Lecture 3: Sources of Law in Australia
Dr w/ thanks to Professor Barbara Mc of Law (JD)
SYDNEY LAW SCHOOL
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Sources of law in Australia
› In this lecture, we will survey the various sources of law in Australia:
1. The common law
2. Statute law
3. Delegated legislation
4. International treaties and covenants as possible or indirect sources of law.
5. The Australian Constitution – express provisions and implied rights under the Australian Constitution
6. human rights acts and charters in some Australian states and territories.
1. The Common law of Australia
The common law of Australia is comprised of the body of judge-madelaw found in case law over decades and centuries.
The common law can be further divided into:
• decisions by judges on issues that have no statutory element. The law comprises only the judge-made law as applied to the facts of previous cases. No statutory or legislative element. Common law in this sense— comprised only precedents handed down from previous cases .
• decisions by judges on the interpretation and application of statutes or the Constitution. These decisions then themselves become part of the common law and may provide binding precedents for later judges as to how the statute or Constitution must be interpreted and applied.
There is one common law of Australia. (Statutes and their impact on the law may vary from state to state.)
The common law as a source of protection of fundamental rights
› A major theme of our study of the common law – in Torts, in Criminal Law, in Civil and Criminal Procedure, in Equity ( as part of the common law in its broader sense), in the law of statutory interpretation – is the extent to which the common law protects what may be called fundamental rights of the individual:
› of personal safety and integrity
› from unlawful imprisonment
› to a fair trial
› to move and associate freely, eg to leave the country, to return to Australia
› to speak freely
› to autonomy, privacy
See:https://www.alrc.gov.au/publication/traditional-rights-and- freedoms- encroachments-by-commonwealth-laws-alrc-report-129/
2. Statutes ( “statute”, “legislation”, “Acts”)
A. Commonwealth Statutes passed by Federal Parliament .
› Name year (Cth)
› E.g Crimes Act 1914 (Cth) , Criminal Code Act 1995 (Cth)
› https://www.aph.gov.au/About_Parliament/House_of_Representatives/Pow ers_practice_and_procedure/00_-_Infosheets/Infosheet_7_-_Making_laws
› B. State statutes passed by a State or Territory Parliament › Name year (NSW) (Vic) (Qld) (Tas) (ACT) (NT) etc
› Eg Crimes Act 1900 (NSW)
› https://www.parliament.nsw.gov.au/bills/Pages/Legislative-process- explained.aspx
Finding legislation
› Find at www.legislation.gov.au
› Or https://www.legislation.nsw.gov.au/
Or www.austlii.edu.au
› Sometimes important statutory provisions will be found in the Schedule of astatute,egTheAustralianConsumerLaw (initsfederaloperation)is found in Schedule 2 to the Competition and Consumer Act 2010 (Cth)
3. Delegated Legislation
› Rules and regulations attaching to a head statute made under the authority of Parliament by the relevant government department.
› EgRoadRules2014(NSW) › Where can we find these?
www.legislation.nsw.gov.au .
(See eg https://legislation.nsw.gov.au/view/html/inforce/current/sl- 2014-0758.)
Trade Mark Regulations 1995 (Cth) available via legislation.gov.au see eg https://www.legislation.gov.au/Details/F2020C00950
How are statutes made?
New legislation can be initiated by any member of Parliament.
Tends to be initiated by governing political party in the Parliament for obvious reasons- they have the majority of votes. May need to get support from independents or coalition parties.
The Minister of the relevant government department introduces the Bill to the relevant house of Parliament (House of Reps (Cth), Legislative Assembly (NSW)).
The Second Reading speech explains the Bill and the motivation behind it.
Government departments have a lot of background control over the content of Bills.
Parliamentary counsel draft the Bills on instructions from the department.
There may be a ‘private members’ bill’.
4. International covenants and treaties – indirect sources of law
› International covenants and treaties are perhaps the most successful legal product of international political and diplomatic cooperation.
› You will study their nature, effect and particularly their enforcement, as part ofPublicInternationalLaw,althoughthatlarge subjecthasmanyaspects and perspectives.
