1. Copyright Guy Harley 2004 1 Australian Legal System Lecture 2 Turner “Australian Commercial Law” Chapter 1 Gibson “Commercial Law in Principle” Chapter 1

2. Copyright Guy Harley 2004 2 Aboriginal Customary Law  Not uniform throughout Australia (600 tribes)  Not documented (word of mouth)  Not recognised by Australian law (see Milerrpum v Nabalco)  Effect of customary law upon aborigines has been considered by Courts when sentencing

3. Copyright Guy Harley 2004 3 Aboriginal Customary Law  Based on “dreamtime” religion which did not draw a distinction between the physical and spiritual world  Strong Relationship with land – no individual ownership  Government by Elders  Secret matters –partially separate systems for men and women  Kinship obligations, kinship avoidance and sharing

4. Copyright Guy Harley 2004 4 Aboriginal Offences  Sacred law  Little distinction between deliberate and accidental breaches  “Borrowing” items was often permissible  Killing was not permitted  Punishments  Death and wounding  Illness & insanity caused by “pointing the bone”  Oral abuse and ridicule

5. Copyright Guy Harley 2004 5 Reception of English Law  Conquered\Ceded  Law of territory continued unless inconsistent with fundamental principles of English law  Settled  Terra Nullius  Laws of England as at date of settlement received into territory unless plainly impracticable

6. Copyright Guy Harley 2004 6 Reception of English Law in Australia  Australia was ‘settled’ not conquered  Doctrine of Terra Nullius - Aboriginal laws not recognised  Doctrine of Reception - English laws applied so far as ‘practical’  Note – English Law  English Law in force at date of settlement

7. Copyright Guy Harley 2004 7 Reception of English Law (cont.)  Mabo’s case – 1992  High Court rejected doctrine of ‘terra nullius’  Gave partial recognition to aboriginal land rights  Aboriginal title recognised unless subsequent exercise of control by parliament over land  Court raised possibility that other aboriginal law might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”

8. Copyright Guy Harley 2004 8 Reception of English Law (cont.)  Native Title legislation – 1993  Complimentary State and Federal legislation  Confirms existing freehold and leasehold land grants  Provides a system for proving native tile

9. Copyright Guy Harley 2004 9 Timeline  1788 – 1836 States settled as English colonies  1828 Australian Courts Act  1865 Colonial Laws Validity Act  1901 Federation  1931 A Sovereign Nation (Statute of Westminster)  1986 Sovereign States (Australia Act)  1992 Mabo case  1993 Native Title Act

10. Copyright Guy Harley 2004 10 The Australian Constitution  Establishes 3 Branches of Government:  The Governor-General (Queen’s rep)  Federal Parliament  House of Representatives  The Senate  The Courts  Separation of Powers

11. Copyright Guy Harley 2004 11 Federal Executive  Headed by the Queen of Australia  She is represented by the Governor General  Little information in Constitution  Must give Royal Assent to an Act of Parliament before it becomes law  Can dissolve parliament and call an election  Acts on advice from Ministers (the cabinet)  Prime Minister is the chief minister  Each minister heads one or more government departments

12. Copyright Guy Harley 2004 12 Federal Parliament  Division of Legislative Power between the States and the Commonwealth  Commonwealth Powers are limited  s 51 of the Constitution  s52 of the constitution

13. Copyright Guy Harley 2004 13 Federal Parliament  State powers theoretically unlimited but:  s.109 - Commonwealth legislation prevails over inconsistent State legislation (Constitution s109)  In practice, States only have power where commonwealth does not  Also  Since World War II, Commonwealth has controlled income tax collection in practice  Commonwealth uses grants to compel States to do what it wants

14. Copyright Guy Harley 2004 14 Restrictions on Federal Powers  Freedom of religion  Freedom of interstate trade and intercourse  Implied right of political assembly (Communist Party case)  Implied right to freedom of speech in support of the political process

15. Copyright Guy Harley 2004 15 Federal Parliament  House of Representatives  Each electorate elects one member  All electorates are approximately the same size  All members elected every 3 years for 3 year terms  Senate  12 senators from each state and 2 each from ACT & NT  Half elected every 3 years for 6 year terms  Intended to protect state rights  Different parties may control each house  Each house acts as a break on the other

16. Copyright Guy Harley 2004 16 Parliamentary Committees  Types:  Standing committees - Permanent committee that reviews matters in a specific area (e.g. defence)  Ad hoc committees - Temporary committee that reviews one particular matter  Bipartisan (i.e. representatives from government, opposition and minority parties)  Can question public servants  Receive submissions from public  Makes recommendations to parliament

17. Copyright Guy Harley 2004 17 Courts  High Court  Appellate jurisdiction  Original Jurisdiction  Constitutional disputes  Disputes between Commonwealth and States  Disputes between the Commonwealth & others  Disputes between people in different States  Federal Courts  State courts can exercise federal jurisdiction

18. Copyright Guy Harley 2004 18 Amending the Constitution  Amended by referendum  Passed by a majority of both houses of parliament  A majority of electors in Australia  A majority of electors in a majority of States (i.e. 4)  By vote of all State parliaments  British Parliament lost power to amend (Australia Act) (Australian Constitution s128)

19. Copyright Guy Harley 2004 19 State Governments  Each has its own constitution  Similar structure to Federal Government  Parliament has 2 houses (except Queensland)  Assembly  Legislative Council  Governor is head of executive  Premier is the chief minister  Supreme Court is highest court

20. Copyright Guy Harley 2004 20 The Crown  The Queen is head of both the Federal Government and each State government  Governor General is the representative of the Queen  State Governors are representatives of the Queen  Each government is “the Crown”  Each Crown is separate e.g. the Crown can sue the Crown (e.g. Queensland v Commonwealth)