Introduction to Law and Key Concepts and Principle

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Introduction to Law LLB101: Key Concepts and PrinciplesIntroduction 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 itsconduct.Explanatory Notes (Qld)/Explanatory Memoranda (Cth)Explanatory Speech (Qld)/Second Reading Speech (Cth)Committee Report - Members of Parliament are allocated to different legislative committees, whichcan 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 Bill3.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 ARECOMMENDATION FROM THE GOVERNOR/GG*Parts of an Act of Parliament1.Reprint date (act is current as at this date)2.Table of contents3.Long title4.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 amendedExample: Crocodile Control and Conservation Bill 2024 (QLD)EIntroduced by a private MP (Shane Knuth).Aimed to reduce crocodile attacks and protect human life.CCame with Explanatory Notesoutlining the policy reasons (e.g., increased sightings, community pressure).IWithdrawnafter Speaker ruled it breached Section 68 of the Constitution of Queensland 2001- it created aspending right without Governor's approval.LTakeaway: Shows that even if a Bill is well-written, it must follow constitutional proceduresto becomelaw.Case Law and CourtsCase law is the body of law that has developed through the recording of thedecisions in cases coming before the courts.Also known as "Common Law", judge-made law, or the unwritten law.FUNDAMENTAL PRINCIPLES1.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 slowerunless a higher court overrules or distinguishes a previous decision.Parliamentary Sovereignty• Parliament is free to pass laws that are inconsistent with existing commonlaw principles;• Judges must accept that any law made by parliament is supreme overtheir 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 developedthrough court decisions, the legal system used in England and similar countries, or historical laws common acrossthe 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 lawLegislation & Parliament (Statutes/Acts)I IMade by or with authority of Parliament.UDelegated/subordinate legislation - Laws made by someone other than Parliament, but withParliament's permission through an Act to save time and let experts or local bodies make detailed rulesthat the Parliament doesn’t have time.UFor e.g., local councils —> by-lawsGovernment departments —> regulationsOfficials like Chief health Officer —> public health directionsUThey can do this through an enabling act passed by parliament giving them legal authority although itmust follow the limits set by Parliament in the enabling Act— Parliament is still the highest lawmaker.Advantages of legislationUCan adapt over time.HCovers many topics on a wide range of issues.flCovers everything in one area.LIStart date is controlled.HDemocratic - can be made by elected representatives so they reflect the will of the people.Why use primary + delegated legislation together?I IParliament gives the main rules.LIExperts fill in the details (e.g., government departments or councils can make regulations)LIFaster changes (delegated legislation can be updates quickly for things that change often)I IParliament stays in charge and still watched over the process and can take back power if needed.Other legislative documentsBill: 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 ifthe 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 havepreferred a different wording.Custom can be a source of law, like parliamentary conventions or common business practices. Thesemay 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 US2. International Law norms and rights (international conventions and treaties e.g., internationalcovenant 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 YALBANESEAUSTRALIA'S HEAD OF STATE? KING CHARLES IIIColonial Laws Validity Act 1865 (Imp) ('CLVA')ZGave colonics limited self-government.LColonial Parliaments -change or add to English law —> courts could develop their own commonlaw.FNew British laws didn't apply (unless stated)LOver time colonies built their own legal systems but some English laws still applied by paramountforce, the highest appeal court —>•Privy Council in EnglandFederationPolitical system —» government power is shred between central or federal government and regionalgovernments.ZInspired by USA not England.Federation gained momentum in the 1880s through national conventions and public support —» eachcolony 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 January1901 —> 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)ZBody of rules, norms and traditions enforced within a community.Aboriginal + Torres Strait Islander -» present for 60.000 + years —» developed customs regulatingculture and community and relo with land —> unwritten + without formal legal institutions + mightlook 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 formalenforcement structures (like courts or police). He criticised the Austinian view (law = command of asovereign) as too narrow. Instead, he found that Aboriginal law was a complex, stable, and effectivelegal 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 lawcan still exist and operate within communities. This reflects legal pluralism— where more than onelegal system coexists. While not fully recognised as law in courts, customary law may be consideredin areas like sentencing (e.g., Murri Court) and has been discussed in ALRC reports on legal reform.English Law and the Colonial System - Key Dates1770 - James Cook explored eastern AustraliaZ1787 - Arthur Phillip set sail from England with the First Fleet_18-20 Jan 1788 - Arrived at Botany BayZ24-25 Jan 1788 - Moved to Sydney Cove and raised the British flag.26 Jan - Landed at Sydney Cove and raised the British flag.Z7 Feb 1788 - NSW colony officially proclaimed; Arthur Phillip became Governor.1788 onwards Britain settles in Australia (terra nullius land belonged to no one —> allexisting 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 SouthWales Courts Act 1787 (Imp)1814 - First civil Supreme Court in NSWZ1823 - NSW Act created proper Supreme Courts in NSW and Van Diemen's Land and formed the firstAustralia 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 JULY1828 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 QLDIncluding both English laws received as at 1828 and new laws passed by the NSWParliament since 1828FIRST GOVERNOR - SIR GEORGE BOWENFIRST PREMIER OF QLD - SIR ROBERT HERBERTFIRST AUS BORN GOVERNOR? SUR JOHN LAVARACK (1946)CURRENT GOVERNOR? JEANETTE YOUNGCURRENT PREMIER? DAVID CR1SAFULL1AUSTRALIAS FIRST GOVERNOR GENERAL? LORD HOPTOUN and PM? EDMUND BARTONFederal Institutions51 - Legislative power - Parliament (queen, senate, house of reps)52 - Governor-General - Queens representative in AustraliaS61-70 - Outline the Executive GovernmentS71 - Judicial Power - High Court + Other Federal CourtsThe constitution lists "heads of power"Some powers are exclusive to the Commonwealth.ZMost 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 ConstitutionFive express rights (clearly written)Compensation for property acquired by the Commonwealth s51 (xxxi)ZTrial by jury for indictable Cth offences - s80Free trade between states - s92

