LAW100 – Foundations Of Law
Learning Outcomes
Upon completion of this unit, students will be able to:
• interpret the principal sources of law, including statutory law and judge-made law, customary law, how the
doctrine of precedent operates and the principles of statutory interpretation.
• Apply the basic methods of legal analysis; to analyse critically legal problems, including applying relevant case
law and legislation to differing contexts and a particular set of facts.
• Demonstrate initiative and autonomy in legal research by locating primary and secondary legal resource
material.
• Plan, organize and communicate legal advice in writing; and
• Demonstrate an informed understanding of the Australian constitutional framework and legal system.
TOPIC 1: INTRODUCTION & FOUNDATIONS OF AUSTRALIAN LAW; THE AUSTRALIAN LEGAL SYSTEM
(INCL. CONSTITUTION)
Two primary types of law
1. Common law/case law
Courts make law in accordance with the doctrine of precedent.
2. Legislation
new rules made by Parliament and that assigned authority by Parliament, commonly known as subordinate
legislation.
Common-Law V Civil Law
• The key distinction between the two systems is that case law – in the form of published judicial judgments – is of
primary importance in common law countries, whereas codified statutes predominate in civil law systems.
• In common law, previous legal precedents or judicial judgements are applied to resolve current problems. Civil
law is governed by codified legislation and regulations.
• Australia is a common-law country (together with the United States, Canada, Israel, and Ireland).
• Western legal system dates to the Romans and is founded on Greek/Christian legal ideas.
• Corpus Juris Civilis ("body of civil law")
Legal History & Emergence of English Court
The Crown: The queen is represented by the Queen of England, who is head of state and a member of each
Australian parliament, the Governor-General at the Commonwealth level, and the governor at the state level.
Writ: Originally a written command from the king to do something; subsequently evolved into a type of
written command in the name of a court or other legal authority to act, or refrain from doing, in a certain way
Curia Regis – “kings court”: The Curia Regis served as a general advisory body comprised of persons
nominated by the monarch to arbitrate and advise on the king's behalf. The Curia Regis gave rise to common-
law courts, the Chancery, and even Parliament
,Common-Law Courts
The Curis Regis was split into three specialised bodies as the workload increased:
1. The Court of Common Pleas was the first specialised body comprised of professional judges that
heard disputes amongst commoners.
2. A second court, made up of financial experts, heard royal revenue issues and became known as the
Court of Exchequer.
3. A third court, known as the King's Bench, was formed from travelling justices
Bill of Rights 1689: An Act of Parliament establishing the foundation on which William and Mary ascended to the
throne, including the requirement that revenue be imposed only with the approval of Parliament
Act of settlement 1701: A significant step in the 1701 constitutional settlement that, among other things,
granted judges with tenure security
Judicature Acts, 1873-1875
• The Judicature Act called for the merger of common law and equity courts, so that anyone court may
rule on any case, regardless of whether it is related to equity principles or common law norms.
• The Judicature Acts consolidated the independent courts of common law and equity into the Supreme
Court of Judicature, which featured a Court of Appeal to handle civil appeals and a single High Court
with numerous divisions corresponding to the former individual courts; there were now the:
- Kings Bench
- Courts of Common Pleas
- Court of Exchequer
- Chancery divisions of the High Court
New South Wales Act 1823
• NSW Act gave Supreme courts the same powers that common-law courts in England had
• Colonial judges now had the security and independence that English judges had since the Act of
Settlement 1701
• Court system = 3 tier court system – Magistrate, District, and Supreme
• NSW Act also created a legislative council that advised the governor on new proposed laws
Australian Courts Act 1828
The governor could not disregard legislative council recommendations, and a majority of the legislative council
could veto any proposed legislation.
Australian Constitution Act (No 1) 1842
• Introduced Separation of powers to Australia
• Increased the size of the legislative council
Australia Acts: The final step in Australia's path to legal independence.
Federation: On January 1, 1901, six British colonies—New South Wales, Victoria, Queensland, South Australia,
Western Australia, and Tasmania—joined to establish the Commonwealth of Australia.
