Introduction to Law
Definitions
Common law = the law made by judges in the exercise of both common law and equitable jurisdiction Statute law = the law made by the Commonwealth, State and Territory Parliaments Equity = equity in human transactions is that which is founded on justice, honesty and right Parliamentary sovereignty = parliament has the right to make, amend or repeal any law—within the limits of the Constitution = Parliament cannot make a law that a future parliament cannot change = parliament takes priority over the executive and judicial arms of government Responsible government = parliamentary accountability = responsive to public opinion Alternative Dispute Resolution / Non-Adversarial Justice = the ways in which disputes are resolved without litigation = negotiation, arbitration, or mediation Law reports = published volumes of the decisions of courts = widen the base of legal knowledge and to prevent two differing decisions on identical facts The crown = the Queen of the UK Legal aid = legal assistance provided by the government = provide vulnerable and disadvantaged Australians with access to justice Judicial independence = separation of powers doctrine = in interpreting and applying the law, judicial officers act independently and without interference from the parliament or the executive
Theories of Law
Jurisprudence = the study, knowledge or science of law
Natural Law Theory = our laws should be based on morality, goodness, and what is inherently correct Legal Positivism = law is a human creation = based on a norm = expressed by a sovereign (aka the Command Theory) Feminist Jurisprudence = male dominance is embodied in law Economic Analysis Theory = if we want to maximise our satisfaction, we will attempt to do so via the simplest and most effective solution = economy ought to guide the law Critical legal theory = law and politics are mutually intertwined = law serves the interests of the powerful
The Legal Profession
Legal Practitioner = holds a current practicing certificate
Barrister = advocacy = bound by the Conduct Barristers’ Rules 2015 = e.g., one must become a member of the Victorian Bar to practice (pass exam, complete Reader’s course, serve pupillage) Solicitor = general advice, some advocacy in lower courts, bound by the Legal Prof Uniform Law Application Act 2014
Ethical Approaches
Kantian/deontological = Immanuel Kant = one must follow the law, regardless of the outcome Consequential/utilitarian = Jeremy Bentham = maximising the public good Virtue ethics = If the actor is good, the act is too = judges a person by his/her character rather than an action
Law Systems
Common Law System Civil Law System
- Based on precedent - Based on codes which distinguish between different categories - Adversarial procedures (role of of law: substantive law establishes which acts are subject to the judge is to preside, burden criminal or civil prosecution, procedural law establishes how to of proof is on the crown, determine whether a particular action constitutes a criminal act, accused has many rights (e.g., and penal law establishes the appropriate penalty to remain silent) - Inquisitorial procedures (judge can ask questions, burden of - Rights for the accused proof may lie on the accused, accused has limited rights) - One cont. hearing - Aspires to deliver justice - Incorporates judge-made law - Hearing at various stages - UK, Aus, NZ, India - Portugal, Spain, France
Development of the common law system o In 1066, William the Duke of Normandy conquers England, introducing feudalism (a hierarchical system of social and political organisation based upon land ownership with the Crown at the top) → royal rulings replace local customary laws → system of courts estab . First = the Curia Regis/Kings Court/Kings Council = the Kings advisory body Next = divided into the Court of the Kings Bench, the Court of Exchequer and the Court of Common Pleas ˙ The courts struggled to manage the volume of disputes → introduced the writ system = complainants applied to the court for the most applicable writ to be sent to the wrongdoer, which ordered him (under royal authority) to attend a royal court = application; to sue, the plaintiff must estab a ‘cause of action’ o In the 12th century, King Henry II estab a system to resolve land disputes using juries (comprised of 12 free men who were charged with uncovering the facts of the case on their own) → in 1215, trial by jury became a fairly explicit right in the Magna Carta o In the 15th century, increased complaints of injustice in the courts led to the creation of the Court of Chancery = the chancellors were trained as priests = they grounded their judgements in Christian precepts = the body of law was applied according to the notion of fairness = equity . The chancellors and the common law judges were rivals → in the early 1600s, King James recommended that in the case of conflict, equity should prevail → in 1873, the Judicature Act provided that the courts of common law and those of equity should be merged Development of the civil law system o Roots are in Roman law = origins are found in the compilation of Roman law commissioned by Emperor Justinian (i.e., Corpus Juris Civilis) in the 6th century CE → roman law ceased in the Dark Ages (when Roman Empire declined) but re-emerged in 11th century Italy → principles of Roman law adapted to contemporary needs in Europe e.g., the Code Napoleon of 1804 (France’s Civil Code)
