FOUNDATIONS OF LAW SUMMARY
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1 FOUNDATIONS OF LAW SUMMARY LAWSKOOL PTY LTD
2 TABLE OF CONTENTS LIST OF CASES...5 LIST OF LEGISLATION...6 THE WESTERN LEGAL TRADITION...7 COMMON LAW...8 CIVIL LAW...8 ENGLISH LEGAL HISTORY...9 FEUDALISM...10 The formal social hierarchy in Feudalism...10 THE CREATION OF THE COMMON LAW...11 The creation of legal structures...11 The writ system...12 The earliest trial procedures...13 Equity...14 The creation of constitutionalism...15 Reforms in the common law and the courts...19 The creation of the legal profession...21 The Rule of Law...22 AUSTRALIAN LEGAL HISTORY...23 THE TRANSPORTATION OF ENGLISH CONVICTS...23 THE ARRIVAL OF LAW TO NEW TERRITORIES...23 The doctrine of terra nullius...24 The reception of English law in Australia...25 THE AUSTRALIAN COURT STRUCTURE AND ITS CREATION...26 Bigge s recommendations the New South Wales Act...27 THE CREATION OF THE AUSTRALIAN CONSTITUTIONAL GOVERNMENT...28 The New South Wales Act...28 The Australian Courts Act...28 Australian Constitutions Act (No 1) (5& 6 Vict, c 76) Australian Constitutions Act (No 2) (13& 14 Vict, c 59) CURBING THE EFFECT OF THE REPUGNANCY DOCTRINE...29 lawskool.com.au Page 2
3 THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL...30 THE CREATION OF A FEDERATION AND AUSTRALIAN INDEPENDENCE...31 The Treaty of Versaille...32 The Balfour Declaration...32 The Statute of Westminster NATIVE TITLE...34 Aboriginal Land Rights (Northern Territory) Act The Mabo case...34 The Native Title Act 1993 (Cth)...35 The Wik case...35 Native Title Amendment Act 1998 (Cth)...35 INTERNATIONAL LAW...36 THE AUSTRALIAN LEGAL SYSTEM...37 THE COMMON LAW SYSTEM IN AUSTRALIA...37 Doctrine of Precedent...37 Hierarchy of Courts...38 EQUITY...38 FEDERATION AND FEDERALISM...39 THE COMMONWEALTH CONSTITUTION...40 SOURCES OF LAW...44 CATEGORIES OF LAW...44 Private law...44 Public law...44 Criminal law...44 Civil law...44 CASE LAW...45 Law reports...45 LEGISLATION...46 How case law and legislation interact...46 CUSTOMARY LAW...47 INTERNATIONAL LAW...47 Treaties...48 lawskool.com.au Page 3
4 Customary international law...48 STATUTORY INTERPRETATION...49 COMMON LAW RULES OF STATUTORY INTERPRETATION...49 Literal Rule...49 Golden Rule...50 Purposive Rule...50 Mischief Rule...51 RULES OF STATUTORY INTERPRETATION...52 Acts Interpretation Act 1901 (Cth)...52 Extrinsic materials...53 OTHER GUIDES TO STATUTORY INTERPRETATION...54 COMMON LAW PRESUMPTIONS OF STATUTORY INTERPRETATION...55 Presumptions of interpretation...55 Presumptions about individual rights...55 Presumptions about procedural matters...55 lawskool.com.au Page 4
5 LIST OF CASES Case of Proclamation 15 Case of Ship Money 15 Cooper v Stuart 24 Mabo v Queensland (No 2) 36 Phillips v Eyre 31 State Government Insurance Commission v Trigwell 26 Telstra Corporation v Treloar 40 Wik Peoples v Queensland 37 lawskool.com.au Page 5
6 LIST OF LEGISLATION Aboriginal Land Rights (Northern Territory) Act Act of Settlement 17 Uniformity of Process Act Acts Interpretation Act 1901 (Cth) 48,54 Acts Interpretation Act 1915 (SA) 25 Australia (Request and Consent) Acts 35 Australia Act 32,35 Australia Acts (Request) Acts 35 Australian Constitutions Act (No 1) Australian Constitutions Act (No 2) Australian Courts Act Chancery Procedure Act Colonial Laws Validity Act ,31 Common Law Procedure Act Commonwealth of Australia Constitution Act Federal Council of Australasia Act Interpretation Act 1984 (WA) 25 Judicature Act Judicature Act Judicature Act 1876 (Qld) 41 Judicature Act 1878 (SA) 19 Judicature Act 1883 (Vic). 19 Law Reform (Law and Equity) Act 1972 (NSW) 41 Legal Procedure Act 1903 (Tas) 19 Native Title Act 1993 (Cth) 37 Native Title Amendment Act 1998 (Cth) 37 New South Wales Act Northern Territory Acceptance Act 1910 (Cth) 25 NSW Supreme Court Act 41 Privy Council (Appeals from the High Court) Act 1975) (Cth) 32 Privy Council (Limitation of Appeals) Act 1968 (Cth) 32 Seat of Government Acceptance Act 1909 (Cth) 25 Statute of Westminster Supreme Court Act (NT) 19 Supreme Court Act Supreme Court Act 1880 (WA). 19 Supreme Court Act 1933 (ACT) 19 Supreme Court Act 1935 (SA) 41 Supreme Court Act 1935 (WA) 41 Supreme Court Act 1958 (Vic) 41 Supreme Court Act 1970 (NSW) 41 Supreme Court Civil Procedure Act 1932 (Tas) 41 lawskool.com.au Page 6
