Copyright Guy Harley 2004 1 Australian Legal System Lecture 2 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter

1Copyright Guy Harley 2004

Australian Legal SystemLecture 2

Turner “Australian Commercial Law” Chapter 1Gibson “Commercial Law in Principle” Chapter 1


Aboriginal Customary Law

Not uniform throughout Australia (600 tribes) Not documented (word of mouth) Not recognised by Australian law (see Milerrpum

v Nabalco) Effect of customary law upon aborigines has

been considered by Courts when sentencing


Aboriginal Customary Law

Based on “dreamtime” religion which did not draw a distinction between the physical and spiritual world

Strong Relationship with land – no individual ownership

Government by Elders Secret matters –partially separate systems for

men and women Kinship obligations, kinship avoidance and

sharing


Aboriginal Offences

Sacred law Little distinction between deliberate and

accidental breaches “Borrowing” items was often permissible Killing was not permitted Punishments

Death and wounding Illness & insanity caused by “pointing the bone” Oral abuse and ridicule


Reception of English Law Conquered\Ceded

Law of territory continued unless inconsistent with fundamental principles of English law

Settled Terra Nullius Laws of England as at date of settlement

received into territory unless plainly impracticable


Reception of English Law in Australia Australia was ‘settled’ not conquered Doctrine of Terra Nullius - Aboriginal laws not

recognised Doctrine of Reception - English laws applied

so far as ‘practical’ Note – English Law English Law in force at date of settlement


Reception of English Law (cont.) Mabo’s case – 1992

High Court rejected doctrine of ‘terra nullius’ Gave partial recognition to aboriginal land rights Aboriginal title recognised unless subsequent

exercise of control by parliament over land Court raised possibility that other aboriginal law

might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”


Reception of English Law (cont.) Native Title legislation – 1993

Complimentary State and Federal legislation Confirms existing freehold and leasehold land

grants Provides a system for proving native tile


Timeline 1788 – 1836 States settled as English colonies 1828 Australian Courts Act 1865 Colonial Laws Validity Act 1901 Federation 1931 A Sovereign Nation (Statute of Westminster) 1986 Sovereign States (Australia Act) 1992 Mabo case 1993 Native Title Act


The Australian Constitution Establishes 3 Branches of Government:

The Governor-General (Queen’s rep) Federal Parliament

House of Representatives The Senate

The Courts Separation of Powers


Federal Executive Headed by the Queen of Australia

She is represented by the Governor General Little information in Constitution Must give Royal Assent to an Act of Parliament

before it becomes law Can dissolve parliament and call an election Acts on advice from Ministers (the cabinet)

Prime Minister is the chief minister Each minister heads one or more government

departments


Federal Parliament Division of Legislative Power between the States and

the Commonwealth Commonwealth Powers are limited

s 51 of the Constitution s52 of the constitution


Federal Parliament State powers theoretically unlimited but:

s.109 - Commonwealth legislation prevails over inconsistent State legislation (Constitution s109)

In practice, States only have power where commonwealth does not

Also Since World War II, Commonwealth has controlled

income tax collection in practice Commonwealth uses grants to compel States to

do what it wants


Restrictions on Federal Powers

Freedom of religion Freedom of interstate trade and intercourse Implied right of political assembly (Communist

Party case) Implied right to freedom of speech in support of

the political process


Federal Parliament

House of Representatives Each electorate elects one member All electorates are approximately the same size All members elected every 3 years for 3 year terms

Senate 12 senators from each state and 2 each from ACT & NT Half elected every 3 years for 6 year terms Intended to protect state rights

Different parties may control each house Each house acts as a break on the other


Parliamentary Committees

Types: Standing committees - Permanent committee that

reviews matters in a specific area (e.g. defence) Ad hoc committees - Temporary committee that

reviews one particular matter Bipartisan (i.e. representatives from government,

opposition and minority parties) Can question public servants Receive submissions from public Makes recommendations to parliament


Courts

High Court Appellate jurisdiction Original Jurisdiction

Constitutional disputes Disputes between Commonwealth and States Disputes between the Commonwealth & others Disputes between people in different States

Federal Courts State courts can exercise federal jurisdiction


Amending the Constitution

Amended by referendum Passed by a majority of both houses of

parliament A majority of electors in Australia A majority of electors in a majority of States

(i.e. 4) By vote of all State parliaments British Parliament lost power to amend (Australia

Act)(Australian Constitution s128)


State Governments

Each has its own constitution Similar structure to Federal Government Parliament has 2 houses (except Queensland)

Assembly Legislative Council

Governor is head of executive Premier is the chief minister Supreme Court is highest court


The Crown

The Queen is head of both the Federal Government and each State government

Governor General is the representative of the Queen

State Governors are representatives of the Queen

Each government is “the Crown” Each Crown is separate e.g. the Crown can sue

the Crown (e.g. Queensland v Commonwealth)

Documents

Copyright Guy Harley 2004 1 Australian Legal System Lecture 2 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter