Week 1 (15 October)
Topic 1: Nature of Law
Topic 2 (Part 1): The Australian Legal System
Gibson & Frar Chapters 1 to 3
Plea note: Workshops start in week 2
CHAPTER 1: THE AUSTRALIAN LEGAL SYSTEM (PART 1)
This chapter covers the following topics:
∙What is a legal system and what are our sources of law?
∙Legislation – its origins and functions.
∙Procedure for making laws in parliament.
∙Delegated legislation – its functions, advantages and disadvantages.
作业本答案∙Common law – its origins and functions.
∙Equity – its origins and functions.
∙Civil and Criminal Law – the differences in principle and procedure.
∙English law in Australia
LEGAL SYSTEM
A “legal system” may be defined as the totality of laws that regulate a legally organid community. The Australian legal system is described as a “common law” system becau it is bad on the English system where ca law (or common law) was traditionally the main source of law. Other Commonwealth countries, such as Canada and New Zealand, and the United States also have systems of law influenced by the English common law system. SOURCES OF LAW
In this part of the cour we answer the question “where do our laws come from?” In other words, what are the sources of our law in Australia?
The sources of law in Australia (and England) include:
1.Legislation or parliament-made law (including delegated or subordinate legislation).
2.Common law or judge-made law (including principles of equity).
LEGISLATION
Legislation refers to laws made by parliament. Other terms for legislation include statutes and Acts of Parliament. For example, the Human Rights and Equal Opportunity Commission
Act 1986is an Act of the Australian Commonwealth Parliament. Each of the States in Australia has a parliament which is able to make laws to regulate matters within the State. To appreciate legislation as a source of law it is necessary to trace the origins of parliament in the English system. In 1066 William of Normandy took over the throne in England (after the famous Battle of Hastings). He took control of all the land in his kingdom granting it to his Knights in return for their rvices in battle. The Knights would then grant the land to rich nobles or lords who paid for their right to u the land. The wealthy landowners then rented out the land to farmers and peasants who would be required to work the land to produce crops and rai animals for the benefit of their masters. This was the feudal system of land holding.
防溺水安全教育主题班会To assist him in managing his Kingdom the King had a group of advirs – later to be called ministers. The King also met from time to time with his knights in the Great Council – later to be called the Hou of Lords.The reprentatives of the local districts also attended the Great Council; however, they met in a parate “hou” of meeting area – later to be called the Hou of Commons.
By the 13th century the Great Council became known as parliament. The king made laws (called legislation) on matters of importance to the reprentatives, in return for their assurance that the will of the king would be carried out, especially in raising taxes.
By the 15th century the King was approving legislation made by parliament, however, the King was the ultimate or supreme law-maker –this is referred to as crown supremacy or sovereignty.
Over the next couple of centuries Parliament attempted to claim for itlf ultimate law-making power, however, various Kings still tried to exerci legislative power without parliament’s approval. Finally, in 1689, the king (James II) was forced to leave England and William and Mary of France invited to take the throne on condition that they recognid Parliament’s authority as supreme –this is referred to as parliamentary supremacy or sovereignty.
Parliamentary Sovereignty
Parliamentary sovereignty is a central feature of England and Australia’s constitutional systems. It refers to the fact that the Crown is subject to the laws of parliament just as any other person. In England the Crown refers to Queen Elizabeth II. The Queen plays no active role in law-making becau she is not an elected reprentative of the people. The Queen asnts to a bill that has pasd through both hous of parliament. This is a mere formality that converts a bill into an Act of parliament. In the exerci of her constitutional functions the Queen relies on the advice of the government ministers (who are also members of parliament).
Australia inherited the same parliamentary system of reprentative government as the English. The Crown is reprented in each State by the Governor of that State. The Governor-General reprents the Crown at the Commonwealth or federal level. The State Governors and the Governor-General exerci similar constitutional powers to the Queen
within the Australian legal system; however, the powers are always exercid on the advice of government ministers.
Bi-cameral (two hou) legislature
27英文
The Commonwealth Parliament and the parliaments of the States are bad on the English model, with some variations.
The English Parliament at Westminster in London compris two Hous or chambers. The Upper Hou is the Hou of Lords and consists of unelected members descended from wealthy and noble families. The Lower Hou is the Hou of Commons and consists of elected reprentatives of the people, including the Prime Minister, Ministers of the Crown and Opposition members.
State parliaments
The Upper Hou in all the States of Australia is called the Legislative Council. The Lower Hou is called the Legislative Asmbly in NSW, Victoria and Western Australia. In South Australia and Tasmania it is called Hou of Asmbly. In Queensland the one Hou is a Legislative Asmbly. All Hous, both Upper and Lower, in each State are directly elected by the people of the State. The Lower Hou is the most powerful Hou –it controls finance and compris the Premier, Treasurer and Ministers.
Commonwealth (or federal) parliament
In the federal system the Upper Hou is the Senate which reprents the States and the Lower Hou is the Hou of Reprentatives. Reprentatives of both Hous are directly elected by the people. The Hou of Reprentatives reprents the interests of the people of the Commonwealth at large. The Prime Minister, the Treasurer and most of the other Government Ministers (who compri the core of the government) sit in the Hou of Reprentatives.
