程序代写 Lecture 1 : An Introduction to the Australian Legal System (w/ some milesto

Lecture 1 : An Introduction to the Australian Legal System (w/ some milestones in Australian and English Legal History)
Dr Fady Aoun w/ thanks to Professors Rebecca Millar & of Law (JD)
SYDNEY LAW SCHOOL

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What we will cover in this Lecture
How did we get our current “common law” legal system. To answer this, we need to look at the legal history of:
 the Australian colonies after 1788
 the Federation of Australia after 1901 English legal history before 1788.
History (partly) explains how we are here and what our legal system looks like today. But as we will learn, history has been revised to give greater recognition to the first peoples of Australia than was given when the Australian colonies were first “settled” in the late 18th Century. There are many places we could begin.
We will start at one beginning; the18th century arrival of English law in Australia, and the assumptions made at the time about indigenous people. Then we will go back to look at English law before its arrival in Australia. Later, we will see the belated 20th century recognition of the existence, country and culture of the First Peoples of Australia.

The many meanings of the “common law”
As you work through your law degree, you will hear the expression “the common law” used in several different ways. We will come across all 4 meanings in this lecture:
1. First sense: Historically, the common law applied throughout England after the in 1066, instead of local laws in each district.
2. Second sense: the law set out and applied by judges in cases that come before the courts. Found in judgments. Common law = judge- made law =case law in this sense. In some fields it is called the “general law”. Contrast with statutes/legislation made by parliament.
3. Third sense: as a sub-division of judge made law, it describes the law applied by the common law courts as opposed to principles of equity applied by the courts of equity.
4. Fourth sense: to describe a common law system in which judges make and apply law under the doctrine of precedent (e.g. England, Australia, Canada, U.S., Singapore) as opposed to a civil law system based on codes (e.g. France, Germany, Japan).

On the importance of legal history
‘The study of legal history provides a valuable corrective to … simplistic ideas [that legal institutions are “fixed” or “settled” and that “policy” played little part in this state of affairs]. The truth of course, is that the law has never “stood still”, the secret of the common law being its combination of persistence and dynamism. But unless one knows how the law to be in its present state, how can one set about with any proper assurance deciding what it ought to be?’
WMC Gummow, ‘Comment: Legal Education’ (1988) 11(3) Review 439, 440.

A different perspective – with thanks to cartoonist

A New Legal System Arriving in Australia
The Founding of Australia. By Capt. R.N. , Jan. 26th 1788 original [oil] sketch [1937] by R.A. (State Library of NSW); Accessed from http://www.artionado.com/AustralianColonialArt/Australian%20Colonial%20Art.html on 8 Feb 2012

The arrival of English law
Because of the assumption that Australia was terra nullius, NSW was treated as “settled” by the English, rather than conquered or ceded. This treatment was described by Blackstone
Blackstone’s Commentaries on the Laws of England,1765, vol 1, 108:
It hath been held that if an uninhabited country be discovered and planted by English subjects all the English laws then in being, which are the birthright of every English subject, are immediately there in force…
But this must be understood with very many great restrictions. Such colonists carry with them only so much of the English law as is applicable to their new situation and the condition of an infant colony

The pre-existing Australian legal system….
From http://k6.boardofstudies.nsw.edu.au/linkages/IntegratedUnits/aboriginal/invasion_learn01.html on 8 Feb 2012

The Myth of busted in 1992 in the Mabo case
and the Wik and Wik Way People
From http://www.nntt.gov.au on 9 Feb 2012 10

1788 : the arrival of Governor Phillip and the declaration of the colony of Wales
What did we inherit in NSW in 1788?:a body of law
The “common law: of England;
And, for a time, many English statutes;
Some fundamental principles found in key instruments such as the :

What law came with Gov. Phillip?
a body of law including the
The of 1215, written in iron gall ink on parchment in medieval Latin, authenticated with the Great Seal of ; The British Library, Cotton MS. I. 106 From http://en.wikipedia.org/wiki/Magna_Carta on 9 Feb 2012

