Topic 2 LAWS1005

Topic 2: Introduction to the Australian legal system

Objective 1. Early English Legal Development

• Development of law was mainly local and customary before the Norman Conquest.

• Enforcement was carried out by local courts; diverse trial methods used included trial by battle, ordeal, and compurgation.

• Norman Conquest (1066): Introduced a new system but did not replace the existing common law system. Development of common law based on judicial decisions continued in England, distinguishing it from civil law systems in Europe.

• Feudalism: Structure: King → Nobles (Tenants-in-chief) → Knights (Sub-tenants) → Peasants/Serfs. Loyalty and obligations connected land grants and military service.

Objective 2. The Constitutional Struggles in the 17th Century in England

• Curia Regis: Law administration through local manorial courts until the 12th century. King’s advisors dispensed justice, leading to the establishment of royal courts under Henry II, enhancing access to justice via Justices in Eyre.

• The Magna Carta (1215/1297): Signed between King John and Barons, establishing guarantees for freedoms and liberties; introduced the principle that no person could be imprisoned except by lawful judgment.

• Model Parliament (1295): First recognizable parliamentary structure, initially advisory but later acknowledged by Henry VIII for statute assent.

• Conflicts between Crown and Parliament, notably James I's divine right of kings, which led to increased tensions and ultimately the civil war during Charles I's reign. Cromwell’s rule instituted the Commonwealth, followed by Charles II’s restoration of the monarchy.

Objective 3. The Reception of English Law into Australia

• English legal framework: Established in Australia upon settlement on January 26, 1788. Post-settlement developments clarified applicable laws.

• Mabo v Queensland [No 2] (1992): Landmark case recognized Indigenous land rights and denounced the doctrine of terra nullius.

• Dates of Reception: Relevant laws were received at different times in various Australian states, continuing evolution through colonial courts.

• Colonial Courts and Legislatures: Initial penal colony structure governed by military authority; legislatures formed in the 19th century through acts like the New South Wales Act (1823) and Australian Courts Act (1828).

Objective 4. The Growing Independence of the Australian Legal System

• Colonial Laws Validity Act (1865): Affirmed supremacy of English law but allowed colonial legislatures to operate meaningfully, reducing occurrences of repugnancy.

• Constitution Development: Creation of the Commonwealth of Australia on January 1, 1901, after extensive discussions and debates. Established a bicameral parliamentary system and divided legislative powers between state and federal levels.

• Federal Structure: Constitution delineated specific powers between the Commonwealth and the states, allowing for state autonomy while addressing national interests.

• Steps taken to abolish appeals to the Privy Council, culminating in the Australia Acts (1986) that ensured complete legal independence from the UK.

Objective 5. The Presence of This Legacy in Current Legal and Political Institutions

• Separation of Powers: Entrenched within the Constitution, dividing authority among Parliament, Executive, and Judiciary; affirmed through landmark cases like the Boilermakers Case (1956).

• Evolution of a system where legislative authority is shared among multiple bodies arose from historical demands for power distribution, providing a foundation for Australia’s democratic governance while evolving common law and equity systems.