LLB101 - Introduction to Law

Common Law

A common set of legal principles and procedures, displacing the previous differing customary laws.

Doctrine of precedent

Legal principle used to decide a previous case should apply to future cases of similar relevance.

Litigant

Party in a legal dispute.

Form of action

Recognised legal framework.

Petition

Formally ask

Equity

Fairness

Chancellor

In the king’s name, grants remedies and corrects wrongs where the common law courts would not act.

Rules of equity

A parallel legal system with its own rules and procedures, created alongside the common law.

High Court of Justice

Both common law and rules of equity combined.

What is the judge’s authority in hearing cases?

A judge can apply the appropriate legal principle to the case, which can be either common law or rules of equity.

Milirrpum v Nabalco Pty Ltd

Determined the indigenous Australians had ‘a subtle and elaborate system highly adapted to the country’.

Sources of Law

Common Law, Equity, Statute Law, Delegated Legislation, Judge-made Law, International Law

Precedent

Past legal decisions must be followed in future legal cases of similar relevant and presenting similar legal facts.

Terra nullius

Meaning ‘empty land’; when desert and uncultivated land was acquired, laws of the colonising power were set in place.

Cooper v Stuart (1889) 14 App Cas 286

Upheld reception of English law in Australia.

Statute

Written law passed by a legislative body.

New South Wales Act (1823)

Established a council of seven persons to help the governor make laws for the colony.

Australian Courts Act 1828 (UK)

The laws and statutes of England then in force applied to the colony as far as they were applicable.

Intra vires

Within its powers

Parliament

An elected legislative body; considered the superior source of law and can vary or abolish any part of the common law or rules of equity.

R v Bourne (1939) 1 KB 687

Established legal therapeutic abortion; it is not unlawful to perform an abortion where a doctor believed it was necessary to protect the physical or mental health of the mother.

R v Wald (1971) 3 DCR 25

Extended the concept of legal therapeutic abortion; the Court should also consider the social and economic standing of the mother when determining the use of abortion.

International Law

The law that governs the conduct of nations and their relationship with each other, often in the form of written agreements, variously called pacts, treaties, protocols, conventions and numerous other names.

Racial Discrimination Act (1975) (Cth)

Prohibited discrimination on the grounds of race that affected the person’s rights.

Common Law vs Rules of Equity

Rules of Equity

Legislation vs Common Law

Legislation is parliament-made law and common law is judge-made law

Queensland vs Commonwealth

Queensland is a unicameral state level of government and Commonwealth is a bicameral (consisting of the House of Representatives and Senate) national level of government.

House of Representatives vs Senate

Lower vs Upper

Advantages of Legislation

Flexibility to respond to changing circumstances; wide breadth of subject matter; and has the authority of the people.

Delegated Legislation

Legislation made by another authority that was granted to do so by Parliament.

Bill

A proposal for a new law that requires finalising and approval.

Explanatory Notes

Outlines the specifications of a bill

Explanatory Speech

Explains why this bill should be legislated.

Plaintiff

The person who is suing and initiating a lawsuit.

Defendant

The person being sued by the plaintiff.

Appellant

The person who lost the first lawsuit and is appealing to get the decision overturned.

Respondent

The person responding to the appellant and is arguing the judge’s decision was correct.

Stare decisis

‘Stand by things decided’ or adhere to precedent.

Doctrine of ‘parliamentary sovereignty’

Laws made by the parliament are superior to laws made by a judge.

When can a court override a law made by parliament?

Proper procedures were not complied with when enacting that law or parliament does not possess the necessary authority under the relevant constitution to enact that law.

Custom

Long-established, unwritten practices that courts recognise as legally-binding rules.

Four Components of Law

A system of rules; enforceable (meaning there will be consequences for wrongdoers); government sanctioned; and designed to regulate conduct in society.

Civil Law

Legal system based on written legislation only and no judge-made law (e.g. France).

Disadvantages of Common Law

Not as flexible as legislation and may require longer processing times.

By-laws

Local or internal laws established by local organisation, company or government council.

Regulations Purpose

More specific aspects of a broader law; technical experts create regulations under parliamentary supervision.

Non-law legislative documents

Bill, Explanatory Notes, Explanatory Speech

Commonwealth Equivalents of Explanatory Documents

Explanatory Memoranda and Second Reading Speech

Passing an Act Requirements

Must be passed by the house of parliament and receive a ‘royal assent’ by the Governor or Governor-General (representatives of the crown).

Governor-General

Person who represents the crown at a federal level in Australia.

Governor

Person who represents the crown at a state level in Australia.

Bills requiring public spending Requirement

Must be accompanied by a recommendation from the Governor or Governor-General.

Changing Legislation

Incorporated into a compilation which integrates the original Act with all subsequent changes made by the amending Act. Looks like a list of different iterations of a specific Act.

Sections

Present in all Acts.

Case

Individual matter brought by parties to court, comprising of facts, the issue in dispute and the reason for decision made by the court.

Facts

Information relevant to how the case arose, which lead to the questions for the court to resolve.

