CHAPTER 1: AN INTRODUCTION TO LAW AND THE AUSTRALIAN LEGAL
SYSTEM
I. THE DEFINITION AND FUNCTIONS OF LAW
1. Defining law
- Natural law: a universal understanding of what was right and wrong, fair and unfair, just and unjust -
the "law" that underpins universal human rights law today
- Positive law: "law" as the body of rules that regulates the relationships between the members of
society and between the government and its citizens so as to avoid conflict and promote social cohesion
- Law: a body of enforceable rules, made by the state - the parliament and the court - the parliament
and the court - that is enforceable by the state.
- Commercial “law” consists of contract law, corporations’ law, consumer law, tort law, product liability
law, partnership law, and agency law which are made by the courts and parliaments that apply to the
business world and are enforceable by state-backed sanctions.
- The breach of a law results in sanctions or penalties
- Differences between legal laws and non-legal laws:
l laws gal laws
Are made by the state (Parliament and Are not made by the state (Parliament and
the courts) the courts)
Have state-backed enforcement Do not have the same enforcement regime
apparatus, procedures and sanctions
depending on whether the matter is
civil, criminal or administrative
2. The functions of law
- It regulates in a normative sense the way we live
- Law inform what to do, how should do it, what can’t do, what must do to avoid sanctions
- Regulatory function concerns positive law - law as it is. We are concerned with the law, not the justice
- It has a dispute resolution function
- Commercial activity often involves disputes or disagreements about the parties' rights and obligations
- The role of law is to provide a means for disputes to be resolved by ensuring that the laws are clear
and accessible (so that the parties - or their lawyers - are able to settle their dispute without the need to go
to court)
- The courts provide a fair, efficient, open and uncorrupted dispute resolution process
- Applies to both civil and criminal matters
- The law maintains stability and social cohesion
- Law is making as being the product of a fair and proper process, untained by corruption or improper
interference (can thiệp)
- The law should provide a fair, stable, predictable base that allows commerce to flourish
- The law should facilitate that change in an open, predictable and a consistent manner
- Law reinforces community values
- Peace, order and cohesion - promoted when the legal system is seen
,- Law also manages to respect the rights of minority stakeholders to safeguard against the “tyranny of
the majority” (chuyên chế của đa số)
- To promote justice and uphold the rule of law
- Upholds (đề cao) the rule of law
- The rule of law - the idea that no person or institution is above the law
- All citizens have the same legal rights and duties, regardless of age, sex, religious, race, or
socio-economic statues
2. The rule of law
- Rules of law: Formal equality under the law elides with the other basic principle of a liberal
democracy
- Elides: omit a sound or syllable when speaking
- Most of the content of the rule of law can be summed up in 2 points:
- That the people (including… the government) should be ruled by the law and obey it
- That the law should be such that people will be able (and…willing) to be guided by it
- The Institute has created the “Rule of Law Pyramid” to illustrate the principles and legal traditions
that contribute to maintaining the rule of law in Australia
,Where the rule of law existing proper processes are followed, law and regulation are accessible and
transparent, the bureaucracy implements those law and regulations in a fair and efficient manner and in the
event of a dispute or infraction (sự vi phạm) the wheel of justice turn equally for all parties
3. Rule of law: importance to commercial life
- Commercial life is dysfunctional (rối loạn chức năng) without Rule of law
- Laws and regulations are accessible and transparent if the Rule of law exists
- Bureaucracy implements those laws and regulations in a fair and efficient manner
II. THE AUSTRALIAN LEGAL SYSTEM
1. History and development of the Australian legal system
- Terra Nullius and Doctrine of Reception ⇒ Mabo ⇒ Native Titles Act ⇒ Toward a Sovereign Nation
- The Australian Constitution is contained in s9 of an Act of the British Parliament: the commonwealth
of Australia Constitution Act 1900
2. The Commonwealth Constitution - a constitutional monarchy
- The Commonwealth of Australia Constitution Act 1900 - created a constitutional monarchy
- The head of state is the monarch of England
- The Australian Constitution created a federal state - a Parliament
- Consists of the Queen, the Senate and the House of Representatives
- The Governor-General - the Queen's representative
- Gave the Commonwealth Parliament certain defined legislative powers
- Australian States - self-governing political units with its own Constitution, Parliament and courts
- Commonwealth Constitution has 3 powers: legislative, executive and judicial
- Commonwealth law will prevail in the area of conflict as State and Federal law can overlap
, 3. Separation of power
- The constitution establishes a framework of government that reflects the doctrine of the separation of
powers
Parliament Executive government Judicature
Administers or executes the laws made Interprets and applies
Parliament law
- The legislature (Parliament) power: make the law - cơ quan lập pháp
Executive power Concurrent power Residual power
Commonwealth Commonwealth and State Parliament may pass State Parliament
Parliament
- Exclusive powers: matters about which only the Commonwealth Parliament can make laws
- Residual powers (education and health, water policy, transport, tourism, police and the courts):
Because the Federal Government controls the purse strings, a significant measure of control is often ceded
to the Federal Parliament
- Concurrent powers: matters where the law-making is shared between the Commonwealth and the
State Parliaments
- The fact that the Commonwealth has been given power to legislate with respect to such matters does
not mean that the State cannot make laws on the same subject matter
- If a State law is inconsistent with a law of the Commonwealth, the Commonwealth law prevails, and
the State law, to the extent of the inconsistency, is invalid
- The executive: administers the law - cơ quan hành pháp.
