CHAPTER 1 1 What is law?

The law is a set of rules developed over a very long period of time which regulate people's interactions with one another. 2 Justice and the law Justice has been described as 'a product of the spirit'. It is what right-minded members of the community believe to be fair, and it is implicit in a reasonably equitable system of rights and duties. 3 Law and ethics Ethics is concerned with what is right and what ought to be, not accepting what is. It is derived from the individuals internalised moral principles, as applied by the individual, and provides a standard of c onduct for individuals. The purpose of law is to govern the conduct of all members of society, both natural and legal (i.e. in the case of the latter, partnerships and companies), while ethics provides guidance for individuals with respect to ascertaining the soundness of rules and their impact upon relationships. While law and ethics derive from different authorities and for different reasons, they are often related, particularly in an area such as business law where businesses have often used legal standards as the sole reason for justifying particular courses of action. A company justifies a particular course of action on the grounds that the company broke no law, We dont make the laws. We obey them. We are not in business to promote ethics. 4 What is rule of law? No person must suffer punishment or pay damages for any conduct not expressly forbidden by the law as determined through the courts. 5 Classification of laws Two major legal systems can be identified in the world: Civil law system Based on Roman Law Emphasis on rights of parties Emphasis on complete code of written laws Mode of procedure is 'inquisitorial' 6 Basic areas of law in the common law legal system Civil Law An action between individuals Onus of proof on plaintiff Proof based on balance of probabilities Aims at compensating the injured party 7 Sources of Australian law---major I. Common law forms the basis of, and is a main source for, the legal system. It can be defined as either: o those rules based on custom which became common for the whole of England; o the law made by judges rather than Parliament; or o the law which has been created by the judges of the common law courts. Common law became rigid and inflexible after the Provisions of Oxford in 1258 when the clerks of Chancery lost their ability to create new writs for new wrongs. Equity was considered another main source within the legal system, implying fairness and justice in the law. It developed as a result of the rigidity and inflexibility of the common law. It is supplementary only, rather than a complete legal system in its own right. In the event of a conflict with the common law, equity will prevail. Statute law is another main source of law within the legal system. Today it is the most important, as the great majority of law comes from Parliament. The role of the sovereign in the law-making process has been taken over by Parliament. Today the sovereign is probably no more than a figurehead in the parliamentary process. Statute law overrules common law in the event of a clash between the two. Criminal Law State (R) versus Accused Onus on proof on state Proof must be beyond reasonable doubt Aims at punishing offender Common law system Based on case law and statutes Emphasis on remedies Doctrine of written precedent very important Mode of procedure is 'accusatorial'

II. III.

8 Sources of Australian law---minor

I. II. III.

Law merchant developed out of both local custom and international traditions related to trade and is based on Roman law. Roman law has had very little influence in England because of the strength of common law. Fragments can be found in mercantile law or law merchant, and ecclesiastical or canon law. Ecclesiastical or canon law is limited to administrative and disciplinary matters relating to church members and church property.

9 The Doctrine of Reception (or terra nullius) Colonies established by England were classified as either: I. II. Territory acquired by treaty or military victory, in which case the existing institutions were retained; or Territory that was terra nullius, in which case the inhabitants were not recognised and English notions of justice and its legal system applied. In the case of Australia this meant no recognition was given to the rights of the Aboriginal people.

