The+Australian+Legal+System


 * History of the Australian Legal System**

The Australian legal system has been largely adopted from the English legal system.

Arrival of Common Law
International law stats that there are only 3 ways to acquire new territory:
 * 1) Conquest
 * 2) Cession (occurs where one power gives up sovereignty over territory)
 * 3) Settlement

Australia was regarded as settled, and British laws immediately came into force.

Terra Nulius

 * Australia was settled on the basis of //terra nulius//
 * Australia was considered uninhabited
 * Aboriginals were not regarded as having land ownership systems or a recognised legal system. Rather they were considered to be nomadic and incapable of 'owning' the land.
 * On this basis, Australia was settled by the English.

Timeline
1770 – Cook discovers Aus. Aus regarded as settled.

1788 – English laws regarded as in force -> Blackstone’s commentaries (Reception of British Law)

1823 – New South Wales Act 1823 established NSW Supreme Court. 1828 – Australian Courts Act (All laws in force in England on 25 July 1828 that were applicable to NSW and Van Diemen’s Land would be in force there). Continued confusion as local laws were repeatedly invalidated for being repugnant (inconsistent with English laws).

1865 – Colonial Laws Validity Act – No colonial law to be invalidated on basis of repugnancy unless it was inconsistent with imperial legislation that specifically extended to colony. Almost full sovereignty granted to legislate within colony. This essentially stopped laws being invalidated by British judges.

The Colonial Laws Validity Act established that judges were supposed to develop a new body of law using English law as a guideline. They were not to replicate English society in the colony.

The Privy Council became highest court in colonial hierarchy.

Note Native Title is the lowest kind of ownership -> only applies if there isn’t any other form of ownership on the land.
A right for indigenous claimant to continue traditional rituals on the land -> needs to be established.

Court did not question the reception of English laws into Australia or whether or not Australia had been settled.

Federation Timeline
1891 – National Australiasian Convention in Sydney. Produced a draft Bill for federal constitution relating to areas of common concern. The Bill came to nothing as colonies lost interest.

1897/1898 - Another constitutional convention held. Eventually a referenda was passed concerning a constitutional Bill.

1900 – Commonwealth of Australia Constitution Act (UK) passed by Imperial Parliament. Queen Victoria proclaimed Act would come into force on 1st January 1901.

1901 – Act comes into force and Australia becomes a federation. Proclamation of Australian Constitution.

The Constitution
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents.

The Constitution was approved in referendums held over 1898-1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Ipm)

The Constitution has two main functions:
 * 1) Establishment and division of power within the Federation; and
 * 2) Separation of powers at the Commonwealth Level

In addition to the Constitution of Australia, each state has their own constitution.


 * Division of Powers**
 * s106 recognises residual powers of the states
 * s109 recognises supremacy of federal Parliament
 * s51 outlines powers of government

The Constitution confers powers onto three different bodies:
 * Separation of Powers**
 * 1) the Legislative;
 * 2) the Executive; and
 * 3) the Judiciary

This system was designed to ensure that power is not vested in one central body, and therefore provides a system of checks and balances. The separation of powers underpins the principle of responsible government//.//