Chapter 2: Intro to Australian Legal System Flashcards
Identify Australia’s parliamentary system
Westminster
What is the rule of law?
A central constitutional principle prescribes that all individuals & gov. officials are subject to the law (as administered by courts); principled limits on gov. power
Laws should be clear + fair so ppl are willing to abide by them
What is the separation of powers?
Doctrine established by the Australian Constitution
involves the division of three arms of powers:
the legislature (held by the parliament which makes laws)
the executive (held by the governor-general who administers laws)
and the judicial (held by the courts who interpret and enforce laws)
Avoids concentration of gov. power
What is bicameral legislature?
Legislative body
2 parliamentary houses
What is ‘responsible government’?
System of gov. whereby executive gov. is responsible to legislature the (who can hold them to account via questions)
Year 1066
Norman Conquest of England
(Conquest of England by William, Duke of Normandy after slaying King Harold at Battle of Hastings)
Watershed date
Birth of the common law
True or False
The Norman Conquest of England triggered immediate change within its legal systems
False
After conquering, William I declared continuance of established system of Anglo-Saxon laws
How were Anglo-Saxon laws ineffective?
Based on local customs
Different parts of kingdom had different customs
Thus, no standard set of rules for society as a whole
How did the Norman Conquest alter the English social system?
Via introduction of feudalism (new social system)
What is feudalism?
Hierarchical system of social + political organisation based on land ownership
Dominant in Medieval Europe
Amidst the feudal system, how did common law come to be?
Via King’s ultimate role in resolving personal disputes.
Features: Precedent, Impartiality (not as affected by local prejudice), Force of decision (more influential + likely to be enforced)
King went from place to place to settle disputes, but no local knowledge. Anglo-Saxon system not effective = consistent, ‘common’, laws applied = emergence of stare decisis
Stare Decisis
Legal principle underlying doc of prec.
‘Stand by’ decisions of higher courts in like cases
Name the dispute-resolving institutions that were together known as the Common Law Courts
Court of Common Pleas
Court of Exchequer
Coram Rege
How were formalised court structures developed?
King delegated dispute res. power to advisory bodies (‘Curia Regis’ ~ King’s Court) 4 convenience.
12th Cent. = appointment of Justices in Eyre, who carried King’s commission to res. disputes around country + developed precedents
More workload = Curia Regis divided into 2 specialist bodies:
Court of Common Pleas ~ Judges to hear commoners’ disputes
Court of Exchequer ~ Financial advisors hearing royal revenue disputes
3rd Court composed by travelling Justices = Coram Rege (‘King’s Bench’)
True or False
All Justices in the 12th Century were members of the Curia Regis
False
Not necessarily the case
What is a commission?
Doc. certifying one’s appointment into a position authority by a sovereign
1215
Signing of Magna Carta
King John agreed the Court of Common Pleas wouldn’t travel with King, but remain in fixed place = forming what was later designated as Westminster in London
What is the Magna Carta?
Charter of rights restricting King’s power
Early statement of the rule of law
King John forced by nobles to sign
1265
First Assembly called ‘parliament’ summoned by Simon de Montfort - important noble
1295
‘Model Parliament’ summoned by King Edward I
Outline the structure of the historic British bicameral parliament
Upper house: house of lords (nobles + clergy)
Lower house: house of commons (knights and townspeople selected to rep each town/county)
Following the establishment of the Common Law Courts, why was the writ system developed?
Case overload = courts formalise + standardise procedures to streamline system
Main means of org: writ system
What is a writ?
Formal command from monarch that something be done
How did the writ system work?
After making complaint, plaintiff buys appropriate writ from Chancellor – writ contains instruction obliging defendant to attend court – writ sent to defendant
Different types of writs = different types of disputes organised
1258
Nobles worried about King’s justice system supplanting their power as landholders = Provisions of Oxford = no writs to be issued without approval of the council (consisting of many nobles)
What is a legal fiction?
The legal acceptance of a fabricated version of facts to expand the scope of existing law & cover a novel situation
Used to expand scope of writ system
Even in the writ system, the ability to pursue a claim depended on finding an appropriate cause of action.
What does this mean?
Essential facts to be proven to ground a legal claim for redress
(shows emphasis on procedure)
Discuss ups and downs of the writ system (2.20)
Up: Could organise different types of disputes; Ensure course of action + grounding; Could be expanded via legal fiction
Down: Wrong writ could be bought, creating delays; Provisions of Oxford stifling its development; Form over substance ~ very rigid regarding terms of doc.