The 1215 and other milestones in English constitutional history
• What did the say:
• Court of Common pleas to stay in one place & not travel with the King
• Only those educated in the law would be appointed as justices & sheriffs
• Justice would not be delayed
• No imprisonment or dispossession of property (for free men) except by law or by the lawful judgment of their peers (jury)

The changing faces of Australia
The Colonies, States, and Territories:
http://en.wikipedia.org/ wiki/File:Australia_history. gif
Free image from
http://geography.about.com/library/blank/blxaustra

Establishment of the colonies
 Wales – 1788 ( included what is now Victoria and Queensland, van Dieman’s land (now Tasmania) , (even NZ!))
Western Australia- 1829
South Australia – 1836
( broke off – 1840 ) Victoria 1851
Queensland 1859
ACT and NT- 1911

The gradual establishment of Wales
Imperial Parliament ( the British Parliament legislating for the British Empire) :
1823 the Wales Act (Imp) established an independent Supreme Court of NSW
And a Legislative Council, members appointed by Governor
Australian Courts Act 1828 (Imp):
1. All laws and statutes in force in England on 25 July 1828 where applicable to local conditions, were deemed to be in force in “NSW” . Supreme Ct could determine which laws were applicable.
2. jurytrials

The gradual establishment continues
3. enlarged legislative council which could now veto a proposed law.
Australian Constitutions Act (Imp) 1842-Council became partly elected -representative democracy, with greater legislative powers.
Further shift in powers of Governor – Parliament.
NSW Constitution Act 1855- full responsible government. Now the Constitution Act 1902 (NSW)- in force

Continuing application of impact of English statutes?
Did English laws still apply after 1828? English statutes continued to apply until superseded
e.g before the Limitation Act 1969 (NSW), some limitation periods for civil actions in NSW were determined by the Limitation Act 1623 (UK)!
What if there were Inconsistent or “repugnant’ laws of England and NSW?
The Colonial Laws Validity Act 1865 narrowed the basis on which colonial laws could be held repugnant and therefore unenforceable.

19th C progress towards a federation
Discussions about a federation in Australia began as Victoria and Queensland broke off from NSW and became independent colonies in 1840/1850 but then in earnest after influential speeches made by Sir Henry Parkes, a long time Premier of NSW and often called ‘the Father of Federation”. His first major speech was in 1867 and he continued promoting a federation until his death in 1896
1897 Convention proposed a constitution that was eventually passed by referenda in all five States- Victoria, Tasmania, South Australia and Queensland. It was sent to the Imperial parliament for approval. Then Western Australia joined up too in 1900.

Federation of Australia 1901
Australia!
• Commonwealth of Australia Constitution Act (assented to on 9th July 1900)
• Federation of Australia commenced on 1 January 1901, the first day of the new century.
• The Constitution established a new nation state, the Commonwealth of Australia, but one in which the States (former British colonies/dominions) retained their separate identity.
• Thus the modern Australian legal system, founded now on a written Constitution, is significantly different from that of England which has no written constitution.
• [It even allowed for the possibility that might become a State and for the creation of new States ]

Imperial parliament still operated
Statute of Westminster 1931 (Imp), adopted by Statute of Westminster Adoption Act 1942 (Cth):
British parliament would no longer make laws for the colonies (“dominions”) except by request.
 dominion laws could no longer be held invalid on grounds of repugnancy
dominion parliaments could make laws with extra-territorial application
But it exempted the States.
[Remember that after 1901 the States had a new rival/”master”- the Federal Parliament and government. Politically, the States resisted breaking their direct ties to UK]21

When did Australia finally become legally independent of the UK Parliament?
Australia Act 1986, passed simultaneously by British and Australian parliaments at the request of the Commonwealth and the States:
No Act of the Parliament of the United Kingdom passed after the commencement of this Act shall extend to the Commonwealth, to a State or Territory…
(Also abolished appeals from State Courts to the Judicial Committee of the Privy Council.)
3 March 1986.

