LEGAL STUDIES - SOURCES OF CONTEMPORARY AUSTRALIAN LAW

Common Law (British Origins)

Law made by courts (court-made law)

Common law was developed around 1066 to ensure consistency in law - adopted in Australia after 1788 when British arrived

Australians system of common law is heavily based iff Britains system of precedent

Development of Equity

Courts developed new laws where there is no legislation, or legislation is vague

Equity

common law - rigid, unfair

People were to king to get justice, and went to the chancellor = Court of Chancellor

Which was like a normal court except judges were religious figures and has no legal knowledge

Chancellor decided cases based and decided based on conscience

Precedent and Persuasive Precedent

Precedent is when lower courts have to follow the decisions made by higher courts

Persuasive Precedent is when higher courts (may but don’t have to) follow decisions of lower courts

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Ratio Decidendi

The essential legal reason why a judge came to a particular decision

A decidendi in a higher court sets out bind precedent on lower courts

Adversarial System

The system of rules we have regrading how a trial can be conducted

Court system where in two lawyers argue their case in front of a impartial judge or jury

* two adversaries, impartial judge

Inquisitorial System

Judges can participate in the court procedure (ask questions etc)

Court Hierarchy

Based on severity of the crime

TYPES OF CRIME - drug court, children court etc

System of Appeal

The system whereby one party to a proceeding complains and goes to another court for a new judgement

Original and Appellate Jurisdiction

Original Jurisdiction is the ability of a court to hear a case at first instance - first court you go to for that offence

Statute law

Statute law is the law made by parliament, which is also know as ‘Legislation’ and ‘Acts of Parliament’

In Australia, any parliament has the power to make statute law

The Australia Constitution sets out the powers to make statute law

Parliament and the role of the parliament

Parliament is the people who we elect into power to govern society

The role of parliament is to make laws for the peace, order and good government to the commonwealth

Constitution of Australia 1900

State/ Territory Govs and National Govs

State and Territory Govs make laws that operate within their own state

National Govs make laws that operate nation wide

State Governments

Bicameral System - Legislative Council, Legislative Assembly

Both must agree for a Bill to Pass

Qld and Territory Governments

Legislative Assembly

National Government

Bicameral System

Senate

12 senates from every state

2 senates from every territory

House of Representatives

150 Elected members of parliament

MAJORITY = Ruling Party

Whoever controls house of representatives chooses Prime Minister and ministers = The Cabinet

Legislative Process

**State/territories , National Govs** - Can make laws on topics as set out in the constitution

* **Bill is introduced to parliament**, cabinet approve the drafting of a bill - introduced by a minister or via private members bill
* **First Reading** - bill gets read aloud (Eg. Companion Animals Amendment (Dinging Areas) Bill 2018
* **Second Read** - bill is read aloud, elaborating on its general aims
* **Committee Stage** - The bill is examined and debated in detail and changes (known as amendments) are made if necessary
* **Third Reading + Voting -**

**VOTE NO** (amendment or bill is ‘Thrown Out’)

**VOTE YES** (Its goes to upper house)
* **Upper house** - process is repeated. if bill does not pass in the upper house, it may be returned to the lower house for amendments or may be rejected
* **Royal Assent** - If bill is passed to upper house, it is presented to Governor (NSW legislation), Governor General (federal legislation) for formal approval

The bill is now a act of parliment and bill is then mad public

Delegated Legislation

Parliaments delegates (gives away) some of their law making powers to other bodies

Gives away minor laws

Eg. Power for councils to determine parking (Where you park)

LOCAL COUNCIL,ASIC, FINANCIAL

GOVERNMENT DEPARTMENTS (Department of Education)

Delegated legislation is still subject to review

\-Parliamentary Review, Courts, Ombudsman

To deal with issues regarding delegated legislation

The Australian Constitution

A constitution is a set of rule or principles that may apply yo a social club, a large scale organisation or even a nation.

A constitution provides the framework, or guidelines, which outline how these institutions function

Division of Powers

Division of Powers is the split of powers into federal and states parliament

**Section 51,52 of Constitution** - Sets out all of the powers which can ONLY be dealt with by FEDERAL parliament

Relating to laws that need to be the same nationally

**EG. Defence (External Affairs)**

Residual Powers

Those matters on which the states and territories can legislate, as they are not referred to in the Australian Constitution

Eg. Not explicitly mentioned in the constitution

Education, Police,Local Gov, Transport

Concurrent Powers

Existing at the same time - powers held by both state and federal parliaments

High court looks at whether they overlap

S.12 (1) (C) - No other votes can be help on election day

High court looks at where laws overlap

Example:

Federal Law

S.12 (1) (C) - no other votes can be held on election day

State/ Territory Law

S.54 B (2) - Referendums must be held on election days

These clearly overlap = Inconsistency

External Affairs Power

The power of the commonwealth to legislate on international matters involving Australia, interpreted by the High Court to mean that when the Commonwealth Signs an international treaty or convention, it has the authority to enact laws to give effect to this international law within Australia

