Foundations of Law – LLB1100 – Exam Notes
/ 21 – 1:30 pm – 3 Hours
Feedback from previous exam
o It starts strong and then loses its way
o Research is intended to support and complement your overarching argument; not form the basis of your argument
o Short sharp sentences containing one key concept
o Watch choices on words
o Need a strong analysis
o Need to be specific; detailed evidence
o Make sure it doesn’t become a summary
Subject learning outcomes
1. Locate the foundations of Australia’s legal system and evaluate its impact on contemporary society
2. Describe Australia’s key legal institutions
3. Recognise and illustrate aspects of the relationship between law and society
4. Describe the adversarial system of justice and critically assess its strengths and weaknesses
5. Describe how cases create law and explain and apply the fundamental principles of doctrine of precedent
6. Reflect on the values, attitudes and beliefs that underlie their understanding of law and its practice
1
, Foundations of Law – LLB1100 – Exam Notes
/ 21 – 1:30 pm – 3 Hours
Part 1: Studying the Australian legal system
Nature and sources of law
what is law?
- Means of ordering society and resolving disputes
o Expression of current Gov. policy
- A form of narrative or story (McBain v Victoria)
o Reflects dominant discourses in society.
‘The law is a cultural construct used to combine order with freedom. There must be some degree of restriction in exchange for
defined benefits from society. While the law is separate from politics, it will always be inherently political. The law is the key
factor in negotiating conflicts in social value and change.’
Classification of law
- Private law: Relationship between individuals (contract and tort law). Rationale behind this area is that the state should
not interfere.
- Public law: Relationship between state and its constituents (criminal and constitutional law).
o Public law is the state against the individual regarding civil matters
- Criminal Law: Conduct deemed harmful to society. Societal opposition on what can be considered harmful.
- Civil Law: Regulating relation between individuals. (Contracts, although the same cause of actions can give rise to
criminal action).
o Acts that breach agreements and relations between individuals
- Substantive law: The rules that make up a particular branch of law (defines rights and duties in civil law and crimes and
punishments in criminal law). May be codified in statutes or precedent.
- Procedural law: The defined legal procedure that occurs when a case is brought forward.
McBain v Victoria (2000) 99 FCR 116
Substantive Law – Substantive law is concerned with rules which make up substance of a particular branch of law. The rules that
will be applied by a court to the facts of a dispute to determine its outcome. Legal doctrine or the doctrinal aspects of law. They
are ambiguous and can be interpreted and applied in different ways
Procedural Law – rules about the way in which a case must be brought before the courts. Detailed rules about the conduct of
litigation and the presentation of evidence as well as the kind of remedies that can be provided by the court. There are rules about
what can be litigated and by whom.
Rule of Law - power should be exercised according to law, not on the basis of personal power. The rule of law requires that all
persons are subject to the law and before the law all persons are equal.
Parliaments enact universal laws: meaning laws that apply generally (equally) and not to particular individuals or particular
situations. Laws are made public, and easily accessible therefore they are rational and can be logically explained or justified.
Procedural requirements formalise these characteristics by the conduct of trials including third parties who must act without
bias giving the right to all persons to put their case in a public forum.
Enforcement and Regulation
o Enforcement refers to the application of laws that ensures compliance with the law, regulation of social conduct and the
punishment of those transgressions of the law.
o Regulation is the main focus of the enforcement of law. The emphasis is placed on compliance rather than punishment.
o The police, courts and statutory authorities enforce the law.
2
, Foundations of Law – LLB1100 – Exam Notes
/ 21 – 1:30 pm – 3 Hours
Origins of the Australian Legal System
A dispute arose between the King, the courts and the parliament regarding power. Out of The Glorious Revolution of 1688 came
the Bill of Rights 1689: which limited the royal prerogative (right/privilege). However some prerogatives remained the same e.g.