Material Facts

Relevant facts to a case e.g. the car causing an accident ran a red light.

Immaterial Facts

Irrelevant facts to a case e.g. the song playing during a car accident.

Ex Tempore

Meaning “at the time”; it refers to a judgement delivered immediately after the court hearing.

Comparative Law

Relevant laws in different countries for further study and analysis.

Primary Sources

The law

Secondary Sources

Materials written about the law including legal textbooks and journal articles.

Authorised Reports

Attached to a specific court and approved by the presiding legal authority prior to publication e.g. Commonwealth Law Reports (CLR).

Unauthorised Reports

Not attached to a specific court and published without prior judicial review e.g. Australian Law Reports (ALR).

Unreported Cases

Decisions which were not reported; unreported cases use the name of the court rather than the law report series in the citation.

Australia Act 1986 (UK)

Removed the powers of the British parliament to make laws for Australia, effectively severing Britain’s legal ties with Australia.

Statute of Westminster (1931)

Removed the significance of the Colonial Laws Validity Act; it effectively established legislative equality for Australia.

Purpose of Australia Act 1986 (UK)

To overcome legal loopholes like in Bistricic v Rokov.

Mabo v Queensland (No 2) (1992) 175 CLR 1

Rejected the theory of terra nullius; it gave partial recognition to land rights for Indigenous Australians.

Referendum

A vote of the Australian people to alter the Constitution.

Separation of Powers

Legislature (Parliament), Executive (Prime Minister and government) and the Judiciary (courts)

Roles in Separation of Powers

Legislature (make and amend laws), Executive (implement and administer laws) and Judiciary (interpret laws)

Australian Constitution - Chapter 1

Outlines the structure and composition of Parliament.

Australian Constitution - Chapter 2

Establishes the executive branch.

Australian Constitution - Chapter 3

Establishes the judicial branch.

Australian Constitution - Chapter 4

Manages the nation’s money

Australian Constitution - Chapter 5

Preserves the power of the original colonies as they transitioned into states, and sets the rules for federal-state relationships.

Australian Constitution - Chapter 6

Provides the foundation for how Australia can expand its territory or borders.

Australian Constitution - Chapter 7

Covers various miscellaneous administrative details.

Australian Constitution - Chapter 8

Outlines how the constitution can be amended (via a referendum).

Exclusive Powers

Powers able to be exercised by the Federal Parliament e.g. raising and maintaining any naval or military forces.

Concurrent Powers

Powers able to be exercised by both the Federal Parliament and the State parliaments e.g. trade and commerce (interstate and international), taxation, corporations and external affairs.

Residual Powers

Powers not explicitly categorised as either exclusive or concurrent powers e.g. education and health.

Bill of rights

A list of the fundamental rights of Australians that must be acknowledged and should not be violated when the government exercises its authority. The Australian Constitution does not have a bill of rights as its legal system and framework is heavily inspired by the Westminster system employed in Britain.

State Constitutions

Exist because states were originally separate, fully independent colonies prior to Australia’s federation in 1901.

Express Right

Explicit, written protections specifically outlined in a national constitution that limits government power.

Referencing Legislation under AGLC4

Short Title of Act Year (Jurisdiction Abbreviation) pinpoint. e.g. Crimes Act 1914 (Cth) s 23

Referencing unreported cases under AGLC4

Case Name [Year] Unique Court Identifier Judgement Number, [Pinpoint] e.g. Minister for Immigration and Border Protection v [2018] SZVFW HCA 30, [45]

Referencing reported cases under AGLC4 (volumes by year)

Case Name [Year] Court Abbreviation Unique Judgement Number, [Pinpoint] e.g. Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [45]

Referencing reported cases under AGLC4 (unique volume number)

Case Name (Year) Volume Report Series Abbreviation Starting Page, Pinpoint e.g. Mabo v Queensland [No 2] (1992) 175 CLR 1, 15

Native Title

Legal recognition in Australian law that indigenous people hold traditional rights and interests to land and waters; it grants them part ownership.

Law in 1788

All English law in force at the time became law in NSW (the initial title for Australia).

In force

Legally binding

Law in 1828

Any laws enacted after the Australian Courts Act 1828 no longer legally applied to Australia.

Law in 1859

QLD separated from NSW.

Law in 1865

Colonial Laws Validity Act 1865 gave Australia the general power to repeal, amend and add to the ordinary received English law. However, this was not complete independence as if Britain passed a law specifically for Australia, it had to be obeyed.

Law in 1931

Statute of Westminster 1931 offered full independence to British colonial nations including Australia.

Law in 1942

Australia approved the enactment of the Statute of Westminster 1931. Applied to dominions (aka Commonwealth nations).

Law in 1986

Passed the Australia Act 1986, completely severing all legal and constitutional ties with Britain, finalising legal independence.

Five express rights in the Constitution

Right to be compensated for the acquisition of property; right to a trial by jury when indicted; freedom of trade, commerce and actions between states; freedom of religion; and protection against discrimination on the basis of state.