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Legal Institutions

Susan CarterIntroductory mattersTextsMaterialsWebcampusSlidesIntroductory weekendContact:s.carter@sydney.edu.au

Australian Legal InstitutionsTopic 33Rule of LawThe doctrine of English law expounded by Dicey, in Law of the Constitution, that all men are equal before the law whether they are officials or not so that the acts of officials in carrying out the behests of the executive government are cognizable by the ordinary courts and judged by the ordinary law, as including any special powers, privileges or exemptions attributed to the Crown by prerogative or statute. So far as offences are concerned, an offender will not be punished except for a breach of the ordinary law, and in the ordinary courts: there is here an absence of the exercise of arbitrary power. Further, the fundamental rights of the citizen; the freedom of the person, the freedom of speech and freedom of meeting or association, are rooted in the ordinary law, and not upon any special constitutional guarantees. Osborns Concise Law Dictionary4Rule of lawBlind justiceScales and sword of justice

Legal InstitutionsThe institutions which enforce and uphold this rule of law in Australia are:Parliament: which makes the lawsThe Executive: which administers the laws, andThe Judiciary: which declares the law, and what the rights of the individual are under the law.6ParliamentExecutiveCourts/JudiciarySeparation of Powers7English Civil War 1642-1651

Separation of powers

Montesquieu 1689-1755The Spirit of the LawsGeneva 1748Australia: Federal SystemCouncil of Australian Governments

Parliamentary Education Office (www.peo.gov.au)ParliamentThe Queen as represented by the Governor-General or GovernorThe Upper House Senate or Legislative CouncilThe Lower House House of Representatives or Legislative Assembly12The Queen: Constitutional Monarchy

Bi-cameral legislatureTwo houses of ParliamentExcept QueenslandSame as UKThe UK Parliamentary model: bicameral legislature + the sovereign

House of CommonsQueenElizabethII

House of Lords

New South Wales parliamentLegislative AssemblyLegislative CouncilNSW Governor David HurleyS3 NSW Constitution

Commonwealth parliament

House of RepresentativesSenateGovernor General Sir Peter Cosgrove

S1 Constitution

Parliamentary powerParliamentary power in a Federal systemConstitutional ConventionsHow many Parliaments?S51 Commonwealth Constitutions51: Powers of Parliament51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (i.) Trade and commerce with other countries, and among the States:(ii.) Taxation; but so as not to discriminate between States or parts of States:(iii.) Bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth:(iv.) Borrowing money on the public credit of the Commonwealth:(v.) Postal, telegraphic, telephonic, and other like services:(vi.) The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.(vii.) Lighthouses, lightships, beacons and buoys:(viii.) Astronomical and meteorological observations:(ix.) Quarantine:(x.) Fisheries in Australian waters beyond territorial limits:(xi.) Census and statistics:(xii.) Currency, coinage, and legal tender:(xiii.) Banking, other than State banking; 19(xiv.) Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:(xv.) Weights and measures:(xvi.) Bills of exchanging and promissory notes:(xvii.) Bankruptcy and insolvency:(xviii.) Copyrights, patents of inventions and designs, and trade marks:(xix.) Naturalisation and aliens:(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:(xxi.) Marriage:(xxii.) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants:(xxiii.) Invalid and old-age pensions:(xxiiiA.) The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances:(xxiv.) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States:(xxv.) The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:(xxvi.) The people of any race, for whom it is deemed necessary to make special laws20(xxvii.) Immigration and emigration:(xxviii.) The influx of criminals:(xxix.) External Affairs:(xxx.) The relations of the Commonwealth with the islands of the Pacific:(xxxi.) The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws:(xxxii.) The control of railways with respect to transport for the naval and military purposes of the Commonwealth:(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State:(xxxiv.) Railway construction and extension in any State with the consent of that State:(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:(xxxvi.) Matters in respect of which this Constitution makes provision until the Parliament otherwise provides:(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:(xxxix.) Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth.

21States/Territories

Northern TerritoryAustralian Capital TerritorySource of powerConstitution

section 122 Government of territories The Parliament may make laws for the government of any territory and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

ParliamentExecutiveCourts/JudiciarySeparation of Powers23

Parliamentary Education Office (www.peo.gov.au)Westminster system(Responsible government)

25Westminster system: responsible government

The Prime Minister...

U.S. ConstitutionSeparation of powers/responsible government

ParliamentExecutiveCourts/JudiciarySeparation of Powers29Courts in a Federal System

Law Courts BuildingQueens SquareSydney

Federal Court of Australia

NSW Supreme Court

NSW Judicial Hierarchy

31

SUPREME COURT ACT 1970 s 43

43 Sittings (1) Any 3 or more Judges of Appeal constitute the Court of Appeal. 32

Federal Judicial Hierarchy33Australian court hierarchy34

JurisdictionOriginal/appellateCivil/Criminalparticipantsprocessescourt ordersparty/parties/ litigantshearingjudgment for plaintiff v defendantapplicant v respondentbring an actioninstitute proceedingsapplication/appeal allowed/dismissedappellant v respondentpleadingsdamagescorporationsstatement of claim/writ/summonsspecific performancejudges / magistratesdefenceinjunctioncounsel/ QC/SCcounterclaimdeclarationbarristersappealcostssolicitors testimonypecuniary penaltyhttp://www.supremecourt.lawlink.nsw.gov.au/supremecourt/sco2_what_to_expect/whos_who.html

Source of power?ConstitutionConstitutionA constitution is an expression of the political will of the people, a statement, or an agreement, as to how the people are to be governed, by whom, and with what responsibilities. A constitution is a document, or a group of documents, laws or conventions, which outline the system of government for that state.39Australian Parliament House

40Constitution may be:Unwritten, resting mainly on custom or convention;Written, in a formal legal form;Flexible, capable of being amended by ordinary legislative enactment; orRigid (or entrenched), capable of being altered only by a special procedure such as a referendum.41William Charles Wentworth

42Federation processhttp://www.naa.gov.au/collection/explore/federation/constitution-website/index.html

US Bill of Rights

44CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINA

Article 4. All nationalities in the People's Republic of China are equal. The state protects the lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, unity and mutual assistance among all of China's nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession are prohibited. The state helps the areas inhabited by minority nationalities speed up their economic and cultural development in accordance with the peculiarities and needs of the different minority nationalities. Regional autonomy is practised in areas where people of minority nationalities live in compact communities; in these areas organs of self- government are established for the exercise of the right of autonomy. All