Sources of law in the Australian legal system

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• Sources of law in the Australian 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
  through judicial decision and practice
• Equity

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The reception of English law

• Terra nullius
• According to law, Australia was settled by
  England, rather than conquered
• CASE Mabo v Queensland (No 2) (1992) 175 CLR 1

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Colonial legal systems

• 1788
• First colonists arrived in New South Wales
• Colonists carry with them only so much of the
  English law, as is applicable to their own
  situation and the condition of an infant colony.
  (Blackstone)
• Early 1800s
• The Governor was subject to the direction of the
  colonial office in London
• The Charter of Justice established colonial
  courts with civil and criminal jurisdiction.

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Colonial legal systems

• 1814
• The Second Charter of Justice established a
  Supreme Court with civil jurisdiction and a
  rudimentary subordinate structure.
• 1823
• The Third Charter of Justice established a
  comprehensive court system with both civil and
  criminal jurisdiction
• The British parliament established NSW as a full
  colony with a Legislative Council appointed by
  the Crown New South Wales Act 1823 (Imp)

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Colonial legal systems

• 1828
• The British parliament passed the Australian
  Courts Act 1828 (Imp), which increased the size
  of the Legislative Council, and provided that the
  laws of England in force in 1828 had effect in
  NSW only if there were particular provisions to
  that effect in them

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Colonial legal systems

• 1850
• Australian Constitutions Act (No. 2) 1855 (Imp)
  created the colony of Victoria, and allowed
  colonies to establish parliaments with two houses

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Colonial legal systems

• 1855
• New South Wales Government Act 1855 (Imp) changed
  the constitutional structure to give NSW a
  Parliament with two houses with representative
  and responsible 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 colonial legislatures to amend
  their own constitutions, but declares that
  colonial parliaments have no power to pass laws
  repugnant to English laws directly applicable
  to the colony in question

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The background to Federation

• 1847
• Those colonies have many common interests, the
  regulation of which, in some uniform manner 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 whether the
  time has not now come for the creation of this
  Australian government as distinct from the local
  governments now in existence. (Sir Henry Parkes)

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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 draft Constitution.
• 1899
• The Constitution was put to referendum and
  approved.

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The Australian Constitution

• 1900
• The British Parliament passed the Australian
  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 new central government, but
  retained their individual identities and a great
  deal of legislative authority

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Federal system

• 1900 The Australian Constitution united the
  colonies in a federation
• Federation involves a division of powers between
  the States and the Commonwealth
• Exclusive powers, concurrent powers, residual
  powers

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Commonwealth and state powers
Exclusive, concurrent and residual powers
Commonwealth
State
Concurrent powers (Shared powers
Exclusive powers (Commonwealth only)
Residual powers (State only)
Examples s.52 Exclusive powers of
Parliament s.90 Customs, excise and
bounties s.92 Free trade between the
States s.105 Taking over state public
debts s.114 Military forces s.115
Currency s.122 Government of federal
territories
Examples Insurance Banking Industrial
Relations
Examples Education Local Government Transport
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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
  Act 1865 (Imp) no longer applied to the
  Commonwealth of Australia.
• 1986
• The Australia Act 1986 (Imp) and Australia Act
  1986 (Cth) repealed the Colonial Laws Validity
  Act 1865 so 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 the Queen
• Constitutional She holds that position pursuant
  to underlying constitutional arrangements rather
  than by force of arms

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The separation of powers

• In the Constitution, the functions of government
  are allocated to different institutions
• Legislative functions
• Executive functions
• Judicial functions
• Under the Westminster system the separation of
  powers is not absolute

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Commonwealth Constitution
Commonwealth Constitution
Parliament has Legislative power
Cabinet has Executive power
The Courts have Judicial power
The Ministry
High Court
Other federal courts
House of Representatives
Senate
Doctrine of separation of powers
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Responsible government

• The executive government is responsible to the
  legislature

Responsible government is a form of government
which is responsive to public opinion and
answerable to the electorate. D Walker, Oxford
Companion to Law, 1980
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The rule of law

• The means of maintaining the balance between
  personal freedom and legislative power in a
  modern democracy

It 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. D Walker, Oxford Companion to
Law, 1980
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Commonwealth-State relations

• The balance of power between the Commonwealth and
  the States has shifted in favour of the
  Commonwealth because of
• Generous interpretations of the Australian
  Constitution by the High Court
• The Commonwealths use of conditional grants 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 indicate its
  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 has taken 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 of Rights
The founding fathers of our Constitution took it
for granted that individual rights were secure
under common 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 of Rights
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 rights implied in 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 be appointed and
  removed?
• Does Australia still need a Queen?