Luật học - Chapter 1: Introduction to the legal system

This is the prescribed textbook for your course.Available NOW at your campus bookstore!Introduction to the legal systemChapter 1Learning objectivesAt the end of this chapter you should understand:the definition of the term ‘law’why there is a need for lawthe outline of the origins of the Australian legal systemthe components of our legal systemthe difference between public and private lawthe historical development of the common law, equity and statute lawthe process by which English law was received into the Australian coloniesthe federal nature of the Australian legal systemLearning objectives (cont.)the difference between exclusive and concurrent law-making powers of the Commonwealththe process by which a statute is enacted and be able to identify those responsible for that processdelegated legislation, its purpose, advantages and disadvantages.What is the law?There are many definitions of the term ‘law’.One definition is: The law is a set of legal rules that govern the way members of a society act towards one another.Why do we need law?Laws are required in society:to regulate the behaviour of the individual to correspond with what is acceptable to the majority of individuals.Components of the legal systemInstitutionsLawsPeopleParliamentStatute lawMembers of parliamentCourtsCommon lawJudges and magistratesGovernment departmentsEquityBarristers and solicitorsCorrectional institutionsDelegated legislationCourt officialsPolice officersCorrectional service officersThe rule of law Our legal system is based on the ‘rule of law’—which requires the law to conform to minimum standards of fairness and to ensure that all persons are treated equally before the law.Branches of lawPrivate law allows individuals to take action against others (e.g. to sue one another for breach of contract or negligence to obtain compensation).Public law allows the state to take action to enforce the laws which support our society as a whole (e.g. criminal law where a police prosecutor will proceed against a defendant).Branches of law (cont.)Distinction between civil law and criminal lawCivil law = private lawLaw of tortsContract lawProperty lawCriminal law covers offences with which an individual can be charged.Distinction between civil law and criminal law (cont.)PartiesAimsOutcomeProofCivil lawPlaintiff commences action against defendantCompensation for the loss or injury suffered by the individualDamages, specific performance, or an injunctionOn the balance of probabilitiesCriminal lawGovernment commences proceedings against defendantPunishment of the offender, deterrence of the offender and others who may offend the communityPrison terms, fines, good behaviour bonds, community service ordersBeyond a reasonable doubtSources of law The current Australian legal system is the product of three distinct branches of English law. Common lawJudges follow decisions made and recorded in similar, previously decided cases.Remedy is damagesEquityJudges follow decisions that have been made in similar, previously decided cases but may also consider issues of fairness. Remedies are broaderStatute LawLegislation or Acts passed by parliamentThe doctrine of receptionTo determine laws to be appliedNEW COLONYSETTLED CONQUERED  Laws of settlers  Law of the conquered (English) would apply would applyLegislation dealing with reception of English law4 Geo IV c96 (1823)This legislation:created legislative councilprovided that members were nominated by governorempowered enactment of legislation consistent with English lawallowed for the creation of an executive councilauthorised the issue of letters patent.Legislation dealing with reception of English law (cont.)The Third Charter of Justice—1824Established the Supreme Court of New South Wales.The Australian Courts Act 1828Provided that all suitable statutes and common law in force in England as at 25 July 1828 should be applied in New South Wales and Van Diemen’s LandProvided that laws passed after 25 July 1824 did not automatically apply to colonies and Van Diemen’s LandLegislation dealing with reception of English law (cont.)The Colonial Laws Validity Act 1865 (UK)Provided that colonial legislation would be void only if it was repugnant with British laws extending to the coloniesFederation and the establishment of the Commonwealth of AustraliaThe colonies agreed to hand over certain powers to form a central government.Commonwealth of Australia Constitution Act 1900 (UK)This legislation created the Commonwealth of Australia (the Commonwealth Parliament).Federation and the establishment of the Commonwealth of Australia (cont.)The Statute of Westminster 1931 (UK)Ensured independence of Commonwealth Parliament from British ParliamentWas adopted in Australia by the Statute of Westminster Adoption Act 1942 (Cwlth)Meant no British Act should extend to a dominion unless it had requested and consented to the statuteSeparation from the British legal systemTotal separation did not come until 1986The Australia Act 1986 (Cwlth and UK):Repealed Colonial Laws Validity Act 1865Abolished appeals from Australian courts (e.g. state Supreme Courts) to the Privy Council in EnglandProvided that states could not legislate on foreign affairsPrivy Council (Appeals from the High Court) Act 1975 (Cwlth):Abolished appeals from the High Court to the Privy CouncilThe Mabo caseMabo v. Queensland (No. 2) (1992) 175 CLR 1Overturned doctrine of terra nulliusRecognised the form of native title to landNative Title Act 1993 (Cwlth)Provided for the statutory recognition of native titleEstablished the Native Title TribunalThe Wik CaseWik Peoples v Queensland (1996) 187 CLRDecided native title rights could co-exist with pastoral leases.Native Title Amendment Act 1997 (Cwlth)Native title rights could co-exist with pastoral leases.Where there is conflict, the rights of pastoralists survive.Amendments to native title legislationThe Native Title Amendment Act 2007 (Cwlth)Responds to government reviews and recommendationsEnsures native title processes are effective and efficientThe Native Title Amendment (Technical Amendments) Act 2007 (Cwlth)Clarifies or improves existing provisionsThe Commonwealth of Australia and law-making powersAustralia has a federal system of government.Both the federal government and the state governments have law-making powers.The Commonwealth of Australia Constitution Act 1900 makes provision for the division of law making.Section 51 lists subject matters in respect of which the Commonwealth Parliament has power to legislate, some being:taxationdefencecurrency, coinage and legal tendermarriagesexternal affairs.Law-making powersConcurrent powerSection 51: allows Commonwealth and states to share powers, e.g. taxation, banking.Section 109: if conflict, federal legislation standsExclusive powerSection 52(i): Commonwealth has sole authority to legislate in some areas.Section 90: specific areas of customs, excise and bountiesResidual powerStates have sole power to legislate in other areas not prohibited by the Constitution.Laws made by parliament: stages in the passage of a Bill Bill ActIntroduction of Bill by minister in first houseFirst readingName of BillDate of second readingSecond readingMinister explains general principles of BillGeneral debateCommittee stageCommittee formed to examine and debateAmendments madeThird readingVote on BillMoves to second house of parliament(cont.)Bill ActStages in the passage of a Bill (cont.)Second house of parliamentAcceptanceRoyal assent > Act of ParliamentNon-acceptance could lead to a double dissolutionNotified in governmentGazetteDelegated (subordinate) legislationMade under the authority of an Act of Parliament:TypesRegulationsBy-lawsRulesOrdinanceDue to:Time limitationsExpertise limitationsMay be overruled by the government that enacted legislation giving authority