LAWS1104 Lecture 1: LAW 1104 NOTES Semester 2
LAWS1104
INTRO TO LAW
Chapter Summaries
Part 1: An Introduction to Law and the Australian Legal System
THE NATURE AND CONCEPT OF LAW [1.10]
•law is the body of principles made by parliaments and the courts that regulates the way that we live.
•it informs us what we can do, what we cannot do, and what we must do if we wish to avoid sanctions.
•provides a large degree of social cohesion, by providing mechanisms for resolution and a system of
sanctions and remedies to punish offenders and/or compensate the victims.
•moral or religious law: laid out in holy books such as the bible, that delivers follow as a matter of
conscience
•natural law: a system of laws determined by the nature of which human rights are regarded
•customary law: rules of a society or groups within a society that have been established by long usage.
JUSTICE AND THE RULE OF LAW [1.22]
•no person is above the law
•independent judiciary which judges seperate from the government and the executive branch
•antithesis of autocratic rule, of a corrupt and nepotistic government, of a compliant judiciary
•Magna Carta 1215, eroded the power of the king, it established that the law, not the king, is the ultimate
authority.
•the law, not arbitrary power is dominant
•the law applies to everyone equally, including the government
•the law of the constitution is created democratically by the will of the people
•the rule of law is interwoven with the doctrine of the separation of powers
•the separation of the legislative, executive and judicial arms of government, so that power doesn't reside
in one place: the principle divide in Australia is between the courts on the one hand and the legislature
and executive on the other.
•while the executive is drawn from the legislature, there is a division between these arms of governments
with the judiciary on the other.
TERRA NULLIUS [1.50]
• when the British colonised, they brought with them all the relevant British law and used that law to
disposes the indigenous peoples.
•Eighteenth century international law stated that states could acquire sovereignty over foreign land by
conquest, cession, or occupation.
•The British chose to use occupation because it allowed for the automatic reception of British law to the
colony without the need to negotiate a treaty.
•when a country was occupied, the conquering country could only impose its laws only wiht the consent of
the conquered people.
•if the land was unoccupied, the colony could be peacefully settled, and all the laws of the settling nation
were regarded as coming into force as so far because they were relevant to new circumstances
•Australia could be said to be unoccupied and uninhabited because the indigenous people did not use the
land (to cultivate)
•Australia was therefore “inhabited by no one”
RECEPTION OF LAW INTO AUSTRALIA [1.60]
•the court of judicature, established in 1787, heard its first criminal cases on 11 February 1788
•a court of civil jurisdiction heard its first cases also in 1788, and by 1823 NSW, had a supreme court with
full power to hear all cases.
•an imperial act (Australian Court Act 1828) provided all the laws and statutes in force within England on
25July 1828, and they should be applied in the administration of justice in the courts of NSW and
Tasmania.
Case: MABO vs State of Queensland
•High court declared terra nullius be fiction.
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LAWS1104
INTRO TO LAW
•Mabo vs State of QLD (1992)
•In may 1982, Eddie Mabo and our other Murray Islanders, members of the Meriam people, instituted
legal proceedings claiming rights to their traditional lands (Murray Island and Torres Straight)
•against the Queensland Amendment Act of 1982, which established land grants on trust for Aboriginal
and Torres Straight Islander people, which the Murray Islanders refused to accept
•they had lived in subsistent economies, and the land on the islands were not subject to community
ownership, but was regard as belonging to individuals or groups
•plaintiffs saw that the Meriam people were entitled to the islands. The Queensland argued that when the
territory of a settled colony became part of the Crowns dominions, the law of England became the law of
the colony and, by that law, the Crown acquired the ‘absolute beneficial ownership’ of all land and
territories
•1992, the high court made a 6-1 decision that the common law os Australia recognised a form of native
title, namely the rights of indigenous inhabitants to their traditional land in accordance with their laws and
customs
•“Native title has its origin and is given its content by the traditional laws acknowledge by and the
traditional customs observed by the indigenous inhabitant if a territory.”
•the decision meant that the Meriam people were entitled to the occupation, use and enjoyment of the
lands of the Murray Islands.
NATIVE TITLE LEGISLATION
•People vs the State of Queensland (1996)
•The high court held by a majority that native title was not necessarily extinguished by certain pastoral
leases.
•10 point plan of 1998 (Howard government), amended the Native Title Act 1993
•permanently extinguish native title rights if they interfere wiht the rights of the agricultural or pastoral
leaseholder, even if the native title exists, provided the dominant purpose of the lease remains primary
production.
•the native title act came into operation on 30th September 1998.
A NATION IS BORN [1.100]
•a federal government could deal more effectively with issues such as national defence and intercolonial
customs barriers.
•the commonwealth of Australia came into being on 1 January 1901.
•Federal model with a written constitution for federal and state governments.
