Australia’s legal heritage

1. Australia’s legal heritage Adversarial & Inquisitorial system

2. Adversarial System of trial • The way in which court cases are conducted • Used for both Criminal and Civil proceedings • Adversary means…. • How might this relate to court proceedings? • In a trial the two sides of the case try to prove their version of the facts and disprove the version of the other side. • The defendant in a criminal trial does not have to prove anything, as they are assumed to be innocent until proven guilty (however, most accused will retain services of a legal team).

3. Inquisitorial system • The court is involved in determining the way in which the competing claims are presented. • Different from Adversarial where the court acts as an impartial referee. • This ‘civil’ system involves a judges (or group), who investigate the case before. • Indonesia uses this system for criminal trials! • Evidence can be admitted before the case • Witnesses are pre-approved • Can call for outside testimony that has not been requested by either side

4. Common Law Development of common law, Development of equity & Precedent

5. Definitions • Court-made law (as opposed to laws made by parliament) • Law developed by the courts as common law, as distinct from the courts of equity • The system of court-based law used in the UK and many of its former colonies (incl. Australia, New Zealand, Canada and USA)

6. Development of Common Law • The British legal system itself was developed from a number of sources. • Anglo-saxons – Based on local custom • Norman – Travelling Judges who applied common laws all over England. Petitions were received from people who felt the laws were unjust. Judges provided precedents for later cases. • This system was the one brought over Australia with the first fleet.

7. Development of Equity • Anglo-saxon times – if a party failed to follow the prescribed steps, he could lose the case • Later, common law would hold that a person was bound by contract, even if he was tricked into signing it. • 15th Century, petitions to the King were brought forward, saying that common law courts made unjust decisions. • Chancellors were priests as well as judges, so didn’t base decisions on precedents, instead based on Christian principals. • The body of law that developed to deal with injustices, became known as Equity. • The moral principals on which equitable decisions were based were called the rules (or maxims) of equity, still used today.

8. Precedent • Common law, or case law, is the law developed by judges when deciding cases. • Read page 21,22 • Make notes on: • Making and following precedent • Rules of precedent • Binding precedent • Persuasive precedent • Complete “The origins of common law” & “Procedures for Precedent” worksheets (wiki)

9. Statute Law The role and structure of parliament, the legislative process - passing legislation & delegated legislation

10. Definitions • Statute law is the law mad by parliament • Also known as ‘legislation’ or ‘acts of parliament’ • In Australia, any parliament has the power to make statute law: • State • Territory • Federal

11. The role and structure of parliament • Elected representatives • Debate proposed legislation – passes or rejects and amends legislation • Bicameral – All state (except Queensland) and Federal Parliament are separated into two houses( chambers): • Lower – House of Representatives • The political party(ies) that has the majority of seats (the government) and the remaining seats are the opposition • Upper – Senate • Senators are popularly elected under a system of proportional representation (12 from each state, 2 from territories) and have power to block legislation from the house of representatives • Assent - The Bill passed by the Upper House to the Governor General or Governor for approval. If the Assent has been given, the Bill will become law.

12. The legislative process – passing legislation • Most important function of parliament • Time consuming and difficult • Most laws are ‘introduced’ by the government • A proposed new law is known as a bill. • Anyone can introduce a bill • If introduced by a member that is not a minister (backbencher) – private members bill • Open to public scrutiny – well organised pressure groups and members of electorates that influence parliamentarians’ options

13. The legislative process – passing legislation • Before a bill passes and becomes federal law, it requires approval from both houses and the Governor-General • It then becomes an Act of Parliament • NSW and other states with bicameral parliaments is generally the same for passing laws

14. Questions for your notes • Define the term 'statute law‘ • What is the bill? • Describe the purpose of the first reading of the bill • What is Assent? • Describe the role of parliament • What is a 'bicameral parliament'? • Outline the role of the House of Representatives • Describe the function of the Senate • Explain the role played by the Governor-General • Explain the role of the courts in interpreting statute law

15. Explain the role of the courts in interpreting statute law • The bill is regularly discussed between readings. The Bill is later on repeated to the upper house of parliament which then is voted on and returned to the lower house for amendment. If passed the Bill is sent to the governor general for assent. Then it becomes a law.