7 The Western Legal Tradition Both the civil law and common law traditions are derived from ideas in Christianity and Roman Law. The common law and civil law systems are what are known as the Western legal tradition. 1 During the peak period of the Roman Empire, the Romans had a Roman Code that was derived from Greek legal principles and Christian legal principles. This code was collected together and was called the Corpus Juris Civilis. 2 The Corpus Juris Civilis was also known as the Justinian Texts because they were organised by Emperor Justinian. When the Roman Empire ended, most of the Corpus Juris Civilis was lost, and it was not until later in the 11 th century that these texts were rediscovered by legal philosophers. Alongside Greek Philosophy and the Bible, the Justinian Texts formed the basis for the contemporary Western legal tradition. While the common law and civil law systems come from the same origins, they soon developed in different directions. 1 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. 2 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. lawskool.com.au Page 7
8 COMMON LAW Australia s legal system is based on the English common law system. Around the world, common law jurisdictions include: Australia; Canada; USA; New Zealand; Ireland; Kenya; India; Israel; and Malaysia. CIVIL LAW All the laws of civil law countries are contained in documents called codes. This includes both substantive and procedural law. Civil law countries include: Most of continental Europe (notably France); Some states in South America; Thailand; and Japan. Contemporary civil law is heavily influenced by the detailed code Napoleon drew up when he came into power after the French Revolution. This Code Napoléon became law in 1810 and consisted of: The Civil Code; The Code of Civil Procedure; The Commercial Code; The Code of Criminal Procedure; and The Penal Code. 3 3 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. lawskool.com.au Page 8
9 English Legal History The year 1066 was a signpost for a series of cumulative changes, beginning with the conquest of England by William, the Duke of Normandy. These changes have resulted in Australia and other former British colonies sharing the common law legal tradition. 4 Before the Norman Conquest, there was a legal system already in existence in England. The problem with this pre-conquest legal system was that it was not consistent across regions. Pre-Conquest Anglo-Saxon laws were based on different sets of customs that were in force in different parts of England, as such there were no single set of uniform rules across the country. 5 These laws were administered in localised Anglo-Saxon courts 4 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. 5 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. lawskool.com.au Page 9
10 FEUDALISM - The Normans established a series of land ownership called feudalism, which helped create a stable and uniform administrative system of government throughout England. - Feudalism: a system of land ownership based upon a formal social hierarchy. 6 The formal social hierarchy in Feudalism KING Has dominion over all the lands in the kingdom. TENANTS-IN-CHIEF Land-owning nobles who held title to their land by virtue of direct grant from the Crown. DESCENDING LEVELS OF SUBTENANTS Held land by virtue of a grant from the next higher level in the chain. Lowest level: land-holding freemen. 7 - This formal hierarchy meant that alongside loyalty to the king, each landholder also owed feudal loyalty. - Feudal loyalty: Loyalty owed to one level upwards. Each landholder swore allegiance to their immediate superior in the chain. Swearing allegiance meant being obligated to provide the lord with a share of the crops and serving military service on the lord s behalf. The lords in turn promised to protection and assistance to their tenants. 8 To order the complete version of the lawskool Foundations of Law Summary please visit 6 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. 7 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. 8 C Cook, R Creyke, R Geddes, D Hamer. Laying Down the Law 6 th Edition. (2005) LexisNexis Butterworths. Sydney. lawskool.com.au Page 10
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