Ch1: The Australian Legal Landscape Flashcards
What is law?
- It is one of the great civilising forces in human society.
- A system comprising a collection of rules and principles developed to regulate relationships and conduct; to impose obligations; to impose penalties; to create institutions; and to confer rights. Under our system the law is enforceable in the courts.”
- Growth of civilisation is linked with gradual development of a system of legal rules with machinery for their regular and effective enforcement.
Business law/commercial law
Contains the laws that determine the rights, duties and obligations of persons involved in business.
What ideology was the 19th century characterised by?
The ideology of market-individualism
What ideology was the 20th century characterised by?
Ideology of consumer welfare
What are the primary sources of law in Australia?
- Legislation (statutes made by parliaments)
- Case law: reports of what courts have decided in previous cases of a similar nature (common law, judge made law).
Terra nullius
Term that means land is formerly unoccupied or at least without a settled legal system
Australian Courts Act 1828 (Imp)
– All laws in force in Britain on 25 July 1825 applied in New South Wales and Van Diemen’s Land so far as they could be applied
- After that date any changes to the laws in Britain did not apply in the Australian colonies although the UK parliament still had power to make laws for the colonies.
What happened when Australia was regarded as terra nullius?
- The British Crown becomes sovereign over NSW
- British laws become the laws of the new land.
What happened when Australia was regarded as terra nullius?
- The British Crown becomes sovereign over NSW
- British laws become the laws of the new land.
What happened in 1825?
- NSW was given its first legislative body, the New South Wales Legislative Council.
- Victoria, South Australia and Western Australia, which were not founded as penal settlements, moved rapidly towards constitutional government after their establishment.
Colonial Laws Validity Act 1865
- The Act’s aim was to get rid of any apparent inconsistency between local (colonial) and British (“imperial”) legislation.
- This resulted in colonial legislation taking full effect within the colony (provided it was passed in the proper manner)
Statue of Westminster 1931 (Imp)
- British gave up the power to legislate for the Commonwealth of Australia except if the Commonwealth requested them to do so.
- Became effective in Australia in 1942 with retroactive effect to 1939.
Statute of Westminster Adoption Act 1942 (Cth)
The effect was to repeal the Colonial Laws Validity Act 1865 in relation to the Commonwealth.
The Colonial Laws Validity Act 1865 continued to have application in individual Australian states until repealed by…
Australia Acts 1986 (UK) and (Cth) made Australia and the States fully independent in their law making powers.
What are the three levels of government in Australia?
- Federal Parliament
- State/Territory Parliaments
- Local councils
Federal system
Power is divided between Commonwealth and the States
How was Federation achieved?
By the enactment of the Commonwealth of Australia Constitution Act 1900 (UK) enacted 1 Jan 1901.
What are the basic rules that the Constitution sets out for the government?
- Rights for states and the Commonwealth
- A legislature: Parliament comprising the Queen, a Senate, and a House of Representatives.
- An executive government: Cabinet (Federal Executive Council)
- A judicature: the High Court and such federal courts as created by parliament.
Parliament of Australia
The King and Governor-General
Senate: 76 senators (12 from each State and 2 from each territory)
House of Representatives: 151 members representing electorates with about the same number of voters.
Where is the Commonwealth’s judicial power vested?
The High Court and other federal courts
Separation of powers
- No one person or body shall exercise more than one function.
- Absolute and arbitrary power can be avoided if the 3 main forms of political power are kept separate and exercised by different people
What are the 3 main forms of political power?
Legislative: enactment of law through Commonwealth or state parliaments
Executive: formulation of policy and its administration through the Cabinet of the Commonwealth or state government
Judicial: 7interpretation, application and enforcement of the law through the court systems
How do you alter the Constitution?
It requires an Act of the Federal Parliament followed by a referendum.
The referendum must be accepted by:
- a majority of voters in a majority of states and by a majority of voters throughout the country.
Section 92 Free trade
- A provision in the constitution that says that interstate trade commerce and intercourse shall be absolutely free.
- The federation and free movement of people and goods were vital to the framers of the Constitution.
Cole v Whitfield (1988) 165 CLR 360
- W purchased undersized crayfish from SA but was prosecuted in Tasmania (legal size in SA but not in Tas)
- Defence stated the Tas regulation prevented the freedom of interstate trade and he was entitled to protection under s 92.
- High Court found Tasmanian law was constitutional and didn’t breach s 92 (it imposed a burden on trade but did not discriminate against interstate trade and commerce)
The Commonwealth only has power to make laws in relation to the matters specified in the…
Commonwealth Constitution
Commonwealth power
- Their power is found in the Commonwealth Constitution primarily in s 51.
- Majority of powers are concurrent powers (ie. States can create laws about the same subject matter). Some powers are exclusive to the Commonwealth (eg. customs and excise).
- If Commonwealth is not given specific power then the States have the power to make laws with respect to that subject matter (residual powers).
States power
They have the power to make laws for the peace, order and good government of the state.
What happens if there are inconsistent laws made by the Cth and the States on a topic where the Cth has power to make laws?
The Cth law will prevail s 109 Commonwealth Constitution.
How do inconsistencies rise between Cth and States?
- Occurs when its impossible to obey both laws.
- Where one law permits conduct or grants a right while the other prohibits conduct or removes a right.
- Where the Commonwealth shows an intention to “cover the field”
How can the Commonwealth expand its power on Australian life?
- Referendum
- Use of the external affairs power, treaties, referral by a State/s
- Financial grant (s 96)
- Commonwealth power in making contracts
- Targeted use of taxation power
Territories power
- ACT and NT are self governing territories created since federation
- But their power is derived from the Commonwealth it has the power to make laws with respect to territories (s 122). It has the ability to override territory legislation on any topic.
Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth)
- Territory governments and citizens were frustrated that Cth has power over territories.
- Cth legislation limited its own rights to override territory legislation. Does not provide constitutional guarantee as Cth can always amend this legislation.
Personal rights under the Constitution
- To vote (s41)
- Just compensation for compulsory acquisition of property (s 51 (xxxi)
- Trial by jury (s 80)
- Freedom of movement between the States (s 92)
- Freedom of religion (from Commonwealth interference) (s 116)
- Equal treatment of residents in other states (s 117).