Development of Modern Constitutionalism
In 1215, a group of nobles forced King John to sign the Magna Carta (63 clauses) which restricted the King’s power (e.g., could only appoint justices and sheriffs who were learned in law, could not deny a person’s right to justice) In 1265, the first assembly was summoned (i.e., Parliament) by the noble, Simon de Montfort = included the nobility, senior churchmen, two knights from each county and two burgesses (officials) from each of the major towns o Same scheme adopted by King Edward I in 1295 = known as the Model parliament Edward III came to the throne in 1327, and from that point the representatives of the counties (knights of the shire) and of the towns (burgesses) became a permanent part of Parliament o After 1332 they sat together in one chamber and were known as the House of Commons In 1414, the Commons successfully insisted to Henry V that the King and Lords should not change the wording of any of the Bills submitted by the Commons without its agreement and that no Bill should become an Act (that is, become statute), without their assent In 1534, when the Pope refused to approve the annulment of King Henry V’s marriage, Henry established the Church of England → Henry agreed to grant parliament greater involvement to secure their cooperation In 1607, the Case of Prohibitions del Roy dictated that the King could no longer be personally involved in common law courts = wrested supremacy from the King in favour of the courts = confirmed the sovereignty of parliament In 1611, the Case of Proclamations dictated that without the approval of Parliament, the King did not have the authority to change any part of common law or to create, by his proclamation, an offence that had not been an offence before In 1646, parliamentary forces defeated the royalists → the monarchy and House of Lords were abolished, and the House of Commons was dismissed → however, in 1660, Parliament invited Charles II to assume the throne In 1688, the Glorious Revolution saw the shift from an absolute monarchy to a constitutional monarchy In 1689, the Bill of Rights dictated that parliament was to be summoned regularly and that the Crown had no power to suspend the operation of law In 1701, the Act of Settlement dictated security of tenure for judges (previously, they had served at the King’s pleasure = susceptible to pressure)
Constitutional Principles
Rule of law = every person is subject to the laws of the land regardless of their status = it requires measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency o Separation of powers = in order to prevent oppressive government, the three powers of government should be held by separate bodies— Parliament (makes the laws), the Executive (administers the laws) and the Judiciary (adjudicates on the laws) —which can act as checks and balances on each other = the parliament MAKES the laws, the executive ADMINISTERS the laws, and the judiciary ADJUDICATES on the laws
Types of Law
Criminal Law Civil Law
- Wrongs against the community - Private matters - Standard of proof = beyond - Standard of proof = preponderance of the evidence/balance of reasonable doubt probabilities (the case that is the more probable should - Burden of proof = rests with the succeed) State - Burden of proof = rests with the plaintiff
Introduction to the Australian Legal System
Arrival of Common Law in Australia
In 1717, the Transportation Act was passed, establishing a regulated system to transport criminals to colonies In 1770, Captain Cook discovers Australia In 1788, the First Fleet of convicts arrived in NSW → Australia deemed to have been settled (international law dictated that there were 3 means to acquire new territory = conquest, settlement, cession) as was considered uninhabited = Terra Nullius; land belonging to no one = as the Indigenous lacked a recognisable legal system and principles regarding land ownership o Jurist William Blackstone in his ‘Commentaries’ wrote that ‘if an uninhabited country be discovered and planted by English subjects, all the English laws then in being…are immediately in force’ o Also, Blackstone noted that ‘colonists carry with them only so much of the English law as is applicable to their new situation’ = ambiguous = Parliament passed the Australian Courts Act 1828 which dictated that all laws applicable were to be in force
Constitutional Governance in Australia
