Chapter 1 – Introduction to the Australian Legal System
Common Law - When an issue goes to court and there is no statute that covers it, a judge will hear the case and issue a verdict. The record of this verdict becomes a precedent so that when similar cases arise, other judges may take into account the penalty previously issued. Previous judgements therefore form the basis for common law.
Law is the body of principles or rules made by parliaments and the courts that regulates and orders the way we live.
Law is a means of social control: laws inform us what we can do, what we cannot, without incurring sanctions and what we are obliged to do.
Provides a means of dispute resolution where conflict is unavoidable
Set of rules.
Been made by a law-making institution such as parliament or the courts. Or in relation to international law, pursuant to a treaty or international body, such as the international court of justice or the WTO.
Rule of Law
The essence of the rule of law is
1. Power should be exercised according to law, not arbitrarily on the basis of an individuals or groups personal whim.
2. All people are equal before the law.
- The rule of law is about what is sometimes called due process.
- The rule of law is interwoven with the doctrine of the separation of powers that is central to our constitutional arrangements. - The separation of legislative, executive and judicial arms of government is designed so that power does not reside in one place: the principal divide in Australia is between the courts on the one hand and the legislature and executive on the other. Whilst the executive is drawn from the legislature, there is a clear division between these arms of government and the judiciary.
Laws associated with ordinary business activities. These include the law of contract, the law of agency, the law of partnership and corporation’s law.
Statutes that regulate particular aspects of commercial law:
Commonwealth Competition and Consumer Act 2010 which, inter alia, proscribes certain restrictive and unfair trading practices
Corporations Act 2001 which regulates the formation and general operation of companies
Many commercial laws are determined by the principles of the common law that is developed by the judicial decision in particular cases over a long period of time.
It wll be observed from the previous discussions that the development of the law, including commercial law is dynamic rather than static process. It must be constantly reinterpreted and amended if it is to adequately reflected and serve the needs of a changing society.
Important to be familiar with the institutions charged with the responsibility of making, developing and implementing the law, as well as being aware of the principles of law applicable to a particular transaction.
The Australian Constitutional System
Europeans in Australia brought dispossession of their lands. English common law until 1992 did not recognise the laws or customs of the indigenous people of Australia.
Regarded as Terra Nullius – unoccupied land. Settled by Britain instead of Conquered.
Judicial recognition was given to the rights of indigenous people with regard to land in Mabo vs State of Queensland No,2 (1992)
Native Title legislation
The commonwealth’s response to the Mabo vs State of Queensland No.2 (1992) CLR.1 was to enact the Native Title Act in 1993.
Gave statutory effect to much of the decision in the Mabo Case while also introducing new elements in relation to native title and providing a framework in which native title could operate .
Most significant common law cases since the Mabo case was the decision of the High Court in Wik Peoples vs State of Queensland (1996) 187 CLR 1.
A Nation is Born
One of the first acts the new Commonwealth Parliament was to pass was the Immigration Restriction Act 1901 (Cth), which limited migration to people of primarily European origin.