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Introduction to Law (LLB101)
Queensland University of Technology
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Week 1- Intro to Aus Legal System:
- Aus colonised by Britain in 1788- ‘settled’ as a matter of law
- Indigenous Laws:
- High court decision in Mabo (no. 2) (1992) Aus was not Terra Nullius Brit crown still acquired sovereignty and right to parcel out land w/out consent Indigenous ownership of land (native title)- still recognised in cases Limited to what aboriginals can do with land
Reception of English laws:
- NSW legally classified as ‘settled’ under established legal principles
- 3 features of government: legislature, executive, judiciary responsible and representative govt R.O
The Judicature Acts 1873-1875: fusing of common law and equity
Law received in 3 waves: 1. Under common law principles, Eng law (statute and common)-> NSW 26 Jan 1788 2. Aus Courts Act 1828 (imperial) ‘updated’ received Eng law to July 28 1828 3. Qld separated from NSW on 6 June 1859. Order-in-council laws of NSW applied to Qld
After reception:
- Brit- limited self-govt to each govt- Colonial Laws Validity Act 1865 (Imp)
- Newly enacted Brit Laws generally not apply to colonies
- Independent body of Aus law built by legislatures and courts of colonies
- Independent- ultimate court: Privy Council
Federation:
- Fed syste: political system in which govt power is shared between central or fed govt and regional govts
- Inspired by US
- In Aus fed movement gained momentum in 1880’s Several national conventions Commonwealth Constitution Act 1900 (Imp)- 9 July 1900- commenced 1 Jan 1901
- First gov general: Lord Hopetown
- Current: Sir Peter Cosgrove
- Head of state= Queen
- Statute of Westminster Adoption Act 1942 (Cth)
De-colonisation: Legislature:
- 1986 saw complete legislative independence
- s 3 allows states to amend or repeal all English or Imperial laws
- Imperial Acts Application Act 1984 (Qld)
- Cattle Stealing Act
The Courts:
Gradual abolition of Privy Council
Functions of Legis: Used to make new law, repeal old law, codify existing law New law: override what parliament considers to be unsatisfactory common law Repeal: Removing laws that are no longer necessary Codify (consolidating): bringing together the law in a particular area- no. of statutes into one.
Creating new legis: Process by which bill becomes an Act of Parl.
- Bill being passed through BOTH houses of parliament-> Governor General for assent
- In QLD, NT and ACT parl is unicameral
Commencement of Legis:
NSW, WA, Victoria comes into force 28 days from date of assent unless legis itself says otherwise- s 5 of Acts Interpretation Act 1901 (Cth)
Tasmania- 14 days
QLD, SA, NT- actual day of assent
ACT- one day after notification in Gazette
To see when it comes into force check the actual wording of the statute itself
Unspecified commencement: Biological Control Act 1984 (Cth)
Specified commencement: Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. If a provision of this Act does not come into operation before 1 Dec 2008, it comes into operation on that day. Offshore Minerals Act 1994 (Cth)
Conditional commencement: Motor Car Traders Amendment Bill 2007 (Vic)
Staged commencement: Justice Legislation Amendment Act 2012 (Vic): commencement comes in different stages
Anatomy of an Act:
Number: e. No. 152 of 2004
Date: date act assented
Long title: states purpose of act can be useful when interpreting statute
Short title: usually contained in first section of act ‘this Act may be cited as’
Preamble: explains why parl has decided to enact legis on relevant topic
Parts and divisions: act may be divided into chapters, which contain parts, and parts may have divisions, which contains sections
Objects or purpose section: used when act has several purposes
Interpretation section: like a glossary of a book- ‘key terms’ section
Footnotes, endnotes and margin notes: can be used for the sake of explanation or to mane the Act more user-friendly
Schedules: used for detailed information in table form, or long lists- similar to appendix
Explanatory memoranda: statutes aim to be drafted in plain English language to make them comprehensible
Delegated legislation:
- Relevant govt ministry to devise suitable regulations that give effect to the Act
- Delegators: Governor-general and ministers
- ‘lower level’ of legis
- Brought in to align with policies- nature conservation etc
- An Act may authorise the executive govt to make regulation or rules that also have force of law
- Can only be made under authority of ‘parent’ act
- Provision is also made for some parliamentary scrutiny of delegated legislation Benefits:
- Quicker and cheaper than going through formal parl process
- Reduces pressure on parl
- Enables more complex pieces of legis to be created by those with specific expertise
- Can be changed faster and with more ease
Case note: written summary of and analysis of the case.