Courts of equity: A court of equity is a court that has the authority to apply equity principles to issues
presented before it rather than law principles. Petitioning the Lord Chancellor of England was the starting
point for these courts. Equity courts 'processed cases and petitions seeking remedies other than monetary
damages, such as writs, injunctions, and specific performance.' The majority were subsequently "merged with
courts of law".
, Parliament
The Australian parliament is the legislative branch of the Australian government. It is made up of three parts:
1. The Queen (represented by the
Governor-General)
2. Two Houses; the Senate
3. And the House of Representative
Three branches of government:
The legislature, which is made up of elected
Members of Parliament, is primarily intended to
produce law, especially to enact legislation.
The major function of the judiciary, or judges, is
to serve as the arbitrator of disputes and to
offer authoritative direction on the
interpretation of the laws
The executive branch is by far the broadest and most amorphous body of government, consisting of a plethora
of officials, agencies, and organisations whose primary function is to carry out or administer the laws.
Division of Powers between the Commonwealth and the States
The Commonwealth Constitution establishes the distribution of legislative powers between the state and
Commonwealth legislatures. The legislative powers are split as follows:
Þ Residual Powers: Prior to the formation of the Federation, each colony had its own set of powers.
Some of these powers were transferred to the Commonwealth at the time of Federation (s51). The
remaining powers remained with the states (s108); these are known as residual powers, and only the
states have the authority to enact laws based on them. Examples of residual powers include:
- Law and order
- Commerce and industry
- Primary production
- Education
- Housing
- Transport
- Public Health
Þ Specific Powers: The constitution specifies the powers of the Commonwealth Parliament. Specific
Powers are classified as follows:
• Exclusive Powers - Only the Commonwealth parliament has the authority to wield this
prerogative. The following rights are specified in the Constitution:
- Section 90; the power to impose customs and excise duties
- Section 114; prohibits the states from raising naval or military forces
- Section 115; prohibits the states from minting their own coins
• Concurrent Powers - Commonwealth and state powers are shared. Some of them are listed
in s51, including:
- International trade and business
- Taxation
- Postal, telegraphic, telephone, and other related services
- Marriage
- Divorce (including child custody and guardianship)
Learning Outcomes
Upon completion of this unit, students will be able to:
• interpret the principal sources of law, including statutory law and judge-made law, customary law, how the
doctrine of precedent operates and the principles of statutory interpretation.
• Apply the basic methods of legal analysis; to analyse critically legal problems, including applying relevant case
law and legislation to differing contexts and a particular set of facts.
• Demonstrate initiative and autonomy in legal research by locating primary and secondary legal resource
material.
• Plan, organize and communicate legal advice in writing; and
• Demonstrate an informed understanding of the Australian constitutional framework and legal system.
TOPIC 1: INTRODUCTION & FOUNDATIONS OF AUSTRALIAN LAW; THE AUSTRALIAN LEGAL SYSTEM
(INCL. CONSTITUTION)
Two primary types of law
1. Common law/case law
Courts make law in accordance with the doctrine of precedent.
2. Legislation
new rules made by Parliament and that assigned authority by Parliament, commonly known as subordinate
legislation.
Common-Law V Civil Law
• The key distinction between the two systems is that case law – in the form of published judicial judgments – is of
primary importance in common law countries, whereas codified statutes predominate in civil law systems.
• In common law, previous legal precedents or judicial judgements are applied to resolve current problems. Civil
law is governed by codified legislation and regulations.
• Australia is a common-law country (together with the United States, Canada, Israel, and Ireland).
• Western legal system dates to the Romans and is founded on Greek/Christian legal ideas.
• Corpus Juris Civilis ("body of civil law")
Legal History & Emergence of English Court
The Crown: The queen is represented by the Queen of England, who is head of state and a member of each
Australian parliament, the Governor-General at the Commonwealth level, and the governor at the state level.
Writ: Originally a written command from the king to do something; subsequently evolved into a type of
written command in the name of a court or other legal authority to act, or refrain from doing, in a certain way
Curia Regis – “kings court”: The Curia Regis served as a general advisory body comprised of persons
nominated by the monarch to arbitrate and advise on the king's behalf. The Curia Regis gave rise to common-
law courts, the Chancery, and even Parliament
,Common-Law Courts
The Curis Regis was split into three specialised bodies as the workload increased:
1. The Court of Common Pleas was the first specialised body comprised of professional judges that
heard disputes amongst commoners.
