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

  1. A person can only be punished for a breach of the law

Key element = principle of legality

  1. Governments can only act if they have specific legal authority to do so

Government must have lawful authority for every action they take

  1. 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