Foundations of Australian Law Notes

Legal Systems_________________________________________________________________ Australia is a common law country as opposed to a civil law country
all laws (substantive + procedural) contained in documents called codes developed via. deduction from the principles in the codes H common law principles emerge via. inductive process (cases decided in courts)

History of Law Roman code Corpus Juris Civilis carried throughout the empire
influenced by various Greek/Christian principles collected and organised by Emperor Justinian found in Italy, late 11C came to form basis for contemporary civil law complemented + sometimes replaced inadequate traditional/customary laws civil: via. Roman law principles + custom, canon law, local law usages and royal decrees (Code Napoleon Europe countries drafted own codes) common: via. procedure, methods and decisions of the English courts H both also influenced by theory of natural law considered superior until 18C controversial H belief in the concept = basis of American/French revolutions t results in much of our current understanding about the nature of democratic government eg. We hold these truths to be self-evident (American Declaration of Independence) doctrine of natural law

Empire fell Roman law ceased + written records lost during the Dark Ages
H

Civil/common law began to develop separately

Natural law

Legal globalisation/convergence globalisation convergence in procedural/substantive law in many jurisdictions SUBSTANTIVE LAW: branch of law which creates, defines and regulates peoples
rights, duties, powers and liability actual rules and principles administered by the courts t legislative + common law principles PROCEDURAL LAW: body of rules prescribing manner, form and order matters may be dealt with and enforced in a judicial forum formal steps to be taken in an action (eg. pleading, evidence etc)

occurring formally via. instruments/institutions of international law (eg. treaties)

H also informally b/c of increased contact b/w nations

Legal History_________________________________________________________________ Legal/political institutions of Australia find their roots in England

1066 Conquest of England by William, the Duke of Normandy - declared old system of Anglo-Saxon law to continue in force H lacked commonality based on local custom t several different sets of customs in force (too many invasions) - Feudalism Norman conquerors didnt impose new body of substantive law H built on the pre-existing social structure established an administrative framework which allowed a new legal system to develop/flourish

FEUDALISM

system of land ownership based on a formal social hierarchy 1. King dominion over all lands in the kingdom 2. Tenants-in-chief land-owning nobles held title to the land via. direct grant from the Crown 3. Sub-tenants descending levels hold land via. grant from the next higher level lowest order land-holding freeman

Underlying premise mutual promise (loyalty + oath of allegiance to the lord) Formed the basis of English property law until 1921

Birth of the Common Law: extension of the Kings jurisdiction

responsibility of a monarch hear complaints from subjects - William + successors travelled the kingdom hold court, and receive petitions from the people complaints of acts of injustice by local officials/general unfairness in local administration - b/c they had no real local knowledge, like cases should be treated alike foundation of stare decisis legal principle judges must respect principles established by prior decisions - Benefits: less likely to be parochial/affected by local prejudice kings decrees had force throughout England more likely to be recognised/enforced - Kings rules applied throughout the land to all Englishman regardless of custom in their own country t common law

Legal History_________________________________________________________________ Formalisation of legal structures: Itinerant justice + growth of the courts
Curia Regis (kings court) group of trusted advisors general advisory body provided king with advice/counsel before he made decisions H gradually some decisions were left to members of the CR later divided into specialised bodies Court of Common Pleas body of professional judges which heard disputes between commoners remained in a fixed place instead of travelling with king Court of Exchequer specialist body of financial advisers heard disputes involving royal revenue group of advisors continued to travel with the king Council - advise on general questions of policy Kings Bench (Coram Rege) advise (or carry out in the kings name) the resolution of individual disputes H diff. from CCP b/c can hear disputes involving the king himself/touching upon royal interests King also appointed officials called justiciars form of viceroy in the kings absence CR + justiciars made seeking royal justice easier king was often absent delegates could act in his absence and make decisions in his name Justices in Eyre travelling justices not necessarily members of CR carried the kings commission to hear/resolve disputes all over the land b/c of this, England was divided into regions (circuits) formed a basis of legal administration there until the 1970s

The Writ System

Curia Regis formally divided into three common law courts trying to cope with the demands of centralised government H still too many people t procedures were made more formal/regular Chief means of organisation the writ system a writ was a command from the king to the sheriff that a person against whom a complaint had been made must be brought to court to answer the allegation in the complaint purchased by would-be plaintiffs from the Chancellor it was via. royal authority flowing from the writ that the legal process was begun more cases taken to court = more types of writs nobles extracted Provisions of Oxford promise from the king no new types of writ issued without express authorisation of the Council H common law was too popular + nobles were forced to allow some new writs

new forms of writ not available legal fictions fabricated facts used to bring new kinds of cases within existing writs

Writ system highlight importance of procedure historically, ability to bring a suit in the kings court depended on being able to find a form of action modern plaintiffs still have to establish a cause of action

