welcome back to introduction to law in module two we're taking a look at the Australian legal system and for this lecture there are really two key things that we want you to take away first the structure of the Australian legal system it's a reasonably complex system so understanding how it all fits together is really important second the power of the people in the Australian legal system what I mean here is the relationship between citizens and the government so let's get started in your textbook you'll see this graphic of the seven key characteristics of the Australian legal system what I want to do for this lecture is take things a bit further and look at the key key characteristics the most important and maybe more difficult Concepts in the Australian legal system and there are four of those the common law system common law legal system the rule of law separation of powers and the Federation of Australia and we'll go through each of these in turn starting with the common law legal system now this is a system that Australia inherited from the United Kingdom we call it a common law legal system because it places emphasis on the common law the common law is case law in a common law legal system like Australia we say that cases make law so when a case is decided in a court that creates new law this means that case law is recognized as a source of law in Australia alongside legislation which is law made by Parliament we'll talk about that more uh in the next module but for now just contrasts a common law legal system with what's called a civil law legal system and a good example of a civil law legal system is France in that system the approach is that cases don't make law they just apply legislation the importance of Australia being a common law legal system is something that will really become clearer to you as we move through the course because it's the foundation of a doctrine that you'll come to know and love called precedent but we'll talk more about that in the weeks to come moving on to key key characteristic number two we have the rule of law the rule of law means that government power and authority should only be exercised in accordance with written publicly disclosed laws these laws need to be made and enforced in accordance with established procedure you do this you get a gold star as a legal system but established procedure is a bit of a loaded term here so let's say we have a legal system where every day for the past 50 years a king has been writing and enforcing new laws each morning based on what he dreamed the night before there's a procedure it's been imp for about 50 years so it seems established but this example is definitely not the rule of law in action when we talk about established procedures in relation to the rule of law we're also bringing in Associated standards that those procedures have to live up to law needs to be properly made and enforced in Fair ways as for what that means well we're still not totally sure dicey standards for the rule of law though have been around for a long time and are a good place to stop so according to dicey the law should be applied equally to everyone regardless of social status culture religion or political beliefs the courts should uphold the legal rights of citizens including the right to personal freedom and no person should be punished other than for conduct that is expressly made illegal these standards while they might seem very straightforward are actually not so easy to apply in real life when we're talking about Courts for example what legal rights do they uphold and how is the extremely high cost of legal proceedings in the US compliant with the rule of law what about the availability of legal aid free legal advice and representation in Australia in both cases we're talking about access to Justice which is an important part of the rule of law but how much access is enough it's a difficult question and sometimes it's easiest just to think about what the rule of law is not if there is a jurisdiction where citizens can be imprisoned without charge or imprisoned for political reasons or on the whim of a person in government that kind of thing is definitely not in line with the rule of law it isn't a system where properly made laws apply equally to everyone regardless of who they are the third key key characteristic of the Australian legal system is the separation of powers in the Australian legal system there are three arms of government the legislature the executive and the Judiciary the legislature holds the law making power through the Parliamentary process parliaments make law legislature is the parliament's the executive is the administrative arm of government it administers the laws that Parliament [Music] makes the Judiciary is judges in the courts interpreting and arguably making law by deciding cases because remember we have a common law legal system the important thing about separation of powers is that these different arms of government should be functionally separate the reasons for this are pretty straightforward imagine if the government official given the role of administering Financial grants which would make them part of the executive was also in charge of resolving disputes about the exercise of that power imagine they were also a member of the Judiciary that would be a very easy route towards abuse of process to preventing oversight of decisions to corruption basically we have separation of powers because each of these Powers keeps the other in check every night on the news you're probably going to see a story about Parliament engaging in oversight Powers over one or more members of P members of cabinet that is responsible government in action and it's made possible by the separation of powers we get to this separation of powers in three ways by trying to have separate people or at least different roles distinct roles for the different Arms by making sure that the different arms of government don't interfere or influence one another and by making sure that each arm only exercises its own function a complaint by some members of the executive and parliaments is that the Judiciary is overstepping its role at the moment and becoming a bit too much like the legislature separation of powers requires functional separation but