colonial affairs
Parliamentary Supremacy: parliament can make, repeal and amend legislation but
within constitutional boundaries and restrictions. After the bill of rights
parliamentary supremacy emerged allowing for:
- A new relationship between the crown and the parliament
- Parliament emerges as the supreme law makers
- Australia’s legal system derives from British law and institutions
- Parliamentary supremacy and constitutional monarchy are a part of the
Australian legal system
Independence from Britain : Evolution towards self-government
Australian Constitutional and legal system
From Penal colony to self-government federation Independence from Britain
1823: New South Wales Act: beginning of state powers V
1828: Australian Courts Act: increased size of legislative 1865: Colonial Laws Validity Act
power and decreased size of governors power V
1842: Australian Constitution #1: enlarged legislative council 1931: Statute of Westminster
and elections began. The governor is now separated from (enacted in 1942 and backdated to 1939)
legislature V
1850: Australian Constitution #2: power to amend their own 1986: Australia Acts
constitution
1855: NSW Constitution Statute: upper house, lower house
1901: Federation of Australia: birth of our constitution
What were the consequences in legal terms of treating Australia as a “settled” colony? resulted in the development of a legal
system based on English principles, laws and institutions; along with disastrous repercussions for aboriginal law and society.
Displaced any pre-existing laws
Statute of Westminster 1931: shed constraints Britain had over Australia, limiting power on state law. However English laws
still had paramount force but the Australia Act 1986 (Cth) finally took the last of the restrictions away. Adopted in 1942 – 40
years after the federation of Australia
Federal System
Specific Powers:
- specifically allocated to the Commonwealth. They are sometimes called enumerated powers. Most specific powers are
contain in Section 51 of the Constitution.
- Section 51 contains 39 different paragraphs, covering areas as diverse as trade, taxation, postal services, quarantine,
weights and measures, marriage and divorce, aged pensions, immigration and foreign affairs.
- Specific powers can either be Exclusive powers or Concurrent powers.
Exclusive Powers:
- are law-making powers granted to the Commonwealth alone; may only be exercised by the Federal government.
- Example: Section 51(vi) and Section 114, grant the Cth. the ability to organise and make laws for the military defence of
the nation.
- Another Section is 51(xii) and Section 115.
- Section 90 deals with customs and excise duties, says that the “power of the [Commonwealth] Parliament to impose
duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive”.
- States do not have authority to legislate in these areas.
3
/ 21 – 1:30 pm – 3 Hours
Feedback from previous exam
o It starts strong and then loses its way
o Research is intended to support and complement your overarching argument; not form the basis of your argument
o Short sharp sentences containing one key concept
o Watch choices on words
o Need a strong analysis
o Need to be specific; detailed evidence
o Make sure it doesn’t become a summary
Subject learning outcomes
1. Locate the foundations of Australia’s legal system and evaluate its impact on contemporary society
2. Describe Australia’s key legal institutions
3. Recognise and illustrate aspects of the relationship between law and society
4. Describe the adversarial system of justice and critically assess its strengths and weaknesses
5. Describe how cases create law and explain and apply the fundamental principles of doctrine of precedent
6. Reflect on the values, attitudes and beliefs that underlie their understanding of law and its practice
1
, Foundations of Law – LLB1100 – Exam Notes
/ 21 – 1:30 pm – 3 Hours
Part 1: Studying the Australian legal system
Nature and sources of law
what is law?
- Means of ordering society and resolving disputes
o Expression of current Gov. policy
- A form of narrative or story (McBain v Victoria)
o Reflects dominant discourses in society.
‘The law is a cultural construct used to combine order with freedom. There must be some degree of restriction in exchange for
defined benefits from society. While the law is separate from politics, it will always be inherently political. The law is the key
factor in negotiating conflicts in social value and change.’
Classification of law
- Private law: Relationship between individuals (contract and tort law). Rationale behind this area is that the state should
not interfere.
- Public law: Relationship between state and its constituents (criminal and constitutional law).
o Public law is the state against the individual regarding civil matters
- Criminal Law: Conduct deemed harmful to society. Societal opposition on what can be considered harmful.
- Civil Law: Regulating relation between individuals. (Contracts, although the same cause of actions can give rise to
criminal action).
o Acts that breach agreements and relations between individuals
- Substantive law: The rules that make up a particular branch of law (defines rights and duties in civil law and crimes and
punishments in criminal law). May be codified in statutes or precedent.
