Foundations of Law- Reader Notes

Week One:
1. Occasional Address: Once a society marked by inequalities despite egalitarian principles (women: low salaries, Aborigines: under the control of the Aborigines Welfare Board) Notion of equality established recently (complex nature) Parliaments have not adequately address this notion (only prescribed general principles or not legislate at all), conferring to the specialist tribunals and courts Equal educational opportunity (fundamental human right a matter of national security in a competitive globalised economic environment) Equality = treating people as individuals and allowing for differences, NOT uniformity High costs of legal representation alternative mechanisms for everyday justice (administrative tribunals, special interest groups) 2. Australias Legal System The Law in Australia: Federal & State Parliaments pass Acts called delegated/subordinate legislation Common and Statute law of England still applies to Australia with modifications

The Parliamentary System Federal and State & Territory (ten; ACT, NT, Norfolk Island: large degree of autonomy) Commonwealth and states governed by elected Parliaments (two houses; Upper House = review; separate legal systems but Commonwealth law can override State law) Queen (Governor-General), Senate (same number each state), House of Representatives (depends on states population; leader of commanding party = Prime Minister) The Australian Constitution Fundamental law binding for all (1 Jan, 1901: creation of the Commonwealth/Federation) Amendments must be approved by the people through a Referendum Legislative power: makes laws (no strict demarcation with executive) Executive power: carries out laws (through government departments etc.) Judicial power: exercised by the courts The Crown and the Responsible Government Australia = Constitutional monarchy (Governor-General plays predominant role) Responsible Government: the Crown acts on the advice of its Ministers who are members of the Parliament; underlies Constitution) Governor-General has reserve powers (appointing/dismissing Prime Minister; must act under conventions) Commonwealth Parliament A Bill (proposed law) to be passed by the Senate and House of Representatives assented

by Governor-General Act of Parliament (disputes may arise between the two Houses; any irreconcilable disagreement requires a Double Dissolution: election for both Houses) Legislative Powers Commonwealth: taxation, defence, external affairs, trade, immigration, bankruptcy (less involvement in education, environment, criminal law, roads) State: each has own constitution, can pass laws on a wider scope than Commonwealth Commonwealth more power than State (can override State laws, more revenue and grants) High Court of Australia Determines whether an Act passed by the Commonwealth is within its legislative powers; final court of appeal Commonwealth Parliament has power to create other federal courts (Federal/Family Court) An Australian Common Market Regulates trade and commerce throughout Australia (no protectionist interstate burdens) New States Can be created under section 121 (but never happened since Federation) Rights Constitution has no Bill of Rights to prevent laws that infringe basic freedoms Some protections given against Commonwealth legislative/executive action The Process of Law-Making Laws introduced as Bills into Federal Parliament and be approved by both Houses require Royal Assent by G-G The Judiciary Separate from the legislative and executive arms of government Commonwealth Courts: 1) The High Court of Australia (original [the courts right to hear a case for the first time] and appellate [hearing appeals] jurisdictions [the geographical area the court covers; the scope of cases the court can hear e.g. murder trials have to start at the Supreme Court, no access for the local court]; final court of appeal) 2) The Federation Court of Australia (1971, required by each state, ACT and NT) 3) The Family Court of Australia (1976, matrimonial matters e.g. divorce, custody, counselling and mediation, recently expanded jurisdiction: bankruptcy, administrative law, taxation appeals; exercises original and appellate jurisdiction except in WA, NT) 4) Industrial Relations Court of Australia (1994) 5) The Federal Magistrates Court/ Court Service (1999, independent under Constitution) State and Territory Courts Deals with most criminal matters, but has jurisdiction in all relevant matters

1) State and Territory Supreme Courts (highest S&T courts, deal with civil litigation and serious criminal cases) 2) State and Territory Intermediate Courts (one Judge, jury, majority of serious criminal offences; also known as County Courts- Victoria and District Courts- NSW) 3) State and Territory Courts of Summary Jurisdiction (Magistrate, ordinary/summary offences e.g. traffic infringements, debt recovery, custody/property disputes: no juries) 4) Small Claims Courts (deal with minor legal disputes cheaply, quickly, imformally) Bodies Other than Courts 1) Industrial Bodies (industrial maters, cover employment and settle disputes) 2) Review of Administrative Decisions (and actions taken by Government officials) 3) The Administrative Appeals Tribunal (major Commonwealth tribunal for review of decision-making e.g. for lawfulness; same powers as the initial decision-makers) 4) The National Native Title Tribunal (1994, Aborigines and Torres Strait Islanders seek land rights or compensation; MUST have: native title holders, area the subject of claim, native title rights and interests under traditional laws/customs OR application rejected; accepted ones noted on the Register of Native Title Claims notified in the press two month period for any parties to express interest in the area subject to claim Legal Aid Commonwealth in cooperation with States and Territories (and legal aid commissions, community legal centres, private legal profession), aims to ensure reasonable access to justice for those in special circumstances through funding (legal advice and assistance, duty lawyer services Commonwealth also provides financial legal assistance through other schemes (statutory- 21, provision for assistance under the Racial/Sex Discrimination/War Crimes Acts1975/1984/1945 or non-statutory- 6, financial assistance by Attorney-General) High Court of Australia: no legal representation unfair trial conviction quashed adjournment/postponement/staying of trial