Short Quiz
Interactive Quiz on some of your readings: Access: https://www.menti.com/rwtzff5m95 or

An earlier beginning: English law before 1788

How far back should we go? The various invasions of England and Wales
• The Romans had an “anthropological interest” in British “communal justice”
• Celtic oral tradition (not written laws)
• Native priest-judges (“druids”) enforced Celtic religion and customs
• Human sacrifices
• Druidical order competed with
Christianity for spiritual order
following Roman withdrawal
• Christianity prevailed.
• First surviving legislation –
I of Kent (600
• Source: http://waww.slideshare.net/Fabi one_1972/urca-anglo-saxon- period-a ula-02-dezembro- 25 2009

Anglo- of England
Circa 500AD
Source: http://www.tartanday- wa.org/anglosaxons.html

Viking Invasions of England
Only Circa 8th C – 11th C depicted below
• JH Baker suggests that the word “law” is of Danish origin (“Danelaw”) and came into use during the 9th C Danishinvasion ofEasternEngland
• England largely governed by custom
• Great regional variation across England
Source: https://au.pinterest.com/pin/4 12783122070696174/

Early British Law and Custom
‘One feature of ‘custom’ which distinguishes it from the later common law tradition is its variability from one people to another and from one area to another… It follows… [that] … before the Normans, that any search for law and customs of England and before the centralisation of the nation itself are bound to fail. To the extent that common features may be discerned in the customs of different people and places, the unifying force is not law but the general social and moral assumptions of the age, or even the natural instances of [humankind] at particular stages of development; the parallels often transcended national and geographic boundaries.’
 JH Baker, An Introduction to English Legal History (Butterworths, 2nd ed, 1979) 1–2.

of Normandy
Aka William the Conqueror
The Battle of Hastings 1066: was killed, William the Conqueror from Normandy declared victory.
He established Norman rule: Norman administration and Norman system of feudal landholdings and ownership, superimposed on Anglo-Saxon custom. Anglo-Saxon laws pre- conquest would continue in force.
Landholders with grants of land from the Crown owed allegiance to the King/Crown
Source: https://www.awesomestories.com/asset/view/William-the-Conquerer-Invasion-Map

Genesis of the Common Law: Extending the King’s jurisdiction
King’s would hear complaints and petitions from subjects, judges travelling across the kingdom holding court- circuit courts, “assizes”.
Customary law varied from place to place. Common complaints were the arbitrariness and prejudice of local courts.
Under the efficient Norman system, the judges Sought to treat like cases alike (foundation of stare decisis- the matter stands decided- the doctrine of precedent)
Gradually, a body of royal rulings built up. A decision was binding everywhere.
The judges applied this common law – ie the King’s rules applied to everyone irrespective of “local” custom.
Thefirstmeaningoftheterm“thecommonlaw.” Basedonasystemof known precedent.

Genesis of the Common Law: Extending the King’s jurisdiction
Curia Regis – “ The King’s Court”:
 Began as a body of trusted advisers to the King
Some decisions were eventually left to members of the Curia Regis itself. Kings began to appoint officials called justiciars:
 Served as a form of viceroy in the king’s absence from England (Post – kings were living mainly in France).
 (circa 1199) was first king to spend more time in England than abroad.
Appointment of Curia Regis and justiciars proved critical in transforming the common law from the king’s personal instrument to an apparatus of government.
 LDL [2.9]

Genesis of the Common Law: Formalising Legal Structures
Curia Regis later divided into specialised bodies (later known as “the common law courts”):
 Court of Common Pleas – body of professional judges who heard and decided disputes of common folk
 demand to fix the location of this court
 Court of Exchequer – Body of financial advisers heard
disputes involving royal revenue
 (King’s Bench) – Enjoyed monopoly on disputes involving the king himself, or touching on royal interests.
 LDL [2.9]

Early Common Law Trial Procedures: The Jury
Travelling justices gradually enlisted the services of a number of men from locality who would, on the basis of their local knowledge, determine which party was probably telling the truth. These 12 men (reflecting the number of ’s Apostles) came to be known as the ‘jury’
The idea of an impartial jury (ie with no prior knowledge of matter) is relatively modern.
Nowadays, in Australia, save for some defamation trials (civil cases) juries are used almost exclusively in criminal cases.
 LDL [2.19]