- The executive power is exercised by the Prime Minister and Cabinet (consisting of senior Ministers)
- The leader (Prime Minister) - selects the members who are to be Ministers
- Each minister becomes responsible for one or more government departments
- The Constitution provides that no person can be a Minister of State unless he/she is a member of the
Senate or House of Representatives
- A government minister must be a Member of Parliament
- In some matters, the Constitution gives the Governor-General powers (reserve powers ) to act
independently.
- The judicial power - cơ quan tư pháp
- Interpret laws and to judge whether they apply in individual cases – in the High Court and other
federal courts.
- High Court - established by the Constitution
- Other federal courts - created by legislation of the Parliament
- Principal functions of the High Court - to interpret the Constitution
- Occupies a unique position of considerable constitutional importance
- The High Court determines the constitutionality of legislation
- It is the highest court of appeal from decisions of the highest State and Territory courts and the Federal
court
- The court's judgements are authoritative statements of law
SYSTEM
I. THE DEFINITION AND FUNCTIONS OF LAW
1. Defining law
- Natural law: a universal understanding of what was right and wrong, fair and unfair, just and unjust -
the "law" that underpins universal human rights law today
- Positive law: "law" as the body of rules that regulates the relationships between the members of
society and between the government and its citizens so as to avoid conflict and promote social cohesion
- Law: a body of enforceable rules, made by the state - the parliament and the court - the parliament
and the court - that is enforceable by the state.
- Commercial “law” consists of contract law, corporations’ law, consumer law, tort law, product liability
law, partnership law, and agency law which are made by the courts and parliaments that apply to the
business world and are enforceable by state-backed sanctions.
- The breach of a law results in sanctions or penalties
- Differences between legal laws and non-legal laws:
l laws gal laws
Are made by the state (Parliament and Are not made by the state (Parliament and
the courts) the courts)
Have state-backed enforcement Do not have the same enforcement regime
apparatus, procedures and sanctions
depending on whether the matter is
civil, criminal or administrative
2. The functions of law
- It regulates in a normative sense the way we live
- Law inform what to do, how should do it, what can’t do, what must do to avoid sanctions
- Regulatory function concerns positive law - law as it is. We are concerned with the law, not the justice
- It has a dispute resolution function
- Commercial activity often involves disputes or disagreements about the parties' rights and obligations
- The role of law is to provide a means for disputes to be resolved by ensuring that the laws are clear
and accessible (so that the parties - or their lawyers - are able to settle their dispute without the need to go
to court)
- The courts provide a fair, efficient, open and uncorrupted dispute resolution process
- Applies to both civil and criminal matters
- The law maintains stability and social cohesion
- Law is making as being the product of a fair and proper process, untained by corruption or improper
interference (can thiệp)
- The law should provide a fair, stable, predictable base that allows commerce to flourish
- The law should facilitate that change in an open, predictable and a consistent manner
- Law reinforces community values
- Peace, order and cohesion - promoted when the legal system is seen
,- Law also manages to respect the rights of minority stakeholders to safeguard against the “tyranny of
the majority” (chuyên chế của đa số)
- To promote justice and uphold the rule of law
- Upholds (đề cao) the rule of law
- The rule of law - the idea that no person or institution is above the law
- All citizens have the same legal rights and duties, regardless of age, sex, religious, race, or
socio-economic statues
2. The rule of law
- Rules of law: Formal equality under the law elides with the other basic principle of a liberal
democracy
- Elides: omit a sound or syllable when speaking
- Most of the content of the rule of law can be summed up in 2 points:
- That the people (including… the government) should be ruled by the law and obey it