- Procedural law: The defined legal procedure that occurs when a case is brought forward.
McBain v Victoria (2000) 99 FCR 116
Substantive Law – Substantive law is concerned with rules which make up substance of a particular branch of law. The rules that
will be applied by a court to the facts of a dispute to determine its outcome. Legal doctrine or the doctrinal aspects of law. They
are ambiguous and can be interpreted and applied in different ways
Procedural Law – rules about the way in which a case must be brought before the courts. Detailed rules about the conduct of
litigation and the presentation of evidence as well as the kind of remedies that can be provided by the court. There are rules about
what can be litigated and by whom.
Rule of Law - power should be exercised according to law, not on the basis of personal power. The rule of law requires that all
persons are subject to the law and before the law all persons are equal.
Parliaments enact universal laws: meaning laws that apply generally (equally) and not to particular individuals or particular
situations. Laws are made public, and easily accessible therefore they are rational and can be logically explained or justified.
Procedural requirements formalise these characteristics by the conduct of trials including third parties who must act without
bias giving the right to all persons to put their case in a public forum.
Enforcement and Regulation
o Enforcement refers to the application of laws that ensures compliance with the law, regulation of social conduct and the
punishment of those transgressions of the law.
o Regulation is the main focus of the enforcement of law. The emphasis is placed on compliance rather than punishment.
o The police, courts and statutory authorities enforce the law.
2
, Foundations of Law – LLB1100 – Exam Notes
/ 21 – 1:30 pm – 3 Hours
Origins of the Australian Legal System
A dispute arose between the King, the courts and the parliament regarding power. Out of The Glorious Revolution of 1688 came
the Bill of Rights 1689: which limited the royal prerogative (right/privilege). However some prerogatives remained the same e.g.
colonial affairs
Parliamentary Supremacy: parliament can make, repeal and amend legislation but
within constitutional boundaries and restrictions. After the bill of rights
parliamentary supremacy emerged allowing for:
- A new relationship between the crown and the parliament
- Parliament emerges as the supreme law makers
- Australia’s legal system derives from British law and institutions
- Parliamentary supremacy and constitutional monarchy are a part of the
Australian legal system
Independence from Britain : Evolution towards self-government
Australian Constitutional and legal system
From Penal colony to self-government federation Independence from Britain
1823: New South Wales Act: beginning of state powers V
1828: Australian Courts Act: increased size of legislative 1865: Colonial Laws Validity Act
power and decreased size of governors power V
1842: Australian Constitution #1: enlarged legislative council 1931: Statute of Westminster
and elections began. The governor is now separated from (enacted in 1942 and backdated to 1939)
legislature V
1850: Australian Constitution #2: power to amend their own 1986: Australia Acts
constitution
1855: NSW Constitution Statute: upper house, lower house
1901: Federation of Australia: birth of our constitution
What were the consequences in legal terms of treating Australia as a “settled” colony? resulted in the development of a legal
system based on English principles, laws and institutions; along with disastrous repercussions for aboriginal law and society.
Displaced any pre-existing laws
Statute of Westminster 1931: shed constraints Britain had over Australia, limiting power on state law. However English laws
still had paramount force but the Australia Act 1986 (Cth) finally took the last of the restrictions away. Adopted in 1942 – 40
years after the federation of Australia
Federal System
Specific Powers:
- specifically allocated to the Commonwealth. They are sometimes called enumerated powers. Most specific powers are
contain in Section 51 of the Constitution.
- Section 51 contains 39 different paragraphs, covering areas as diverse as trade, taxation, postal services, quarantine,
weights and measures, marriage and divorce, aged pensions, immigration and foreign affairs.
- Specific powers can either be Exclusive powers or Concurrent powers.
Exclusive Powers:
- are law-making powers granted to the Commonwealth alone; may only be exercised by the Federal government.
- Example: Section 51(vi) and Section 114, grant the Cth. the ability to organise and make laws for the military defence of
the nation.
- Another Section is 51(xii) and Section 115.
- Section 90 deals with customs and excise duties, says that the “power of the [Commonwealth] Parliament to impose
duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive”.
- States do not have authority to legislate in these areas.
3