15th Century
Complaints to monarch of unjust rulings by Common Law Courts
Monarch responds personally & then delegates duty to Chancellor – offering claimant hearings + remedies = complementary (religious – christian) system of justice (an equity) known as Court of Chancery
What is an equity?
A body of law applied flexibly to achieve fairness, unlike rigid and formal common law
True or False
After a conference between the Chancellor and Chief Justice, it was found that in case of conflict between common law and equity, the latter shall prevail
True
What was reformation?
Movements in 16th and 17th century Europe whereby Protestant churches were established after splitting from the older, Roman Catholic Church
How did reformation impact parliament
King wanted to divorce wife, but pope didn’t allow.
So, King split from Church via cooperation of influential persons, promising parliament more involvement in decision-making processes.
This gave parliament freedom from political authority from the Roman Catholic Church.
How did the 17th century English Civil War impact British constitutional development?
Intro. of fundamental principles
supremacy of parliament; king not god and his power not unlimited –limits on sovereign power
parliament as the sovereign law-making body independent from executive and judiciary (SOP)
ability of courts to act as check on parliament by invalidating unreasonable laws
How did the Case of Prohibitions del Roy 1607 influence the relationship between the crown, the courts and parliament?
King wanted to be personally involved in determination of cases. Court held that this was not appropriate. Later found that King could not create new crimes or change common law through royal power. Only parliament has this right.
Establishing parliament as the supreme law-making body with the final law-making power.
What was the Act of Settlement 1701?
Key step in constitutional settlement
Among other things, provided judges with security of tenure
19th Century
Law reform following first industrial revolution:
laws needed to cover greater commercial + eco. activity (e.g. Factory Act prohibiting employment of children under 9)
Problem of conflicting laws addressed via The Uniformity of Process Act 1832 to standardise procedures and increase accessibility of courts
Judicature Acts of 1873 and 1875 merged the common law courts with Court of Chancery (fusion of common law and equity) and others to form Supreme Court of Judicature, consisting of High Court (with common procedures) and Court of Appeal – Australian courts would later adopt this system
When did the First Fleet arrive in Australia?
January 1788
According to international law at the time, in what 3 ways could a country acquire new territory?
conquest
cession (one power giving up its sovereignty of territory to another)
settlement
True or False
Australia was treated as settled
True
Why was Australia treated as settled?
It was deemed terra nullius
What is terra nullius?
Land belonging to nobody
Why was Australia deemed terra nullius?
Brits did not understand Indigenous People’s relationship to the land. Because they did not use it for agricultural, residential or commercial purposes, it was assumed that they did not own the land.
Also, Indigenous Australians were seen as having no organised political or legal system.
Hence, British law was seen as entering a vacuum.
When was English law formally received in Australia?
Australian Courts Act 1828
All laws in force in England (on 25 July 1828) were applicable to the conditions in NSW and Van Diemen’s Land (TAS)
Previous to this (1788 onwards), only so much of the English law was received as was applicable to the new situation and condition of the infant colony. This created confusion as NSW was a penal colony.
True or False
All English law developed after 1828 was received into Australia.
False.
Imperial Parliament could pass laws with application to colonies.
But, regular British legislation passed after the date of reception would not be received.
When were trials by jury introduced into the Australian legal system?
1833
What was the function of the Colonial Laws Validity Act 1865?
Narrowed repugnancy doctrine to allow colonies more independence.
Victorian parliament and courts free to alter received UK law, but not if it’s inconsistent with Imperial legislation that expressly extended to the colony.
What was the Privy Council?
Australia’s ultimate appeal court (imperial)
In London
When did Australia federate?
1900, with the Commonwealth of Australia Constitution Act 1900 (UK) taking effect January 1 1901
True or False
The Australian Constitution provided full legal independence from
False
What was the function of the Australia Acts 1986?
Abolished privy council appeals.
Severed legislative ties between Australia and the UK .
Removed limitations on power of state parliaments.
Full legal independence from Britain.
What is the Commonwealth’s territories power?
Under section 122 of the Australian constitution
Power to pass laws for the government of a territory which override territory legislation on any topic
What is native title?
Right over land or waters which may be owned through traditional custom
