LEGAL
INSTITUTIONS
SUSAN CARTER
Introductory matters
• Texts
• Materials
• Webcampus
• Slides
• Introductory weekend
• Contact:
• s.carter@sydney.edu.au
AUSTRALIAN
LEGAL
INSTITUTIONS
Topic 3
Rule of Law
“The doctrine of English law expounded by Dicey, in Law
of the Constitution, that all men are equal before the law
whether they are officials or not … so that the acts of
officials in carrying out the behests of the executive
government are cognizable by the ordinary courts and
judged by the ordinary law, as including any special
powers, privileges or exemptions attributed to the Crown
by prerogative or statute.
So far as offences are concerned, an offender will not be
punished except for a breach of the ordinary law, and in
the ordinary courts: there is here an absence of the
exercise of arbitrary power. Further, the fundamental rights
of the citizen; the freedom of the person, the freedom of
speech and freedom of meeting or association, are rooted
in the ordinary law, and not upon any special
“constitutional guarantees.” Osborn’s Concise Law Dictionary
Rule of law
• ‘Blind’ justice
• Scales and sword
of justice
Legal Institutions
The institutions which enforce and uphold this rule
of law in Australia are:
• Parliament: which makes the laws
• The Executive: which administers the laws, and
• The Judiciary: which declares the law, and what
the rights of the individual are under the law.
Separation of Powers
English Civil War 1642-1651
Separation of powers
Montesquieu
1689-1755
The Spirit of the Laws
Geneva 1748
Australia: Federal System
Parliamentary Education Office (www.peo.gov.au)
Parliament
1. The Queen – as represented by
the Governor-General or
Governor
2. The Upper House – Senate or
Legislative Council
3. The Lower House – House of
Representatives or Legislative
Assembly
The Queen: Constitutional Monarchy
Bi-cameral legislature
• Two houses of Parliament
• Except Queensland
• Same as UK
The UK Parliamentary model:
bicameral legislature + the sovereign
House of Lords
Queen
Elizabeth
II
House of Commons
New South Wales parliament
Legislative Council
NSW Governor
David Hurley
Legislative Assembly
S3 NSW
Constitution
Commonwealth parliament
House of Representatives
Senate
Governor General
Sir Peter Cosgrove
S1 Constitution
Parliamentary power
• Parliamentary power in a Federal system
• Constitutional Conventions
• How many Parliaments?
• S51 Commonwealth Constitution
s51: Powers of Parliament
51.The Parliament shall, subject to this Constitution, have power to make
laws for the peace, order, and good government of the Commonwealth
with respect to: (i.) Trade and commerce with other countries, and among the States:
(ii.) Taxation; but so as not to discriminate between States or parts of
States:
(iii.) Bounties on the production or export of goods, but so that such
bounties shall be uniform throughout the Commonwealth:
(iv.) Borrowing money on the public credit of the Commonwealth:
(v.) Postal, telegraphic, telephonic, and other like services:
(vi.) The naval and military defence of the Commonwealth and of the
several States, and the control of the forces to execute and maintain the
laws of the Commonwealth
.(vii.) Lighthouses, lightships, beacons and buoys:
(viii.) Astronomical and meteorological observations:
(ix.) Quarantine:
(x.) Fisheries in Australian waters beyond territorial limits:
(xi.) Census and statistics:
(xii.) Currency, coinage, and legal tender:
(xiii.) Banking, other than State banking; …
(xiv.) Insurance, other than State insurance; also State insurance extending
beyond the limits of the State concerned:
(xv.) Weights and measures:
(xvi.) Bills of exchanging and promissory notes:
(xvii.) Bankruptcy and insolvency:
(xviii.) Copyrights, patents of inventions and designs, and trade marks:
(xix.) Naturalisation and aliens:
(xx.) Foreign corporations, and trading or financial corporations formed within
the limits of the Commonwealth:
(xxi.) Marriage:
(xxii.) Divorce and matrimonial causes; and in relation thereto, parental
rights, and the custody and guardianship of infants:
(xxiii.) Invalid and old-age pensions:
(xxiiiA.) The provision of maternity allowances, widows' pensions, child
endowment, unemployment, pharmaceutical, sickness and hospital
benefits, medical and dental services (but not so as to authorise any form of
civil conscription), benefits to students and family allowances:
(xxiv.) The service and execution throughout the Commonwealth of the civil
and criminal process and the judgments of the courts of the States:
(xxv.) The recognition throughout the Commonwealth of the laws, the public
Acts and records, and the judicial proceedings of the States:
(xxvi.) The people of any race, for whom it is deemed necessary to make
special laws
(xxvii.) Immigration and emigration:
(xxviii.) The influx of criminals:
(xxix.) External Affairs:
(xxx.) The relations of the Commonwealth with the islands of the Pacific:
(xxxi.) The acquisition of property on just terms from any State or person for any
purpose in respect of which the Parliament has power to make laws:
(xxxii.) The control of railways with respect to transport for the naval and military
purposes of the Commonwealth:
(xxxiii.) The acquisition, with the consent of a State, of any railways of the State on
terms arranged between the Commonwealth and the State:
(xxxiv.) Railway construction and extension in any State with the consent of that State:
(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial
disputes extending beyond the limits of any one State:
(xxxvi.) Matters in respect of which this Constitution makes provision until the
Parliament otherwise provides:
(xxxvii.) Matters referred to the Parliament of the Commonwealth by the Parliament or
Parliaments of any State or States, but so that the law shall extend only to States by
whose Parliaments the matter is referred, or which afterwards adopt the law:
(xxxviii.) The exercise within the Commonwealth, at the request or with the concurrence
of the Parliaments of all the States directly concerned, of any power which can at the
establishment of this Constitution be exercised only by the Parliament of the United
Kingdom or by the Federal Council of Australasia:
(xxxix.) Matters incidental to the execution of any power vested by this Constitution in
the Parliament or in either House thereof, or in the Government of the Commonwealth,
or in the Federal Judicature, or in any department or officer of the Commonwealth.