Separation of Power

Applies to both state and federal level, ensuring that nobody can have too much power

Parliaments (legislation) Legislature

Courts (Precedent) Judicary

Cabinet (SMP) Executive

Legislature

parliament - people who make the law eg. legislation

made up of elected representatives

Judicary

Federal Courts - primarily the HIGH COURT the law and constitution and apply the law

All laws are made in mine with the constitution, keep a check on the power of the legislature

Execrative

The ministers and government departments who administer the laws made by parliament (Governor, pm and cabinet members)- and Public Service Department

They are responsible for a lot of delegated legislation

Cabinet is within parliament, and is accountable to parliament for their actions

Section 51 and 52 of the constitution

The constitution outline the powers only the federal government can make laws about

High Court and the powers of the High Court

The highest court in Australia

7 Judges, original and appellate jurisdiction

Section 71 - creates the high court (Judicial power within high court)

Section 73 - Ultimate appellate jurisdiction

Section 76 - Original Jurisdiction (arising under a treaty, affecting individual relations, Cth is a party)

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Role of the High Court

The high court plays an important role in ensuring that our constitutional rights are protected

Section 76 - Constitutional interpretation - Original Jurisdiction over matters of constitutional, whether the law is inconsistent

Can strike down legislation with the constitution

The influence of the High Court interpreting the constitution

The high court has various roles, such as determine whether a particular body has the jurisdiction to exercise judicial power

One of the fundamental duties is to make final determinations about how the constitution is to be interpreted. The high courts interpretation of the constitution involves stipulating what areas the commonwealth can legislate on and what areas belong to the state. In association the High Court makes statements on how each level of government can use these powers and outlines on such powers

Role - Constitutional Powers

S.51 xxxix - Parliament has power to make laws based on external affairs - correct interpretation

It is up to role of high court to interpret the wording of the CONSTITUTION to determine its meaning

The High Court interprets the wording of the constitution (looking for literal meaning and intention in parliament)

Historical Approach

Historically the literal interpretation restricting what the parliament could make laws about

S.51 Constitution to be valid - treaties has to be made in respect to international affairs

Modern Approach

Modern Approach is liberal/broad interpretation giving greater scope for commonwealth law - making power

Example of High Court in Action - Tasmania Case

Commonwealth V Tasmania (1983) HCA 21

Famous case in HIGH court heard in ‘1983’

‘Tasmania Dam’ Case

**TASMANIA**

Wanted to build a dam but would need to involving destroying forests to do so

Tasmania Argued this was outside of Power (Not in the scope of external affairs)

**COMMONWEALTH**

Wanted to prevent the forest being destroyed

World Heritage Properties Conservation Act 1983 (CTH) - which allowed them to stop the dam being constructed

Commonwealth argued this was within power (as they simply implemented a treaty)

Conservation concerning the protection of the world heritage and cultural heritage 1975

The High Court Interpreted ‘External Affair’ liberally

BROAD INTERPRETATION - that the legislation was valid because it was implemented a treaty (External Affairs power)

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SECTION 71, 75,76 of the constitution

**S.71** - Constitution rests judicial power in the high court

**S.75** - Sets out the areas over which the high court has original jurisdiction

**S.76** - Gives high court, original jurisdiction over matters of constitutional matters

Customary Law

The principles and procedures that have been developed through general usage according to the customs of a people or nation, or groups of nations, are are treated as obligatory

Difference between Aboriginal and Torres’s Strait Islander customary law and the British Legal Tradition

A main difference between ATSI customary law and the British Legal Tradition can be seen in the area of land ownership. The right of possess property is key principle of English and European Law; but many ATSI peoples, land is not ‘owned’ in the same way, as European law.

The Spiritual Basis (Land and Water) of Customary Law

ATSI customary law have a strong spiritual connection to the land, and see themselves as custodians of the land \\

TSI cultures have strong connection to the land (British Law is more about ownership of land)

Land is intrinsically linked to spirituality linked to spirituality and culture

ATSI cultures have a strong spiritual connection to the land and see themselves, as custodians of land

Relationship to LAW:

National boundaries = fishing/hunting boundaries

Laws ensuring sustainable fishing/hunting practice

**TERRA NULLS** - ‘Land belonging to nobody’

Family and Kinship - Customary Law

The structure and functioning of Aboriginal communities was built around relationships of kinship

Defines a person relationship to others and the universe, and sets out their responsibilities within the community

Who you can marry, where you can live, who takes care for elderly, who can become a leader

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Rituals and Oral Traditions - Customary Law

Rituals and ceremonies play a crucial role in the continuation of ATSI culture and functioning of communities

\-Traditions strongly grounded in spirituality which reinforce through storytelling, dance


