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number of colonies 代寫?The Commonwealth

    ?The Constitutional Story So Far …
    ?In the 1800’s, Australia was made up of a number of colonies.
    ?All had their own representative governments but it became apparent that some matters would best be dealt with by a central government i.e., that Australia should become a federation.
    ?In the late 1800’s a group of hairy white guys took part in the Constitutional Conventions to determine how this power-sharing arrangement would work.
    ?Australia became a nation on the 1st of January 1901.
    ?How It Works …
    ?
    ?The Commonwealth has some EXCLUSIVE powers (s52 and s90 and a few other minor ones)
    ?The Commonwealth has a list of CONCURRENT powers in s51 (that means both the States and the Commonwealth can makes laws with respect to those subject matters)
    ?Anything that is not mentioned in these sections of the Constitution is a RESIDUAL power and it belongs to the State
    ?Exclusive powers of the Commonwealth
    ?COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 52
    ?Exclusive powers of the Parliament The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to:
    ?(i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes;
    ?(ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth;
    ?(iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.
    ?
    ?
    ?
    ?
    ?COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 90
    ?Exclusive power over customs, excise, and bounties On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive.
    ?[...]
    ?Also note: Sections114 & 115 of the Constitution
    ?Sections 27, 72, 121 & 122 of the Constitution
    ?

    ?
    ?How It Works …
    ?
    ?The Commonwealth has some EXCLUSIVE powers (s52 and s90 and a few other minor ones)
    ?The Commonwealth has a list of CONCURRENT powers in s51 (that means both the States and the Commonwealth can makes laws with respect to those subject matters)
    ?Anything that is not mentioned in these sections of the Constitution is a RESIDUAL power and it belongs to the State
    ?Section 51 of the Constitution
    ?
    ?The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:
    ?(i) trade and commerce with other countries, and among the States;
    ?...
    ?(iii) bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;
    ?...
    ?(v) postal, telegraphic, telephonic, and other like services;
    ?(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
    ?(vii) lighthouses, lightships, beacons and buoys;
    ?Etc, etc, etc
    ?How It Works …
    ?
    ?The Commonwealth has some EXCLUSIVE powers (s52 and s90 and a few other minor ones)
    ?The Commonwealth has a list of CONCURRENT powers in s51 (that means both the States and the Commonwealth can makes laws with respect to those subject matters)
    ?Anything that is not mentioned in these sections of the Constitution is a RESIDUAL power and it belongs to the State
    ?
    ?If you look at the Constitution, you would think the States are more powerful that the Commonwealth (and that is what those hairy white guys wanted to happen…)

    ?BUT there are TWO main reasons why this hasn’t happened.
    ?
    ?1. Section109 of the Constitution says that if there is a clash between State and Commonwealth laws, the Commonwealth law takes priority
    ?
    ?COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 109
    ?Inconsistency of laws
    ?
    ?When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
    ?
    ?AND …
    ?2. Since the first 30 years of federation, the High Court has consistently interpreted the Constitution in a way that is favourable to the Commonwealth.
    ?So it’s fair to say the Commonwealth (or ‘federal’ government) is more powerful that the States in our federation.
    ?A Bill of Rights for Australia?
    ?Changing the Constitution
    ?Indigenous Recognition in the Constitution
    ?READ MORE ON THIS ISSUE AT:
    ?
    ?
    ?So, Why Are You Going On (And On And On) about the Constitution???
    ?
    ?As I’ve already mentioned, the TWO sources of law in Australia are the Courts and the Parliaments
    ?
    ?A Constitution is the ultimate source of all laws in a state or country. It establishes who can make the laws.

    ?So the Australian Constitution is the source of authority for our Courts to make laws and our Parliaments to make laws
    ?The Courts
    ?Some terminology:
    ?“jurisdiction’: scope of the court’s authority, e.g., Western Australia.

    ?“original jurisdiction” means if the court has authority to hear a matter at first instance i.e., the first time a matter goes to court

    ?“Appellate jurisdiction” means if the court has authority to hear an appeal
    ?The Australian Court System
    ?PARTIES TO A LEGAL ACTION
    ?  Plaintiff:  the person starting a civil action.
    ?  Defendant: the person defending a civil action.
    ?  Appellant: a person appealing against a previous   decision and who can be either the plaintiff or defendant   from the first case.
    ?  Respondent: the party who was successful in the first   action.
    ?  Crown: represents the state in a criminal action   through a Crown Prosecutor against an accused person.
    ?  Accused:  the person against whom a criminal   action is brought by the state.
    ?
    ?

    THE ORIGINS OF JUDGE-MADE LAW
    ?Old Fashioned Trial Methods
    ?KING HENRY II in ENGLAND
    ?INTRODUCED CIRCUIT COURTS (c.1185)
    ?
    ?
    ?
    ?Under the Assize system (of circuit courts) the judges of the Kings Bench (the Kings Judges) travelled ‘on circuit’ to all parts of the kingdom to hold civil and criminal trials. The primary purpose of the Assize Courts system was to ensure that the same law was consistently applied to all of the King’s subjects.
    ?Through this system a uniform (‘common’) body of law came to be applied by the King’s courts throughout England, replacing the various local laws. Unfortunately, over time, this ‘common law’ came to be applied in a very strict, legalistic way.
    ?So Equity was born ...
    ?English legal system allowed Appeals from the ‘common law’ courts could be made to the King’s personal priest, the Lord Chancellor
    ?
    ?Later, the Lord Chancellor delegated this work to specially appointed judges in a new Court called the Court of Chancery.
    ?
    ?Over time the decisions of the Court of Chancery developed into a body of rules known as ‘Equity’. The rules were based on notions of justice and fairness rather than on strict application of the common law. 
    ?If the Common Law was a person they would look like this …
    ?And if Equity was a person it would look like this
    ?Eventually …
    ?Two distinct court systems meant that it could take people a LONG time to get their final decision
    ?
    ?So, the two separate systems were abolished. (The distinction was abolished in 1873 in the United Kingdom and most other common law countries had followed by the beginning of the 20th century) and the system became FUSED, i.e., one court could administer BOTH common law and equity
    ?
    ?SO, when we talk about case-law or ‘judge-made law’ we are talking about BOTH common law and equity.
    ?Judge-made law=case law=common law
    ?
    ?Our common law system does not rely on civil codes in which all of the law is written down. Our system allows judges to make laws.
    ?
    ?The courts have had to develop rules that govern how judge-made law operates.
    ?
    ?This is known as ‘the doctrine of precedent’
    ?The importance of precedent cases in common law legal systems
    ?
    ?The doctrine of precedent requires that:
     
