Australia’s
legal heritage
Adversarial & Inquisitorial
system
Adversarial System of trial
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The way in which court cases are conducted
Used for both Criminal and Civil proceedings
Adversary means….
How might this relate to court proceedings?
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In a trial the two sides of the case try to prove
their version of the facts and disprove the
version of the other side.
The defendant in a criminal trial does not have
to prove anything, as they are assumed to be
innocent until proven guilty (however, most
accused will retain services of a legal team).
Inquisitorial system
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The court is involved in determining the way in
which the competing claims are presented.
Different from Adversarial where the court
acts as an impartial referee.
This ‘civil’ system involves a judges (or group),
who investigate the case before.
Indonesia uses this system for criminal trials!
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Evidence can be admitted before the case
Witnesses are pre-approved
Can call for outside testimony that has not been
requested by either side
Common
Law
Development of common
law, Development of equity
& Precedent
Definitions
 Court-made
law (as opposed to laws
made by parliament)
 Law developed by the courts as common
law, as distinct from the courts of equity
 The system of court-based law used in the
UK and many of its former colonies (incl.
Australia, New Zealand, Canada and
USA)
Development of Common
Law
 The
British legal system itself was
developed from a number of sources.
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Anglo-saxons – Based on local custom
Norman – Travelling Judges who applied
common laws all over England. Petitions
were received from people who felt the
laws were unjust. Judges provided
precedents for later cases.
 This
system was the one brought over
Australia with the first fleet.
Development of Equity
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Anglo-saxon times – if a party failed to follow the prescribed
steps, he could lose the case
Later, common law would hold that a person was bound
by contract, even if he was tricked into signing it.
15th Century, petitions to the King were brought forward,
saying that common law courts made unjust decisions.
Chancellors were priests as well as judges, so didn’t base
decisions on precedents, instead based on Christian
principals.
The body of law that developed to deal with injustices,
became known as Equity.
The moral principals on which equitable decisions were
based were called the rules (or maxims) of equity, still used
today.
Precedent


Common law, or case law, is the law
developed by judges when deciding cases.
Read page 21,22
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Make notes on:
Making and following precedent
 Rules of precedent
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Binding precedent
Persuasive precedent
Complete “The origins of common law” &
“Procedures for Precedent” worksheets (wiki)
Statute Law
The role and structure of
parliament, the legislative
process - passing legislation
& delegated legislation
Definitions
 Statute
law is the law mad by parliament
 Also known as ‘legislation’ or ‘acts of
parliament’
 In Australia, any parliament has the power
to make statute law:
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State
Territory
Federal
The role and structure of
parliament
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Elected representatives
Debate proposed legislation – passes or rejects and
amends legislation
Bicameral – All state (except Queensland) and Federal
Parliament are separated into two houses( chambers):
Lower – House of Representatives
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Upper – Senate
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The political party(ies) that has the majority of seats (the
government) and the remaining seats are the opposition
Senators are popularly elected under a system of proportional
representation (12 from each state, 2 from territories) and have
power to block legislation from the house of representatives
Assent - The Bill passed by the Upper House to the Governor
General or Governor for approval. If the Assent has been
given, the Bill will become law.
The legislative process –
passing legislation
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Most important function of parliament
Time consuming and difficult
Most laws are ‘introduced’ by the
government
A proposed new law is known as a bill.
Anyone can introduce a bill
If introduced by a member that is not a
minister (backbencher) – private members bill
Open to public scrutiny – well organised
pressure groups and members of electorates
that influence parliamentarians’ options
The legislative process –
passing legislation
 Before
a bill passes and becomes federal
law, it requires approval from both houses
and the Governor-General
 It then becomes an Act of Parliament
 NSW and other states with bicameral
parliaments is generally the same for
passing laws
Questions for your notes
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Define the term 'statute law‘
What is the bill?
Describe the purpose of the first reading of the bill
What is Assent?
Describe the role of parliament
What is a 'bicameral parliament'?
Outline the role of the House of Representatives
Describe the function of the Senate
Explain the role played by the Governor-General
Explain the role of the courts in interpreting statute
law
Explain the role of the courts in
interpreting statute law
 The
bill is regularly discussed between
readings. The Bill is later on repeated to
the upper house of parliament which then
is voted on and returned to the lower
house for amendment. If passed the Bill is
sent to the governor general for assent.
Then it becomes a law.
The legislative process –
delegated legislation
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Delegated legislation is made by non-parliamentary
bodies.
‘Less important laws’ that parliament doesn’t have time to
draft, consider and pass.
These are subordinate bodies, such as government
departments or local councils
These groups are able to perform this law-making process
through the Enabling Act
Types of legislation involved
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Regulations – G-G, state governors, executive council
Ordinances – For Australian territories (Norfolk Is. & Antarctica)
Rules – For government departments
By-laws – By local councils, restricted to that area
Tasks
 Construct
and A3 poster of “the passage
of a bill through parliament diagram”
(page 30)
 List the advantages and disadvantages of
delegated legislation
The
Constitution
Division of Powers,
Separation of Powers, Role
of the High Court
The Constitution