- Case summary: sets out formal details of the case- citation, court and procedural history
- Case analysis: contains comments on the case- critiquing judgement made on the case in context of other cases of the same area Case summary:
- Citation
- Court
- Procedural history: snapshot of where case has come from. ‘district court- first instance decision. Supreme court-appeal.’
- Facts:the aim is not to include all the facts, only material facts- e. ‘def assaulted young girl. Girl refused blood transfusion on bases she was Jehovah’s Witness. Girl would have lived if she had a blood transfusion.
- Issues: each legal issue raised in the case- useful to number:
- Did pub owe a duty of care to ensure that noise did not disturb local residents?
- Did pub’s actions fall below standard of case that could be expected in these circumstances?
- Should pub be liable in damages, if so, what for, and how much?
- Reasoning/ decision: this is a summary of court’s reasoning in answering each of
the issues ID’ed.
- Court referred to good neighbour principle, and the fact that pubs, if not managed effectively, can cause a great deal of nuisance- court held that pub did owe DOC
- Court referred to lack of security management program, lack of soundproofing in roof of pub
- Court held that, as pain and suffering from sleep deprivation suffered by pl- was hard to quantify, no damages awarded
- Ratio: ratio decidendi of case is answer to main issue in the case
- Obiter: obiter dicter: if there was some useful discussion in passing by the court- may be useful to refer to it in this section
- Order: simply state what was held. ‘ the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs’.
Case analysis:
- Looks at the decision in light of other decisions, in the light of various perspectives and other laws and jurisdictions, and generally considers impact and like longer term significance of the decision
Law reform commission reports:
- Aus Law Reform Commission (ALRC)- Aus Law Reform Commission Act 1996 (Cth)
- Independent statutory corp that conducts ‘references’ into areas of potential law reform at the request of the Attorney-General. Undertakes research and receives submissions, and ultimately provides report to AG containing recommendations for reform.
- Final reports are tabled in parliament
Academic commentary:
- Can influence development of law
- Textbooks, journal articles, conference papers
International law:
- Public international law and private international law
- Sources of international law set out in Statute of International Court of Justice Article 38 (1)
- Customary international law: based on collective practice of states where their actions are grounded in a belief that they have legal obligation to engage in that practice
Overview of Aus Legal Practice:
- Specialisation in response to increased legal regulation, complexity, legislation, mediation, number of specialist courts/tribunals, growth of licensing more common in city commercial firms
- Front end (drafting) and back end (disputes): Front: establishing legal arrangements, such as drafting company documents; standard terms and conditions; contracts for purchase of property, vehicles and invent; and contracts for employment and essential services Back: issues in implementation of legal arrangements; assisting clients with resolving disputes, through negotiation, litigation, and often alternative methods of dispute such as med and arb Sole practitioners, and solicitors in small firms- tend to cover both aspects
9.1: barrister or employee of, or person otherwise engaged by, solicitors’ law practice or by an associated entity for purposes of delivering or administering legal services in relation to client o 9: solicitor may disclose if: 9.2: client expressly or impliedly authorises 9.2: solicitor is permitted or compelled by law 9.2: solicitor discloses info in confidential setting, for sole purpose of obtaining advice in connection with solicitors’ legal and ethical obligations 9.2: solicitor discloses info for sole purposes of avoiding probable commission of serious crim offence 9.2: solicitor discloses info for purposes of preventing imminent serious physical harm to client or other person 9.2: info is disclosed to insurer of solicitor, law practice or associated entity o 31: 31: unless permitted or compelled by law- solicitor to whom material known or reasonably suspected to be confidential must not use material and: 31.1: return, destroy or delete immediately upon becoming aware 31.1: notify other solicitor and steps taken to prevent inappropriate misuse of material 31: solicitor who reads part or all of confidential material before becoming aware must: 31.2: notify opposing solicitor 31.2: stop reading 31: if solicitor is instructed by client to read confidential material received in error, solicitor must refuse Duties to facilitate settlement and consider alternative DR: have to advise clients about options for settlement of a matter outside of court Duty to handle money property: requires all records must be kept of all transfers and that clients must be provided with statement of trust monies.