States/Territories
• Northern Territory
• Australian Capital
Territory
• Source of power
• Constitution
section 122 Government of territories
The Parliament may make laws for the government of any
territory … and may allow the representation of such territory in
either House of the Parliament to the extent and on the terms
which it thinks fit.
Separation of Powers
Parliamentary Education Office
(www.peo.gov.au)
Westminster system
(Responsible government)
Westminster system: responsible
government
The Prime Minister...
Is a member of Parliament
• The member for Wentworth
Is the leader of the Government
• Sits on the front bench in Parliament
Is the leader of the Executive
• Leads Cabinet – composed of the Ministers
U.S. Constitution
Separation of powers/responsible government
Separation of Powers
Courts in a
Federal System
Law Courts
Building
Queens Square
Sydney
Federal Court of
Australia
NSW Supreme
Court
NSW Judicial Hierarchy
SUPREME COURT ACT 1970 –
s 43
43 Sittings
(1) Any 3 or more Judges of Appeal constitute the Court of
Appeal.
Federal Judicial Hierarchy
Australian court hierarchy
34
Jurisdiction
• Original/appellate
• Civil/Criminal
participants
processes
court orders
party/parties/ litigants
hearing
judgment for …
plaintiff v defendant
applicant v respondent
bring an action
institute proceedings
application/appeal
allowed/dismissed
appellant v respondent
pleadings
damages
corporations
statement of
claim/writ/summons
specific performance
judges / magistrates
defence
injunction
counsel/ QC/SC
counterclaim
declaration
barristers
appeal
costs
solicitors
testimony
pecuniary penalty
• http://www.supremecourt.lawlink.nsw.gov.au/supremecour
t/sco2_what_to_expect/whos_who.html
Source of power?
•Constitution
Constitution
• A constitution is an expression of the political will of the
people, a statement, or an agreement, as to how the
people are to be governed, by whom, and with what
responsibilities. A constitution is a document, or a group of
documents, laws or conventions, which outline the system
of government for that state.
Australian Parliament House
Constitution may be:
• Unwritten, resting mainly on custom or convention;
• Written, in a formal legal form;
• Flexible, capable of being amended by ordinary legislative
enactment; or
• Rigid (or entrenched), capable of being altered only by a
special procedure – such as a referendum.
William Charles Wentworth
Federation process
http://www.naa.gov.au/collection/explore/federation/constitution-website/index.html
US Bill of Rights
CONSTITUTION OF THE PEOPLE'S
REPUBLIC OF CHINA
• Article 4. All nationalities in the People's Republic of China
are equal. The state protects the lawful rights and interests of
the minority nationalities and upholds and develops the
relationship of equality, unity and mutual assistance among all of
China's nationalities. Discrimination against and oppression of
any nationality are prohibited; any acts that undermine the unity
of the nationalities or instigate their secession are prohibited.
The state helps the areas inhabited by minority nationalities
speed up their economic and cultural development in
accordance with the peculiarities and needs of the different
minority nationalities. Regional autonomy is practised in areas
where people of minority nationalities live in compact
communities; in these areas organs of self- government are
established for the exercise of the right of autonomy. All the
national autonomous areas are inalienable parts of the People's
Republic of China. The people of all nationalities have the
freedom to use and develop their own spoken and written
languages, and to preserve or reform their own ways and
customs.
• Article 35. Citizens of the People's Republic of China
enjoy freedom of speech, of the press, of assembly, of
association, of procession and of demonstration.
• Article 36. Citizens of the People's Republic of China
enjoy freedom of religious belief. No state organ, public
organization or individual may compel citizens to believe
in, or not to believe in, any religion; nor may they
discriminate against citizens who believe in, or do not
believe in, any religion. The state protects normal religious
activities. No one may make use of religion to engage in
activities that disrupt public order, impair the health of
citizens or interfere with the educational system of the
state. Religious bodies and religious affairs are not
subject to any foreign domination.
Personal rights in the Australian
Constitution
• s41: Right to vote
• R v Pearson; Ex parte Sipka (1983) 152 CLR 254
• s51(xxxi): acquisition of property on just terms
• Minister of State for the Army v Dalziel (1944) 68 CLR
261
• s80: Trial by jury
• R v Archdall (1928) 41 CLR 128
• s116: Freedom of religion
• Krygger v Williams (1912) 15 CLR 366
• s117:Equal treatment of state residents
• Davies and Jones v State of Western Australia
(1904) 2 CLR 29
• Street v Queensland Bar Association (1989)
168 CLR 461
• Implied rights
• Australian Capital Television Pty Ltd v
Commonwealth (1992)177 CLR 106
• Leeth v Commonwealth (1992) 174 CLR 455).