Foundations of the Australian
legal system
Natalie Wieland BA. LLB
Academic Skills Support 2014
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Overview
•
Started as a penal colony on 26 January 1788
•
Stated the land was “terra nullius” ie/ uninhabited
•
A number of colonies
•
Commonwealth Constitution 1901
•
Only in recent years acknowledged Aboriginal legal system
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Federal System
The Constitution set up a Federal System with three tiers of
government
1.
2.
3.
3
Federal/Commonwealth
State
Local
Governor General
•
The head of our Commonwealth Government is a
representative of the Queen – the Governor General who
is currently Quentin Bryce ( a new GG being sworn in in
March Peter Cosgrove
•
Each state has a Governor. In Victoria it is currently Alex
Chernov AC, QC
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Role of Governor General
Pursuant to the Constitution advise if the
Governor-General
•Has to assent to a Bill for it to become law
•Can he/she withhold consent
•The Governor-General represents the Queen
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Who deals with what?

The Constitution establishes what areas are dealt with by
the Federal Parliament. If an area is not listed it remains
with the States.

We need to look at the Constitution to establish who has
what powers.
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ACTIVITY
List which are state and which are Federal powers

Family law
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Roads and traffic
Education
Lighthouses
Rubbish bin collection
Postal services
Bankruptcy
Marriage
Immigration
Sources of law


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Common Law (Case
law)
Legislation – statutes
and regulations
Court hierarchy
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High Court of Australia

Highest court in the land – no further right of appeal

Current Chief Justice – French CJ
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Koori Court

A Koori Court is a division of the Magistrate's court in
Victoria, Australia, that sentences Indigenous Australians
who pleaded guilty. Koori Courts were created in order to
allow participation of the Aboriginal community and
culture in the legal system, in an attempt to bridge the
cultural differences between Indigenous Australians and
the imposed colonial law. They began operation in 2002,
and are held on a designated day in an ordinary
courthouse. The laws administered are exactly the same
as in any Australian courthouse, but the format of the
hearing is different. (Wikipedia)
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LETS WATCH A VIDEO

http://www.youtube.com/watch?v=evlXu59uW7o
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Common law
• developed by Judges, usually
superior courts (doctrine of
precedent)
•Each case a solution to a
dispute between two or more
parties
•A series of cases on area of
law can form the ‘legal
framework” eg. Negligence
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Doctrine of precedent
• rules of common law are
found in past cases
•English common law
employ stare decisis ie. to
follow the decisions' of
earlier cases
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Doctrine of precedent
•Each court is bound by decisions of courts higher in the hierarchy
•A decision of a court in a different or lower hierarchy may be persuasive
not binding
•A court is not bound by their own decisions
•Only the ration decidendi (the reason for deiciding) is binding
•Obiter dicta (passing remarks) are not binding but persuasive
•Precedents do not lose their force over time*
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Taken from “Laying down the law” 8th edition
pp116-117 Lexis Nexis
Law reports

The doctrine of precedent requires a
comprehensive reporting system in
order to find the authoritative
decisions.

Each jurisdiction has its own
authorised version which you must
use when citing a case
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Authorised reports
Court
It is vital to know
which is the
authorised version
for each court.
A full list can be
found on the library
website at:
Library -> Tools –
Authorised Reports
17
High Court of
Australia
Report
Abbreviation
Commonwealth Law Reports
CLR
Federal Court of
Australia
Federal Court Report
FCR
Supreme Court
of Victoria
Victorian Reports 1957Victorian Law Reports 18751956
VR
VLR
Supreme Court
of Canada
Supreme Court Reports
SCR
Legislation vs case law

The general rule is legislation takes precedence over
case law. Therefore, Parliament can always change
the case law rules.

However, the Courts interpret the legislation and
therefore can effect the meaning of the words.
Acts Interpretation Act 1901 (Cth) eg. S.15AA the
requirement to interpret provisions in accordance
with the underlying purpose of the Act
•
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Parliament

•
•
•
Federal democratic system –
powers set out in the
Constitution
Commonwealth
States (Victoria, South Australia,
Queensland, Tasmania, New South
Wales, Western Australia)
Territories (ACT and Northern
Territory)
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The legislative process
•
•
•
An idea is developed into a Bill
The Bill passes through
Parliament
Receives Royal Assent
• Governor- General
(Federal)
• Governor (State)
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Creating an Act
Bill drafted
Lower House
Upper House
GovernorGeneral
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The Bill has an Explanatory memorandum
which helps understand purpose of Bill
1st readings - > Second reading (most
important) - > 3rd Reading - > Passed
1st readings - > Second reading (most
important) - > 3rd Reading - > Passed
Cannot become law until GG (or
Governor at State level) signs and
then check for commencement
details
Lower House – House
of Representatives
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Upper House
- Senate
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Subordinate legislation
•Not all laws can be made in
Parliament – so need the power to
delegate and make subordinate
legislation.
•Most common form are regulations
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How to change
•
An amending Act needs to
be drafted and passed
through Parliament
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How can I tell if there have been changes
•

•
•
Commonwealth Acts – check the notes at the foot of the
Act
E. Fair Work Act s.12
Victorian Acts – check the margin
Eg. Racial and Religious Tolerance Act 2001 s.14
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Summary
Two ways to make law:
•Case law (including interpreting legislation)
•Legislation
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Questions?

Don’t forget you can
always come to the
library for help, or the
Academic Skills Centre
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