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• [email protected]
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