Early trial procedures

Trials by ordeal commonly used in criminal cases different forms (eg. scalding of the hand, casting the accused in water) reflected expression of faith that God would identify the wrong-doer ended in 1215 church forbade participation of priests in the process Trials by battle non-criminal cases participants armed with a long staff/leather shield infants, women and the elderly could employ champions based on the idea that God wouldnt allow the party in the wrong to win obsolete by the 13C h not officially abolished until after Ashford v Thornton in 1819 Wager of law disprove allegations by producing witnesses drew upon local knowledge travelling justices would enlist local men who would determine which party was probably telling the truth based on local knowledge came to replace TB/TO enlisted men became the jury

Equity
Common law became obsessed with form People began to complain about injustice in the courts King responded himself or via. Council originally H soon delegated the job to the Chancellor Equity - body of Chancellor-made, Christianity-based law Court of Chancery body set up by the Chancellor to hear equitable claims Chancellors trained as priests t took a different approach from common law judges not confined by judicial precedent looked beyond the form grounded judgements in Christian precepts Equity is a discretionary system of justice Chancellor could choose not to grant remedy if he thought the plaintiff was morally undeserving (he/she who seeks equity must do equity) E/CL initially co-existed equity tempered the harshness of the law Chancellors + CL judges cooperated H two systems became rivals In the case of conflict between the two equity should prevail

12 equitable maxims 1. equity will not suffer a wrong to be without a remedy 2. equity follows the law 3. he/she whos first takes precedence (first come, first serve) 4. where equities are equal, the law prevails 5. equity assists the diligent, not the tardy 6. equity is equality 7. equity looks at intent rather than form 8. equity looks on that as done which ought to be done 9. equity imputes an intention to fulfil an obligation 10. equity acts in personam 11. he/she who seeks equity must do equity 12. he/she must come with clean hands

Foundations of Constitutionalism
King appointed more delegated officials
developed a separate body of rules regulating boundaries among various delegates Constitutional Law

Magna Carta and the first parliaments

1215 King John forced to sign Magna Carta imposed heavy taxation burden to pay for military campaign the Barons demanded he guarantee certain freedoms 63 clauses eg. Common Pleas would be heard in a fixed place First assembly (parliament) summoned 1265 1295 King Edward I summoned model parliament nobles, reps. of the clergy, reps. of the commoners, two knights from ea. shire and two reps. from ea. city/borough purely advisory no obligation to summon it regularly H 1414 Crown formally acknowledged that no new statutes should be made without the assent of the Commons

Reformation and Parliament during the Tudor Dynasty

Henry VIII wanted to divorce his wife Pope wouldnt allow it t split with the Church of Rome Church of England Had to involve Parliament in his decision-making secure cooperation of important people Open defiance of the Popes authority freed parliamentarians from political authority of the Roman Church

The English Civil War

Major features of the English Constitution took form in 1603 Pope wouldnt allow it t split with the Church of Rome Church of England

James I believed in divine right of kings compared kings to gods created conflict in a society used to being consulted 1607 King wanted to involve himself in the conduct of cases before the common law courts H Judges decided it was inappropriate later conflict king cant make new crimes via. royal proclamation only the parliament can 1642 open civil war; Parliament vs. King Charles I parliamentary forced defeated the Royalists (1646) monarchy + House of Lords abolished England Commonwealth House of Commons dismissed

The Revolution + Constitutional Settlement

Second royal overthrow in 1688 (Glorious Revolution) marks the end of any basis for the claim that English monarchs ruled by anything other than parliamentary consent William/Mary were offered the throne H terms Bill of Rights 1689 no power to suspend operation of Parliament standing army forbidden parliamentary debates couldnt be called into question by the monarch parliament must be summoned on a regular basis constitutional settlement further refined 1701 Act of Settlement judges security of tenure (can only be removed via. both houses of Parliament)

Constitutional Principles
Rule of Law
Magna Carta 1215 represents universal legal principle exercise of power by government must be shared with the people t cannot be concentrated in the ruler absolute supremacy of government by law government can operate only if they have specific legal authority to do so person can be punished only for breach of the law, and not otherwise executive no inherent authority to impose taxation, interfere with private property or take punitive action against members of the public key element: principle of legality t governments must find lawful authority for each action they take common law legislation Crowns authority came to be divided between: legislature (made laws) executive (applied laws) judiciary (adjudicated on disputes about meaning of laws)

Separation of Powers

prevents concentration of public power in one individual/institution safeguards against abuse of power institutions must be independent of ea. other + limited in the roles they perform

Statutes
Statutes used to be royal decrees Early years of parliamentary development little to distinguish b/w statute + judgement 13C Monarch consulted/sought consent of others H Henry VIII bills passed by both houses + given to the Crown for approval
17C Glorious Revolution Parliament is supreme statute became an instrument of Parliament

Creation of an Australian Court System___________________________________________ Legislation passed to create a crim. law court
letters patent also issued for civil law court H mostly staffed + run by military officers

First civilian judge arrived (along with his brother, later)

challenged the military authorities sought to establish independence of judiciary from other two branches H soon dismissed

Freed convicts wanted to increase the protection of civil rights

esp. wanted trial by jury entrenched

John Bigge went to investigate

general report recommended restructuring and formalising of court structure 1823 legislation passed

The New South Wales Act

Supreme Court of NSW/Van Diemans Land established on statutory basis
letter patent courts foundation not firm enough to prevent interference by military judges were given same authority as English courts H trial by jury not entrenched until 1833

By Federation, court system had three tiers:

Supreme Court District/county court Magistrates Court

Evolution of Constitutional Government in Aus.

