Topic A Lecture 3 & 4 - history, Constitution, federal system

8/7/2019 Topic A Lecture 3 & 4 - history, Constitution, federal system

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Sources of law in theAustralian legal system


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Current major sources of law

Legislation law enacted by the Federal and

State parliaments

Common law

law that has evolved throughjudicial decision and practice

Equity


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The reception of English law

Terra nullius

According to law, Australia wassettledby England, rather thanconquered

CASE: Mabo v Queensland (No 2)(1992)175CLR1


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Colonial legal systems

1788: First colonists arrived in New South

Wales

Colonists carry with them only so muchof the English law, as is applicable totheir own situation and the condition ofan infant colony.(Blackstone)

Early 1800s:

The Governor was subject to thedirection of the colonial office in London

The Charter of Justice establishedcolonial courts with civil and criminal

jurisdiction.


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1814:

The SecondCharter of Justiceestablished a Supreme Court with civil

jurisdiction and a rudimentarysubordinate structure.

1823:

The ThirdCharter of Justice established

a comprehensive court system with bothcivil and criminal jurisdiction

The British parliament established NSWas a full colony with a LegislativeCouncil appointed by the Crown: New

South Wales Act 1823 (Imp)


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1828:

The British parliament passed theAustralian Courts Act 1828 (Imp), whichincreased the size of the LegislativeCouncil, and provided that the laws ofEngland in force in 1828 had effect in

NSW only if there were particularprovisions to that effect in them


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1850:

AustralianConstitutions Act (No. 2)1855(Imp) created the colony of

Victoria, and allowed colonies toestablish parliaments with two houses


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1855:

NewSouth Wales Government Act1855

(Imp) changed the constitutionalstructure to give NSW a Parliament withtwo houses with representative andresponsible government

Victoria Constitution Act 1855(Imp)was passed


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1865:

Colonial Laws Validity Act 1865(Imp)

confirms the ability of coloniallegislatures to amend their ownconstitutions, but declares that colonialparliaments have no power to pass laws

repugnant to English laws directlyapplicable to the colony in question


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The background to Federation

1847:

[T]hose colonies have many common interests,the regulation of which, in some uniformmanner and by some single authority, may be

essential to the welfare of them all.(Earl Grey,Secretary of State for the Colonies)

1890:

The great question to consider is whetherthe time has not now come for the creation ofthis Australian government as distinct from thelocal governments now in existence.(Sir HenryParkes)


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The background to Federation

1891: The first national convention was held in

Sydney.

1897: Conventions in Adelaide, Sydney and

Melbourne considered a draftConstitution.

1899: The Constitution was put to referendum

and approved.


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The Australian Constitution

1900:

The British Parliament passed theAustralian Constitution Act 1900 (Imp)

1901:

The Commonwealth of Australia came

into existence on 1 January The colonies (now States) gave up

powers, rights and duties to the newcentral government, but retained theirindividual identities and a great deal of

legislative authority


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Federal system

1900: The Australian Constitutionunited the colonies in a federation

Federation involves a division ofpowers between the States and theCommonwealth

Exclusive powers, concurrentpowers, residual powers


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Commonwealth and state powers

Commonwealth State

Concurrent powers(Shared powers

Exclusive powers(Commonwealth only)

Residual powers(State only)

Exampless.52: Exclusive powers of Parliament

s.90: Customs, excise and bountiess.92: Free trade between the Statess.105: Taking over state public debtss.114: Military forcess.115: Currencys.122: Government of federal territories

Examples

Insurance

BankingIndustrial Relations

ExamplesEducation

LocalGovernmentTransport

Exclusive, concurrent and residual powers


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Breaking the colonial ties

1931:

The Statute of Westminster Act 1931 (Imp)provided for dominion parliaments to assume full

legislative competency. 1942:

The Statute of Westminster Adoption Act 1942(Cth) provided that the Colonial Laws Validity Act1865(Imp) no longer applied to the

Commonwealth of Australia.

1986:

The Australia Act 1986 (Imp) and Australia Act1986 (Cth) repealed the Colonial Laws ValidityAct 1865so that it no longer bound the States.


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The Westminster system

A constitutional monarchy

Separation of powers

Responsible government

The rule of law


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A constitutional monarchy

Monarchy The head of state is theQueen

Constitutional She holds thatposition pursuant to underlying

constitutional arrangements ratherthan by force of arms


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The separation of powers

In the Constitution, the functions ofgovernment are allocated todifferent institutions:

Legislative functions

Executive functions

Judicialfunctions

Under the Westminster system theseparation of powers is not absolute


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Commonwealth Constitution

Commonwealth Constitution

Parliament has

Legislative powerCabinet has

Executive power

The Courts have

Judicial power

The

MinistryHigh Court

House of

Representatives

SenateOther federal

courts

Doctrine of separation of powers


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Responsible government

The executive government isresponsible to the legislature

[Responsible government is] a form ofgovernment which is responsive to publicopinion and answerable to the electorate.

D Walker, OxfordCompanion to Law, 1980


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The rule of law

The means of maintaining thebalance between personal freedom

and legislative power in a moderndemocracy

It means more than that the governmentmaintains and enforces law and order, butthat the government is, itself, subject torules of law and cannot itself disregard thelaw or remake it to suit itself.

D Walker, OxfordCompanion to Law, 1980


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Commonwealth-State relations

The balance of power between theCommonwealth and the States has

shifted in favour of theCommonwealth because of:

Generous interpretations of the

Australian Constitution by the High Court

The Commonwealths use of conditionalgrants to the States


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The parliamentary system

Two dominant issues are:

the role of the upper house

the dominance by the executive.


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The High Court

Recent High Court decisions indicateits willingness to seek a greater role

in the development of the law.


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Australianness of Australian law

The ability of the common law to adapt itself to the

differing circumstances of the countries in which it hastaken root is not a weakness but one of its great

strengths. Were it not so the common law would not

have flourished as it has, with all the common law

countries learning from each other.

Lord Lloyd, Invercargill City Council v Hamlin [1996]1 All ER 756 at

764765


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The case for a Bill ofRights

The founding fathers of our Constitution took it for

granted that individual rights were secure undercommon law. But the experience of many countries and

the growing power of executive government and

bureaucracies have lead to greater interest in the notion

of incorporating constitutional guarantees of individual

rights and freedoms in some kind of Bill of Rights.

Sir Ninian Steven, 1992


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The case against a Bill ofRights

If society is tolerant and rational, it does not need a Bill

of Rights. If it is not, no Bill of Rights will preserve it.

Sir Harry Gibbs, 1990


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The role of the High Court

Are certain fundamental rightsimpliedin the Australian

Constitution?Case: Australian Capital Television Pty

Ltd v The Commonwealth (No 2)(1992)


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The republic debate

Should Australia become a republic?

How should the Governor-General beappointed and removed?

Does Australia still need a Queen?

Documents

Topic A Lecture 3 & 4 - history, Constitution, federal system