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Topic 2_2008 - concepts and sources of law

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11 views13 pages

Topic 2_2008 - concepts and sources of law

Uploaded by

srisriradheradhe
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Unit Controller: Lisa

Goldacre
School of Business Law
Topic 2 – Concepts & sources of
CRICOS Provider Code 00301J Curtin
Topic 2 – Concepts & sources of law

Learning Outcomes
After completing this topic you should be able to:
 Define the term ‘law’ for the purpose of this
unit.
 Explain the difference between ‘criminal’ and
‘civil’ law.
 Describe the development of the common
law system.
 Explain the difference between ‘common law’
and ‘statute law’.
 Explain the links between the English
common law system and the development of
the Australian common law system.
 Explain the concept of Native Title.
2

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

What is law?
 Many different definitions.
 Social obligations and responsibilities.
 Our definition:
‘Rules recognised and enforced by the
courts’.
 Compare morality, etiquette.

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Sources of law

Judges Politicians

Courts Parliament

Unenacted Law Enacted Law


(Common Law) (Statute Law)

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Meaning of Common Law


1. ORIGIN OF LAW
 Law common to whole of England.
2. SOURCE OF LAW
 Law made by judges.

3. BODY OF LAW DISTINCT FROM EQUITY


4. SYSTEM OF LAW
 ‘English Legal System’ (Common Law
Countries).

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Civil Law

World distribution of major legal traditions


http://en.wikipedia.org/wiki/Legal_systems_of_the_world
6

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

How sovereignty (statehood)


may be obtained:
 Conquest
 Cession
 Occupation or settlement
 Terra nullius – ‘Land of no-one’

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Colony to be acquired
Uninhabited
(Terra Nullius)
Inhabited

Claimed by occupancy Claimed by conquest


(Settlement) or cession

Settlers bring law


Territory’s law remains
with them

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Origins of law in Australia

1770 – Captain Cook ‘discovers’ Australia


1788 – Governor Phillip establishes a British
colony at Botany Bay (Sydney)

Captain James Cook Governor Arthur Phillip


9

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Captain Cook’s Secret Orders


“You are also ‘with the Consent of the
Natives to take possession of Convenient
Situations in the Country in the Name of the
King of Great Britain’ or, if you find the
Country uninhabited take Possession for His
Majesty by setting up Proper Marks and
Inscriptions, as first discoverers and
possessors.”

10

CRICOS Provider Code 00301J Curtin


Topic 2 – Concepts & sources of law

Origins of law in Australia


 Australia ‘discovered’ - treated as terra
nullius - hence English law applied.

 Re-examined in the Mabo Case.

11

CRICOS Provider Code 00301J Curtin


Mabo v Queensland [No 2] (1992) 175 CLR 1

C FACTS:

A
 CLAIM: Crown’s sovereignty subject to the
land rights of the Murray Islanders based
on local custom and native title

S HELD:

E
• “… the Meriam people are entitled as
Unit Controller:
against the whole world Lisa
to possession,
occupation, use and enjoyment of the lands
Goldacre
of the Murray Islands”.
PerSchool
BrennanofCJ
Business Law
in “Mabo”
Topic 2 – Concepts & sources of
CRICOS Provider Code 00301J Curtin
Topic 2 – Concepts & sources of law

REMEMBER
After completing this topic you should be able to:
 Define the term ‘law’ for the purpose of this unit.
 Explain the difference between ‘criminal’ and ‘civil’
law.
 Describe the development of the common law
system.
 Explain the difference between ‘common law’ and
‘statute law’.
 Explain the links between the English common law
system and the development of the Australian
common law system.
 Explain the concept of Native Title.

13

CRICOS Provider Code 00301J Curtin

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