Foundations of the Australian legal system

Report
Natalie Wieland BA. LLB
Academic Skills Support 2013
1
Overview
• Started as a penal colony on 26 January 1788
• Stated the land was “terra nullius” ie/ uninhabited
• A number of colonies
• Commonwealth Constitution 1901
• Only in recent years acknowledged Aboriginal
• legal system
2
Federal System
 The Constitution set up a Federal System with three
tiers of government
1. Federal/Commonwealth
2. State
3. Local
3
Governor General
• The head of our Commonwealth Government is a
representative of the Queen – the Governor General
who is currently Quentin Bryce
• Each state has a Governor. In Victoria it is currently
Alex Chernov AC, QC
4
Role of Governor General
Pursuant to the Constitution advise if the GovernorGeneral
•Has to assent to a Bill for it to become law
•Can he/she withhold consent
•The Governor-General represents the Queen
5
Who deals with what?
 The Constitution establishes what areas are dealt with
by the Federal Parliament. If an area is not listed it
remains with the States.
 We need to look at the Constitution to establish who
has what powers.
6
Sources of law
 Common Law (Case
law)
 Legislation – statutes
and regulations
7
Court hierarchy
8
High Court of Australia
 Highest court in the land – no further right of appeal
 Current Chief Justice – French CJ
9
Koori Court
 A Koori Court is a division of the Magistrate's court in Victoria,
Australia, that sentences Indigenous Australians who pleaded
guilty. Koori Courts were created in order to allow participation
of the Aboriginal community and culture in the legal system, in
an attempt to bridge the cultural differences between Indigenous
Australians and the imposed colonial law. They began operation
in 2002, and are held on a designated day in an ordinary
courthouse. The laws administered are exactly the same as in any
Australian courthouse, but the format of the hearing is different.
10
LETS WATCH A VIDEO
 http://www.youtube.com/watch?v=evlXu59uW7o
11
Common law
• developed by Judges, usually
superior courts (doctrine of
precedent)
•Each case a solution to a dispute
between two or more parties
•A series of cases on area of law
can form the ‘legal framework” eg.
Negligence
12
Doctrine of precedent
• rules of common law are found
in past cases
•English common law employ
stare decisis ie. to follow the
decisions' of earlier cases
13
Doctrine of precedent
•Each court is bound by decisions of courts higher in the hierarchy
•A decision of a court in a different or lower hierarchy may be persuasive
not binding
•A court is not bound by their own decisions
•Only the ration decidendi (the reason for deiciding) is binding
•Obiter dicta (passing remarks) are not binding but persuasive
•Precedents do not lose their force over time*
Taken from “Laying down the law” 8th
edition pp116-117 Lexis Nexis
14
Law reports
 The doctrine of precedent requires
a comprehensive reporting system
in order to find the authoritative
decisions.
 Each jurisdiction has its own
authorised version which you
must use when citing a case
15
Authorised reports
It is vital to know which is the authorised
version for each court.
A full list can be found on the library
website at:
Library -> Tools – Authorised Reports
Court
High Court of
Australia
Report
Abbreviation
Commonwealth Law Reports
CLR
Federal Court of
Australia
Federal Court Report
FCR
Supreme Court
of Victoria
Victorian Reports 1957Victorian Law Reports 18751956
VR
VLR
Supreme Court
of Canada
Supreme Court Reports
SCR
16
Legislation vs case law
 The general rule is legislation takes precedence over case
law. Therefore, Parliament can always change the case law
rules.
 However, the Courts interpret the legislation and therefore
can effect the meaning of the words.
• Acts Interpretation Act 1901 (Cth) eg. S.15AA the
requirement to interpret provisions in accordance with the
underlying purpose of the Act
17
Parliament
 Federal democratic system –
powers set out in the
Constitution
• Commonwealth
• States (Victoria, South
Australia, Queensland,
Tasmania, New South Wales,
Western Australia)
• Territories (ACT and Northern
Territory)
18
The legislative process
• An idea is developed into a
Bill
• The Bill passes through
Parliament
• Receives Royal Assent
•
•
Governor- General
(Federal)
Governor (State)
19
Creating an Act
Bill drafted
Lower House
Upper House
GovernorGeneral
The Bill has an Explanatory memorandum
which helps understand purpose of Bill
1st readings - > Second reading (most
important) - > 3rd Reading - > Passed
1st readings - > Second reading (most
important) - > 3rd Reading - > Passed
Cannot become law until GG (or
Governor at State level) signs
and then check for
commencement details
20
Lower House – House of
Representatives
21
Upper House - Senate
22
Subordinate legislation
•Not all laws can be made in
Parliament – so need the power to
delegate and make subordinate
legislation.
•Most common form are regulations
23
How to change
• An amending Act needs to
be drafted and passed
through Parliament
24
How can I tell if there have been
changes
• Commonwealth Acts – check the notes at the foot of
the Act
 E. Fair Work Act s.12
• Victorian Acts – check the margin
• Eg. Racial and Religious Tolerance Act 2001 s.14
25
Summary
Two ways to make law:
•Case law (including interpreting
legislation)
•Legislation
26
Questions?
More Information?
 Don’t forget you can
always come to the
library for help, or the
Academic Skills Centre
27

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