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LWB145 Lecture Notes - Week 1.docx

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LWB145 Lecture One (1.1) Notes Introduction to the Australian Legal and Governmental System Part One Outline of Lecture 1. Legal History 2. Sources of Law 3. The Legislature 4. The Executive 5. The Judiciary 6. Case Law 7. Rule of Law 8. Separation of Power The ‘Reception’ of English Law Because New South Wales was legally classed as having been ‘settled’ (as opposed to conquered or ceded), English settlers brought with them English common and statute law which was applicable to new colonies. Case: Mabo v Qld (No 2) (1992) 175 CLR 1. Law was received into Queensland in three waves: 1. English common and statue law was received into New South Wales (which then included Queensland) on 26 January 1788. 2. On the 28 July 1828, the received English law was updated to the Australian Courts Act 1828 (Imp). th 3. Queensland separated from New South Wales on 6 June 1859. By Order-in-Council, all laws of New South Wales continued to apply to Queensland from this date (including all laws received in 1828 and any laws made since 1828). In other words, Queensland inherited the English law from New South Wales despite being newly separated. After the Reception of English Law Great Britain granted limited self-government to each of the Australian colonies. As a result, the new colonial Parliaments and courts could generally repeal, amend and add to the received English law. Laws which had been newly enacted in Great Britain generally did not apply to the Australian colonies. However, some English laws did still apply by what is called ‘paramount force’ and could override any colonial legislation to the contrary. This was because the English Parliament remained supreme. This position was confirmed by the Colonial Laws Validity Act 1865 (Imp). In this way, Australia began to develop an independent body of law that was built up through legislatures and courts of the colonies. What is a Federal System? Dictionary definition – “… a political system in which government power is shared between a central or federal government… and regional governments.” (Butterworth’s Australian Legal Dictionary). Federation st The British Parliament passed the Commonwealth of Australia Constitution Act 1900 on January 1 1900. A year later on the 1sy January 1901, Australia’s first Governor-General performed an official ceremony and the modern nation of Australia came into being. Interesting Quirks Related to the Constitution Act  When the act was initially passed in 1900, Western Australia had not yet agreed to become part of the commonwealth. For this reason, in the preamble of the Act, Western Australia is not mentioned.  When listing the states of Australia, in Section 6 the Act refers to New Zealand as a state of Australia (it was considered so at that time). De-Colonisation and Independence from Britain There was a gradual acquisition of full legislative independence in Australia from Great Britain. This is marked by the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986 (Cth). The Statute of Westminster Adoption Act 1942 (Cth) stipulates that Britain can no longer create and enforce laws upon Australia unless Australia specifically asks for such laws and consented to applying for the laws. The Australia Act 1986 (Cth) was essentially the final step in achieving independence from Britain. The Act was passed by the British Parliament, Australian Parliament and all of the Australian states. The Act eliminated any remaining possibilities for the UK to make legislation for Australia, for it to be involved in the Australian government, and to prevent any Australian courts from being able to appeal to a British court. Abolition of Judicial Appeals to the Privy Council  Privy Council (Limitation of Appeals) Act 1968 (Cth)  Privy Council (Appeals from the High Court) Act 1975 (Cth)  Australia Act 1986 (Cth) There was also a gradual abolition of judicial appeals being able to be made to the Privy Council. This began with the Privy Council (Limitation of Appeals) Act 1968 which stated that appeals could not be made to the Privy Council when it concerned matters of Commonwealth Law. However, matters of State Law (e.g. contracts, torts etc.) could be appealed. The following act was the Privy Council (Appeals from the High Court) Act 1975 (Cth), under which individuals were allowed to choose which court they wanted to appeal to for their final determination (either Privy Council or High Court). However if the outcome was not desirable for the individual, they could not choose to instead appeal to the other court (in other words, there was no back-and-forth between the two). Finally, as previously mentioned, the Australia Act 1986 (Cth) marked the end of British influence on the courts of Australia, and the Privy Council were no longer applicable. Instead, the High Courts became the ‘apex’ of the Australian judicial hierarchy. What About Indigenous Law? Despite the pre-existence of Indigenous peoples in Australia, Britain deemed the country as ‘settled’ rather than conquered or ceded. Originally, Australia had been regarded as ‘terra nullius’ (no man’s land), however Mabo (No 2) (1992) held that Australia was in fact not terra nullius. This meant that while Indigenous peoples’ presence was acknowledged, they were not considered as having rights to the land. The British Crown still held sovereignty and the right to parcel out land to whomever without the Aboriginal peoples’ consent. Furthermore, no traditional Indigenous law is directly enforceable in Australian courts. In some cases, however, Indigenous ownership of the land may be recognised under common law. Indigenous traditional law is also sometimes taken into consideration by the Australian legal system (for example, during sentencing). Australia: A Federation with a Federal System of Government As a consequence of Australia’s legal history, the nation’s legal institutions essentially has two levels of the courts, legislature and government – Commonwealth (or Federal) Courts, and the State Courts. Five Main Tasks of the Constitution 1. It recognises the existence of the six Australian colonies as they were in 1900 and continues to enforce their constitutions and laws except as changed by the Commonwealth Constitution. 2. It creates a new set of Federal (or Commonwealth) authorities of the central government, and outlines their functions and powers. 3. It regulates the relations between Commonwealth authorities and authorities of the States. 4. It establishes an Australian common market – by providing free trade between the States – an a common, external customs tariff. 5. It establishes limited ‘Bill of Rights’ provisions. Five Rights of the Constitution 1. The right to be compensated for the acquisition of property by the Commonwealth: Section 51 (xxxi). 2. The right to a trial by jury when indicted under Commonwealth law: Section 80. 3. The right to free trade, commerce and intercourse: Section 92. 4. The freedom of religion (or lack of): Section 116. 5. The right of a resident of one state not to be discriminated against on the basis of their residency in a state: Section117. Powers of the Commonwealth Parliament The Commonwealth Parliament makes laws for the whole of Australia in respect to the matters in which it has power. Section 51 of the Constitution lists most of these powers:  Business powers such as corporations and bankruptcy.  Nation state powers such as defence and external affairs.  Social powers such as marriage and divorce.  Financial powers such as taxation. The powers mentioned in Section 51 are concurrent powers, meaning that both the Federal and State government hold them. Note that they are not powers shared by the two governments, but rather powers which the two have in common. In addition, the Commonwealth has exclusive powers (i.e. not in common with the State) which can be found in Sections 52 and 90 of the Constitution and relate to Federal issues (hence not held by States). According to Section 109 of the Constitution, if a valid Commonwealth law conflicts with a State law, then the Commonwealth law will prevail: “When a law of
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