The
Australian
Legal System
and the
Common Law
‘Downunder’
Yesterday:
• Introduction
– Common law vs Civil Law
– Common law vs Statute
– Common law vs Equity
•
•
•
•
•
Norman Invasion of England
Itinerant justices (of Eyre and of Assize)
Curia Regis: the origin of Westminster courts
Writ System and sclerosis of the common law
Development of Modern Parliamentary
Democracy
Today:
• Development of Modern Parliamentary
Democracy and the rise of the statute
• Equity
• Doctrine of Precedent
• Australian Legal System:
– European Discovery
– Colonisation and Development
– Federation
– Independence
– An Australian Republic?
• Magna Carta 1215
•
http://www.magnacarta.senate.gov.au/
• 1265 Simon De Montfort’s Parliament
• 1295 Model Parliament King Edward I
•
•
•
•
Henry VIII
James I 1603 -1625 (James VI of Scotland)
Charles I 1625 - 1649
The Commonwealth Period
under Lord Protector Oliver Cromwell
• Charles II 29 May 1660 - 1685
• James II 61685-88
• Glorious Revolution of 1688
• William and Mary
• Bill of Rights 1689
• Act of Settlement 1701
• Rule of Law
• Separation of Powers
The role
of the
Statute
Equity:
The jurisdiction of The Court of
Chancery
Lord Chancellor: King’s principal legal officer and “the
keeper of the King’s conscience.”
English not Latin or Norman French
No jury
Focus on merits of the claims regardless of the
technicality of forms/writs
Its earlier decisions were binding upon itself.
“The Office of the Chancellor is to correct Men’s
consciences for Frauds, Breach of Trusts, Wrongs
and oppressions, of what ever Nature soever they
be, and to soften and mollify the Extremity of the
Law … [W]hen a judgment is obtained by
Oppression, Wrong and a hard Conscience, the
Chancellor will frustrate it and set it aside, not for
any error or Defect in the Judgment, but for the
hard Conscience of the Party.”
The Earl of Oxford’s Case (1615) 21 ER 485
The trust: an important feature of law and
commercial life,for example:
• Banking & Finance (securities clearing systems, unit trusts,
custodianship of investments, bond issues)
• Commercial (business trusts, nominee shareholders)
• Wills & Estates (testamentary trusts)
• Charities (charitable purpose trusts)
• Family (family trusts, equitable interest of man and woman in family
home)
• Tax “minimisation” strategies
• Superannuation & pensions
What is a trust?
A device by which one person (trustee)
holds property (trust property) for the
benefit of another person (beneficiary) or
for certain lawful purposes.
Judicature Acts of 1873 and 1875 (UK)
• Abolished both the Court of Chancery and
the common law courts
• Created one court – the High Court of
Judicature with five divisions:
– Queen’s Bench, Exchequer, Common Pleas,
Chancery & Probate, Divorce & Admiralty
THE
DOCTRINE
OF
PRECEDENT
THE DOCTRINE OF PRECEDENT
stare decisis et non quieta movere
(stand by the thing decided and do not disturb the
calm)
•
•
•
•
CERTAINTY
EQUALITY
EFFICIENCY
APPEARANCE OF JUSTICE
Telstra Corporation v Treloar (2000) 102 FCR 595,
602 (Branson and Finkelstein JJ)
‘Our common law system consists in the applying to new
combinations and circumstances those rules of law which we
derive from legal principles and judicial precedents; and for
the sake of obtaining uniformity, consistency and certainty
we must apply those rules where they are not plainly
unreasonable and inconvenient, to all cases which arise; and
we are not at liberty to reject them, and to abandon all
analogy to them, in those to which they have not been
judicially applied, because we think that the rules are not as
convenient and reasonable as we ourselves could have
devised.’
Mirehouse v Rennell
(1833 1 Cl and F 527; 6 ER 1015 at 546 per Parke B)
Authorised Law Reports are
central to the doctrine of
precedent
Doctrine of Precedent: in summary
• Each court is bound by decisions of courts in its hierarchy
• A decision of a court in a different hierarchy or lower in
the same hierarchy may be persuasive, it will not be
binding
• Generally a court will not consider itself bound by its own
past decisions but will depart from them only reluctantly
• Only the ratio decidendi of a past decision is binding
• Obiter dicta are not binding but may be persuasive
• Precedents do not lose their force by lapse of time
JUDICIAL REASONING or HOW COURTS CAN
AVOID A PRECEDENT
•
Distinguish it on the facts
–
•
Eg Thornton v Shoe Lane Parking [1971] 2 QB 163
Statement of law is too wide
–
eg Attorney-General for New South Wales v Mundey [1972] 2 NSWLR887
–
Ex parte Attorney-General; Re Truth and Sportsman Ltd [1961] SR(NSW) 484
‘any statements or comment dealing with the case and propounding views as to its proper
determination are calculated to obstruct, or tend to obstruct, the administration of justice and to make
the task of the court entertaining the appeal both difficult and embarrassing.”
