Legal Institutions
Susan Carter
Introductory matters
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Texts
Materials
Webcampus
Slides
Introductory weekend
Contact:
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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
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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.
2.
3.
The Queen – as represented by
the Governor-General or
Governor
The Upper House – Senate or
Legislative Council
The Lower House – House of
Representatives or Legislative
Assembly
The Queen: Constitutional
Monarchy
Bi-cameral legislature
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Two houses of Parliament
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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
Marie Bashir
Legislative Assembly
S3 NSW
Constitution
Commonwealth parliament
House of Representatives
Senate
Governor General
Quentin Bryce
S1 Constitution
Parliamentary power
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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
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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 Warringah
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
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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
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http://www.supremecourt.lawlink.nsw.gov
.au/supremecourt/sco2_what_to_expect/w
hos_who.html
Source of power?
 Constitution
Constitution
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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:
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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
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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 selfgovernment 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.
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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.
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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
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s41: Right to vote
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s51(xxxi): acquisition of property on just terms
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Minister of State for the Army v Dalziel (1944) 68 CLR
261
s80: Trial by jury
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R v Pearson; Ex parte Sipka (1983) 152 CLR 254
R v Archdall (1928) 41 CLR 128
s116: Freedom of religion
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Krygger v Williams (1912) 15 CLR 366
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s117:Equal treatment of state residents
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s92: Freedom of interstate trade
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Davies and Jones v State of Western Australia
(1904) 2 CLR 29
Street v Queensland Bar Association (1989)
168 CLR 461
Bank Nationalisation case (Bank of NSW v
Commonwealth (1948 76 CLR 1)
Cole v Whitfield [1988] HCA 18
Implied rights
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Australian Capital Television Pty Ltd v
Commonwealth (1992)177 CLR 106
Leeth v Commonwealth (1992) 174 CLR 455).