- That the law should be such that people will be able (and…willing) to be guided by it
- The Institute has created the “Rule of Law Pyramid” to illustrate the principles and legal traditions
that contribute to maintaining the rule of law in Australia
,Where the rule of law existing proper processes are followed, law and regulation are accessible and
transparent, the bureaucracy implements those law and regulations in a fair and efficient manner and in the
event of a dispute or infraction (sự vi phạm) the wheel of justice turn equally for all parties
3. Rule of law: importance to commercial life
- Commercial life is dysfunctional (rối loạn chức năng) without Rule of law
- Laws and regulations are accessible and transparent if the Rule of law exists
- Bureaucracy implements those laws and regulations in a fair and efficient manner
II. THE AUSTRALIAN LEGAL SYSTEM
1. History and development of the Australian legal system
- Terra Nullius and Doctrine of Reception ⇒ Mabo ⇒ Native Titles Act ⇒ Toward a Sovereign Nation
- The Australian Constitution is contained in s9 of an Act of the British Parliament: the commonwealth
of Australia Constitution Act 1900
2. The Commonwealth Constitution - a constitutional monarchy
- The Commonwealth of Australia Constitution Act 1900 - created a constitutional monarchy
- The head of state is the monarch of England
- The Australian Constitution created a federal state - a Parliament
- Consists of the Queen, the Senate and the House of Representatives
- The Governor-General - the Queen's representative
- Gave the Commonwealth Parliament certain defined legislative powers
- Australian States - self-governing political units with its own Constitution, Parliament and courts
- Commonwealth Constitution has 3 powers: legislative, executive and judicial
- Commonwealth law will prevail in the area of conflict as State and Federal law can overlap
, 3. Separation of power
- The constitution establishes a framework of government that reflects the doctrine of the separation of
powers
Parliament Executive government Judicature
Administers or executes the laws made Interprets and applies
Parliament law
- The legislature (Parliament) power: make the law - cơ quan lập pháp
Executive power Concurrent power Residual power
Commonwealth Commonwealth and State Parliament may pass State Parliament
Parliament
- Exclusive powers: matters about which only the Commonwealth Parliament can make laws
- Residual powers (education and health, water policy, transport, tourism, police and the courts):
Because the Federal Government controls the purse strings, a significant measure of control is often ceded
to the Federal Parliament
- Concurrent powers: matters where the law-making is shared between the Commonwealth and the
State Parliaments
- The fact that the Commonwealth has been given power to legislate with respect to such matters does
not mean that the State cannot make laws on the same subject matter
- If a State law is inconsistent with a law of the Commonwealth, the Commonwealth law prevails, and
the State law, to the extent of the inconsistency, is invalid
- The executive: administers the law - cơ quan hành pháp.
- The executive power is exercised by the Prime Minister and Cabinet (consisting of senior Ministers)
- The leader (Prime Minister) - selects the members who are to be Ministers
- Each minister becomes responsible for one or more government departments
- The Constitution provides that no person can be a Minister of State unless he/she is a member of the
Senate or House of Representatives
- A government minister must be a Member of Parliament
- In some matters, the Constitution gives the Governor-General powers (reserve powers ) to act
independently.
- The judicial power - cơ quan tư pháp
- Interpret laws and to judge whether they apply in individual cases – in the High Court and other
federal courts.
- High Court - established by the Constitution
- Other federal courts - created by legislation of the Parliament
- Principal functions of the High Court - to interpret the Constitution
- Occupies a unique position of considerable constitutional importance
- The High Court determines the constitutionality of legislation
- It is the highest court of appeal from decisions of the highest State and Territory courts and the Federal
court
- The court's judgements are authoritative statements of law