- Discipline of solicitors: investigations and allegation made against solicitors is matter of public interest.
Barrister:
- Rule 15 of Aus Bar Association’s Barristers’ Conduct Rules: Appearing as advocate Preparing to appear as advocate Negotiating for client with opponent to comprise case Representing client in mediation of arb or other method of ADR Giving legal advice Preparing or advising on documents to be used by client of others Carrying out work properly incidental to kinds of work Such other work is from time to time commonly carried out
- Cab Rank Rule: Duty to accept whatever briefs come to them provided brief is within capacity, skill and experience
- Snr counsel (queen’s): All barristers referred to as counsel
- Bar associations: Voluntary associations of independent barristers. Promote interests, recommend law reform, arrange professional development and education for members, provide support services and indemnity insurance
- Barristers’ conduct rules: Barristers’ Conduct Rules 2011
- Liability: Liable in every way a solicitor is in contract or tort but are immune to being sued for negligence in their advocacy work in ct
- Discipline: same as issues for solicitors
Judges:
- Judiciary
- Hear pre-trial matters
- Award compensation on civil cases
- Ensuring all rules of ct and evidence are followed
- Advising and directing juries on legal issues
- Interpreting facts and evidence and making binding determinations on facts and law
- Researching relevant law and reading judgements and statutes
- Producing written judgements
- Where required, traveling on circuit and working tribunals
- Supervising court staff, including their associate
Week 2- Federal System:
Federal System: two levels (Commonwealth/ federal and state) of:
- Parliament
- Executive govt
- Courts
Representative Govt: notion that people who govern are chosen by people and act as reps of them.
Responsible Govt: Doctrine: inherited from England- crown is represented by the Governer-gnrl- ordinarily acts in accordance with conventions- est and politically accepted rules of practice
- The executive is ‘responsible’ to the Legis
- In turn, members of Legis are ‘responsible’ to people at elections
- Ministers are ‘responsible’ (answerable) to Parl and, thereby, to public, both: Collectively: for Cabinet decisions Individually: for conduct of Minister’s dept
Regulated by Cth Constitution: Cth of Australia Constitution act 1901 (Imp) (Cth)- passed in 1900
Parliamentary sovereignty: parliament is supreme over executive and courts- High Court> Parliament in power to interpret Const and to rule whether laws created by Fed parl are within powers (intra vires) or outside (ultra vires)
Constitution- five main tasks: 1. Recognises existence of six Aus colonies as they were in 1900, continues to force their constitutions and laws except as changed by Cth Const 2. Creates new set of ‘fed’ or ‘Cth’ authorities of central govt, and outlines their functions and powers 3. Regulates r’ships between Cth authorities and those of the states 4. Est Aus common market- providing free trade between states 5. Est litd ‘Bill of Rights’ provision
- Letters patent: open letter issued by the Crown on advice of govt ministers, granting an office, right, monopoly, title or status to person or to some entity, such as a corp
- Statute of Westminster: 1931(Imp)- new Brit legis did not extend to British colonies unless they expressly consented to it
- Aus Acts: 1986- removed any residual power of Brit parl to pass laws with respect to Aus, as well as any right to appeal to a Brit court
Five express rights:
- Right to be compensated for acquisition of property by Cth: s 51
- Right to trial by jury when indicated under Cth laws: s 80
- Trade, commerce, and intercourse amongst states: s 92
- Freedom of religion: s 116
- Right of resident of one state not to be discriminated against basis of their residency in a state: s 117
Implied rights:
- Political communication: Lange v ABC (1997) 189 CLR 520
- Due Process: Kable v Director of Public Prosecutions of NSW (1996) 18 9 CLR 51
Aus Bill of Rights:
- Constitutionally entrenched recognition of stated rights and freedoms- entrenched means special votes are required to change law
- Rejected by inquiries into Const in 1929 and 1959
- Several failed attempts to introduce a Statutory Bill of Rights (not entrenched); e. in 1973 and 1983
- Most modern govt systems have one
- Fundamental document that sets out protections individuals are entitled to
Rights:
Role of exec council is to meet and give legal form to cabinet decision
- Judges are appointed by Executive: (appointed for life (70), swear an oath to serve without ‘fear or favour’) Who are our judges? Appointed by executive from ranks of experienced lawyers, usually barristers, sometimes solicitors S 72 Const- judges must be appointed by gov-gen in council In practice, appointments made on advice of govt
Legislature: Make laws
- Cth (‘fed’) Parliament
- QLD parliament: each state and territory has its own legislature
- Cth Parliament: ‘Bicameral’ parliament: House of reps (lower/ people’s) and senate (upper/states’) Double dissolution s 57 Const- bill knocked back twice (most bills started in HOR- but can be started in both) Each state of Aus divided into ‘electorates’, each electorate elects member of house of Reps to rep it in parliament for next 3 yrs- approx. double senate Each state has one electorate, elects 12 senators at each general election- 76 senators overall; term- 6 yrs
How legis created:
- Proposed law, in draft: Bill
- Financial/ tax bills cannot start in Senate
- Bills proposed by govt in power- parl party or coalition of parties that holds majority of seats in House of Rep- must be passed by bicameral legislatures- then given assent by Gov-gen
- S 57: double dissolution by Gov-gen- election held for both HOR and senate- once constituted, joint sitting of houses may be convened in order to determine whether proposed law that led to DD should be passed
Parliaments Role in Creating Law:
- Law making power of Fed Parl- ss 51 and 52.