› What is public international law? Is there such a thing? If so, is it consensual or natural or universal? The idea of customary international law raises interesting jurisprudential questions about source and content.
› [Private International Law – another subject you will study- is concerned with the legal rules – which each country or State has- about whose law governs a transaction or dispute between people or entities of different nationality, and when a national or state court has jurisdiction to hear those disputes. ]
Sources of International Law
Outlined in Article 38(1) Statute of the International Court of Justice (1945): Treaties (aka Conventions; Agreements; Covenants; Protocols)
Creates international obligations for states that ratify those treaties
Custom; determined by:
1.State Practice; which is in turn determined by the number of states conforming to
practice; repetition of practice; consistent with prevailing international law;
acquiescence
2.opinio juris: Belief that state practice is a requirement of international law.
General principles of law: peremptory norms (jus cogens)
These are commonly recognised and are thus binding universally, even without a
treaty or state permission.
They can change, but generally include are prohibitions on waging aggressive war,
crimes against humanity, war crimes, torture, genocide, slavery and racial
discrimination.
Judgments of international tribunals & domestic courts on international law Scholarly works by publicists (eminent academic jurists).
Monism v Dualism
‘The controversy here turns on whether
international law and internal [domestic] law are
two separate legal orders, existing independently of
one another – and, if so, on what basis it can be said
that either is superior to or supreme over the other
[dualist view]; or whether they are part of the same
order, one or other of them being supreme over the
other within that order [monist view]’.
• Fitzmaurice, The General Principles of International Law considered from the Standpoint of the Rule of Law’ quoted in , Cases and Materials on International Law, (2010) (7th ed, Sweet & Maxwell) 61
International Law according to Leunig Brierly on International Law International treaties and conventions › But to what extent do treaties and conventions create rights for individuals? International treaties and conventions International Conventions and Treaties International conventions and treaties 5. The Constitution Sources of Law Implied rights under the Australian Constitution Various Sources of Law in Australia Sources of laws Do we need a Rights or a Human Rights? 程序代写 CS代考 加微信: powcoder QQ: 1823890830 Email: powcoder@163.com
Source:
› ‘The best view is that [public] international law is in fact just a system of customary law, upon which has been erected almost entirely within the last two generations, a superstructure of “conventional” or treaty-made law, and some of its chief defects are precisely those that the history of law teaches us to expect in a customary system. It is a common mistake to suppose that of these the most conspicuous is the frequency of violation. Violations of law are rare in all customary systems, and they are so in international law’.
– Brierly, The Law of Nations (1963) (Waldock, 6th ed) quoted in , Cases and Materials on International Law, (2010) (7th ed, Sweet & Maxwell) 2 (emphasis added)
› You could not possibly study every international convention in one course. Rather you will study various conventions in the context of different subject matters-tradeandcommerce,contractlaw, intellectualproperty, protection of children, aircraft liability, shipping, war and the treatment of prisoners, refugees.
› Treaties bind national signatories inter se once they are ratified by each participating country.
In Australia, international treaties are ratified by the Executive, exercising its executive power under s 61 of the Constitution.
› Minister for immigration and Ethnic Affairs v Teoh, HCA, 1995: an international covenant or treaty does not take effect as a law in Australia until the Commonwealth has passed an Act giving the agreement the force of law.
› Nevertheless, the High Court held that the ratification by Australia would create a legitimate expectation that the government /Minister would act in conformity with its obligations under the treaty. This is therefore to be kept in mind when the court interprets legislation.
› But this approach has now been described by the High Court as distracting the court from the main task of statutory interpretation: Cf Lam 2003; WZARH, 2015.
› While negotiating and signing treaties is part of its executive power, under what power does the Commonwealth Government act when signing treaties?
› Apart from specific relevant powers, the most commonly used power is the simply described ‘external affairs’ power in s 51 (xxix) of the Constitution.
