Legal Institutions Legal Institutions Susan Carter.

Legal InstitutionsLegal Institutions

Susan Carter

Introductory mattersIntroductory matters

TextsTexts MaterialsMaterials WebcampusWebcampus SlidesSlides Introductory weekendIntroductory weekend Contact:Contact:

[email protected]@sydney.edu.au

Australian Legal Australian Legal InstitutionsInstitutions

Topic 3Topic 3

Rule of LawRule of Law““The doctrine of English law expounded by Dicey, The doctrine of English law expounded by Dicey, in in LawLaw of the Constitutionof the Constitution, that all men are equal , that all men are equal before the law whether they are officials or not … before the law whether they are officials or not … so that the acts of officials in carrying out the so that the acts of officials in carrying out the behests of the executive government are behests of the executive government are cognizable by the ordinary courts and judged by cognizable by the ordinary courts and judged by the ordinary law, as including any special powers, the ordinary law, as including any special powers, privileges or exemptions attributed to the Crown privileges or exemptions attributed to the Crown by prerogative or statute. by prerogative or statute. So far as offences are concerned, an offender will So far as offences are concerned, an offender will not be punished except for a breach of the not be punished except for a breach of the ordinary law, and in the ordinary courts: there is ordinary law, and in the ordinary courts: there is here an absence of the exercise of arbitrary here an absence of the exercise of arbitrary power. Further, the fundamental rights of the power. Further, the fundamental rights of the citizen; the freedom of the person, the freedom citizen; the freedom of the person, the freedom of speech and freedom of meeting or association, of speech and freedom of meeting or association, are rooted in the ordinary law, and not upon any are rooted in the ordinary law, and not upon any special “constitutional guarantees.”special “constitutional guarantees.” Osborn’s Concise Osborn’s Concise Law DictionaryLaw Dictionary

Rule of lawRule of law

‘‘Blind’ justiceBlind’ justice Scales and Scales and

sword of sword of justicejustice

Legal InstitutionsLegal Institutions

The institutions which enforce and The institutions which enforce and uphold this rule of law in Australia are:uphold this rule of law in Australia are:

Parliament:Parliament: which makes the laws which makes the laws The Executive:The Executive: which administers which administers

the laws, andthe laws, and The Judiciary:The Judiciary: which declares the which declares the

law, and what the rights of the law, and what the rights of the individual are under the law.individual are under the law.

Separation of PowersSeparation of Powers

Australia: Federal SystemAustralia: Federal System

Parliamentary Education Office (www.peo.gov.au)

ParliamentParliament

1.1. The QueenThe Queen – as represented by – as represented by the Governor-General or the Governor-General or GovernorGovernor

2.2. The Upper HouseThe Upper House – Senate or – Senate or Legislative CouncilLegislative Council

3.3. The Lower HouseThe Lower House – House of – House of Representatives or Legislative Representatives or Legislative AssemblyAssembly

The Queen: Constitutional The Queen: Constitutional MonarchyMonarchy

Bi-cameral legislatureBi-cameral legislature

Two houses of ParliamentTwo houses of Parliament Except QueenslandExcept Queensland

Same as UKSame as UK

the UK Parliamentary model: the UK Parliamentary model: bicameral legislature + the sovereign bicameral legislature + the sovereign

House of Commons

QueenElizabethII

House of Lords

New South Wales parliamentNew South Wales parliament

Legislative AssemblyLegislative Council

NSW Governor Marie Bashir

S3 NSW Constitution

Commonwealth parliamentCommonwealth parliament

House of Representatives

Senate

Governor General Quentin Bryce

S1 Constitution

Parliamentary powerParliamentary power

Parliamentary power in a Federal Parliamentary power in a Federal systemsystem

Constitutional ConventionsConstitutional Conventions How many Parliaments?How many Parliaments? S51 Commonwealth ConstitutionS51 Commonwealth Constitution

s51: Powers of Parliaments51: Powers of Parliament51.51.The Parliament shall, subject to this Constitution, have power to The Parliament shall, subject to this Constitution, have power to

make laws for the peace, order, and good government of the make laws for the peace, order, and good government of the Commonwealth with respect to: - Commonwealth with respect to: -

(i.)(i.) Trade and commerce with other countries, and among the States: Trade and commerce with other countries, and among the States:(ii.) (ii.) Taxation; but so as not to discriminate between States or parts of Taxation; but so as not to discriminate between States or parts of

