Australian Legal System Lecture 2

1. Australian Legal SystemLecture 2 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter 1

2. Aboriginal Customary Law • Not uniform throughout Australia (600 tribes) • Not documented (word of mouth) • Not recognised by Australian law (see Milerrpum v Nabalco) • Effect of customary law upon aborigines has been considered by Courts when sentencing

3. Aboriginal Customary Law • Based on “dreamtime” religion which did not draw a distinction between the physical and spiritual world • Strong Relationship with land – no individual ownership • Government by Elders • Secret matters –partially separate systems for men and women • Kinship obligations, kinship avoidance and sharing

4. Aboriginal Offences • Sacred law • Little distinction between deliberate and accidental breaches • “Borrowing” items was often permissible • Killing was not permitted • Punishments • Death and wounding • Illness & insanity caused by “pointing the bone” • Oral abuse and ridicule

5. Reception of English Law • Conquered\Ceded • Law of territory continued unless inconsistent with fundamental principles of English law • Settled • Terra Nullius • Laws of England as at date of settlement received into territory unless plainly impracticable

6. Reception of English Law in Australia • Australia was ‘settled’ not conquered • Doctrine of Terra Nullius - Aboriginal laws not recognised • Doctrine of Reception - English laws applied so far as ‘practical’ • Note – English Law • English Law in force at date of settlement

7. Reception of English Law (cont.) • Mabo’s case – 1992 • High Court rejected doctrine of ‘terra nullius’ • Gave partial recognition to aboriginal land rights • Aboriginal title recognised unless subsequent exercise of control by parliament over land • Court raised possibility that other aboriginal law might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”

8. Reception of English Law (cont.) • Native Title legislation – 1993 • Complimentary State and Federal legislation • Confirms existing freehold and leasehold land grants • Provides a system for proving native tile

9. Timeline • 1788 – 1836 States settled as English colonies • 1828 Australian Courts Act • 1865 Colonial Laws Validity Act • 1901 Federation • 1931 A Sovereign Nation (Statute of Westminster) • 1986 Sovereign States (Australia Act) • 1992 Mabo case • 1993 Native Title Act

10. The Australian Constitution • Establishes 3 Branches of Government: • The Governor-General (Queen’s rep) • Federal Parliament • House of Representatives • The Senate • The Courts • Separation of Powers

11. Federal Executive • Headed by the Queen of Australia • She is represented by the Governor General • Little information in Constitution • Must give Royal Assent to an Act of Parliament before it becomes law • Can dissolve parliament and call an election • Acts on advice from Ministers (the cabinet) • Prime Minister is the chief minister • Each minister heads one or more government departments

12. Federal Parliament • Division of Legislative Power between the States and the Commonwealth • Commonwealth Powers are limited • s 51 of the Constitution • s52 of the constitution

13. Federal Parliament • State powers theoretically unlimited but: • s.109 - Commonwealth legislation prevails over inconsistent State legislation (Constitution s109) • In practice, States only have power where commonwealth does not • Also • Since World War II, Commonwealth has controlled income tax collection in practice • Commonwealth uses grants to compel States to do what it wants

14. Restrictions on Federal Powers • Freedom of religion • Freedom of interstate trade and intercourse • Implied right of political assembly (Communist Party case) • Implied right to freedom of speech in support of the political process

15. Federal Parliament • House of Representatives • Each electorate elects one member • All electorates are approximately the same size • All members elected every 3 years for 3 year terms • Senate • 12 senators from each state and 2 each from ACT & NT • Half elected every 3 years for 6 year terms • Intended to protect state rights • Different parties may control each house • Each house acts as a break on the other

16. Parliamentary Committees • Types: • Standing committees - Permanent committee that reviews matters in a specific area (e.g. defence) • Ad hoc committees - Temporary committee that reviews one particular matter • Bipartisan (i.e. representatives from government, opposition and minority parties) • Can question public servants • Receive submissions from public • Makes recommendations to parliament

17. Courts • High Court • Appellate jurisdiction • Original Jurisdiction • Constitutional disputes • Disputes between Commonwealth and States • Disputes between the Commonwealth & others • Disputes between people in different States • Federal Courts • State courts can exercise federal jurisdiction

18. Amending the Constitution • Amended by referendum • Passed by a majority of both houses of parliament • A majority of electors in Australia • A majority of electors in a majority of States (i.e. 4) • By vote of all State parliaments • British Parliament lost power to amend (Australia Act) (Australian Constitution s128)

19. State Governments • Each has its own constitution • Similar structure to Federal Government • Parliament has 2 houses (except Queensland) • Assembly • Legislative Council • Governor is head of executive • Premier is the chief minister • Supreme Court is highest court

20. The Crown • The Queen is head of both the Federal Government and each State government • Governor General is the representative of the Queen • State Governors are representatives of the Queen • Each government is “the Crown” • Each Crown is separate e.g. the Crown can sue the Crown (e.g. Queensland v Commonwealth)