1. Fundamentals of Law (BL502) Review Australian Legal History, The Nature of the Law, Parliamentary Process. The Australian Legal System and Statutory Interpretation

2. Fundamentals of Law (BL502) 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  Australia was regarded as ‘Terra Nullius’  Aboriginal rights and law not recognised

3. Fundamentals of Law (BL502) 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”

4. Fundamentals of Law (BL502) 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

5. Fundamentals of Law (BL502) Public & Private Law  Public Law  Relations between citizens and the state  Private Law  Relations between citizens

6. Fundamentals of Law (BL502) Public & Private Law - Examples  Public Law  Criminal  Administrative  Constitutional  Revenue  industrial  Private Law  Contract  Tort  Family  Property  Wills

7. Fundamentals of Law (BL502) Civil & Criminal Law  Criminal Law  The rules of statute and common law which direct that certain actions are punishable by the state.  Offences against the community  A penalty is imposed on the wrongdoer  Civil Law  Anything not criminal  Protection and enforcement of personal rights  Does not impose penalties

8. Fundamentals of Law (BL502) Making Australian Legislation  Draft Bill prepared  Passed by both Houses of Parliament  First reading – bill formally introduced  Second reading – principles of bill debated  Committee stage – bill debated in detail. Amendments made.  Third reading - Bill formally passed or defeated  Royal Assent by Governor General\Governor  Commencement

9. Fundamentals of Law (BL502) High Court Federal CourtFamily Court Federal Magistrates Service Court of Appeal County Court Magistrates Court Supreme Court FEDERAL COURTSVICTORIAN COURTS

10. Fundamentals of Law (BL502) The Role of the Courts  Applying Legislation  Courts interpret legislation  Courts aim is to ascertain and give effect to Parliaments intention

11. Fundamentals of Law (BL502) The Role of the Courts (cont.)  Judge-made law  Parliament is not the sole repository of law  Life is too complex for definitive legislation on all aspects  Common law  legally enforceable rules that have been fashioned and adapted by the Courts throughout the ages  Rules are not made ad hoc  Process of slow adaptation

12. Fundamentals of Law (BL502) Approaches to Interpretation  Literal  The Court will give the words of a Statute their ordinary meaning even if it produces an absurd, unjust, inconsistent or meaningless result  Dictionary meaning - but which dictionary?  Sometimes the “legal” meaning is used  More popular in the past

13. Fundamentals of Law (BL502) Approaches to Interpretation (Cont.)  The Golden Rule “...the grammatical and ordinary use of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the [document], in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency, but no further” Grey v Pederson (1857) 10 ER 1216 per Lord Wensleydale

14. Fundamentals of Law (BL502) Approaches to Interpretation (Cont.)  Purpose Approach  Tries to determine the intention of Parliament when it passed the Act.  A development of the  Mischief Rule  that seeks to discover the wrong that Parliament tried to correct by the statute and interpret the Act accordingly.

15. Fundamentals of Law (BL502) Approaches to Interpretation (Cont.)  4 elements to the Mischief Rule:  What was the law before the Act?  What mischief did the prior law not provide for?  What remedy did Parliament establish to remedy that mischief?  How can the Court interpret the Act in order to correct the mischief?