1st January 1901 Australia gained a
Commonwealth Constitution
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Framework and rules that apply to the
governance of Australia
Previously six independent colonies,
governing within their own boarders,
answerable only to Britain
Federation – The process of uniting several
states to form a single national government
The Constitution
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Constitution document was formed through a
series of referendums
Referendums – the referral of a particular issue
to the electorate for a vote
1898, 1899, 1900 referendums comprised the
proposed constitution
Approval of the British parliament


Commonwealth of Australia Constitution Act
1900 (UK)
State the key features of the British Act (p32)
Division of power
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What powers would the state have?
What powers would the federal government have?
Chapter 1, Part v, s 51 to 60 - The constitution dived
up the powers between federal and the states.
Legislative Powers: division of powers.docx

Section 51: Concurrent Powers & Residual Powers
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Section 52: Exclusive Powers –
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NSW v. Commonwealth [2006] (P50, Pearsons)
Commonwealth v Tasmania [1983] (P35, Cambridge)
Constitutional interpretation is the role of the High
Court
constitution.docx – Complete for Homework
Amending the Australian
Constitution
• Statutes & Common law can be
changed ‘easily’
• Constitution (technically a statute)
has a unique process
• ‘Alterations of the Constitution’ –
Chapter VII, s 128
• 44 proposed amendments, 8
successful (in bold or deleted parts
ruled through)
• List the specifics in s 128(p36)
• Provide TWO examples of
successful and ONE example of
failed referendums
Separation of Powers
(doctrine)

Three arms of government:
1.
2.
3.

Each ‘arm’ check each other ensuring civil liberties are protected
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II.
III.
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“basic individual rights, such as freedom of speech and religion, which
are protected by law”
First three chapters of the constitution:
I.

The legislature – the law makers (House of representatives & the senate)
The executive – the ministers of government departments who administer the
laws made by parliament (GG, PM, Cabinet)
The judiciary – The courts who interpret and apply law
The Paliament (s 1 to 60)
The Executive (s 61 to 70)
The Judicature (s 71 to 80)
Not a ‘true’ doctorine as ministers and PM are members of
executive and legislature. The key feature is distinguishing
between judiciary and other arms.
Protecting the judiciary is a corner-stone of democracy. Evident
when court make decisions not in accordance with government
policy.
Australian Communist Party v. Commonwealth of Australia [1951]
High Court
Jurisdiction
Interpretation of the
constitution
Role of the High Court in
interpreting the Constitution
 Section
71 – Creates the High Court of
Australia; allows Commonwealth
Parliament to create other courts (i.e.
Family Court, Federal Court & Federal
Magistrates Court)
 Section 72 – How High Court judges are
appointed (1977, referendum retiring at
age of 70)
Role of the High Court in
interpreting the Constitution
 The
High Court has both original and
appellate jurisdiction.
 Original Jurisdiction:
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
Summarise Section 75 & 76 (page 39)
S 76(i) – Matters relating to the
interpretation of the Constitution; enormous
influence on determining the division of
power between states and the
Commonwealth.
Role of the High Court in
interpreting the Constitution

Summarise the following cases:
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South Australia v Commonwealth (the ‘First
Uniform Tax case’) [1942]
Murphyores v The Commonwealth (‘Fraser
Island case’) [1976]
R v Brislan; Ex parte Williams [1935]
R – Regina (Latin for ‘Queen’)
Ex parte – ‘from one side’, the other side is
unrepresented
Role of the High Court in
interpreting the Constitution
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Appellate jurisdiction:
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Section 73 – High court has the jurisdiction to ‘hear
and determine all judgments’; ‘the judgment of
the High Court in all such cases shall be final and
conclusive’.
All appeal cases must be granted special leave
before the case will be heard by the High Court.
Appeals generally relate to questions of law, or a
matter of that is of such significance as to warrant
the attention of the High Court, or a dispute
between the opinions of the high court the
requires final adjudication.
Osland v R [1998]
Aboriginal &
Torres Straight
Islander
Peoples’
customary laws
Characteristics, integration
into Australian law
Aboriginal & Torres Straight
Islander Peoples’ customary
laws
 Customary
law
 Based on tradition, ritual and socially
acceptable conduct
 There is no single system of Aboriginal and
Torres Straight Islander law. The separate
indigenous nations developed their own
laws, but there were common aspects.
These laws are spiritual and closely linked
to the land.
Aboriginal & Torres Straight
Islander Peoples’ customary
laws