› Logic is that once the government has agreed to a treaty it is simply meeting its external obligations when putting this into law. Very useful.. For a range of issues. The use of this power has been much challenged in the High Court:
› Burgess 1935: air navigation
› Koowarta, 1982: re Racial Discrimination Act 1975 (Cth) is it any treaty that can be implemented in legislation or only treaties with international element? 3 judges: only international elements treaties. 3 judges any treaty. I judge: matter of international concern sufficient. Valid
› case, 1983: Tasmania wanted to dam the pristine . Cth Parliament passed law to stop Tasmania. Franklin river in wilderness of special environmental significance. World Heritage Convention
› Majority of 4 endorsed the wide view that the Cth can legislate to implement an international agreement on any matter (subject to express constitutionalprohibitions) enteredintobythegovernmentingoodfaith. Controversial ; minority saw it as widening powers of the Cth.
› Human Rights ( Sexual Conduct ) Act 1994 ( after Toonen v Australia UNHRC held Tasmanian law was incompatible with the ICCPR) prohibiting arbitrary interference criminalizing sexual conduct between consenting adults in private.
› Other indirect influences on Australian law: ›1.-internationallawmaybeuseda guidetothedevelopmentofthe
common law.
› in Mabo [No 2] at [1995] 183 CLR 273 at 291-2:
› ‘…international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.”
› 2. international obligations in treaties may be relevant to statutory interpretation: ambiguities will be resolved in a way which best accords with the treaty. But subject to express provisions , as for example, in recent immigration statutes.
The Australian Constitution Express Protections
› For example, s 41 The right to vote No adult person who is entitled to vote in a State shall be prevented from voting in federal elections for either house
› s 80 Trial by Jury Trial on indictment for any offence against any law of the Commonwealth must be by jury. ( Can Cth get around this by providing for summary trial for a serious offence? Apparently yes. Kingswell, affirming strict interpretation in Archdall.
› s 51( xxxi) Just terms for compulsory acquisition (resumption) by Commonwealth of property. The effect of the section, rather than its literal words. [No such right re States]. What is included in “property”’?
› s 92 freedom of trade, commerce and intercourse between States. Prohibits tariffs etc on interstate trade. “Intercourse” encompasses individual freedom of movement and communication. Exceptions?
› s117 No discrimination between residents of different States.
Constitutional Express Freedoms (Cont)
› s116 Religious freedom? Commonwealth shall not make any law for establishing any religion or prohibiting the free exercise of any religion. Concerned with toleration of all religions and toleration of absence of religion Jehovah’s Witnesses Case (1943) J. Commonwealth can provide financial support to religious schools. DOGS case (1981).
› Controversial ongoing arguments now about whether we need legislation enabling or excusing some discrimination on religious grounds and supporting or enabling freedom of exercise and expression of religious beliefs. One issue: should a contract of employment be able to confine an employee’s ability to express publicly religious beliefs which may be highly offensive to others?
› Implied rights and protections. A major (and still controversial in some
quarters) development after 1992 in Australian Constitutional Law.
› The first HCA cases to find that there is in the Constitution an implied but limited freedom of political discussion on matters of representative democracywereNationwideNewsvWillsand AustralianCapital Television P/L v Commonwealth in 1992.
Since then there have been many cases where Commonwealth and State legislation or principles of the common law have been challenged as offending this freedom and therefore invalid or unenforceable.
We will consider in more detail in Seminar 11.
6. Human Rights Charters in Australia
› ACT (2004), Victoria (2006) and Queensland (2020)
› Not a source of individual rights (yet)
› -All statutory provisions must be interpreted in a way that is compatible with human rights
› -Court can make a declaration that statute is incompatible
› – in Queensland there is a complaints process.
Customary laws?
› We will consider the extent to which, if any, Australia does or should allow courts to consider customary laws of the indigenous peoples, eg in sentencing.
› Should Australian law consider the customary laws of any other group in Australian society? This is an issue you will come across in Criminal Law and Criminal Procedure.
A major gap
› Australia has no Bill of Rights, no federal Charter of Human Rights, and no express protection under the Constitution, of many fundamental personal rights.
› Do we need one? › To be considered.