The Legal System: Legal Foundations, the Constitution and Statute Law

What will we cover in this course? Some clues? What do you think will be interesting?

What are we doing today? Orientation What are laws? Where do Australia’s laws come from? What is compliance?

What are the Major Sources of Law? Statute Law: Legislation enacted (passed by) federal and state parliaments Common Law: Principles and rules based on decisions of judges. May also refer to equity law Statutes take priority over common law: double jeopardy example!

Common Law vs Statute Law

Criminal vs Civil Law Criminal Law: State (‘the Crown’) must prove beyond a reasonable doubt that the accused intentionally committed a wrong that is prohibited by statute Main aims are punishment and deterrence Civil Law: Plaintiff must prove on the balance of probabilities that the defendant has breached (broken) a legal agreement. Two major categories are contract law and torts Main aim is compensation (damages)

Origins and Development of Law Common Law After Norman Conquest, judges travelled the country Gradually made common (uniform) rulings that followed previous decisions

Origins and Development of Law Equity Developed in response to rigid common law rules Based on fairness and justice Two main equitable remedies are Injunction: An order to stop a certain act Specific Performance: An order to carry out a legal obligation (eg land or unique goods) Common law and equity are now merged

Was Australia Settled Legally? The British failed to make treaties with indigenous population as required by international law The British overcame objections by arguing terra nullius. Australia was empty land - not controlled or cultivated – and therefore the British ‘discovered’ it

Was Australia Settled Legally?

Let’s think about whether this makes sense 2 video clips Who was Mabo? http://www.youtube.com/watch?v=YVTK7YZQyvQ How was Mabo interpreted? http://www.youtube.com/watch?v=fe6eHppCcA8 - http://www.youtube.com/watch?v=fe6eHppCcA8

Landmark Developments in Native Title Mabo Case (1992): Declared Australia not terra nullius. Native title had been retained over land that had been continuously occupied Native Title Act (1993): Affirmed Mabo decision. Created Native Title Tribunal to determine claims Wik Case (1996): Native Title rights and pastoral leases could co-exist Fejo Case (1998): Freehold title permanently extinguishes native title Croker Island Case (1998): Native Title extends to offshore waters

The Native Title Amendment Act Native title does not exist if prior to 1 January 1994 it was subject to “exclusive possession” Since 2002 it is clear that some rights such as hunting rights may not be extinguished Rights of pastoral and mining leaseholds A strict threshold test

Levels of Government Federal State Local House of Representatives Senate Governor General State Lower House Upper House (not in Queensland) Governor Local Councils Derives authority from State Government

Separation of Powers Government separated into three ‘independent’ functions: Legislative (law making): Parliament Executive (governing): Prime Minister and executive ministers (the cabinet) Judicial (judging and interpreting): Courts

Federalism Strengths Weaknesses Reduce Corruption Duplication Increases political choice Neglect of public policy eg Murray River Cost of 15 houses of parliament

Division of Powers Exclusive Constitutional Powers Commonwealth has some exclusive powers to pass legislation e.g in relation to military, currency & customs Under section 51 it has power to legislate in 39 areas, including trade & commerce, communications, banking, insurance, bankruptcy & intellectual property The Commonwealth has effectively gained exclusive power over most s 51 areas. See figure 1.7 - strategies used to extend federal powers

Division of Powers Concurrent Constitutional Powers: Shared by Commonwealth and States e.g. taxation Residual Powers: Remaining powers are controlled only by states. e.g. local government

Division of Powers

What if State and Federal Law Conflict? Section 109 If any section of a state Act is inconsistent (clashes) with any section of a federal act, the federal section must be followed See Wallis v Downard-Pickford Pty Ltd (p 14) The remaining sections of the state Act remains in force

Bill of Rights The ACT and Victoria have passed Acts that guarantee key human rights There are no penalties for breaches

How can the Constitution be Changed? Parliament agrees to hold a referendum (vote) The change must be agreed to by: A majority (more than 50%) of Australian voters and A majority of voters in at least 4/6 states Only one major change since 1901 - inclusion of Aborigines in census (1967)

Why do we pass new legislation Tidy common law up Address new situations eg The Electronic Transaction Act

How is Legislation Passed? A Bill is ‘read’ (debated) and voted three times by each house of parliament (One house in Qld) Royal assent given by: Governor General (Federal), or Governor (State) Published in Government Gazette

Main Features of an Act The important features of an Act include: Headings Sections Definitions ‘Objects’ (aims) Regulations

Self Quiz: True or False Laws made by governments are often called common law The main remedy available through equity is damages The Mabo case recognised native title over land that has been continuously occupied from before white settlement to present day and has not been legally alienated. The executive administers the country, the legislature interprets and enforces the law and the judiciary enforces statutes The power to pass taxation law is a concurrent power The constitution can only be changed by a referendum which has been approved by more than 70% of Australian voters.

How to Interpret an Act? If words are vague or ambiguous judges & magistrates can choose one of the following: Literal Rule: Ordinary dictionary meaning applied even if result unfair - see The Flick Knife Case (p. 23) Golden Rule: Ordinary meaning altered to achieve a consistent interpretation – see The ‘Stop’ Case (p. 23) Mischief Rule: Assumes meaning consistent with problem statute intended to prevent

The Purpose Rule If meaning of a section is unclear most courts required under the Acts Interpretation Act to choose the purpose meant by Parliament Court has right to consider extrinsic (outside) materials, e.g., parliamentary debates - see the Stock Route Case (p. 24)

Other Aids to interpretation The courts may also rely on two maxims (guides) Ejusdem generis (if a general rule follows a specific rule it is limited and Noscitur a sociis (interpretation of unclear words are interpreted in the context of those words) If the unclear section includes general words and specific words, the general words should be consistent with the specifics

The Purpose Rule

Class Exercise Imagine s 22 TAFE Education Act 2002 makes it an offence to bring any concealed notes, sketches, books or aids relevant to the exam into the room. The Education Minister said in parliamentary debate that s 22 was intended to give exam monitors stronger powers to prevent cheating. Explain how the common law rules of statutory interpretation would apply to the following: 1. Toby is caught in the exam room receiving intructions from headphones attached to his iphone. 2. Debbie accidentally leaves notes in her pocket. 30 minutes later she realises what she has done and hands the notes over. 3. Ian writes down notes and leaves them on a table where another student reads them.

Delegated Legislation Parliament delegates (gives) public servants the power to make regulations, ordinances and by-laws Advantages: Frees up Parliament, legislation drafted by experts Disadvantages: Undemocratic. Controlled by bureaucrats