Topic 1: The Australian legal system

1. Basic concepts

2. Classifying law

3. Origins of Australian law

4. The federal system

5. The separation of powers

1. BASIC CONCEPTS1. BASIC CONCEPTS

Dennis the Constitutional Peasant

What is law?

• Law is the set of rules:

• made by parliaments and courts;

• regulating the conduct of persons; and

• enforceable by prosecution or litigation.

Law and justice

• Justice is one of the objectives of law.

‘It is not a product of intellect but of spirit. The nearest we can go to defining justice is to say that it is what right-minded members of the community –

those who have the right spirit within them – believe to be fair.’

– Denning LJ

Law and morality

• Morality is concerned with what is right and what ought to be done.

• Law is often seen as a way of ensuring that members of a community comply with that community’s moral values.

• Something can be legal but not moral, or moral but not legal.

• Can you think of an example?

Rule of law

• The rule of law ‘means more than that the government maintains and enforces law and order, but that the government is, itself, subject to rules of law and cannot itself disregard the law or remake it to suit itself’.

• According to Dicey, the rule of law involves three elements:

1. No person must be punished except for a breach of the law

2. All persons are equal before the law irrespective of status or position.

3. The rights or freedoms of citizens are enforceable in the courts.

What would not having the rule of law look like?

Rule of Law

Rule of Law

2. CLASSIFYING LAW2. CLASSIFYING LAW

Case law and statute law

• Case law is law made by the courts.

• Statute law is law made by parliaments.

• In the event of a conflict or inconsistency, statute law will prevail over case law.

Civil law and criminal law

• Civil law is the set of rules the breach of which may lead to litigation by the victim; the emphasis is upon remedies.

• Criminal law is the set of rules the breach of which may lead to prosecution by the state; the emphasis is upon penalties.

3. ORIGINS OF AUSTRALIAN LAW3. ORIGINS OF AUSTRALIAN LAW

The reception of British law

• Indigenous legal systems pre-existed British settlement.

• However Australia was considered by British law to be terra nullius.

• Australia was deemed to be settled by Britain, rather than conquered.

• The British brought with them British law (the Doctrine of Reception).

• NB. Terra nullius (but not the Doctrine of Reception) was subsequently rejected by the High Court in Mabo v Queensland (No 2) (1992).

Colonial Australia

• Australia was initially a group of separate colonies closely controlled by British governors.

• As time passed the colonies became increasingly independent, acquiring their own:

• colonial constitutions;

• colonial parliaments; and

• colonial courts.

Federation

• The colonies of Queensland, New South Wales, Victoria, Tasmania, South Australia and Western Australia agreed to unite into a single nation.

• The Commonwealth of Australia Constitution Act was passed by the British Parliament in 1900 and the Commonwealth of Australia came into being on 1 January 1901.

• The colonies, or ‘states’ as they were now known, agreed upon a federal form of government.

4. THE FEDERAL SYSTEM4. THE FEDERAL SYSTEM

The Australian Constitution

• The Constitution is the fundamental law of Australia.

• The Constitution sets out how law-making power is shared by the Commonwealth and State Parliaments.

Commonwealth Parliament State Parliaments

Concurrent powers(Shared powers)

Exclusive powers(Commonwealth only)

Residual powers(State only)

ExamplesCustomsDefenceCurrency

Territories

ExamplesTaxationMarriageBankingInsurance

Industrial relationsImmigration

External affairs

ExamplesEducationPropertyTransport

Crime

Federal system

Inconsistency

Australian ConstitutionSection 109When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Alteration of the Constitution

• Section 128: An amendment to the Constitution must be passed:

• by both Houses of Parliament;

• by a majority of voters; and

• by a majority of States.

• Of the 43 attempts to amend the Constitution which have been made since 1901, 35 have failed: why?

5. THE SEPARATION OF POWERS5. THE SEPARATION OF POWERS

The separation of powers

• The functions of government are allocated to different institutions:

• Laws are made by a legislature.

• Laws are administered by an executive.

• Laws are interpreted by a judiciary.

• According to the doctrine:

• the same person should not form part of more than one of the three limbs of government;

• one limb of government should not control or interfere with the functioning of another limb; and

• one limb should not exercise a function of another limb.

Separation of Powers

Legislative power

Australian ConstitutionSection 1The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate and a House of Representatives, and which is hereinafter called ‘The Parliament’ or ‘The Parliament of the Commonwealth’.

Executive power

Australian ConstitutionSection 61The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.

Judicial power

Australian ConstitutionSection 71The judicial power of the Commonwealth shall be vested in a federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with Federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

• Under the Australian Constitution the separation of powers is not absolute.

• According to the principle of responsible government, those members of Parliament who form the executive government are responsible to the Parliament to which they are elected.

• Judicial independence, however, is strictly enforced.

The separation of powers in Australia

LegislatureCommonwealth

Parliament

ExecutiveMinisters &Departments

JudiciaryFederal courts

The Executive

• For example, the Parliament (legislature) may enact in the Customs Act that no person may bring a 'prohibited import' into Australia and then leave it to the Executive to specify in the Customs Regulations what is a 'prohibited import'.  This delegation of legislative power is not as extreme as it may appear, however, as both Houses of Parliament usually retain the power to 'disallow' (that is, reject), within a specified time, any regulation which has been made by the Executive. 

Homework