1. Fundamentals of Law (BL502) Week 1 The Australian Legal System

2. Fundamentals of Law (BL502) Guy Harley  Bachelor of Law (University of Adelaide – 1978)  Barrister and Solicitor in Adelaide for 18 years  Master of Business (eBusiness) (university of SA 2001)  External Relations Manager Australian Legal Information Institute  Contact Information (02) 9514 3170 guy@austlii.edu.au

3. Fundamentals of Law (BL502) WHAT IS ‘LAW’?  A definition: A set of rules which citizens must obey or else suffer a penalty  More complex in reality as the ‘rules’ are affected by social, economic, political and international considerations  There are various ‘theories of law’ (C3-4)  Law regulates our everyday lives as well as when we are engaged in business  Looking at the various classifications of law can help us understand how law affects us

4. Fundamentals of Law (BL502) SOURCES OF LAW  The law which might govern a transaction or an offence can be found by consulting: customary law (very limited) common law equity statutes delegated legislation international law

5. Fundamentals of Law (BL502) COMMON LAW  The oldest source of law  Developed over centuries in England by judges  Relies on the Doctrine of Precedent supported by Law Reports  Eventually two strands evolved: common law (CL) and equity  Equity prevails over inconsistent CL

6. Fundamentals of Law (BL502) LEGISLATION  Law made by Parliament and bodies it delegates to  STATUTES or ACTS contain the broad policy and are debated in Parliament  Sometimes the Act will delegate power to another body eg Governor, Minister, Council to pass more detailed rules  These are called DELEGATED LEGISLATION and can take the form of Regulations, Ordinances etc.

7. Fundamentals of Law (BL502) LEGISLATION (Cont.)  Legislation overrides inconsistent Case Law  However one important role of Judges is to interpret ambiguous legislation  There is continuing debate about who should ‘make’ the law: only Parliamentarians as elected representatives of the people? BUT the precedent system historically has enabled judges to develop the law in new directions. Negligence law is a good example.

8. Fundamentals of Law (BL502) The English Legal System  Rule of Law  Feudal System  Kings Courts  Court of Exchequer  Role of Parliament

9. Fundamentals of Law (BL502) Public & Private Law  Public Law  Relations between citizens and the state  Private Law  Relations between citizens

10. Fundamentals of Law (BL502) Public & Private Law - Examples  Public Law  Criminal  Administrative  Constitutional  Revenue  industrial  Private Law  Contract  Tort  Family  Property  Wills

11. Fundamentals of Law (BL502) Civil & Criminal Law  Criminal Law  The rules of statute and common law which direct that certain actions are punishable by the state.  Offences against the community  A penalty is imposed on the wrongdoer  Civil Law  Anything not criminal  Protection and enforcement of personal rights  Does not impose penalties

12. Fundamentals of Law (BL502) Reception of English Law  Conquered\Ceded  Law of territory continued unless inconsistent with fundamental principles of English law  Settled  Terra Nullius  Laws of England as at date of settlement received into territory unless plainly impracticable

13. Fundamentals of Law (BL502) Reception of English Law in Australia  Australia was ‘settled’ not conquered  Doctrine of Terra Nullius - Aboriginal laws not recognised  Doctrine of Reception - English laws applied so far as ‘practical’  Note – English Law  English Law in force at date of settlement

14. Fundamentals of Law (BL502) Reception of English Law (cont.)  Mabo’s case – 1992  High Court rejected doctrine of ‘terra nullius’  Gave partial recognition to aboriginal land rights  Aboriginal title recognised unless subsequent exercise of control by parliament over land  Court raised possibility that other aboriginal law might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”

15. Fundamentals of Law (BL502) Reception of English Law (cont.)  Native Title legislation – 1993  Complimentary State and Federal legislation  Confirms existing freehold and leasehold land grants  Provides a system for proving native tile

16. Fundamentals of Law (BL502) Timeline  1828 Australian Courts Act  1865 Colonial Laws Validity Act  1901 Reasons for and impact of Federation  1931 Statute of Westminster  1986 Australia Act  1992 Mabo case  1993 Native Title Act

17. Fundamentals of Law (BL502) THE LAW IN AUSTRALIA  Federal Acts & Regulations  Territory Ordinances  State Acts & Regulations  Common law

18. Fundamentals of Law (BL502) Federal System of Government  History  Separate States  Trade between the States  State Rights  Federation – 1901

19. Fundamentals of Law (BL502) Federal System of Government (cont.)  The Constitution Australian Constitution Act 1900 Statute of Westminster Australia Act  3 Branches of Government Separation of Powers The Governor-General (Queen’s rep) Federal Parliament: House of Representatives & the Senate The Courts

20. Fundamentals of Law (BL502) Parliament  Division of Legislative Power between the States and the Commonwealth  Commonwealth Powers – ss 51 & 52 of the Constitution  s.109 - Commonwealth legislation prevails over inconsistent State legislation  States retain balance of legislative areas

21. Fundamentals of Law (BL502) Executive  Governor General  Little information in Constitution  Reserve Powers  Constitutional Convention  Acts on advice from Ministers

22. Fundamentals of Law (BL502) Other Constitutional Provisions  A Common Market  Amending the Constitution

23. Fundamentals of Law (BL502) Making Australian Legislation  Draft Bill prepared  Passed by both Houses of Parliament  First reading – bill formally introduced  Second reading – principles of bill debated  Committee stage – bill debated in detail. Amendments made.  Third reading - Bill formally passed or defeated  Royal Assent by Governor General\Governor  Commencement

24. Fundamentals of Law (BL502) Courts  The hierarchy of courts  Role of the High Court Original Jurisdiction Appellate jurisdiction Conferred jurisdiction  Federal Courts

25. Fundamentals of Law (BL502) Courts (cont.)  State Courts  Tribunals  English Courts  Alternative Dispute Resolution

26. Fundamentals of Law (BL502) High Court Federal CourtFamily Court Federal Magistrates Service Court of Appeal County Court Magistrates Court Supreme Court FEDERAL COURTSVICTORIAN COURTS

27. Fundamentals of Law (BL502) The Role of the Courts (cont.)  Judge-made law  Parliament is not the sole repository of law  Life is too complex for definitive legislation on all aspects  Common law  legally enforceable rules that have been fashioned and adapted by the Courts throughout the ages  Rules are not made ad hoc  Process of slow adaptation