•
•
Statement of law is obiter dictum
Changed social conditions
–
–
•
•
•
R v L (1991) 174 CLR 379 http://www.austlii.edu.au/au/cases/cth/HCA/1991/48.html
R v. R. [1992] 1 AC 599, 612-623 http://www.bailii.org/uk/cases/UKHL/1990/9.html
Precedent Unsatisfactory
Precedent is wrongly decided
But what about when there is no precedent?
THE
AUSTRALIAN
LEGAL
SYSTEM: the
common law
‘downunder’
1606: Willem Janszon (Dutch)
1622: British East India Company ship The Tryall wrecks on the west coast
1642: Abel Tasman (Dutch) sighted Tasmania on the way to discovering New
Zealand, Fiji and visiting New Guinea
1688: William Dampier (English), landed on the west coast
19 April 1770: Captain James Cook in The Endeavour sighted the east coast
of Australia and ten days later landed in a bay now located in Sydney's south
22 August 1770: Cook took possession of most of the East coast for the
British – with an undefined western boundary.
26 January 1788: First Fleet arrived in Sydney
Other colonies established thereafter
http://upload.wikimedia.org/wikipedia/commons/5/55/Australia_history.gif
• Australian colonies
established largely as a
place to deposit convicts
whose death penalties had
been commuted to
transportation
• 160,000 convicts were
transported to the Australian
colonies
• until:
• 1852 New South Wales
• 1852 Tasmania
• 1868 Western Australia
‘[Aboriginal Australians] may truly be said to be in
the pure state of nature, and may appear to some to
be the most wretched upon the earth; but in reality
they are far happier than ... we Europeans.’
Captain James Cook
23 August 1770
TERRA NULLIUS:
‘It has been held that if an uninhabited country be discovered
and planted by English subjects all the English laws then in
being, which are the birthright of every English subject, are
immediately there in force.
But this must be understood with very many and very great
restrictions. Such colonists carry with them only so much of the
English law as is applicable to their new situation as the
condition of an infant colony…’
Blackstone
http://data.worldjusticeproject.org/
New South Wales Act 1823 (Imp)
Australian Courts Act 1828 (Imp) (s24)
•all common law and statute law of Britain was imported into New South
Wales (and Queensland and Victoria) on 25 July 1828.
•South Australia: 28 December 1836
•Western Australia: 1 June 1829
Australian Constitutions Act (No 1) 1842
– introduced a number of reforms that created for the first time three
separate branches of government
Australian Constitutions Act (No2) 1850
- Allowed colonies to form their own constitutions and parliaments
For example in South Australia:
Became a self-governing colony in 1856
A bicameral parliament was elected on 9 March 1857
Constitution provided for:
• Adult male suffrage (including indigenous men) (no property requirement);
• Secret ballot voting; one man, one vote;
• No property qualifications for Members of its House of Assembly and a relatively low
property qualification for Members of its Legislative Council
In 1894 women in South Australia :
• were given the right to vote; and
• and were the first women in the world to be able to stand for parliament.
Federation: 1 January 1901
Independence
•World War 1 and Treaty of Versailles
•Consitutional Crisis in Canada and the Balfour Declaration of
1926
•World War 2
•Statute of Westminster (Imp) 1931
•Statute of Westminster Adoption Act (Cth) 1942
Privy Council (http://www.jcpc.uk/index.html)
Independence
The Australia Acts enacted by both the Australian
and in the United Kingdom Parliament in 1986
Queen visits Australia in 1963:
An
Australian
Republic?
•http://www.youtube.com/watch?v=6ibGwqMM6uU
Looking back on the 1999 Republic
Referendum:
•http://youtu.be/rNM3iyCH4do
Queen visits Australia in 2011:
•http://youtu.be/cfOZ61I5V4E