes concerning worldwide community, and the
European Court of Human Rights (ECHR). Both these courts are either
specialised or regionalised Temporary courts such as the
International Criminal Tribunal for the Former Yugoslavia or Rwanda
set up for genocide and war crimes/crime against humanity
Slide 41
International Organisations Summarise the following (P51-55,
Cambridge) The United Nations The General Assembly The Security
Council The International Court of Justice Intergovernmental
organisations Non-government organisations Complete the following
worksheet: UN bodies and treaty based agencies.doc UN bodies and
treaty based agencies.doc
Slide 42
Relevance of international Law to Australian law Ratification
of a treaty automatically makes it part of that countrys domestic
law. Some treaties require new legislation for implementation into
Australian law (s51 Constitution). Treaties influence in
development of common law, judicial review, and judicial
interpretation of statutes.
Slide 43
Relevance of international Law to Australian law Examples of
human rights treaties that has been reflected in state or teritory
and/or federal legislation: Human Rights TreatiesReflected in
Australian law International Covenant on Civil and Political Rights
(ICCPR) Human Rights Act 2004 (ACT); Charter of Human Rights and
Responsibilities Act 2006 (Vic) Convention on the Rights of a Child
(CROC)Family Law Act 1975 (Cth) Convention of the Elimination of
All Forms of Discrimination Against Women (CEDAW) Sex
Discrimination Act 1984 (Cth) Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (CAT) Crimes
(Torture) Act 1988 (Cth) *Cth = Commonwealth