States:States:(iii.)(iii.) Bounties on the production or export of goods, but so that such Bounties on the production or export of goods, but so that such

bounties shall be uniform throughout the Commonwealth:bounties shall be uniform throughout the Commonwealth:(iv.)(iv.) Borrowing money on the public credit of the Commonwealth: Borrowing money on the public credit of the Commonwealth:(v.)(v.) Postal, telegraphic, telephonic, and other like services: Postal, telegraphic, telephonic, and other like services:(vi.)(vi.) The naval and military defence of the Commonwealth and of the The naval and military defence of the Commonwealth and of the

several States, and the control of the forces to execute and maintain several States, and the control of the forces to execute and maintain the laws of the Commonwealththe laws of the Commonwealth

..(vii.)(vii.) Lighthouses, lightships, beacons and buoys: Lighthouses, lightships, beacons and buoys:(viii.)(viii.) Astronomical and meteorological observations: Astronomical and meteorological observations:(ix.)(ix.) Quarantine: Quarantine:(x.)(x.) Fisheries in Australian waters beyond territorial limits: Fisheries in Australian waters beyond territorial limits:(xi.)(xi.) Census and statistics: Census and statistics:(xii.)(xii.) Currency, coinage, and legal tender: Currency, coinage, and legal tender:(xiii.) (xiii.) Banking, other than State banking; …Banking, other than State banking; …               

(xiv.)(xiv.) Insurance, other than State insurance; also State insurance Insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned:extending beyond the limits of the State concerned:

(xv.)(xv.) Weights and measures: Weights and measures:(xvi.)(xvi.) Bills of exchanging and promissory notes: Bills of exchanging and promissory notes:(xvii.)(xvii.) Bankruptcy and insolvency: Bankruptcy and insolvency:(xviii.)(xviii.) Copyrights, patents of inventions and designs, and trade Copyrights, patents of inventions and designs, and trade

marks:marks:(xix.)(xix.) Naturalisation and aliens: Naturalisation and aliens:(xx.)(xx.) Foreign corporations, and trading or financial corporations Foreign corporations, and trading or financial corporations

formed within the limits of the Commonwealth:formed within the limits of the Commonwealth:(xxi.)(xxi.) Marriage: Marriage:(xxii.)(xxii.) Divorce and matrimonial causes; and in relation thereto, Divorce and matrimonial causes; and in relation thereto,

parental rights, and the custody and guardianship of infants:parental rights, and the custody and guardianship of infants:(xxiii.)(xxiii.) Invalid and old-age pensions: Invalid and old-age pensions:(xxiiiA.)(xxiiiA.) The provision of maternity allowances, widows' pensions, The provision of maternity allowances, widows' pensions,

child endowment, unemployment, pharmaceutical, sickness and child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and authorise any form of civil conscription), benefits to students and family allowances:family allowances:

(xxiv.)(xxiv.) The service and execution throughout the Commonwealth of The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the the civil and criminal process and the judgments of the courts of the States:States:

(xxv.)(xxv.) The recognition throughout the Commonwealth of the laws, the The recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States:public Acts and records, and the judicial proceedings of the States:

(xxvi.)(xxvi.) The people of any race, for whom it is deemed necessary to The people of any race, for whom it is deemed necessary to make special lawsmake special laws

(xxvii.)(xxvii.) Immigration and emigration: Immigration and emigration:(xxviii.)(xxviii.) The influx of criminals: The influx of criminals:(xxix.)(xxix.) External Affairs: External Affairs:(xxx.)(xxx.) The relations of the Commonwealth with the islands of the Pacific: The relations of the Commonwealth with the islands of the Pacific:(xxxi.)(xxxi.) The acquisition of property on just terms from any State or person for any The acquisition of property on just terms from any State or person for any

purpose in respect of which the Parliament has power to make laws:purpose in respect of which the Parliament has power to make laws:(xxxii.)(xxxii.) The control of railways with respect to transport for the naval and military The control of railways with respect to transport for the naval and military

purposes of the Commonwealth:purposes of the Commonwealth:(xxxiii.)(xxxiii.) The acquisition, with the consent of a State, of any railways of the State The acquisition, with the consent of a State, of any railways of the State

on terms arranged between the Commonwealth and the State:on terms arranged between the Commonwealth and the State:(xxxiv.)(xxxiv.) Railway construction and extension in any State with the consent of that Railway construction and extension in any State with the consent of that

