Topic a lecture 3 & 4 history, constitution, federal system

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Topic a lecture 3 & 4 history, constitution, federal system

  1. 1. Sources of law in the Australian legal system
  2. 2. Current major sources of law <ul><li>Legislation – law enacted by the Federal and State parliaments </li></ul><ul><li>Common law – law that has evolved through judicial decision and practice </li></ul><ul><li>Equity </li></ul>
  3. 3. The reception of English law <ul><li>Terra nullius </li></ul><ul><li>According to law, Australia was settled by England, rather than conquered </li></ul><ul><li>CASE: Mabo v Queensland (No 2) (1992) 175 CLR 1 </li></ul>
  4. 4. Colonial legal systems <ul><li>1788: </li></ul><ul><ul><li>First colonists arrived in New South Wales </li></ul></ul><ul><ul><li>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) </li></ul></ul><ul><li>Early 1800s: </li></ul><ul><ul><li>The Governor was subject to the direction of the colonial office in London </li></ul></ul><ul><ul><li>The Charter of Justice established colonial courts with civil and criminal jurisdiction. </li></ul></ul>
  5. 5. Colonial legal systems <ul><li>1814: </li></ul><ul><ul><li>The Second Charter of Justice established a Supreme Court with civil jurisdiction and a rudimentary subordinate structure. </li></ul></ul><ul><li>1823: </li></ul><ul><ul><li>The Third Charter of Justice established a comprehensive court system with both civil and criminal jurisdiction </li></ul></ul><ul><ul><li>The British parliament established NSW as a full colony with a Legislative Council appointed by the Crown: New South Wales Act 1823 (Imp) </li></ul></ul>
  6. 6. Colonial legal systems <ul><li>1828: </li></ul><ul><ul><li>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 </li></ul></ul>
  7. 7. Colonial legal systems <ul><li>1850: </li></ul><ul><ul><li>Australian Constitutions Act (No. 2) 1855 (Imp) created the colony of Victoria, and allowed colonies to establish parliaments with two houses </li></ul></ul>
  8. 8. Colonial legal systems <ul><li>1855: </li></ul><ul><ul><li>New South Wales Government Act 1855 (Imp) changed the constitutional structure to give NSW a Parliament with two houses with representative and responsible government </li></ul></ul><ul><ul><li>Victoria Constitution Act 1855 (Imp) was passed </li></ul></ul>
  9. 9. Colonial legal systems <ul><li>1865: </li></ul><ul><ul><li>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 </li></ul></ul>
  10. 10. The background to Federation <ul><li>1847: </li></ul><ul><ul><li>‘ [T]hose 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) </li></ul></ul><ul><li>1890: </li></ul><ul><ul><li>‘ 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) </li></ul></ul>
  11. 11. The background to Federation <ul><li>1891: </li></ul><ul><ul><li>The first national convention was held in Sydney. </li></ul></ul><ul><li>1897: </li></ul><ul><ul><li>Conventions in Adelaide, Sydney and Melbourne considered a draft Constitution. </li></ul></ul><ul><li>1899: </li></ul><ul><ul><li>The Constitution was put to referendum and approved. </li></ul></ul>
  12. 12. The Australian Constitution <ul><li>1900: </li></ul><ul><ul><li>The British Parliament passed the Australian Constitution Act 1900 (Imp) </li></ul></ul><ul><li>1901: </li></ul><ul><ul><li>The Commonwealth of Australia came into existence on 1 January </li></ul></ul><ul><ul><li>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 </li></ul></ul>
  13. 13. Federal system <ul><li>1900: The Australian Constitution united the colonies in a federation </li></ul><ul><li>Federation involves a division of powers between the States and the Commonwealth </li></ul><ul><li>Exclusive powers, concurrent powers, residual powers </li></ul>
  14. 14. Commonwealth and state 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 Exclusive, concurrent and residual powers
  15. 15. Breaking the colonial ties <ul><li>1931: </li></ul><ul><ul><li>The Statute of Westminster Act 1931 (Imp) provided for dominion parliaments to assume full legislative competency. </li></ul></ul><ul><li>1942: </li></ul><ul><ul><li>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. </li></ul></ul><ul><li>1986: </li></ul><ul><ul><li>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. </li></ul></ul>
  16. 16. The Westminster system <ul><li>A constitutional monarchy </li></ul><ul><li>Separation of powers </li></ul><ul><li>Responsible government </li></ul><ul><li>The rule of law </li></ul>
  17. 17. A constitutional monarchy <ul><li>Monarchy – The head of state is the Queen </li></ul><ul><li>Constitutional – She holds that position pursuant to underlying constitutional arrangements rather than by force of arms </li></ul>
  18. 18. The separation of powers <ul><li>In the Constitution, the functions of government are allocated to different institutions: </li></ul><ul><ul><li>Legislative functions </li></ul></ul><ul><ul><li>Executive functions </li></ul></ul><ul><ul><li>Judicial functions </li></ul></ul><ul><li>Under the Westminster system the separation of powers is not absolute </li></ul>
  19. 19. Commonwealth Constitution Commonwealth Constitution Parliament has Legislative power Cabinet has Executive power The Courts have Judicial power The Ministry High Court House of Representatives Senate Other federal courts Doctrine of separation of powers
  20. 20. Responsible government <ul><li>The executive government is responsible to the legislature </li></ul>‘ [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
  21. 21. The rule of law <ul><li>The means of maintaining the balance between personal freedom and legislative power in a modern democracy </li></ul>‘ 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
  22. 22. Commonwealth-State relations <ul><li>The balance of power between the Commonwealth and the States has shifted in favour of the Commonwealth because of: </li></ul><ul><ul><li>Generous interpretations of the Australian Constitution by the High Court </li></ul></ul><ul><ul><li>The Commonwealth’s use of conditional grants to the States </li></ul></ul>
  23. 23. The parliamentary system <ul><li>Two dominant issues are: </li></ul><ul><ul><li>the role of the upper house </li></ul></ul><ul><ul><li>the dominance by the executive. </li></ul></ul>
  24. 24. The High Court <ul><li>Recent High Court decisions indicate its willingness to seek a greater role in the development of the law. </li></ul>
  25. 25. 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 764–765
  26. 26. 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
  27. 27. 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
  28. 28. The role of the High Court <ul><li>Are certain fundamental rights implied in the Australian Constitution? </li></ul><ul><ul><li>Case : Australian Capital Television Pty Ltd v The Commonwealth (No 2) (1992) </li></ul></ul>
  29. 29. The republic debate <ul><li>Should Australia become a republic? </li></ul><ul><li>How should the Governor-General be appointed and removed? </li></ul><ul><li>Does Australia still need a Queen? </li></ul>

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