•“Westminster system” (Westminster being British parliament), of representative democracy- with the
head of the Commonwealth of Australia and its states and territories being the reigning monarch of
England, represented by the Governor General (Commonwealth parliament) and governor in state
parliament.
•the immediate effect of federation was that each colony became a state with its own parliament, that had
certain powers to make laws for each state.
•The Commonwealth Parliament was given certain specific powers under the Constitution to enact laws
for the entire nation.
•the legislature (the body which makes the laws); the executive body (they administer and carry out the
laws); and the judiciary which declares the law and interprets the law, resolves disputes concerning the
application of the law and determines the sanctions when it is breached.
•the constitution gave the commonwealth parliament certain defined legislative powers but left the new
Australian states as self governing units each with its own constitution, parliament and courts.
•The constitution sets out the matters in respect of which the commonwealth parliament has power to
legislate.
•most matters of private law, and most criminal matters are governed by state law
•if a state law is inconsistent with a law of the commonwealth, the commonwealth law prevails, and the
state law, to the extent of the inconsistency, is invalid.
The executive:
•the executive power of the commonwealth is vested in the Queen and is exercisable by the Governor
General as the Queens representative.
•The governor general has an executive council
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LAWS1104
INTRO TO LAW
•the governor general is also empowered to appoint ministers to the commonwealth departments of state.
No-one can be a minister of state unless they are a member of parliament (senate or house of reps.)
•the governor general invites the leader of the political party having the majority of members in the house
of reps. to form a government, and become the Prime Minister.
•The leader selects the members who are to be ministers, and they are then appointed by the governor
general.
•prime minister allocates portfolios to the ministers and they become responsible for one or more
departments.
•the cabinet comprises of those member of the ministry responsible for determining the policy and
objectives pf the government.
•the governor general will almost invariably act as advised by the prime minister.
•to dismiss a government,without or against the advice of ministers, such as where the government of the
day has lost faith in the parliament and they refuse to resign. 1975 Whitlam government was dismissed
by Governor General John Kerr
The judiciary:
•the high court, court for interpreting the constitution
•the highest court of appeal from decisions of the highest state and territory courts and the federal court.
the courts judgment sea authoritative statements of law that constitute binding precedents for all other
Australian courts
•“disproves or revises” previous decisions, that prior decision is binding upon intermediate appellate
courts and judges
AMENDING THE CONSTITUTION [1.135]
•of the 44 referenda put to the people since 1901, only 8 have passed.
•once both the houses of parliament have passes the proposed amendment to the constitution, there is a
referendum of all eligible voters who are asked to vote “yes” or “no”.
•if the proposal is approved by the majority of people in the majority of states then the constitution is
amended.
•1967 referendum amended the exclusion of aboriginal people form the national census.
SOURCES OF LAW [1.200]
•a primary source of law is a document that contains the law itself (a case or statute)
•a secondary source of law is a resource that explains or analyses the primary source or is prepared for
law reform purposes.
•the basic primary sources in Australia are: statute law (acts of parliament) and judge mad law (legal
principles enunciated in judicial decisions)
STATUTE LAW
•statutes may: bring new laws into existence, repeal old laws credited either by earlier statutes or by
decisions of the courts which have ceased to be appropriate to present social needs. or to codify the law.
•“consolidating statute” the object of which assemble and re-enact a number of previous statutory
provisions.
•the making of statutes: 1. proposal, 2. drafting the bill, 3. lower house, 4. upper house, 5. royal assent, 6.
commencement.
•“deadlock” occurs if the upper house refuses to pass the bill
•if the senate rejects a bills, fails to pass it or passes it with amendments unacceptable to the house of
representative, then after three months the bill can be reintroduced in the House of reps
•if the house of representatives again passes the bill but the senate rejects, the governor general may
dissolve both houses “double dissolution” which may call and election
•if, after the election, the house of reps passes the bill and the senate still rejects the governor general
may convene a joint sitting of both houses and if there is a majority vote in favour of the bill, then it
goes to the governor general for assent.
COMMON LAW RULES OF STATUTORY INTERPRETATION [1.380]
Literal rule: the courts are to interpret the words used in an act of parliament literally as far as they can,
that is, they must give the words their natural, ordinary and grammatical meaning.
•this is based on the assumption that parliaments intention is expresses in the actual words used.
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Document Summary
Part 1: an introduction to law and the australian legal system. 25july 1828, and they should be applied in the administration of justice in the courts of nsw and. Case: mabo vs state of queensland: high court declared terra nullius be ction. Laws1104: mabo vs state of qld (1992, in may 1982, eddie mabo and our other murray islanders, members of the meriam people, instituted. The executive: the executive power of the commonwealth is vested in the queen and is exercisable by the governor. General as the queens representative: the governor general has an executive council. Laws1104: the governor general is also empowered to appoint ministers to the commonwealth departments of state. 1975 whitlam government was dismissed by governor general john kerr. Australian courts: disproves or revises previous decisions, that prior decision is binding upon intermediate appellate courts and judges.
