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A1 Australian legal system & basic legal principles July 2008. Evolution of law. Rules and standards Did law create society, or vice versa? Old laws still hanging around Liberalism – based on assumption of liberty Absolutism – dictatorship Socialism – collective ownership of properties.
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Evolution of law • Rules and standards • Did law create society, or vice versa? • Old laws still hanging around • Liberalism – based on assumption of liberty • Absolutism – dictatorship • Socialism – collective ownership of properties
Origins of Australian law Public international law traditionally recognised three ways for a country to acquire new territory • conquest, where a power conquers another country - laws of territory remains in force until changed by the conquering power • cession, where a power ‘cedes’ its sovereignty over the territory to another - laws of territory remains in force until changed by the power that took over the territory • settlement, where a power discovers uninhabited territories (terra nullius) - all laws of the ‘discovering’ power comes into effect immediately • for Australia, settlers brought with them the laws of England that existed as at date of settlement for the new colony
Development of Australian law • Australian Courts Act 1828 provided that all laws and statutes in force in England on 25/7/1828 applied to NSW and Van Diemen’s Land ‘so far as they could be applied within those colonies’ • In the 1840’s, Australian Constitutions Acts Nos. 1 & 2 led to the development of a representative and responsible system of government for the colonies • Colonial Laws Validity Act 1865 said colonial laws which were repugnant to laws of England were invalid, this continued even after Federation in 1901 • Statute of Westminster 1942: English Parliament finally relinquished its power to legislate for Australia
Development of Australian law • The traditional view, that Australia was a ‘settled’ land, persisted until 1992 when the assumption was overturned in Mabo v QLD (2) • Australian natives recognised to have their own system of social order, land ownership and customary laws all along • Native Titles Tribunal set up under Native Title Act 1993 to deal with native title claims • Wik Peoples v QLD (1996) clarified that native titles could co-exist with, but in cases of inconsistency would yield to, pastoral leases
Australian Constitutional system Australia consists of • A federation consisting of a central (Federal or Commonwealth) government, whose powers are founded in the Commonwealth of Australia Constitution Act 1900, and • A number of States and Territories, each of whom has its own Constitution and Parliament • The States transferred certain powers to the Commonwealth in the 1890’s, which appear in the Commonwealth Constitution • As a result of this development, Australian laws presently in force in each State/Territory consists of • Imperial elements (residual laws from the English system) • Federal elements (laws passed by the Federal Parliament) • State elements (laws of State Parliaments)
Australian Constitutional system • Under the Australian Constitution, the Federal Parliament consists of • The Queen • The Senate, and • The House of Representatives • Functions of Federal Parliament • Formation of government • Legislate for the Commonwealth • Provide funds to government • Provide forum for popular representation • Scrutinise actions of government • Members of Parliament • The Senate (originally set up as a “State’s House”) • 12 Senators from each State (6 year term) and • 2 each from ACT & NT (3 year term) • House of Representatives • Elected by constituents in their own electoral divisions (3 year term) • Commonwealth Constitution can only be amended if proposed amendment • Agreed to by both Houses of Parliament, • Passed by majority of voters overall, and • Passed by majority of voters in majority of States
Australian Constitution Powers under the Australian Constitution • The Commonwealth holds concurrent powers with the States on most matters (e.g. in s.51) • But if the Commonwealth and a State both enact legislation on the same subject matter, then Commonwealth law shall prevail over State law ‘to the extent of the inconsistency’ (s.109) • Commonwealth has limited number of exclusive powers to legislative on certain matters (e.g. customs and excise – s.90) • Remainder (residual powers) are held by the States • The Governor General has certain express powers under the Constitution, e.g. as commander of Australian military forces, to appoint judges and Ministers, to dissolve Parliament, etc. • The Governor General’s ‘reserve powers’ are more unclear and are implied, e.g. the power to dismiss a Prime Minister
Federalism • Australia’s founding fathers had envisaged that the Constitution would provide for a system of ‘federalism’ • sovereignty divided between a Central government and the States • reserved State powers and ‘implied intergovernmental immunities’ • the Central government and individual States would independently exercise powers over certain matters, and the Central government would not be allowed to make laws which affected the functions of State governments and authorities under State jurisdiction • However, the notion of ‘federalism’ has taken a beating in recent years, where several High Court decisions had seen more and more powers handed to the Commonwealth at the expense of the States, e.g. • Engineers case (1920) – Commonwealth could use its ‘conciliation and arbitration’ power to settle industrial disputes involving State employer • Uniform Tax case (1942) – Commonwealth wrested control of income tax powers from the States • Tasmanian Dams case (1983) – Commonwealth could use its ‘external affairs’ power to stop construction of a dam on State territory • Workplace Relations case (2006) – Commonwealth could use its ‘corporations’ power to legislate on industrial relations reform
Separation of powers • Separation of powers doctrine first published in 1748 by Baron de Montesquieu • Under Montesquieu’s doctrine, power must be distributed to avoid a monopoly of power, and to ensure freedom is preserved • Under the doctrine, there are 3 branches of government • Legislature (Parliament) • Legislative body, makes laws • Executive (Government) • Execute and enforce the laws • Judicature (Judiciary) • Exercise judicial powers and functions, including interpretation and review of the laws • Each branch has its own powers, and each branch not supposed to interfere with the other branches • In practice, there are overlap between the 3 branches and they do encroach into the territory of others to some extent • Boilermakers case (1956) – High Court held it was unconstitutional for the Commonwealth Court of Conciliation and Arbitration to hold both arbitral as well as judicial power