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nFreedom of religion - s116UNo 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 41Cs 41: People who already had voting rights in their state couldn't be stopped from votingfederally.rAt Federation :oMen could vote in all states (some Indigenous men too).OWomen : Only in SA and WA (including Indigenous women in SA).LCommonwealth Franchise Act 1902 (Cth):0Allowed women to vote and run for ParliamentoExcluded most Indigenous and non-European people(except were protectedby s 41).OIndigenous voting rights(federal) introduced in 1962Statute of Westminster 1931 & Adoption Act 19421931 Act: Gave Dominions like Australiapower 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 IndependenceLPassed by UK, Cth, and all state parliaments.Section 3 : States can now repeal or amend English lawsSection 1 : UK laws no longer apply to Australia.Section 8 : UK monarch can't override state governors.LSection 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.LIssue: QLD tried to wipe out native title —found invalid under Racial Discrimination Act1975 (Cth).Held :oAustralia was not terra nullius.oCrown got radical title , but native title could still exist if not extinguished.0Recognised Indigenous connection to land under traditional lawBill of Rights in AustraliaLNo entrenched Bill of Rights in the Constitution.□Past inquiries (1929, 1959)rejected the idea.LFailed attemptsat statutory charters in 1973 and 1983.F2008-09 consultations : No national model adopted.LSome states/territories (ACT, Vic, Qld) have their own statutory charters(c.g., HumanRights Act 2019 (Qld)).Changing the Constitution - s 128TRequires a referendum .rMust pass a double majority :1.Majority of national voters2.Majority of voters in at least 4 of 6 statesTOnly 8 out of 45 referendums have passed.TKey one: 1967 referendumallowed:oInclusion of Aboriginal people in the censusoCommonwealth to make laws for Aboriginal Australians(formerly state-controlled)The Rule of Law

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□Magna Carta 1215E20 15 —►700thAnniversary of Magna CartaIExercise of power by government must be shared with the people and cannot beconcentrated in the ruler.LUnderpins legal system —» provides stability —> order in society —> prevents autocratic rule bygovernment.Professor Albert Venn DiceyLaw applies to everyone.Government by lawCourts uphold legal rights of citizens.Breach of law —> punishmentLaw must be:oGeneraloPublicly promulgated.oProspectiveoClear, intelligible, free from contradictionsoStable + constantoPractical and reasonableLegislative 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 withoutdiscrimination.Preamble outlines valued but is non-binding (not enforceable in court)Separation of PowersOrigin 18111century (Montesquieu, Locke, Blackstone)Divide government into 3 branches preventing oppression:1. The LegislatureMakes laws.Commonwealth parliament = king + house of reps + senateQueensland parliament = king + legislative assemblyMakes laws for "peace, welfare and good government" (s2, Constitution Act 1867 (Qld))2. The ExecutiveAdministers laws - authority from the Crown.Commonwealth:Governor-General in council (representing the Crown)Advised by Federal Executive Council (Ministers)Governor General's PowersAppointed by the monarch.Commander in Chief (s68)Acts on advice of ministers to enact delegated legislation, start acts, appointjudges/minsters, dissolve parliament.Holds reserve powers (e.g., to dismiss a PM)MinistersCommonwealthPrime Ministers leads government.Leader of majority party in House of RepsSelects Cabinet (main ministers), outer ministry, parliamentary secretaries.QueenslandPremier (David Crisafulli): leads majority party in Legislative AssemblyLeads Cabinet (up to 19 ministers) [Constitution of Queensland 2001 (ss 42, 43)3. JudiciaryInterpret & 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 PracticeTheory = strict separation: no overlap in powers, no interferenceIn Practice: not strictly followed in Australia.Example - Delegated LegislationParliament can authorise Executive to make rules.rThese are subordinatelaws (must follow enabling Act).LParliament can review or revokedelegated legislation.Overlap - Executive & LegislatureFSome MPs are also Ministers(i.e., part of both branches).[ZThis is part of the Westminster system.LMinisters must be:0Individually responsible(for their department)oCollectively responsible(for Cabinet decisions)EExecutive must maintain the confidence of Parliament.QLDGovernor in Council (Advised by Executive Council (Premier + Ministers)

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