Foundations of Australian Law
Two Sources of Law
Cases and Legislation
Cases - "Judge Made Laws"
Legislation - Legal rules made by Parliament
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Court System - 3 Tier
Rule of Law - Dicey
- A person can only be punished for a breach of the law
Key element = principle of legality
- Governments can only act if they have specific legal authority to do so
Government must have lawful authority for every action they take
- The rule of law means the absolute supremacy of government by law
Separation of Powers
The Executive
The Judiciary
The Legislature
The legislature enacts laws
The executive applies those laws
The judiciary resolves disputes about the meaning/application of the law
The sepration of functions stops one instition from holding all the power
The Australian Legal System
Terra Nullius - land belonging to no one
Australian Courts Act 1828 - all laws and statues that were in force in England on the 25th of July 1828, and applied to to the conditions in NSW and Tasmania, were also in force there
Penal Law and Military Rule
Letters Patent - letters from the Crown containing public instructions
26th of January 1788 - the first fleet arrives in Botany Bay
Ellis Bent - First Civilian Judge 1810
Magistrates Court
Supreme Court
District Court
Australian Courts Act 1828 - one of the most important provisions - the Governor could not ignore the advice of the Legislative Council - A majority of the Legislative Council could veto any proposed law
Australian Constitutions Act (No 1) 1842 - Increased size of the Legislative Council and Introduction of the idea of separation of powers in Australia
Federation
Commonwealth Parliament could legislate in areas like tax, trade, commerce, immigration and industrial arbitration
The states could legislate on any matters " for the peace, welfare and good government of the state"
Divided legislative power between the 6 state Parliaments and the new National Parliament
Australia Acts - final stage in Australia's journey to legal independence
Commonwealth of Australia Constitution Act 1900
Human Rights
Presumptions of interpretation, eg the presumption that Parliament does not deprive people of access to the courts
Reliance on international norms
In Australia - protections inherited from the Bill of Rights Act 1869 and the Act of Settlement 1701 = very early protection of rights
A safety net of laws that protect certain rights from being damage by government
Fundamental inalienable rights that everyone is entitled to simply because they're human