New South Wales Act state bounded by constitutional rules
created independent SC Legislative Council 5 7 members nominated by the Crown Governor sole right to initiate legislation H if 1(+) members disagreed it couldnt become law (except in certain circumstances) laws couldnt be repugnant to laws in England

Governor Darling (1825)

his Commission provided for an Executive Council under this Commission, many executive acts relating to the military, civic and commercial development of NSW could only be taken with the advice (and/or consent) of the EC transition from military to civil government

1828 Australian Courts Act

fixed date of reception of Eng. law entrenched trial by jury number of amendments increased size of Legislative Council to 10 15 members majority of LC. could veto proposed law H ACA considered temp. measure until colony was ready for responsible government

1842 Australian Constitutions Act (No 1)

LC 36 members (2/3 elected; 1/3 nominated by the Crown) Governor no longer part of the legislature power to intro. bills H LC could reject/pass them, with/without amendment Governor could give/withhold Royal Assent t Separation of Powers introduced

1853 Australian Constitutions Act (No 2)

created separate colony of Victoria provided for eventual creation of Queensland colonial legislatures given power to remodel constitutions to accommodate full responsible government NSW forwarded constitutional Bill to England Bicameral legislature elected lower house appointed upper house t Constitution Statute enacted and remained in place until it was replaced by the New South Wales Constitution Act (1902)

Repugnancy and the Colonial Laws Validity Act

Early limitation placed on law-making powers = enactments not allowed to be repugnant
ensure level of control over colonial legislatures prevent passing of laws interfering with English trading/financial interests H repugnant never expressly defined how different must a law be before being repugnant could British statutes extend to the colonies via. implication?

The Colonial Laws Validity Act 1865

reiterated premise of the supremacy of English law H no colonial laws can be invalidated b/c of repugnancy unless inconsistent with Imperial legislation that extended to the colony t expressly mentioned made narrow message to legislatures + judges that their task was not to replicate English society task was to develop bodies of law, in broad conformity with British notions of justice, but responsive to the various needs of colonial societies

Judicial Committee of the Privy Council

Originally used to combat growth in influence of CL courts in the 16th + 17th centuries
conciliar courts invested with jurisdiction rivalling the CL courts

Conciliar courts
originally popular b/c of simple, straight-forward procedures sometimes used inquisitorial approach (judges active in seeking out the truth) H became disliked + feared b/c monarchs used them for more overt political ends (eg. to get rid of enemies via. criminal law) t Councils right to exercise court-like powers abolished by statute in 1641 became a political advisory body abolition of judicial powers limited to England still had jurisdiction over colonies became popular b/c free of local prejudice petitions sent to PC passed to group of sen. judges workload became too much process systemised Judicial Committee Act created formal JCPC to hear appeals from the colonies mostly judicial members of the house of lords issues advice to the Queen about whether appeal should be allowed/denied (rather than making a decision) free from local bias H expensive + not really a colonial court (mainly staffed by British judges) t Australian Constitutional Bill drafted late 19C tried to limit PC appeals limited on questions of constitutional law H other matters maintained

appeals later eliminated in three steps: appeals on federal matters abolished appeals from the High Court on matters of state law abolished possibility of appeals from state courts directly to PC abolished

Federation Movement
Federal Council of Australasia Act 1885
provided for Federal Council with limited legislative power in areas of common concern due to fear of German/French expansionism in the South Pacific didnt prosper b/c NSW didnt join and SAs membership only lasted 2 years H momentum for union maintained 1891 draft Bill for a federal constitution

Bill for federation

came to nothing in the short term H new bill produced 1897 approved in all 5 participating colonies sent to London for approval Passed 1900 and came into force 1/1/1901 legislative powers divided b/w 6 existing colony parliaments + national parliament Commonwealth of Australia Constitution Act 1900 CP can legislate on specific topics (eg. tax, trade, immigration) SPs powers expressed in more general terms inconsistencies dealt with via. s109

Australia Acts + Path to Independence

Commonwealth Constitution 1901
created a new nation H did not mean independence Aus. had no identity apart from membership to British Empire

Treaty of Versailles
Australia and Canada were allowed to sign the treaty themselves

Imperial Conference of 1926

Balfour Declaration Empire became a partnership equal in status, in no way subordinate one to another

Statute of Westminster
Balfour Declaration committed to statutory form (the Statute of Westminster)
S4 British Parliament wouldnt pass legislation applying to any of the dominions unless at the dominions request S2 repealed the repugnancy doctrine S3 gave dominion parliaments power to make laws of extra-territorial application H political difficulties in Aus. limited the Acts practical effect Statute of Westminster Adoption Act into effect 11 years later

1986 agreed to cut all constitutional links with the UK

each state passed legislation Australia Acts (Request) Act asked UK give up any remaining legislative power over the states Australia (Request and Consent) Act give up whatever power it has over AU as a whole t journey to independence complete