16. The legislative process – delegated legislation • Delegated legislation is made by non-parliamentary bodies. • ‘Less important laws’ that parliament doesn’t have time to draft, consider and pass. • These are subordinate bodies, such as government departments or local councils • These groups are able to perform this law-making process through the Enabling Act • Types of legislation involved • Regulations – G-G, state governors, executive council • Ordinances – For Australian territories (Norfolk Is. & Antarctica) • Rules – For government departments • By-laws – By local councils, restricted to that area

17. Tasks • Construct and A3 poster of “the passage of a bill through parliament diagram” (page 30) • List the advantages and disadvantages of delegated legislation

18. The Constitution Division of Powers, Separation of Powers, Role of the High Court

19. The Constitution • 1st January 1901 Australia gained a Commonwealth Constitution • Framework and rules that apply to the governance of Australia • Previously six independent colonies, governing within their own boarders, answerable only to Britain • Federation – The process of uniting several states to form a single national government

20. The Constitution • Constitution document was formed through a series of referendums • Referendums – the referral of a particular issue to the electorate for a vote • 1898, 1899, 1900 referendums comprised the proposed constitution • Approval of the British parliament • Commonwealth of Australia Constitution Act 1900 (UK) • State the key features of the British Act(p32)

21. Division of power • What powers would the state have? • What powers would the federal government have? • Chapter 1, Part v, s 51 to 60 - The constitution dived up the powers between federal and the states. • Legislative Powers: division of powers.docx • Section 51:Concurrent Powers & Residual Powers • NSW v. Commonwealth [2006] (P50, Pearsons) • Section 52: Exclusive Powers – • Commonwealth v Tasmania [1983] (P35, Cambridge) • Constitutional interpretation is the role of the High Court • constitution.docx – Complete for Homework

22. Amending the Australian Constitution • Statutes & Common law can be changed ‘easily’ • Constitution (technically a statute) has a unique process • ‘Alterations of the Constitution’ – Chapter VII, s 128 • 44 proposed amendments, 8 successful (in bold or deleted parts ruled through) • List the specifics in s 128(p36) • Provide TWO examples of successful and ONE example of failed referendums

23. Separation of Powers (doctrine) • Three arms of government: • The legislature – the law makers (House of representatives & the senate) • The executive – the ministers of government departments who administer the laws made by parliament (GG, PM, Cabinet) • The judiciary – The courts who interpret and apply law • Each ‘arm’ check each other ensuring civil liberties are protected • “basic individual rights, such as freedom of speech and religion, which are protected by law” • First three chapters of the constitution: • The Paliament (s 1 to 60) • The Executive (s 61 to 70) • The Judicature (s 71 to 80) • Not a ‘true’ doctorine as ministers and PM are members of executive and legislature. The key feature is distinguishing between judiciary and other arms. • Protecting the judiciary is a corner-stone of democracy. Evident when court make decisions not in accordance with government policy. • Australian Communist Party v. Commonwealth of Australia [1951]

24. High Court Jurisdiction Interpretation of the constitution

25. Role of the High Court in interpreting the Constitution • Section 71 – Creates the High Court of Australia; allows Commonwealth Parliament to create other courts (i.e. Family Court, Federal Court & Federal Magistrates Court) • Section 72 – How High Court judges are appointed (1977, referendum retiring at age of 70)

26. Role of the High Court in interpreting the Constitution • The High Court has both original and appellate jurisdiction. • Original Jurisdiction: • Summarise Section 75 & 76 (page 39) • S 76(i) – Matters relating to the interpretation of the Constitution; enormous influence on determining the division of power between states and the Commonwealth.

27. Role of the High Court in interpreting the Constitution • Summarise the following cases: • South Australia v Commonwealth (the ‘First Uniform Tax case’) [1942] • Murphyores v The Commonwealth (‘Fraser Island case’) [1976] • R v Brislan; Ex parte Williams [1935] R – Regina (Latin for ‘Queen’) Ex parte – ‘from one side’, the other side is unrepresented

28. Role of the High Court in interpreting the Constitution • Appellate jurisdiction: • Section 73 – High court has the jurisdiction to ‘hear and determine all judgments’; ‘the judgment of the High Court in all such cases shall be final and conclusive’. • All appeal cases must be granted special leave before the case will be heard by the High Court. • Appeals generally relate to questions of law, or a matter of that is of such significance as to warrant the attention of the High Court, or a dispute between the opinions of the high court the requires final adjudication. • Osland v R [1998]

29. Aboriginal & Torres Straight Islander Peoples’ customary laws Characteristics, integration into Australian law

30. Aboriginal & Torres Straight Islander Peoples’ customary laws • Customary law • Based on tradition, ritual and socially acceptable conduct • There is no single system of Aboriginal and Torres Straight Islander law. The separate indigenous nations developed their own laws, but there were common aspects. These laws are spiritual and closely linked to the land.