- All residual power to make law remains with states
- Enumerated heads of power include: tax, defence, external affairs, interstate and international trade.
- Application of Fed and State Legis:
- We are governed by fed and state legis simultaneously
- Fed> State
- High Court interprets legis and Constitution
The Executive:
- Responsible for administering the law and carrying out business of govt
- Made by legislature
- Administer: put laws into effect to ensure smooth running of nation for benefit of citizens
- Executive power vested in ‘the crown’
- At Cth level, this power exercisable by Gov-general in council Advised by: Fed executive council- Prime minister and senior ministry (cabinet)- Ministerial responsibility: Ministers are individually responsible to parliament for their actions
- In Qld, power is exercisable by Governor in council
- Commander-in-chief of defence forces
- Can sit in house of reps or senate
- Federal executive council- advise gov-gen (s 62)
- Sometimes parliament delegates legis authority to executive
- Very rarely is private members bill introduced to parl- even more rarely passed
Judiciary:
- Each state and territory has one
- Politician (usually member of cabinet) appointed as principal law officer
- Give legal advice to govt- to bring and defend legal actions in name of Crown
- Maintain public confidence in justice and ROL
- Defends judges-issue press releases explaining judicial decisions
Delegated(subordinate) legislation fucks with separation of power- parliament delegates law making role to executive- which draft most bills
Cth Constitution: Comm Parliament makes law for whole of Aus in respect of matter in which is has power
- S 51: Business powers: the heads of power include: corporations and bankruptcy Nation state powers: heads of power include: defence and external affairs Social power: the heads of power include: marriage and divorce Financial powers: the heads of power include: taxation
- Powers enumerated in s 51 are ‘concurrent powers’
- Cth also has ‘exclusive’ powers- s 52 and 90
- States hold ‘residual’ power
- If valid Cth law is inconsistent with State law- Cth always prevails- s 109
- If Cth does not have Const power to make law, law will be struck down by High Court (HCA)
Qld Parliament:
Subject to Cth Const, Qld parliament has power to make laws for the ‘peace, welfare and good govt’ of Qld (s 2 Const Act 1867 (Qld) s 2a)
Qld abolished its ‘upper house’ (legislative council) in 19 22 Only Aus state to have unicameral legislature
First reading of bill/ explanatory speech- Second reading and debate- Third reading and fine tuning- Acts Interpretation Act s 14b
Extrinsic material
Cth:
- Prime minister (tone) and Cabinet
- PM is leader of party with majority of House of Reps
- PM selects ministers to assist with task of govt- senior ministers comprise cabinet
Qld:
- Premier (Annastiacia Palaszczuk) and cabinet
- Premier is leader of the party with the majority in legis assembly
Parliament makes laws, but govt directs legislative agenda.
Court hierarchy:
- High Court of Aus
- Court of Appeal
- Supreme Court
- District Court
- Magistrates Court
Conventions and implications:
- Conventions: usages and customs that have evolved over the decades and define the way various Const mechanisms operate in practice
Lecture note, lectures All lectures
Course: Introduction to Law (LLB101)
University: Queensland University of Technology
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