1. Enabled elders to pass down culture and history to younger generations
2. Reinforced the law and customs of society our in dance and stories - oral traditions , rituals and ceronomies were primarily meaning of passing on culture and laws

Mediation and Sanctions - Customary Law

Traditionally elders played a large role in determining punishments

Respected for their age and experience - which heard both sides and decided what was right for society

Mediation - discussed resolutions of the issue and decided their punishment death for serious offences

Circle Sentencing - is an alternative sentencing methods available to indigenous Australia ho have retained

After trail, the judge will order sentencing via circle sentencing - sentencing has judicial weight

International Law

International law governs the relations between nations

Treaties and Conventions

made by UNITED NATIONS - like an international parliment that debates and votes for laws

**member states** who all debate over the law and vote for/against

These treaties act as formal agreements between nations obligating them to follow the laws agreed upon

Obligating the countries to oblige legislation like CRIMES ACT 1900

International Courts

International Court of Justice, International Criminal Court

Deals with disputes between countries, and major international criminals

Bemba Case

Classifies international laws and creates future precedent for future cases

The decisions made by the courts effectively show us how the international legislation works

International LEGAL writings

Qualified lawyers interpret treaties and determine their scope

Domestic and International Law

While domestic law is enforced by domestic authorities, international laws are NOT enforced by an international authority

Domestic - Police Enforce (Crimes Act)

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PARIS CLIMATE AGREEMENT - no international police to enforce

If someone breaks the law, nothing happens unless they decide and to turn inot international law

In contrast, domestic law is hard law because we enforce it through police


1. International law has symbolic importance - influences people even where it is not enforced
2. While international law is not enforced, it is still law and is enforceable to a point (Through International courts)

State Sovereignty

State Sovereignty means that one country has political independence from other countries

* can make own rules, and laws
* can make international agreements with countries freely
* can govern itself free from outside interference - my country, my rules

Military Intervention, Genocide

Used to be biggest overriding principle of international law, which made international law (to enforce)

Holocaust, Syrian Genocide - other countries can intervene

**RESPONSIBILITY TO PROTECT**

eg. Genocides - justifies interfering with the countries STATE SOVEREIGNTY such as Human RIght’s

United Nations - Role of International Law

International Law comes from the United Nations free from outside interference (state sovereignty)

UNITED NATIONS - international organisation roles

The United Nations began in 1945, as a response to the atrocities ar the world wars, where countries united vowing to maintain world peace and security - to govern good relations between states based on recognition of equal rights and each states right to govern its own political, economic and social development

(Article 1 , UN charter)

193 state members (Nearly every country in the world

Started as 52

Components - General Assembly

The general assembly consists of all members of UN (193 countries) annually meeting to vote on policy and International law (representatives) - The main forum fo multilateral discussion on all international matters covered under UN charter

Components - Security Council

The security council of the UN consists of 5 permanent members (China, France, Russia, UK, US) and 10 rotating members

Role is to maintain peace and security

More private, war council

They vote on matters of war and peace with the 5 permanent members having veto power (final say)

Actions they may take include placing economic actions (eg. Trade embargoes), declaring UN peace-keeper or declaring war (1950 in Korea) - war/peace maintain peace

International Court of Justice

The ICJ is the primary judicial body of the United Nations that resolves disputes between UN members through attendance of court and any punishment decided is not enforceable because of **State Sovereignty**

Soft Law

Ukraine claiming that Russia effectively invaded them

ONLY UN member states can be called before the ICJ

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EXAMPLE OF ICJ

The Philippines looks action against China in ICJ for effectively claiming the SOUTH CHINA SEA

China rejected the decision made against them by ICJ

International Criminal Court

The ICC deals with and tries people who have broken international laws (Eg. Genocide, ethnic cleansing)

EXAMPLES ICC

In 2016, Jean Pierre Bemba, A war lord from the Democratic Republic of Congo was convicted of war crimes

In 2018, He was acquitted (let off) for these crimes

Inter-Governmental Organisations (IGO’s)

IGO’s bodies govern over members countries that make international laws through multi-lateral treaties (Germany, France) - Established to pursue mutual interests in w 3ide variety of areas

European Union is an economic and political partnership of European Nations that have agreed to cooperate for the common good

, Trade Agreement

Non-Governmental Organisations (NGOs)

NGOs are independent organisations working to keep governments accountable and abide by international law (Mostly Charities)

Plays a major role in international society

Amnesty (charity) are constantly Australia to abide by international law, regarding the treatment of asylum seekers, changing laws

Incorporating International Law Process

Incorporating international law involves nations becoming signatories to treaties ratifying then legislating them into domestic law

CONVENTIONS ON THE RIGHTS OF A CHILD 1990

PROCESS


1. After a treaty is created, Nations must sign them to involve themselves
2. Then ratify the treaty to signify that they wish to be bound by it - high court take into account
3. Legislation then has to be created to give it the effect of law