10 Origins of the Australian legal system I. From penal colony to Federation Australia, as a convict settlement, had a system differing from that in Britain. It was subject to martial law. o The New South Wales Act 1823 (Imp)---gave authority for the establishment of the New South Wales Supreme Court with civil and criminal jurisdiction and a Legislative Council of five to seven members. o The Australian Courts Act 1828 (Imp)---marked the beginning of the evolution of Australian law when the British Parliament passed the Australian Courts Act. English statutes were only to apply in Australia from 1828 onwards if there were particular provisions to that effect in them. o The New South Wales Government Act 1855 (Imp)---a New South Wales parliament was established consisting of a Legislative Assembly and a Legislative Council. o Colonial Laws Validity Act 1865 (Imp)--- gave self-government to the other colonies by giving the states the right to change their own constitutions and to enact legislation without applying English domestic law to Australian conditions. From Federation to today o The Commonwealth of Australia Constitution Act 1900 (Cth)---the six colonies became the Commonwealth of Australia on 1 January 1901 when Federation was achieved. Two levels of government were set up---a national parliament with jurisdiction set down in the Commonwealth Constitution (exclusive powers) and state parliaments which had jurisdiction within their own borders on any matters not specifically reserved for the Commonwealth (residual powers). Where the Commonwealth and the states share powers, for example, over taxation, these are referred to as 'concurrent powers' and in the event of a conflict between Commonwealth and state law, Commonwealth law prevails. o The Statute of Westminster 1931 (Imp)---extended the operation of the Colonial Laws Validity Act to Acts of the federal Parliament. o Statute of Westminster Adoption Act 1942 (Cth)---ratified the Statute of Westminster in 1942 retrospective to 3 September 1939, giving Australia total self-government. o The Privy Council (Limitation of Appeals) Act 1968 (Cth)---appeals from the High Court to the Privy Council on federal matters were abolished. o The Imperial Acts Application Act 1969 (NSW)---repealed irrelevant UK statutes still in force in New South Wales. o The Privy Council (Appeals from the High Court) Act 1975 (Cth)---abolished the right to appeal from the State Supreme Court to the Privy Council. o The Australia Act and the Australia (Request and Consent) Act 1986 (Cth)---marked the completion of constitutional independence and statehood. It repealed the Colonial Laws Validity Act and severed the final links with the English legal system by abolishing appeals from state Supreme Courts to the Privy Council.

II.

11 Native title rights and the Doctrine of Reception I. II. III. IV. V. In Mabo v. Queensland (No. 2) (1992) the High Court acknowledged that Australia had not been terra nullius and that common law recognises a form of native title to land. The Native Title Act 1993 (Cth) recognised the main findings of the Mabo decision and set up a Native Title Tribunal to determine land claims. The Act did not make it clear whether pastoral leases over land extinguished native title. In Walker v. State of New South Wales (1995) the High Court held that people of Aboriginal descent were subject to Australian criminal law. In the Wik case (1996) the High Court held that native title and pastoral leases could exist side by side on the same land. The Commonwealth government response to the High Court decision in Wik has been to attempt to pass the Native Title Amendment Bill (1997) which is designed to give certainty to the pastoralists but which will probably lead to further litigation and acrimony with Indigenous Australians.

12 Separation of Powers

I.

II.

III.

The Doctrine of Separation of Powers seeks to confine the exercise of the legislative, executive and judicial branches of government exclusively to their respective institutions (Parliament, the Cabinet and the courts). This is to ensure that a balance is maintained between the three branches of government and thereby prevent an abuse of power as might occur in a dictatorship. The functions of the three branches are: A. The Executive function involves the formulation and execution of policy. In the Westminster system the executive is comprises of the Head of State and the Cabinet. B. The Legislative function involves the enactment or making of laws and is vested in Parliament. C. The Judicial function involves the interpretation, application and enforcement of the law. It is exercised through the courts. Under the Doctrine of Separation of Powers as applied to the Westminster system of government, the Legislature is the supreme law-maker. In reality there is no separation between the Executive and the Legislature.

13 Commonwealth and state powers Exclusive powers (Commonwealth only) Examples s. 52: Exclusive powers of the Parliament s. 90: Customs, excise and bounties s. 92: Free trade between the states s. : Industrial relations s. 105: Taking over state public debts s. 114: Military forces s. 115: Currency s. 122: Government of federal territories Concurrent powers (shared between Commonwealth and the states) Examples Insurance Banking Industrial relations Residual powers (states only) Examples Education Local government Transport I. II. Where there is any inconsistency between laws made under the exclusive powers provisions of the Commonwealth Constitution and a state, s. 109 provides that the state laws, to the extent of the inconsistency, shall be invalid. Most of the Commonwealth powers are held concurrently with the states (e.g. s. 51), which means that both can legislate in these areas. Where they conflict, the Commonwealth law will prevail if the intention of the Commonwealth Parliament is to 'cover the field'.