State:State:(xxxv.)(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial Conciliation and arbitration for the prevention and settlement of industrial

disputes extending beyond the limits of any one State:disputes extending beyond the limits of any one State:(xxxvi.)(xxxvi.) Matters in respect of which this Constitution makes provision until the Matters in respect of which this Constitution makes provision until the

Parliament otherwise provides:Parliament otherwise provides:(xxxvii.)(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Matters referred to the Parliament of the Commonwealth by the

Parliament or Parliaments of any State or States, but so that the law shall Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law:afterwards adopt the law:

(xxxviii.)(xxxviii.) The exercise within the Commonwealth, at the request or with the The exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia:the Parliament of the United Kingdom or by the Federal Council of Australasia:

(xxxix.)(xxxix.) Matters incidental to the execution of any power vested by this Matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. officer of the Commonwealth.

States/TerritoriesStates/Territories Northern TerritoryNorthern Territory Australian Capital Australian Capital

TerritoryTerritory Source of powerSource of power ConstitutionConstitution

section 122 Government of territoriessection 122 Government of territories                                       The Parliament may make laws for the The Parliament may make laws for the government of any territory … and may allow the government of any territory … and may allow the representation of such territory in either House of representation of such territory in either House of the Parliament to the extent and on the terms the Parliament to the extent and on the terms which it thinks fit. which it thinks fit.

Separation of PowersSeparation of Powers

Parliamentary Education Office (www.peo.gov.au)

Westminster systemWestminster system(Responsible government)(Responsible government)

Westminster system: Westminster system: responsible government responsible government

Westminster system: Westminster system: responsible government responsible government

U.S. ConstitutionU.S. ConstitutionSeparation of powers/responsible governmentSeparation of powers/responsible government

Separation of PowersSeparation of Powers

Courts in a Courts in a Federal Federal SystemSystem

Law Courts BuildingLaw Courts Building

Queens SquareQueens Square

SydneySydney

Federal Court of Federal Court of AustraliaAustralia

NSW Supreme NSW Supreme CourtCourt

NSW Judicial Hierarchy

SUPREME COURT ACT 1970 – SUPREME COURT ACT 1970 – s 43 s 43

43 Sittings 43 Sittings

(1) Any 3 or more Judges of Appeal (1) Any 3 or more Judges of Appeal constitute the Court of Appeal. constitute the Court of Appeal.

Federal Judicial Hierarchy

Australian court hierarchyAustralian court hierarchy

32

JurisdictionJurisdiction

Original/appellateOriginal/appellate Civil/CriminalCivil/Criminal

participants processes court orders

party/parties/ litigants hearing judgment for …

plaintiff v defendantapplicant v respondent

bring an actioninstitute proceedings

application/appeal allowed/dismissed

appellant v respondent pleadings damages

corporations statement of claim/writ/summons

specific performance

judges / magistrates defence injunction

counsel/ QC/SC counterclaim declaration

barristers appeal costs

solicitors testimony pecuniary penalty

http://www.supremecourt.lawlink.nsw.gov.au/supremecourt/sco2_what_to_expect/whos_who.html

Source of power?Source of power?

ConstitutionConstitution

ConstitutionConstitution

A constitution is an expression of the A constitution is an expression of the political will of the people, a statement, political will of the people, a statement, or an agreement, as to how the people or an agreement, as to how the people are to be governed, by whom, and with are to be governed, by whom, and with what responsibilities. A constitution is a what responsibilities. A constitution is a document, or a group of documents, document, or a group of documents, laws or conventions, which outline the laws or conventions, which outline the system of government for that state.system of government for that state.

Australian Parliament HouseAustralian Parliament House

Constitution may be:Constitution may be:

Unwritten, resting mainly on custom Unwritten, resting mainly on custom or convention;or convention;

Written, in a formal legal form;Written, in a formal legal form; Flexible, capable of being amended Flexible, capable of being amended

by ordinary legislative enactment; orby ordinary legislative enactment; or Rigid (or entrenched), capable of Rigid (or entrenched), capable of

being altered only by a special being altered only by a special procedure – such as a referendum.procedure – such as a referendum.

