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Sources of law in theAustralian legal system
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Current major sources of law
Legislation law enacted by the Federal and
State parliaments
Common law
law that has evolved throughjudicial decision and practice
Equity
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The reception of English law
Terra nullius
According to law, Australia wassettledby England, rather thanconquered
CASE: Mabo v Queensland (No 2)(1992)175CLR1
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Colonial legal systems
1788: First colonists arrived in New South
Wales
Colonists carry with them only so muchof the English law, as is applicable totheir own situation and the condition ofan infant colony.(Blackstone)
Early 1800s:
The Governor was subject to thedirection of the colonial office in London
The Charter of Justice establishedcolonial courts with civil and criminal
jurisdiction.
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Colonial legal systems
1814:
The SecondCharter of Justiceestablished a Supreme Court with civil
jurisdiction and a rudimentarysubordinate structure.
1823:
The ThirdCharter of Justice established
a comprehensive court system with bothcivil and criminal jurisdiction
The British parliament established NSWas a full colony with a LegislativeCouncil appointed by the Crown: New
South Wales Act 1823 (Imp)
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Colonial legal systems
1828:
The British parliament passed theAustralian Courts Act 1828 (Imp), whichincreased the size of the LegislativeCouncil, and provided that the laws ofEngland in force in 1828 had effect in
NSW only if there were particularprovisions to that effect in them
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Colonial legal systems
1850:
AustralianConstitutions Act (No. 2)1855(Imp) created the colony of
Victoria, and allowed colonies toestablish parliaments with two houses
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Colonial legal systems
1855:
NewSouth Wales Government Act1855
(Imp) changed the constitutionalstructure to give NSW a Parliament withtwo houses with representative andresponsible government
Victoria Constitution Act 1855(Imp)was passed
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Colonial legal systems
1865:
Colonial Laws Validity Act 1865(Imp)
confirms the ability of coloniallegislatures to amend their ownconstitutions, but declares that colonialparliaments have no power to pass laws
repugnant to English laws directlyapplicable to the colony in question
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The background to Federation
1847:
[T]hose colonies have many common interests,the regulation of which, in some uniformmanner and by some single authority, may be
essential to the welfare of them all.(Earl Grey,Secretary of State for the Colonies)
1890:
The great question to consider is whetherthe time has not now come for the creation ofthis Australian government as distinct from thelocal governments now in existence.(Sir HenryParkes)
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The background to Federation
1891: The first national convention was held in
Sydney.
1897: Conventions in Adelaide, Sydney and
Melbourne considered a draftConstitution.
1899: The Constitution was put to referendum
and approved.
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The Australian Constitution
1900:
The British Parliament passed theAustralian Constitution Act 1900 (Imp)
1901:
The Commonwealth of Australia came
into existence on 1 January The colonies (now States) gave up
powers, rights and duties to the newcentral government, but retained theirindividual identities and a great deal of
legislative authority
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Federal system
1900: The Australian Constitutionunited the colonies in a federation
Federation involves a division ofpowers between the States and theCommonwealth
Exclusive powers, concurrentpowers, residual powers
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Commonwealth and state powers
Commonwealth State
Concurrent powers(Shared powers
Exclusive powers(Commonwealth only)
Residual powers(State only)
Exampless.52: Exclusive powers of Parliament
s.90: Customs, excise and bountiess.92: Free trade between the Statess.105: Taking over state public debtss.114: Military forcess.115: Currencys.122: Government of federal territories
Examples
Insurance
BankingIndustrial Relations
ExamplesEducation
LocalGovernmentTransport
Exclusive, concurrent and residual powers
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Breaking the colonial ties
1931:
The Statute of Westminster Act 1931 (Imp)provided for dominion parliaments to assume full
legislative competency. 1942:
The Statute of Westminster Adoption Act 1942(Cth) provided that the Colonial Laws Validity Act1865(Imp) no longer applied to the
Commonwealth of Australia.
1986:
The Australia Act 1986 (Imp) and Australia Act1986 (Cth) repealed the Colonial Laws ValidityAct 1865so that it no longer bound the States.
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The Westminster system
A constitutional monarchy
Separation of powers
Responsible government
The rule of law
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A constitutional monarchy
Monarchy The head of state is theQueen
Constitutional She holds thatposition pursuant to underlying
constitutional arrangements ratherthan by force of arms
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The separation of powers
In the Constitution, the functions ofgovernment are allocated todifferent institutions:
Legislative functions
Executive functions
Judicialfunctions
Under the Westminster system theseparation of powers is not absolute
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Commonwealth Constitution
Commonwealth Constitution
Parliament has
Legislative powerCabinet has
Executive power
The Courts have
Judicial power
The
MinistryHigh Court
House of
Representatives
SenateOther federal
courts
Doctrine of separation of powers
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Responsible government
The executive government isresponsible to the legislature
[Responsible government is] a form ofgovernment which is responsive to publicopinion and answerable to the electorate.
D Walker, OxfordCompanion to Law, 1980
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The rule of law
The means of maintaining thebalance between personal freedom
and legislative power in a moderndemocracy
It means more than that the governmentmaintains and enforces law and order, butthat the government is, itself, subject torules of law and cannot itself disregard thelaw or remake it to suit itself.
D Walker, OxfordCompanion to Law, 1980
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Commonwealth-State relations
The balance of power between theCommonwealth and the States has
shifted in favour of theCommonwealth because of:
Generous interpretations of the
Australian Constitution by the High Court
The Commonwealths use of conditionalgrants to the States
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The parliamentary system
Two dominant issues are:
the role of the upper house
the dominance by the executive.
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The High Court
Recent High Court decisions indicateits willingness to seek a greater role
in the development of the law.
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Australianness of Australian law
The ability of the common law to adapt itself to the
differing circumstances of the countries in which it hastaken root is not a weakness but one of its great
strengths. Were it not so the common law would not
have flourished as it has, with all the common law
countries learning from each other.
Lord Lloyd, Invercargill City Council v Hamlin [1996]1 All ER 756 at
764765
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The case for a Bill ofRights
The founding fathers of our Constitution took it for
granted that individual rights were secure undercommon law. But the experience of many countries and
the growing power of executive government and
bureaucracies have lead to greater interest in the notion
of incorporating constitutional guarantees of individual
rights and freedoms in some kind of Bill of Rights.
Sir Ninian Steven, 1992
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The case against a Bill ofRights
If society is tolerant and rational, it does not need a Bill
of Rights. If it is not, no Bill of Rights will preserve it.
Sir Harry Gibbs, 1990
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The role of the High Court
Are certain fundamental rightsimpliedin the Australian
Constitution?Case: Australian Capital Television Pty
Ltd v The Commonwealth (No 2)(1992)
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The republic debate
Should Australia become a republic?
How should the Governor-General beappointed and removed?
Does Australia still need a Queen?