Lecture 2: The Australian Legal System (Part 1). Introduction to Business Law Spring Session , 2013. Week 2 - Outline. 1. Australian legal history 2. The Australian Constitution 3. Indigenous rights under Australian law 4. Key features of the Australian legal system.
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The Australian Legal System
(Part 1)Introduction to Business LawSpring Session, 2013
1. Australian legal history
2. The Australian Constitution
3. Indigenous rights under Australian law
4. Key features of the Australian legal system
‘The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.’
— Milirrpum v Nabalco (1971) 17 FLR 141
Image: Early sketch of Sydney Cove
Aboriginal groups have been much more successful claiming rights over their ancestral lands. These rights have been recognised by both the parliaments and the courts.
The Australian Parliament, and the parliaments of most of the states, have enacted land rights legislation giving Aboriginal groups rights over their ancestral lands. These laws provide Aboriginal groups with a measure of control over the lands including the right to be consulted before other persons use the land (for example, to mine minerals).
Mabo v Queensland (No 2) (1992) 175 CLR 1
These court proceedings were commenced by a group of islanders, led by Eddie Mabo, in response to attempts by the Queensland Government to subject the Murray islands (off the QLD north coast) to a land grants system.
Mabo and his fellow claimants sought a declaration (ruling) from the courts that they enjoyed possessory rights over the islands arising from their membership of the Meriam tribe, which had hunted and fished on the islands continuously for centuries.
Decision of the court
Importance to businesses
Australia’s legal system is a common law legal system based on the British model.
As we discussed in Week 1, in common law legal systems the two main sources of law are legislation and case law (more on these in Week 3).
The two key principles of all Common law systems are Parliamentary Sovereignty and the Rule of Law.
Image: the British Crown
The division of government into separate branches (or ‘arms’) is known as the separation of powers. It’s role is to prevent accumulations of power and/or abuses of power developing.
In Australia, government is divided into three branches according to the function of each branch: the legislature enacts laws, the executive administers the laws and the judiciary interprets and applies the laws.Separation of powers