William Charles WentworthWilliam Charles Wentworth

Federation processFederation process

http://www.naa.gov.au/collection/explore/federation/constitution-website/index.html

US Bill of RightsUS Bill of Rights

CONSTITUTION OF THE CONSTITUTION OF THE PEOPLE'S REPUBLIC OF CHINAPEOPLE'S REPUBLIC OF CHINA

Article 4. All nationalities in the People's Article 4. All nationalities in the People's Republic of China are equalRepublic of China are equal. The state protects the . The state protects the lawful rights and interests of the minority nationalities lawful rights and interests of the minority nationalities and upholds and develops the relationship of equality, and upholds and develops the relationship of equality, unity and mutual assistance among all of China's unity and mutual assistance among all of China's nationalities. Discrimination against and oppression of nationalities. Discrimination against and oppression of any nationality are prohibited; any acts that undermine any nationality are prohibited; any acts that undermine the unity of the nationalities or instigate their secession the unity of the nationalities or instigate their secession are prohibited. The state helps the areas inhabited by are prohibited. The state helps the areas inhabited by minority nationalities speed up their economic and minority nationalities speed up their economic and cultural development in accordance with the cultural development in accordance with the peculiarities and needs of the different minority peculiarities and needs of the different minority nationalities. Regional autonomy is practised in areas nationalities. Regional autonomy is practised in areas where people of minority nationalities live in compact where people of minority nationalities live in compact communities; in these areas organs of self- government communities; in these areas organs of self- government are established for the exercise of the right of are established for the exercise of the right of autonomy. All the national autonomous areas are autonomy. All the national autonomous areas are inalienable parts of the People's Republic of China. The inalienable parts of the People's Republic of China. The people of all nationalities have the freedom to use and people of all nationalities have the freedom to use and develop their own spoken and written languages, and develop their own spoken and written languages, and to preserve or reform their own ways and customsto preserve or reform their own ways and customs..

Article 35. Citizens of the Article 35. Citizens of the People's Republic of China enjoy People's Republic of China enjoy freedom of speech, of the press, freedom of speech, of the press, of assembly, of association, of of assembly, of association, of procession and of procession and of demonstrationdemonstration..

Article 36. Citizens of the People's Republic Article 36. Citizens of the People's Republic of China enjoy freedom of religious beliefof China enjoy freedom of religious belief. . No state organ, public organization or individual No state organ, public organization or individual may compel citizens to believe in, or not to may compel citizens to believe in, or not to believe in, any religion; nor may they believe in, any religion; nor may they discriminate against citizens who believe in, or do discriminate against citizens who believe in, or do not believe in, any religion. The state protects not believe in, any religion. The state protects normal religious activities. No one may make use normal religious activities. No one may make use of religion to engage in activities that disrupt of religion to engage in activities that disrupt public order, impair the health of citizens or public order, impair the health of citizens or interfere with the educational system of the state. interfere with the educational system of the state. Religious bodies and religious affairs are not Religious bodies and religious affairs are not subject to any foreign domination.subject to any foreign domination.

Personal rights in the Australian Personal rights in the Australian ConstitutionConstitution

s41: Right to votes41: Right to vote RR v v PearsonPearson; Ex parte Sipka; Ex parte Sipka (1983) 152 CLR 254 (1983) 152 CLR 254

s51(xxxi): acquisition of property on just s51(xxxi): acquisition of property on just termsterms Minister of State for the ArmyMinister of State for the Army v v DalzielDalziel (1944) 68 (1944) 68

CLR 261 CLR 261 s80: Trial by jurys80: Trial by jury

RR v v ArchdallArchdall (1928) 41 CLR 128 (1928) 41 CLR 128 s116: Freedom of religions116: Freedom of religion

KryggerKrygger v v WilliamsWilliams (1912) 15 CLR 366(1912) 15 CLR 366

s117:Equal treatment of state s117:Equal treatment of state residentsresidents Davies and JonesDavies and Jones v v State of Western State of Western

AustraliaAustralia (1904) 2 CLR 29 (1904) 2 CLR 29 StreetStreet v v Queensland Bar AssociationQueensland Bar Association

(1989) 168 CLR 461(1989) 168 CLR 461 s92: Freedom of interstate trades92: Freedom of interstate trade

Bank Nationalisation caseBank Nationalisation case ( (Bank of NSWBank of NSW v v CommonwealthCommonwealth (1948 76 CLR 1) (1948 76 CLR 1)

ColeCole v v WhitfieldWhitfield [1988] HCA 18 [1988] HCA 18 Implied rightsImplied rights

Australian Capital Television Pty LtdAustralian Capital Television Pty Ltd v v CommonwealthCommonwealth (1992)177 CLR 106 (1992)177 CLR 106

LeethLeeth v v CommonwealthCommonwealth (1992) 174 CLR (1992) 174 CLR 455). 455).