    the reasons for the decisions (‘ratio decidendi’) of superior courts in earlier cases must be respected, followed and applied by lower courts in a later case unless the later case can be distinguished on its material facts and therefore treated as sufficiently different to justify the application of a different rule.’


    ?For precedent to work, you need:
    ?
    ?
    ?A court hierarchy
    ?
    ?Material Facts
    ?
    ?Reason’s for the court’s decision
    ?
    ?Finding precedent cases ie common law/case law
    ? Court decisions on significant matters, are reported in series of ‘law reports
    ?
    Note: All Australian superior court decisions (whether they are ‘reported’ or not) are available in digital format via the Australian Legal information Institute  (Austlii):


    ?LAW REPORTS - CITATIONS
    ?Donoghue v. Stevenson [1932] AC 562
    ?LAW REPORTS - CITATIONS
    ?Pigram v. A-G for NSW (1975) 132 CLR 216
    ?NOTE TERMINOLOGY USED
    CIVIL cases:

      - Plaintiff ‘sues’ Defendant
      - Defendant is found ‘liable’ or ‘not liable’

     CRIMINAL cases:
      - Crown ‘prosecutes’ Accused/Defendant
      - Accused is found ‘guilty’ or ‘not guilty’

    Note: The ‘v’ is said as ‘and’


    ?
    ?For precedent to work, you need:
    ?
    ?
    ?A court hierarchy
    ?
    ?Material Facts
    ?
    ?Reason’s for the court’s decision
    ?
    ?The Australian Court System
    ?MATERIAL FACTS
    ?
    ?Facts that are legally relevant.
    ?Facts which can prove/disprove an element of the action.

    ?For example
    ?
    ?Charge: Dangerous driving causing death
    ?
    ?Material fact – evidence which goes to show that the accused was “driving”
    ?Two kinds of precedents

     
    ?
    »BINDING
      Lower court MUST follow a previous decision if the previous decision is:

    ?Decision of HIGHER court
    ?In SAME hierarchy
    ?With the same MATERIAL facts.
    ?
    ?LOWER court HAS NO CHOICE
    ?
    ?PERSUASIVE
    Lower court  MAY follow a
    previous decision if:
    ?
    ?Material facts in both cases are very similar AND
    ?The decision is from a LOWER court

      OR

    ?The decision is from a DIFFERENT hierarchy (eg English court)
    ?
    ?LOWER COURT HAS A CHOICE
    ?
    ?The Ratio Decidendi

    When we say a lower court MUST
    follow the decision of a binding case
    precedent from a higher court, we
    mean only that the lower court must
    apply the RATIO DECIDENDI of the
    precedent case. 

    ?Ratio Decidendi means ‘reason for deciding’
    ?Grounds for decision - material facts and outcome

    ?
    »
    ?AN EXAMPLE:
    Donoghue v Stevenson [1932]

    Facts: Decomposed snail in her ginger beer bottle – makes Mrs Donoghue sick – she sues the manufacturer of the drink for damages and succeeds
     
    Held: All persons owe a duty of care to their “neighbour”:
    ?A ‘neighbour’ is anyone who I should have been able to foresee could suffer injury as a result of my conduct; AND
    ?who is so closely affected by my action that I ought to have had them in contemplation as being likely to be so affected.
    ?ANOTHER IMPORTANT CONCEPT
    THE OBITER DICTUM:
    Obiter dictum means “ a thing said by the way”
    ?
    ?i.e., what the decision MIGHT HAVE BEEN if different material facts had been present
    ?The obiter dictum can be persuasive but NEVER binding
    ?How Does It Work?

    Cohen v Sellar [1926]
    ?
    ?Couple engaged; he gives her engagement ring; he breaks engagement; both claim ring
    ?Held: when couple engaged and he gives her ring and he breaks engagement she keeps ring (this is ratio)
    ?Court commented: If she breaks engagement, or if both agree to break it off, he keeps ring! (this is obiter dictum!)

    ?So remember
    ?
    ?Only the ratio decidendi is binding
    ?
    ?Obiter dictum may be persuasive
    ?For example: Hedley Byrne v Heller … a case in which a later court was persuaded to apply the precedent of the Donoghue case to very different set of material facts
    ?ANOTHER IMPORTANT CONCEPT
    DISTINGUISHING:

      Later courts can do this to:
    ?Avoid following an earlier case precedent
    ?
    ?It is only possible where the material facts of the later case are significantly different
    ?Credits:
    ?
    ?Slide 9:
    ?Slide 10:’The Castle’
    ?Slide 11:
    ?Slide 12:
    ?Slide 13:
    ?Slide 18:
    ?Slide 19:
    ?Slide 22:
    ?Slide 23:
    ?
    ?
    ?
    ?

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