CLAW1001 Chapter Notes - Chapter 1: Royal Assent, Ultra Vires, Native Title Act 1993
PART 1: THE AUSTRALIAN LEGAL SYSTEM
CHAPTER 1: THE LAW, LEGAL SYSTEM AND CONSTITUTION
• Law is the system of control through which society operates – Terry + Giugni
• Requirements of a legal system:
o A body of laws – Constitution
o A power to create and alter laws – Parliament
o An institution or process with authority to administer and enforce laws – Executive
o An institution with the power to adjudicate disputes – Judiciary
SOURCES OF LAW:
• Customary Law: established by habitual use of people over time à original law, unwritten à e.g. Aboriginal Law
• Common Law:
1. Common law system (as opposed to civil law systems)
2. Judge-made law (as opposed to legislation)
3. Judge-made law developed in common law courts (opposed to equity courts)
• Legislation: laws made by a body recognised by the legal system as having the power and authority to make laws
REQUISITES OF LAW:
• Certainty: enables people to engage in transactions + relationships, reasonably sure in knowing the consequences
• Flexibility: responding with undue delay to change
• Fairness: if law is to be accepted it should be equitable, fair and reasonable
• Accessibility: all people should have access to the law, either directly or through intermediaries
LAW, ORDER, JUSTICE AND MORALITY:
• Morality and justice are not necessary preconditions for a law BUT legal system doesn’t operate in a vacuum
(social influence)
THE NATURE AND ROLE OF A LEGAL SYSTEM:
• Types of Law:
o Common Law à e.g. Australia
o Civil Law à laws are codified = written
à e.g. US
o Muslim Law à E.g. Middle East
o Customary Law à E.g. Mongolia
o Mixed System
THE DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM:
1. Colonisation + reception of English law
o Terra Nullius debate à unsettled or settled = Aboriginal or English law to be applied
§ Mabo v Queensland [1992]
• High Court acknowledged Aus was settled by Aboriginals
§ Native Title Act 1993 à Tribunal to settle land claims
2. Increasing power of colonies à self-governing
3. Federation: 1 January 1901 à 6 colonies into 1 nation = relinquish powers
4. Breaking Colonial Ties: free from influence of UK’s Imperial Parliament
THE AUSTRALIAN LEGAL SYSTEM:
• Based on UK’s Westminster System
o Constitutional monarchy: Head of State is Queen à represented by Gov General, advised by Federal
Executive Council (FEC) à now largely formal
o Separation of Powers: legislative, executive, judicial functions
o Responsible Government: responsive to public opinion (electorates)
o Rule of Law: Everyone is equal before the law, the law is fair, no arbitrary practices or corruption
• Federal System à division of powers b/w States + Commonwealth
• Common Law System
THE CONSTITUTION:
• Constitution: system of laws, customs + conventions defining the composition + powers of the organs of the state
• 1899: constitution put to referendum and approved
• 1901: Commonwealth of Australia came into existence on 1 January
• Chapters of the Constitution:
1. The Parliament à Queen, Senate, House of Representatives
2. The Executive Government à executive power of Queen, exercisable by Governor General + advice of
Federal Executive Council (FEC)
3. The Judicature à judicial power in Federal Courts etc.
4. Finance + Trade à exclusive federal power over customs + excise duties, free trade b/w states
5. The States à state constitutions, laws, powers
6. New States à provides for Commonwealth’s authority over territories
7. Miscellaneous
8. Alteration of the Constitution à amendment passed by both Houses + voted on in each state
Document Summary
Chapter 1: the law, legal system and constitution. Customary law: established by habitual use of people over time original law, unwritten e. g. aboriginal law. Common law: common law system (as opposed to civil law systems) Judge-made law developed in common law courts (opposed to equity courts) Legislation: laws made by a body recognised by the legal system as having the power and authority to make laws. Requisites of law: certainty: enables people to engage in transactions + relationships, reasonably sure in knowing the consequences. Fairness: if law is to be accepted it should be equitable, fair and reasonable: accessibility: all people should have access to the law, either directly or through intermediaries. Law, order, justice and morality: morality and justice are not necessary preconditions for a law but legal system doesn"t operate in a vacuum (social influence) The nature and role of a legal system: Types of law: common law e. g. australia, civil law laws are codified = written.
