Foundations of the Australian legal system

Natalie Wieland BA. LLBAcademic Skills Support 2014

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Overview

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• Started as a penal colony on 26 January 1788

• Stated the land was “terra nullius” ie/ uninhabited

• A number of colonies

• Commonwealth Constitution 1901

• Only in recent years acknowledged Aboriginal legal system

Federal System

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The Constitution set up a Federal System with three tiers of government

1. Federal/Commonwealth2. State3. Local

Governor General

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• The head of our Commonwealth Government is a representative of the Queen – the Governor General who is currently Quentin Bryce ( a new GG being sworn in in March Peter Cosgrove

• Each state has a Governor. In Victoria it is currently Alex Chernov AC, QC

Role of Governor General

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Pursuant to the Constitution advise if the Governor-General

•Has to assent to a Bill for it to become law•Can he/she withhold consent•The Governor-General represents the Queen

Who deals with what?

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The Constitution establishes what areas are dealt with by the Federal Parliament. If an area is not listed it remains with the States.

We need to look at the Constitution to establish who has what powers.

ACTIVITY

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List which are state and which are Federal powersFamily lawRoads and traffic EducationLighthouses Rubbish bin collectionPostal services BankruptcyMarriage Immigration

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Common Law (Case law)

Legislation – statutes and regulations

Sources of law

Court hierarchy

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Highest court in the land – no further right of appeal

Current Chief Justice – French CJ

High Court of Australia

Koori Court

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A Koori Court is a division of the Magistrate's court in Victoria, Australia, that sentences Indigenous Australians who pleaded guilty. Koori Courts were created in order to allow participation of the Aboriginal community and culture in the legal system, in an attempt to bridge the cultural differences between Indigenous Australians and the imposed colonial law. They began operation in 2002, and are held on a designated day in an ordinary courthouse. The laws administered are exactly the same as in any Australian courthouse, but the format of the hearing is different. (Wikipedia)

LETS WATCH A VIDEO

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http://www.youtube.com/watch?v=evlXu59uW7o

Common law

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• developed by Judges, usually superior courts (doctrine of precedent)•Each case a solution to a dispute between two or more parties•A series of cases on area of law can form the ‘legal framework” eg. Negligence

Doctrine of precedent

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• rules of common law are found in past cases

•English common law employ stare decisis ie. to follow the decisions' of earlier cases

Doctrine of precedent

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•Each court is bound by decisions of courts higher in the hierarchy

•A decision of a court in a different or lower hierarchy may be persuasive not binding

•A court is not bound by their own decisions

•Only the ration decidendi (the reason for deiciding) is binding

•Obiter dicta (passing remarks) are not binding but persuasive

•Precedents do not lose their force over time*Taken from “Laying down the law” 8th edition pp116-117 Lexis Nexis

Law reports

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The doctrine of precedent requires a comprehensive reporting system in order to find the authoritative decisions.

Each jurisdiction has its own authorised version which you must use when citing a case

Authorised reportsIt is vital to know which is the authorised version for each court.A full list can be found on the library website at:Library -> Tools – Authorised Reports

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Court Report Abbreviation

High Court of Australia

Commonwealth Law Reports

CLR

Federal Court of Australia

Federal Court Report FCR

Supreme Court of Victoria

Victorian Reports 1957- Victorian Law Reports

1875-1956

VRVLR

Supreme Court of Canada

Supreme Court Reports SCR

Legislation vs case law

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The general rule is legislation takes precedence over case law. Therefore, Parliament can always change the case law rules.

However, the Courts interpret the legislation and therefore can effect the meaning of the words.

• Acts Interpretation Act 1901 (Cth) eg. S.15AA the requirement to interpret provisions in accordance with the underlying purpose of the Act

Parliament

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Federal democratic system – powers set out in the Constitution

• Commonwealth• States (Victoria, South

Australia, Queensland, Tasmania, New South Wales, Western Australia)

• Territories (ACT and Northern Territory)

The legislative process

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• An idea is developed into a Bill

• The Bill passes through Parliament

• Receives Royal Assent• Governor- General

(Federal)• Governor (State)

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The Bill has an Explanatory memorandum which helps understand purpose of Bill1st readings - > Second reading (most important) - > 3rd Reading - > Passed

1st readings - > Second reading (most important) - > 3rd Reading - > Passed

Cannot become law until GG (or Governor at State level) signs and then check for commencement details

Creating an Act

Governor-General

Bill drafted

Lower House

Upper House

Lower House – House of Representatives

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Upper House - Senate

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Subordinate legislation

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•Not all laws can be made in Parliament – so need the power to delegate and make subordinate legislation.

•Most common form are regulations

How to change

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• An amending Act needs to be drafted and passed through Parliament

How can I tell if there have been changes

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• Commonwealth Acts – check the notes at the foot of the Act

E. Fair Work Act s.12• Victorian Acts – check the margin• Eg. Racial and Religious Tolerance Act 2001

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Summary

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Two ways to make law:•Case law (including interpreting legislation)

•Legislation

Questions?

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Don’t forget you can always come to the library for help, or the Academic Skills Centre