Separation of power The Parliament (the Legislature) • Consists of • The Queen • The Senate • The House of Representatives • Has the right to make or unmake any laws whatsoever • No person or body is recognised by the law as having a right to override or set aside the legislation of Parliament (Dicey’s 1885 theory of Parliamentary Sovereignty) • However, in the present climate, legislation passed by Federal Parliament are regularly challenged in the High Court, where many laws have been ruled to be unconstitutional
Separation of power The Executive (the Government) • Executive power of the Commonwealth is vested in the Queen and exercised by the Governor-General as Her representative, and extends to the execution and maintenance of the Constitution and laws of Commonwealth • The Federal Executive Council is appointed by the Governor-General to advise on the Commonwealth government • The Governor-General may appoint officers to administer departments of the Commonwealth. Such officers are members of the Federal Executive Council, and Ministers of State. • Appointment and removal of all other [public service] officers of the Executive Government shall be vested in the Governor-General in Council, unless the appointment is delegated to some other authority • The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General
Separation of power The Judicature (Judiciary) • The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes (s.71) • Judges are appointed to serve until 70 years of age Jurisdiction of the High Court • Interpret the Constitution • Appeals from State and other federal courts (s.73) • Requires special leave for lodging appeals • Original jurisdiction (ss.75, 76) • Matters arising from the Constitution, or laws of Commonwealth • Matters concerning treaties or Admiralty or maritime jurisdiction • Matters between States, or between State and Commonwealth • Judicial proceedings where the Commonwealth is a party
Rule of Law • What is done officially must be done in accordance with the law • Acts to restrict Parliamentary sovereignty to its purpose of facilitating democracy • Parliament cannot without regard enact legislation opposed by constituency or which are immoral or against principles of democracy • All branches of government must be governed by legal rules to safeguard freedom, dignity and rights of citizens • Judges should be able to enforce the law without fear or favour • Described as a system of checks and balances • Montesquieu favoured a bicameral Parliament • One chamber to act as balancing restraint to the other • Also described as a set of value • combination of ideals and practical legal experience • Rule of law in Australia said to be restricted by a lack of a Bill of Rights • Courts have less power to scrutinise legislation made by Parliament or actions of the executive government
Federal courts Federal Magistrates Court Family Court (& full court)* Federal Court (& full court)* * Family Court & Federal Court have equal status High Court of Australia (original & appellate jurisdiction) No appeal to the Queen in Council (Privy Council) from the High Court or any other State or federal courts since 1975 (Constitution, s.74) Federal Tribunals Administrative Appeals Tribunal Migration Review Tribunal Refugee Review Tribunal Social Security Review Tribunal Victorian State Courts Magistrates’ Court Coroners’ Court Children’s Court Drug Court PERIN Court Domestic Violence Court Koori Court Victims of Crime Assistance Tribunal County Court Supreme Court (Trial Div) Supreme Court (Court of Appeal) High Court of Australia (appellate jurisdiction) Victorian State Tribunals VCAT (Victorian Civil & Administrative Tribunal) Hierarchy of courts & tribunals
Sources of law in Australia • Common law • A type of legal system • Judge made law – precedents • Body of law as distinct from Equity • Statute (Parliament made law) • New laws • Repeal of earlier laws made by Parliament The Commonwealth Constitution, s.51: • ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to:… (xix) naturalisation and aliens;… (xxvii) Immigration and emigration;…’
Statutes Acts of Parliament • Bills can be introduced in either House of Parliament by any Member • Bills have to be read and passed three times by both Houses of Parliament • Can be debated and referred to Parliamentary Committee • Royal assent required before Bill becomes Act • Act becomes law on Royal Assent, or on some other proclaimed date (including retrospectively) • If no commencement date specified, then it becomes law 28 days after Royal Assent is given • Governor General can withhold assent and return the Bill to Parliament with his/her own recommendations, or reserve it for the Queen’s pleasure • If a Bill is defeated twice by Parliament, the Prime Minister can call a double dissolution of Parliament and, following a general election, the Bill can be re-introduced and, if still rejected, can be voted on by a combined sitting of both Houses of Parliament
Regulations Delegated or subordinate legislation • Parliament has no time or resources to regulate for the technical or specialised aspects of law • Governor-General may make regulations consistent with Act • Regulations become law upon signature by Governor-General and notification in Gazette or Legislative Instrument • Must be tabled before Parliament within 6 sitting days • Can be disallowed by Parliament • Becomes non-effective from date of disallowance • However, it is still law between time of signature by Governor-General and disallowance • Cannot be remade within 6 months of disallowance, unless approval by House obtained
Gazette notices Gazettes or Legislative Instruments • ‘Quasi-legislation’, a type of legislative instrument – becomes effective upon signature by Minister • No need for tabling in Parliament • Authority for making Gazettes lies in Acts and Regulations • Specifies ‘routine’ matter not covered in Acts or Regulations, e.g. pass marks, designated investments, etc. • List of Government Gazettes maintained by the Attorney-General’s Department and can be accessed on the Department’s website
Ministerial Directions Administrative instruments • Non-legislative instruments based on an Act of Parliament and therefore have effect as law • Issued by Minister, e.g. Ministerial Directions • Addresses administrative matters, e.g. processing priorities, visa cancellation on character grounds, etc. • Often criticised for its relative inaccessibility to the public