The Civil and criminal court in NSW were soon established however were largely staffed by military officers → in 1810, the first civilian judge arrived however was soon dismissed → this led to pressure by some of the emancipists to increase the protection of civil rights (e.g., trial by jury) → UK parliament authorised an investigation → report recommended a restructuring → the NSW Act (1823) saw the creation of an independent Supreme Court and a Legislative Council which advised the Governor (consisting of 5-7 members nominated by the Crown) o New legislation – however – could not be repugnant to the Laws of England In 1825, an Executive Council was formed, which too, consulted with the Governor In 1828, the Australian Courts Act was passed, ensuring that criminal matters were to be tried by a jury, increasing the size of the Legislative Council from 5-7 members to 10-15, and stipulating that the Governor could not longer ignore the advice of said Legislative Council In 1842, the Australian Constitutions Act (no. 1) saw the expansion of the Legislative Council from 10- 15 members to 36 members (of which 2/3 were to be elected, and dictated that the Legislative Council could reject the Governor’s bills In 1850, the Australian Constitutions Act (no. 2) established the separate colony of Victoria and granted the Legislative Council the power to remodel the constitution → in 1853, the NSW Legislative Council sent their drafted bill to the UK → the bill was approved → the NSW Constitution Act 1855 → the new parliament was to be a bicameral legislature In 1865, the Colonial Laws Validity Act dictated the supremacy of the English law = no colonial law was to be invalidated on the basis of repugnance unless it was inconsistent with the Imperial Legislation that extended to the colony o Inconsistency = had to be express rather than implied (as it was previously)
The Judicial Committee of the Privy Council
Initially, cases could be appealed to the Privy Council Appeals were abolished in 3 steps o The Privy Council (Limitation of Appeals) Act 1968 (Cth) abolished appeals in all matters of federal and territorial jurisdiction o The Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals from the High Court in all matters of state jurisdiction o The Australia Act 1986 (Cth) abolished appeals from state supreme courts
Federation
Conventions were held in the 20th century to draft a constitution (parliamentary democracy + bicameral federal legislature) → referenda → passed in VIC, SA and TAS (but not NSW → amendments made → NSW approved (+ QLD who participated this time) → draft sent to the Imperial Parliament → passed with only minor amendments → Commonwealth of Australia Constitutions Act 1900 → came into force on Jan 1st, 1901 o The 6 colonies were united to form the Commonwealth of Australia o Section 51 enumerates the legislative powers granted to Federal Parliament o New national parliament formed o Yet, many Australians still considered themselves to be British o Double majority required to change the constitution (majority of citizens and majority of states)
The Statute of Westminster Act 1931
Provided that the Imperial Parliament could not pass legislation applying to any of the dominions unless it was at the request Dictated that dominion laws were no longer void on the grounds of repugnancy (repealing the Colonial Laws Validity Act 1865 Stipulated that dominion parliaments could make laws of extra-terrestrial application Express provision excluding its application in Australia = it could only come into effect when the dominion passed legislation to that effect o This occurred in 1942 with the Statute of Westminster Adoption Act (deemed to have had effect since 1939
The Australia Act 1986
Central provision = ‘no act of the parliament of the UK passed after the commencement of this Act shall extend to the Commonwealth’ = journey to legal independence complete
The Victorian Charter of Rights and Responsibilities 2008
Requires courts to interpret statutory provisions in a way that is compatible with human rights Confers jurisdiction on the Supreme Courts (often brought to their attention by the Scrutiny of Acts and Regulations Committee) to declare that a provision cannot be interpreted consistently with human rights Also dictates that when introducing a new bill into Parliament, a statement of compatibility with the Charter of Human Rights must be prepared Momcilovic v The Queen (2011) o S5 of the Drugs, Poison and Controlled Substances Act 1951 (Vic) = ‘any substance shall be deemed…to be in the possession of a person so long as it is upon any land or premises occupied by him…unless the person satisfies the court to the contrary’ o S 25(1) of the Victorian Charter = ‘the right to be presumed innocent until proven guilty’ o The Supreme Court of Victoria could not find a rights favourable interpretation and held it infringed presumption of innocence → however, the Supreme Court could not invalidate the Act → it is up to Parliament to amend