that does mean that you will sometimes see the same people performing different roles separation of powers means separation of roles but not necessarily separation of people you can imagine it as though people are wearing different hats so here we have Scott Morrison the MP part of legislature A Member of Parliament making law and here we have Scott Morrison prime minister the leader of the executive cabinet who administers law if you look really closely you can even see he's got prime minister written on his hard hand the fourth and final key key characteristic is that Australia is a federation that means we have a system with multiple layers the federal level and the States the route to understanding the Australian legal system which if you recall is one of the key aims of this lecture is to understand the Australian Constitution because that really sets up the relationship with the different parts of that multi-layered legal system so a bit of background the Australian Constitution came into force in 1901 through an act of the British Parliament the commonweal of Australia Constitution Act 1900 and it is a substantial document comprises eight chapters and 128 sections the Australian Constitution established an umbrella government over the states of Australia what it didn't do is set out a Bill of Rights so the Australian Constitution is not a Bill of Rights it's not like the United States Constitution we can really contrasted with that but it does Grant some rights explicitly so grants the right to just compensation if property is acquired by the Commonwealth grants the right to trial by jury and the right to freedom of religion on top of that courts have also implied freedom of political communication and right to vote including for prisoners and they've implied that from Houses of Parliament being chosen by the people this is an interesting point of contrast really because if we think about the UK where there's no written Constitution there's also no right for prisoners to vote so we can see the written Constitution even though it's not a Bill of Rights having a real impact on the you the rights of citizens the Australian Constitution sets out the Australian legal system and it divides legislative power in that system into three categories exclusive Powers which are those exclusively held by the Commonwealth concurrent powers those held jointly concurrently by the Commonwealth and the states and residual Powers which are those held just by the states and you see this set out in your textbook if we look at exclusive Powers which are those exercised only by the Commonwealth which we mean Federal Parliament we see a few important Powers straight away Public Service the military money these are powers that sit exclusively with Federal Parliament then we have concurrent powers which can be exercised concurrently hence the name by both federal and state parliaments and these are set out in section 51 of the Australian Constitution and there are some really important Powers here just looking at this list quickly you know we see trade taxation corporations marriage external Affairs these are important powers and they sit in a fairly complex position because they're actually concurrently held by two different layers of the Australian legal system so we need to unpack this concurrent idea a bit more well works like this if the federal Parliament has not legislated on the matter then it remains within the authority of the states but if a state has made law in relation to something that the federal Parliament subsequently makes law on then section 109 of the Australian Constitution kicks in and that says when a law of a state is inconsistent with a law of of the Commonwealth the latter shall Prevail and the former shall to the extent of the inconsistency be invalid courts are key to how the interpretation of these concurrent powers has been developed something you can see in the case law is reference to the intention of federal Parliament did the federal legislature intend for the state and federal law to coexist or did the federal Parliament intend for the intend to be the source of law here in which case it's going to override the state legislature and we can see this being discussed in the case of expart mlan what this all means is that the federal Parliament has the power to override the states so long as they remain within their section 51 Powers do you think states are going to like this because they do not and this leaves the courts to try and mediate what's going to happen here how this is all going to break down courts are having to deal with these disputes between states and federal Parliament with States arguing that Federal Parliament does not have the power under section 51 to make the laws it has and generally courts have favored Federal legislation by deeming it to override state law legislation in doing so they've tended to give a broad interpretation of whether Things Fall within the scope of federal power we saw this in the case of Kata and bii Peterson when the Queensland government challenged the validity of the racial discrimination act so that they could racially discriminate against kuata the court though took an expansive interpretation of the external Affairs concurrent power that the federal Parliament has saying that because Australia was a party to an international treaty prohibiting racial discrimination the act of federal Parliament that supported Australia's compliance with that treaty was an exercise of the external Affairs power so the federal government had the power here Commonwealth and Tasmania was decided in the same way favoring the federal Parliament by saying its Acts were constitutionally valid as an exercise of the external Affairs power on the basis of an international treaty now the federal Parliament doesn't always get its way and in New South Wales and the Commonwealth we saw the court interpreting section 51 strictly saying that while Federal Parliament had the power under section 51 to make law regulating companies that had been formed that didn't mean they had the power to make law regulating how companies could be formed so we see the difference between you know regulating companies that already formed versus regulating companies that haven't yet come into existence