2. A second court, made up of financial experts, heard royal revenue issues and became known as the
Court of Exchequer.
3. A third court, known as the King's Bench, was formed from travelling justices
Bill of Rights 1689: An Act of Parliament establishing the foundation on which William and Mary ascended to the
throne, including the requirement that revenue be imposed only with the approval of Parliament
Act of settlement 1701: A significant step in the 1701 constitutional settlement that, among other things,
granted judges with tenure security
Judicature Acts, 1873-1875
• The Judicature Act called for the merger of common law and equity courts, so that anyone court may
rule on any case, regardless of whether it is related to equity principles or common law norms.
• The Judicature Acts consolidated the independent courts of common law and equity into the Supreme
Court of Judicature, which featured a Court of Appeal to handle civil appeals and a single High Court
with numerous divisions corresponding to the former individual courts; there were now the:
- Kings Bench
- Courts of Common Pleas
- Court of Exchequer
- Chancery divisions of the High Court
New South Wales Act 1823
• NSW Act gave Supreme courts the same powers that common-law courts in England had
• Colonial judges now had the security and independence that English judges had since the Act of
Settlement 1701
• Court system = 3 tier court system – Magistrate, District, and Supreme
• NSW Act also created a legislative council that advised the governor on new proposed laws
Australian Courts Act 1828
The governor could not disregard legislative council recommendations, and a majority of the legislative council
could veto any proposed legislation.
Australian Constitution Act (No 1) 1842
• Introduced Separation of powers to Australia
• Increased the size of the legislative council
Australia Acts: The final step in Australia's path to legal independence.
Federation: On January 1, 1901, six British colonies—New South Wales, Victoria, Queensland, South Australia,
Western Australia, and Tasmania—joined to establish the Commonwealth of Australia.
Courts of equity: A court of equity is a court that has the authority to apply equity principles to issues
presented before it rather than law principles. Petitioning the Lord Chancellor of England was the starting
point for these courts. Equity courts 'processed cases and petitions seeking remedies other than monetary
damages, such as writs, injunctions, and specific performance.' The majority were subsequently "merged with
courts of law".
, Parliament
The Australian parliament is the legislative branch of the Australian government. It is made up of three parts:
1. The Queen (represented by the
Governor-General)
2. Two Houses; the Senate
3. And the House of Representative
Three branches of government:
The legislature, which is made up of elected
Members of Parliament, is primarily intended to
produce law, especially to enact legislation.
The major function of the judiciary, or judges, is
to serve as the arbitrator of disputes and to
offer authoritative direction on the
interpretation of the laws
The executive branch is by far the broadest and most amorphous body of government, consisting of a plethora
of officials, agencies, and organisations whose primary function is to carry out or administer the laws.
Division of Powers between the Commonwealth and the States
The Commonwealth Constitution establishes the distribution of legislative powers between the state and
Commonwealth legislatures. The legislative powers are split as follows:
Þ Residual Powers: Prior to the formation of the Federation, each colony had its own set of powers.
Some of these powers were transferred to the Commonwealth at the time of Federation (s51). The
remaining powers remained with the states (s108); these are known as residual powers, and only the
states have the authority to enact laws based on them. Examples of residual powers include:
- Law and order
- Commerce and industry
- Primary production
- Education
- Housing
- Transport
- Public Health
Þ Specific Powers: The constitution specifies the powers of the Commonwealth Parliament. Specific
Powers are classified as follows:
• Exclusive Powers - Only the Commonwealth parliament has the authority to wield this
prerogative. The following rights are specified in the Constitution:
- Section 90; the power to impose customs and excise duties
- Section 114; prohibits the states from raising naval or military forces
- Section 115; prohibits the states from minting their own coins
• Concurrent Powers - Commonwealth and state powers are shared. Some of them are listed
in s51, including:
- International trade and business
- Taxation
- Postal, telegraphic, telephone, and other related services
- Marriage
- Divorce (including child custody and guardianship)