Aboriginal & Torres Straight Islander Peoples’
customary laws vs British law
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Land ownership
The right to posses property is a key principal of
English law
Aboriginal & Torres Straight Islander Peoples’
land is sacred and cannot be owned;
custodians of the land, looking after for future
generations.
This is the reason why the British settled and
impose British property law. They considered
Australia to be unoccupied land (terra nullius)
Aboriginal & Torres Straight
Islander Peoples’ customary
laws
 Follow
customary law questions.docx
using Pearson pages 57-67
 diverse
nature of customary laws
 spiritual basis, significance of land and water
 family and kinship
 ritual and oral traditions
 mediation and sanctions
 relevance to contemporary Australian law
International
law
Sources of International Law
 Customary
International Law
 Treaties
 Declarations
 Legal
Decisions
Customary International Law

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This type of law is not written in a single document, but it is
known through long established traditions and common
practices.
A bad thing about this form of law is that they still need to
be constantly changed to keep up with
There are many independent nations so it is hard to write a
law that can bind the entire nation’s together.
Customary law has now been replaced with treaty law.
Treaty law is either bilateral of multilateral. The more
countries that sign a treaty the more powerful it gets!
Most laws prohibiting crimes against humanity originated
from customary law. Important examples include
condemnation and genocide.
Treaties
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A treaty is an international agreement concluded between
states in written form and governed by the guidelines of
international law.
Treaties are the most commonly used source of
international law.
The more nations that sign a treaty, the more powerful that
treaty will be.
Treaties are used to make specific laws and to control
conduct and cooperation between and within nations
A treaty may also establish an international organization.
There is no set way of making a treaty, but most treaties are
made through direct negotiations between nations. If all
parties involved agree, the treaty with be signed.
Treaties
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Treaties can be either:
Bilateral – Between two nations. For example
the Agreement between Indonesia and
Australia on Framework for Security
Cooperation, concerning their common
security and respective national security
Multilateral – Between many nations. For
example the Charter of the United Nations,
this established the UN and its organs and
agencies. Each country that is a signatory to
this treaty that has a seat in the General
Assembly and participates in UN processes.
Declarations
 Declarations
are also international
instruments, but they differ from treaties.
 Declarations state and clarify the parties'
position on particular issues, but do not
impose legally binding provisions that
must be followed.
Declarations
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Example of a declaration:
A famous example of a declaration is the Universal Declaration of
Human Rights.
The United Nation Commission on Human Rights was established,
following the Second World War.
To draft the declaration - the first universal statement on the basic
principles of human rights.
Among its chief purpose was to define the meaning of the words
'fundamental freedoms' and 'human rights', which appear in the UN
Charter
In 1948, the declaration was ratified by a proclamation by the UN
General Assembly and 48 countries voted in favor for it, with none
voting against it and only eight abstaining it.
The declaration is the foundation for two binding UN human rights
covenants: the International Covenant and Political Rights (ICCPR)
and the International Covenant of Economics, Social and Cultural
Rights (ICESCR).
Its principles are contained in other treaties as well
Legal Decisions

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Decisions made by the International Court of Justice
(ICJ) effect only the parties involved, outlined in s 59
in the Statute of the International Court of Justice
Other courts such as the International Criminal Court
(ICC), set up to deal with the two most serious crimes
concerning worldwide community, and the
European Court of Human Rights (ECHR). Both these
courts are either specialised or regionalised
Temporary courts such as the International Criminal
Tribunal for the Former Yugoslavia or Rwanda set up
for genocide and war crimes/crime against humanity
International Organisations


Summarise the following (P51-55, Cambridge)
The United Nations

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The General Assembly
The Security Council
The International Court of Justice
Intergovernmental organisations
Non-government organisations
Complete the following worksheet:

UN bodies and treaty based agencies.doc
Relevance of international
Law to Australian law
 Ratification
of a treaty automatically
makes it part of that country’s domestic
law.
 Some treaties require new legislation for
implementation into Australian law (s51
Constitution).
 Treaties influence in development of
common law, judicial review, and judicial
interpretation of statutes.
Relevance of international
Law to Australian law
 Examples
of human rights treaties that has
been reflected in state or teritory and/or
federal legislation:
Human Rights Treaties
Reflected in Australian law
International Covenant on Civil and Political
Rights (ICCPR)
Human Rights Act 2004 (ACT); Charter of
Human Rights and Responsibilities Act 2006
(Vic)
Convention on the Rights of a Child (CROC)
Family Law Act 1975 (Cth)
Convention of the Elimination of All Forms of
Discrimination Against Women (CEDAW)
Sex Discrimination Act 1984 (Cth)
Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment (CAT)
Crimes (Torture) Act 1988 (Cth)
*Cth = Commonwealth