Process of law-making in parliament
The process by which a law is made in parliament is called enactment.
The procedure for passing statutes evolved over ven centuries in the English system. The proposal for an Act of parliament is the outcome of a policy decision that may be (a) an electoral promi (b) submitted by a minister (c) supported by a private member or (d) the result of a law reform commission or other inquiry.
A proposal for a new law needs the support of Cabinet, which is the core reprentative of the political party that has the majority of ats in the lower hou of parliament. Unless Cabinet makes a place for a propod law (called a bill) it probably won’t be introduced into parliament. To decide what provisions should be included in a bill Cabinet will consult with relevant government department
s, experts and other interested parties. This may also generate public discussion. Once the main outlines of a bill have been worked out it will be nt to the Office of the Parliamentary Council to be put in statute form. The bill is then ready to be introduced into parliament.
The following includes a brief summary of the passage of a bill through parliament:
∙The bill is initiated by the appropriate minister (usually in the lower hou) by a motion for leave to introduce the bill.
∙The first reading is a formal exerci where the title of the bill is read out. At this stage there is no debate, however, a date is fixed for the cond reading.絮絮叨叨的意思
∙At the cond reading the bill is debated upon in principle, although its details are not scrutinid at this stage. If it is not rejected it then goes on to the committee stage.
∙The committee may be an actual committee or a “committee” constituted by the whole Hou. It is at this stage that the details of the bill are debated, clau by clau, and then the bill is “reported” back to the Hou, together with any amendments.
∙At the third and final reading the bill is read as a whole and further debate may occur. The bill is the
n voted upon and if the majority of members vote for it then bill has been pasd by the Hou.
∙The bill then goes through the same procedures in the other Hou which is usually the Upper Hou. If the Upper Hou accepts the bill but makes its own amendments, the amendments have to be considered in the Lower Hou.
∙Once the Bill has been pasd by both Hous, it is ready to receive the royal asnt.
This is a formality that is completed by the Governor-General (Commonwealth) and Governors (States).
∙Once asnt has been given the bill becomes an Act of parliament to come into operation on a date proclaimed by the Governor-General or State Governor. Regulations (delegated legislation)
Parliaments are not the only source of law-making. Society is regulated to an increasing extent by regulations, rules, ordinances and by-laws. Collectively known as delegated legislation the sources of law are made by public rvants. This is made possible through the delegation by parliament of some of its law-making power under legislation. Within the Act parliament authoris a number of matters to be worked out by some other body or individual, such as the Governor (General)-in-Council, statutory authorities, local councils and government ministers.
The reasons why parliament delegates some of its law-making powers may be summarid as follows:
∙Time–parliament does not have the time to prescribe the details necessary to implement the general principles contained in many Acts of parliament.
温馨的家作文∙Experti–parliament does not posss the necessary experti to regulate areas requiring complex and detailed implementation –for example, regulations under pharmaceuticals legislation.
∙Flexibility – regulations can be made, altered or repealed much more rapidly then a new law can be pasd, or amendments made to an existing law.
中学生舞蹈成人故事Delegated legislation is made by persons and bodies who are not elected lawmakers, therefore, in theory it does offend parliamentary sovereignty. However, delegated legislation is authorid by parliament, therefore, the rules and regulations made by the subordinate bodies must not go beyond the authority given to them under Enabling Acts. If a rule or regulation is challenged in court and found not to be authorid under the Act it is said to be ultra vires or beyond power.
There are various review and scrutiny committees attached to parliament which examine all delegate
d legislation to ensure that it conforms to the authorising legislation. For example, the Federal Senate Standing Committee on Regulations and Ordinances ensures that all regulations are pasd in accordance with the relevant statute; that they do not trespass on personal rights and liberties; that administrative decisions are subject to review; and that delegated legislation deals only with administrative detail and not matters of substance. It is also common practice for regulations to be tabled in parliament where they can be disallowed by either Hou within a specified time.
COMMON LAW浩气长存的意思
The other very important source of law within the Anglo-Australian legal systems is common law or ca law. This refers to the legal principles developed over the centuries by judges when deciding cas. The principles of most areas of law are bad on common law although now supplemented and modified by legislation. For example, the Law of Contract is mainly bad on common law rules.
After 1066 when William the Conqueror came to the throne common law courts (or Kings Courts) were established in London. They included the Courts of Exchequer, Common Pleas and Kings Bench. Legal disputes between citizens in areas outside London had traditionally been resolved through the application of local customary rules which may have varied from one part of the kingdom
to the other. The practice aro of nding judges from the courts in London on circuit throughout the realm to resolve the disputes. This was very important for the development of English law becau the judges applied the same principles for deciding cas in the outlying areas that they were applying to resolve similar disputes in the courts in London.
A coherent body of law developed which unified customary rules and traditional practices. The doctrine of precedent evolved whereby judges began to apply the same principles to resolve disputes where the facts were similar. Lower courts within the court hierarchy were therefore bound to follow the principles of law developed by the higher courts when deciding similar cas. This doctrine is still applicable today and is important for maintaining certainty in the application of the law and to minimi the possibility of judges deciding cas on the basis of their own subjective views.