31. Aboriginal & Torres Straight Islander Peoples’ customary laws • Aboriginal & Torres Straight Islander Peoples’ customary laws vs British law • Land ownership • The right to posses property is a key principal of English law • Aboriginal & Torres Straight Islander Peoples’ land is sacred and cannot be owned; custodians of the land, looking after for future generations. • This is the reason why the British settled and impose British property law. They considered Australia to be unoccupied land (terra nullius)

32. Aboriginal & Torres Straight Islander Peoples’ customary laws • Follow customary law questions.docx using Pearson pages 57-67 • diverse nature of customary laws • spiritual basis, significance of land and water • family and kinship • ritual and oral traditions • mediation and sanctions • relevance to contemporary Australian law

33. International law

34. Sources of International Law • Customary International Law • Treaties • Declarations • Legal Decisions

35. Customary International Law • This type of law is not written in a single document, but it is known through long established traditions and common practices. • A bad thing about this form of law is that they still need to be constantly changed to keep up with • There are many independent nations so it is hard to write a law that can bind the entire nation’s together. • Customary law has now been replaced with treaty law. Treaty law is either bilateral of multilateral. The more countries that sign a treaty the more powerful it gets! • Most laws prohibiting crimes against humanity originated from customary law. Important examples include condemnation and genocide.

36. Treaties • A treaty is an international agreement concluded between states in written form and governed by the guidelines of international law. • Treaties are the most commonly used source of international law. • The more nations that sign a treaty, the more powerful that treaty will be. • Treaties are used to make specific laws and to control conduct and cooperation between and within nations • A treaty may also establish an international organization. • There is no set way of making a treaty, but most treaties are made through directnegotiations between nations. If all parties involved agree, the treaty with be signed.

37. Treaties • Treaties can be either: • Bilateral – Between two nations. For example the Agreement between Indonesia and Australia on Framework for Security Cooperation, concerning their common security and respective national security • Multilateral – Between many nations. For example the Charter of the United Nations, this established the UN and its organs and agencies. Each country that is a signatory to this treaty that has a seat in the General Assembly and participates in UN processes.

38. Declarations • Declarations are also international instruments, but they differ from treaties. • Declarations state and clarify the parties' position on particular issues, but do not impose legally binding provisions that must be followed.

39. Declarations • Example of a declaration: • A famous example of a declaration is the Universal Declaration of Human Rights. • The United Nation Commission on Human Rights was established, following the Second World War. • To draft the declaration - the first universal statement on the basic principles of human rights. • Among its chief purpose was to define the meaning of the words 'fundamental freedoms' and 'human rights', which appear in the UN Charter • In 1948, the declaration was ratified by a proclamation by the UN General Assembly and 48 countries voted in favor for it, with none voting against it and only eight abstaining it. • The declaration is the foundation for two binding UN human rights covenants: the International Covenant and Political Rights (ICCPR) and the International Covenant of Economics, Social and Cultural Rights (ICESCR). • Its principles are contained in other treaties as well

40. Legal Decisions • Decisions made by the International Court of Justice (ICJ) effect only the parties involved, outlined in s 59 in the Statute of the International Court of Justice • Other courts such as the International Criminal Court (ICC), set up to deal with the two most serious crimes concerning worldwide community, and the European Court of Human Rights (ECHR). Both these courts are either specialised or regionalised • Temporary courts such as the International Criminal Tribunal for the Former Yugoslavia or Rwanda set up for genocide and war crimes/crime against humanity

41. International Organisations • Summarise the following (P51-55, Cambridge) • The United Nations • The General Assembly • The Security Council • The International Court of Justice • Intergovernmental organisations • Non-government organisations • Complete the following worksheet: • UN bodies and treaty based agencies.doc

42. Relevance of international Law to Australian law • Ratification of a treaty automatically makes it part of that country’s domestic law. • Some treaties require new legislation for implementation into Australian law (s51 Constitution). • Treaties influence in development of common law, judicial review, and judicial interpretation of statutes.

43. Relevance of international Law to Australian law • Examples of human rights treaties that has been reflected in state or teritory and/or federal legislation: