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Introduction to Law and Key Concepts and Principle

This guide explores core legal principles in Australia, including sources of law, legislative processes, case law, constitutional structure, Indigenous law the doctrine of parliamentary sovereignty with a focus on Queensland and federal institutions.

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    Introduction to Law LLB101: Key Concepts and Principles Introduction to Law (Queensland University of Technology)

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    What is Law? Law is an enforceable system of government-sanctioned rules which operated within a society to regulate its conduct. Explanatory Notes (Qld)/Explanatory Memoranda (Cth) Explanatory Speech (Qld)/Second Reading Speech (Cth) Committee Report - Members of Parliament are allocated to different legislative committees, which can examine Bills in detail and report back to Parliament. How a law is passed: 1. Most bills come from the government; a minister introduces them. 2. Any MP can introduce a Bill - Private Member's Bill 3. Explanatory notes are included to help explain the Bill. 4. Bill must be passed by the parliament (1 house in QLD, 2 houses for the commonwealth) 5. It gets Royal Assent - signed by the governor (QLD) or Governor-general to become law. *BILLS WHICH REQUIRE THE SPENDING OF PUBLIC MONEY MUST BE ACCOMPANIED BY A RECOMMENDATION FROM THE GOVERNOR/GG* Parts of an Act of Parliament 1. Reprint date (act is current as at this date) 2. Table of contents 3. Long title 4. Short title (s 1) 5. Chapters, parts, divisions, sections, sub-sections, paragraphs, sub-paragraphs (romans) 6. Commencement section (if any - usually s 2) 7. Endnotes (shows history of an act: how and when it has been amended Example: Crocodile Control and Conservation Bill 2024 (QLD) E Introduced by a private MP (Shane Knuth). Aimed to reduce crocodile attacks and protect human life. C Came with Explanatory Notes outlining the policy reasons (e.g., increased sightings, community pressure). I Withdrawn after Speaker ruled it breached Section 68 of the Constitution of Queensland 2001 - it created a spending right without Governor's approval. L Takeaway: Shows that even if a Bill is well-written, it must follow constitutional procedures to become law. Case Law and Courts Case law is the body of law that has developed through the recording of the decisions in cases coming before the courts. Also known as "Common Law", judge-made law, or the unwritten law. FUNDAMENTAL PRINCIPLES 1. Like cases. Should be decided alike. 2. The courts should decide cases according to the law. Common law courts follow the principle of stare decisis , meaning they stick to past decisions (precedents) in similar cases. This ensures consistency, but it can make changing the law slower unless a higher court overrules or distinguishes a previous decision. Parliamentary Sovereignty • Parliament is free to pass laws that are inconsistent with existing common law principles; • Judges must accept that any law made by parliament is supreme over their judge-made law; • Though judges may still have to interpret that new legislation. Australia —> common law country —> English heritage model (Common law can mean judge-made law developed through court decisions, the legal system used in England and similar countries, or historical laws common across the realm. It contrasts with local customs, civil law systems, statute law. and equity.) 2 Sources of law: Law made by or with authority of parliament 'legislation'. Law made by judges 'common law/case law'. Other sources, custom/lore, comparative law, international law Legislation & Parliament (Statutes/Acts) I I Made by or with authority of Parliament. U Delegated/subordinate legislation - Laws made by someone other than Parliament, but with Parliament's permission through an Act to save time and let experts or local bodies make detailed rules that the Parliament doesn’t have time. U For e.g., local councils —> by-laws Government departments —> regulations Officials like Chief health Officer —> public health directions U They can do this through an enabling act passed by parliament giving them legal authority although it must follow the limits set by Parliament in the enabling Act— Parliament is still the highest lawmaker. Advantages of legislation U Can adapt over time. H Covers many topics on a wide range of issues. fl Covers everything in one area. LI Start date is controlled. H Democratic - can be made by elected representatives so they reflect the will of the people. Why use primary + delegated legislation together? I I Parliament gives the main rules. LI Experts fill in the details (e.g., government departments or councils can make regulations) LI Faster changes (delegated legislation can be updates quickly for things that change often) I I Parliament stays in charge and still watched over the process and can take back power if needed. Other legislative documents Bill: name of proposed act to be passed

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    Court can override law made by parliament only if the proper procedures have not been followed or if the parliament does not have the power under the relevant constitution to make a law of that nature. Court cannot say that a law in invalid just because it is a 'bad' law, or the courts would have preferred a different wording. Custom can be a source of law, like parliamentary conventions or common business practices. These may not be legally enforceable but are widely followed and rarely ignored. HCA (high court of Australia) can be influenced by: 1. Comparative law of other jurisdictions like Canada and US 2. International Law norms and rights (international conventions and treaties e.g., international covenant on civil and political rights) Indigenous Australian Customary Law/Lore

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    AUSTRALIA’S CURRENT GOVERNOR GENERAL? SAMANTHA MOSTYN and PM? ANTI ION Y ALBANESE AUSTRALIA'S HEAD OF STATE? KING CHARLES III Colonial Laws Validity Act 1865 (Imp) ('CLVA') Z Gave colonics limited self-government. L Colonial Parliaments - change or add to English law —> courts could develop their own common law. F New British laws didn't apply (unless stated) L Over time colonies built their own legal systems but some English laws still applied by paramount force, the highest appeal court —>• Privy Council in England Federation Political system —» government power is shred between central or federal government and regional governments. Z Inspired by USA not England. Federation gained momentum in the 1880s through national conventions and public support —» each colony help referendum to approve idea —> Commonwealth of Australia Constitution Act 1900 (UK) was passed by the British Parliament —* signed into law on 9 July 1900 —> took effect on 1 January 1901 —> Australian Constitution is found within this Act. Constitution (s 128) Main tasks: 1. Recognises 6 colonies —> keeps laws unless changed by constitution. 2. Created federal/commonwealth government —> sets out its powers. 3. Regulates how power is shared between commonwealth and states. 4. Establishes a national market (free trade between states and common external tariffs) 5. Includes limited rights protections (e.g., trial by jury, freedom or religion) Z Body of rules, norms and traditions enforced within a community. Aboriginal + Torres Strait Islander -» present for 60.000 + years —» developed customs regulating culture and community and relo with land —> unwritten + without formal legal institutions + might look diff to a western modern —> does not imply absence of law. Milirrpum v N a b a l c o (1971): Blackbum J rejected the idea that Aboriginal law wasn't real law just because it lacked formal enforcement structures (like courts or police). He criticised the Austinian view (law = command of a sovereign) as too narrow. Instead, he found that Aboriginal law was a complex, stable, and effective legal system, suited to its context, even without Western-style institutions. Mabo v Queensland (No 2) (1992) The High Court ruled that Australia's sovereignty can't be challenged, but Indigenous customary law can still exist and operate within communities. This reflects legal pluralism— where more than one legal system coexists. While not fully recognised as law in courts, customary law may be considered in areas like sentencing (e.g., Murri Court) and has been discussed in ALRC reports on legal reform. English Law and the Colonial System - Key Dates 1 770 - James Cook explored eastern Australia Z 1787 - Arthur Phillip set sail from England with the First Fleet _ 18-20 Jan 1788 - Arrived at Botany Bay Z 24-25 Jan 1788 - Moved to Sydney Cove and raised the British flag. 26 Jan - Landed at Sydney Cove and raised the British flag. Z 7 Feb 1788 - NSW colony officially proclaimed; Arthur Phillip became Governor. 1788 onwards Britain settles in Australia (terra nullius land belonged to no one —> all existing English laws automatically applies in NSW if they made sense in the local context (RECEPTION OF ENGLISH LAW) —> Criminal court was set up right away under the New South Wales Courts Act 1787 (Imp) 1814 - First civil Supreme Court in NSW Z 1823 - NSW Act created proper Supreme Courts in NSW and Van Diemen's Land and formed the first Australia parliament - the legislative Council. *1F NSW RECEIVED ENGLISH LAW FROM 1788, WHAT ABOUT NEWER LAWS? THE AUSTRALIAN COURTS ACT 1828 (IMP) UPDATED THIS, SO ENGLISH LAW IN FORCE AS AT 25 JULY 1828 WAS OFFICIALLY RECEIVED. 6 June 1859 - QLD separated from NSW. By order in council all laws of NSW from that date continued to apply in QLD Including both English laws received as at 1828 and new laws passed by the NSW Parliament since 1828 FIRST GOVERNOR - SIR GEORGE BOWEN FIRST PREMIER OF QLD - SIR ROBERT HERBERT FIRST AUS BORN GOVERNOR? SUR JOHN LAVARACK (1946) CURRENT GOVERNOR? JEANETTE YOUNG CURRENT PREMIER? DAVID CR1SAFULL1 AUSTRALIAS FIRST GOVERNOR GENERAL? LORD HOPTOUN and PM? EDMUND BARTON Federal Institutions 51 - Legislative power - Parliament (queen, senate, house of reps) 52 - Governor-General - Queens representative in Australia S61-70 - Outline the Executive Government S71 - Judicial Power - High Court + Other Federal Courts The constitution lists "heads of power" Some powers are exclusive to the Commonwealth. Z Most arc concurrent (shared with the States) s51. Anything not listed = residual powers which stay with the States _ S 109 If a State law conflicts with a Commonwealth law, the Commonwealth law overrides it. Rights in the Constitution Five express rights (clearly written) Compensation for property acquired by the Commonwealth s51 (xxxi) Z Trial by jury for indictable Cth offences - s80 Free trade between states - s92

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    n Freedom of religion - s116 U No discrimination based on state residency - si 17. Implied Rights (interpreted by high court) Freedom of political communication - Nationwide New§ ACTV v Ctlf 1992) _ Right to vote - Roach v Electoral Commissioner (2007), based on ss 7 & 24. Judicial independence/due process - Kable v DPP (NSW/1996) Right to Vote - Constitution s 41 C s 41: People who already had voting rights in their state couldn't be stopped from voting federally. r At Federation : o Men could vote in all states (some Indigenous men too). O Women : Only in SA and WA (including Indigenous women in SA). L Commonwealth Franchise Act 1902 (Cth) : 0 Allowed women to vote and run for Parliament o Excluded most Indigenous and non-European people (except were protected by s 41). O Indigenous voting rights (federal) introduced in 1962 Statute of Westminster 1931 & Adoption Act 1942 1931 Act: Gave Dominions like Australia power to repeal UK laws. 1942 Act (Cth): Applied 1931 Act to Australia, backdated to 1939 . □ Didn't apply to states —only to the national (Commonwealth) government. Australia Act 1986 - Full Legal Independence L Passed by UK, Cth, and all state parliaments. Section 3 : States can now repeal or amend English laws Section 1 : UK laws no longer apply to Australia. Section 8 : UK monarch can't override state governors. L Section 11 : All appeals to the Privy Council ended . Mabo v Queensland (No 2) (1992) Facts : Eddie Mabo challenged QLD's claim over Mor Island lands. L Issue: QLD tried to wipe out native title —found invalid under Racial Discrimination Act 1975 (Cth). Held : o Australia was not terra nullius . o Crown got radical title , but native title could still exist if not extinguished. 0 Recognised Indigenous connection to land under traditional law Bill of Rights in Australia L No entrenched Bill of Rights in the Constitution. □ Past inquiries (1929, 1959) rejected the idea. L Failed attempts at statutory charters in 1973 and 1983. F 2008-09 consultations : No national model adopted. L Some states/territories (ACT, Vic, Qld) have their own statutory charters (c.g., Human Rights Act 2019 (Qld)). Changing the Constitution - s 128 T Requires a referendum . r Must pass a double majority : 1. Majority of national voters 2. Majority of voters in at least 4 of 6 states T Only 8 out of 45 referendums have passed. T Key one: 1967 referendum allowed: o Inclusion of Aboriginal people in the census o Commonwealth to make laws for Aboriginal Australians (formerly state- controlled) The Rule of Law

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    □ Magna Carta 1215 E 20 15 — ► 700 th Anniversary of Magna Carta I Exercise of power by government must be shared with the people and cannot be concentrated in the ruler. L Underpins legal system —» provides stability —> order in society —> prevents autocratic rule by government. Professor Albert Venn Dicey Law applies to everyone. Government by law Courts uphold legal rights of citizens. Breach of law —> punishment Law must be: o General o Publicly promulgated. o Prospective o Clear, intelligible, free from contradictions o Stable + constant o Practical and reasonable Legislative Standards Act 1992 (Qld) s4. Sets fundamental legislative principles —> support parliamentary democracy based on rule of law. Human Rights Act 29 18 (Qld) S 15(3): Everyone is equal before the law and has the right to equal protection without discrimination. Preamble outlines valued but is non-binding (not enforceable in court) Separation of Powers Origin 18 111 century (Montesquieu, Locke, Blackstone) Divide government into 3 branches preventing oppression: 1. The Legislature Makes laws. Commonwealth parliament = king + house of reps + senate Queensland parliament = king + legislative assembly Makes laws for "peace, welfare and good government" (s2, Constitution Act 1867 (Qld)) 2. The Executive Administers laws - authority from the Crown. Commonwealth: Governor-General in council (representing the Crown) Advised by Federal Executive Council (Ministers) Governor General's Powers Appointed by the monarch. Commander in Chief (s68) Acts on advice of ministers to enact delegated legislation, start acts, appoint judges/minsters, dissolve parliament. Holds reserve powers (e.g., to dismiss a PM) Ministers Commonwealth Prime Ministers leads government. Leader of majority party in House of Reps Selects Cabinet (main ministers), outer ministry, parliamentary secretaries. Queensland Premier (David Crisafulli): leads majority party in Legislative Assembly Leads Cabinet (up to 19 ministers) [Constitution of Queensland 2001 (ss 42, 43) 3. Judiciary Interpret & apply law (not based on personal views) Judges decide what the law means and apply it. Courts have jurisdiction over diff case types. Appeals go up thru court hierarchies (high court is the top) Theory vs Practice Theory = strict separation: no overlap in powers, no interference In Practice: not strictly followed in Australia. Example - Delegated Legislation Parliament can authorise Executive to make rules. r These are subordinate laws (must follow enabling Act). L Parliament can review or revoke delegated legislation. Overlap - Executive & Legislature F Some MPs are also Ministers (i.e., part of both branches). [Z This is part of the Westminster system . L Ministers must be: 0 Individually responsible (for their department) o Collectively responsible (for Cabinet decisions) E Executive must maintain the confidence of Parliament . QLD Governor in Council ( Advised by Executive Council (Premier + Ministers)

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