and regulating how they can come into existence now we can try and make make sense of all of this by saying that an exercise of power is one thing an exercise of an external Affairs power is one thing but an extension of power as in the New South Wales case is another so whilst New South Wales looks like an extension Gua looks more like an exercise of a foreign affairs power an external Affairs power overall what we've seen is an expansion of federal Parliament power under section 51 this is obviously at the expense of state's power because it necessarily involves Federal Parliament overriding State parliaments at the same time the federal government has been issuing tied grants these grants are issued to states on the condition that the state complies with federal government policies and those conditions are what Parliament thinks fit so they're much broader than the section 51 Powers this means the Commonwealth through the issue of these conditional tied grants can effectively Force states to comply with federal government policy if they want to keep their funding and they can through this Force states to comply in areas where the federal Parliament doesn't actually have any formal power whether it's exclusive or concurrent so areas like hospitals schools education that kind of thing finally we come to residual Powers anything not expressly identified as an exclusive power or a concurrent power falls to the states as a residual power they include Powers over Education Health the criminal law contracts torts property transport lots of other things lots of really important legal areas which can all be different from state to state maybe you're starting to get an idea here of how this might make lawyers lives slightly more complicated states have a part to play definitely in the Australian legal system and they also have their own constitutions and what I recommend doing here is going and looking at your own State's Constitution I'm just giving you a guide to the Commonwealth Constitution the Federal Constitution how does your state compare cuz state constitutions have a reputation for being really convoluted and quite complex but I want you to go and see if that's Justified for your state and the easiest way to do that is to find your state Constitution right after this lecture and see whether you can understand it because if you can't understand it then maybe we have a problem that goes back to the rule of law if you can't understand the law then how is it going to be fairly administered to you on you as a citizen and that brings us quite nicely to the power of people in the Australian legal system and the balance of power between those people citizens and the executive if a person is unhappy with the decision of the executive then they have a few options there are multiple ombudsmen for federal decisions for State decisions things like that and a citizen can complain to an ombudsman and request that they investigate an administrative decision what the Ombudsman will generally do here is look at the process through which the decision was reached that's to provide oversight over whether the executive operated fairly whether it followed its own rules the ombudsman's not generally there though to provide their own decision on the matter they're just providing oversight over the process and whether the proper processes were followed another way for citizens to hold the executive to account is to get information access to information is essential to accountability because you need the information on which to hold the government to account right to information or foi requests mean citizens can see the basis of executive decision- making interrogating those bases and the reasoning of the executive is an important part of challenging executive decision making if you've heard the saying make bricks without straw well in a law course we like to challenge the executive only with metaphorical bricks never real bricks and the straw is the information citizens can get through Freedom of Information right to information requests administrative appeals tribunals operate in Most states and in federal government they exist as a means of appealing administrative decisions but they are not courts they exist as part of the executive arm of government what these tribunals do is look at government decisions and they decide whether the policies and rules have been followed and whether the right decision was made as a result if the tribunal doesn't think the decision was right then what it can do is substitute that decision for its own the tribunal doesn't just send the decision back to the executive for a second look it makes its own decision it can do that because it's a part of the executive and we can contrast the position of the the administrative appeals tribunal with judicial review judicial review is the process of going to court to seek review of an executive decision the outcome of this can be the court telling the executive to do something or to refrain from doing something and this is called a prerogative writ what the court is doing or what it's ordering depends on the type of writ so it might be an order to bring an imprisoned person to court to ensure that they're heard it might be an order that an administrative officer perform their duties or provide a record of their decision or it might be an order prohibiting the executive from exceeding its powers the details as well as the correct pronunciation of s Shari are things that you'll cover in administrative law so right now all you need to know is that these Powers exist what a court can't do in judicial review is substitute its own decision on the matter courts are part of the judicial arm of government they are not an administrative body they're not part of the executive so they can't make administrative decisions that's the purview of the executive remember the separation of powers courts have to respect this and that's about it when it comes to reviewing your notes consider the balance of power between the Commonwealth and the states and between the government and its citizens importantly try and be critical here what do you think about this balance is it correct or is something off think about what you would change in these systems thanks for listening