Writ System in early civil cases
To deal with increased demand, the common law courts – mainly through the writ system – formalised and regularised court procedures
Put simply, the writ was a command from the king to the sheriff (ie “shire-reeve”- king’s representative in a county) that a person against whom a complaint had been
made be brought to court to answer the allegation in the complaint.
Writs were ‘standard forms’ complaints – a different writ for each type of complaint. Plaintiff needed to choose the right writ. Could not amend.
Writ system illustrates the common law system’s focus on rigid procedure.
 LDL [2.11]
 Eventually the writ system was replaced by our current system. In the UK, in the Judicature Act 1873 ; in NSW by the Supreme Court Act 1970

Equity in the Chancellor’s Court- the Chancery Court
The Chancellor began to hear petitions against the King, and/or seeking relief from the harshness of the common law courts’ rulings.
Principles derived from early ecclesiastical courts
Highly discretionary. Chancellor would not grant a remedy, for
example, if the plaintiff was morally undeserving
Equitable maxims which capture the essence of this discretion:
 ‘He who seeks equity must do equity.’
 ‘He who comes into equity must come with clean hands.’
See further LDL [2.20ff]
Initially, equity and the common law coexisted, but eventually the two
systems became rivals. Eventually, in early 1600s decreed that
where the two conflict, equity should prevail.
The Judicature Act 1873 also merged the early courts. Now divisions of one court. More on Equity later and in seminar 11

Foundations of Modern Constitutionalism
While the court system was developing, so too was the relationship between King, Parliament and the courts.
Our modern constitutional law owes much to constitutional developments in England but also to ideas and institutions elsewhere – France, the U.S.
Key milestones and instruments in English constitutional history

: Foundations of Modern Constitutionalism
 In 1215, , an unpopular king after wars and increased taxes, signed the (the ‘Great Charter’) (also known as the ‘Charter of Liberties’)
 Response to ‘the Barons’ demanding certain freedoms in the wake of heavy taxation.
 63 clauses including
 Common Pleas would be heard in a fixed place.
 a promise that justices and sheriffs appointed were learned in the law.
 a guarantee that freeman would not be imprisonedor dispossessedoftheirproperty except by lawful judgment of their by peers or by the law of the land.
 justice would neither be delayed nor denied.
 [LDL 2.32]

The First Parliaments: Foundations of Modern Constitutionalism
1265 – the first assembly called a ‘Parliament’ was summoned by a rebellious noble, Simon de Montfort, who captured the king
 (‘Model’) Parliament remained a purely advisory body for a long time (mainly nobles, clergy, knights but included representatives of ‘commoners’)
 king under no obligation to summon it regularly.
In 1414, Crown ( V) formally acknowledged that no new statutes should be made without the assent of the Commons.
Note how this history is reflected in modern British Parliament

mation & Parliament – Tudors & English Civil War Foundations of Modern Constitutionalism
 III – divorce? – vs Church
Sought support of parliament (whose law making function later
1607 – King (Stuart) sought to be personally involved in common law courts. Led to a series of important cases in short succession: [LDL 2.36 ff]
 Case of Prohibitions del Roy (1607) 12 Co Rep 63:
 judges determined that the king’s involvement was not
appropriate
 common law cases were not to be decided by natural reason but by the artificial reason and judgment of law.
Case of Proclamations (1611) 12 Co Rep 74:
 king could not create new crimes or change common law by
royal proclamation
 right to change the common law was by parliament alone.

Other milestones in English law
• English law and legal institutions developed over a long period of time through the gradual development of common law and equity
• [1610 Dr Bonham’s case – J: “judges can strike down legislation that is ‘against common right or reason’” [ but there is no such case in English history!) ]
• The writ of habeas corpus- no man shall be imprisoned w/o lawful authority, eg Bushell’s case 1670
• 1637 – Case of Ship Money – no taxation without representation

The “Glorious” Revolution Foundations of Modern Constitutionalism
Source: dailymail.co.uk
The “Commonwealth” was not a happy place during Cromwell’s puritanical reign after the execution of
 I (son of ) invited by Parliament to assume throne afte

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