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Law Case Analysis

This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers.

Editor: Zoe Haynes Product Developers: Natasha Naude and Vickie Ma Publisher: Robert Wilson

2016 - 07 - 04

2016 Thomson Reuters

Business and the Law 6e Foreword

Foreword

Michael T Schaper, BA, MComm, PhD

Deputy Chairman, Australian Competition & Consumer Commission, Canberra

The myriad business laws and regulations that we have in Australia provide the basis upon which most commercial activity is undertaken. Simply put, it spells out what we can – and can’t – do in a business context: the legal structures that can be used, the ways in which firms compete or otherwise deal with each other, the behaviours that are acceptable when selling to customers, how we can resolve disagreements, and the way in which risk is managed, to name just a few.

In short, it is the framework around which all commercial trading and activities takes place.

Learning the basics of business law is often seen as a tedious necessity by many students, especially those without any prior exposure to the law and its peculiarities. But it’s a crucial ingredient for anyone seeking to build a truly successful career in business or commerce. Knowing the rules of the game is an important first step in being able to successfully operate as a manager, business owner, entrepreneur, employee, director or investor.

Understanding the law is essential in many different ways.

Firstly, it is an important operational factor for many businesses. Our web of laws and regulations jointly provide the framework that underpins almost all the other activities of business. They spell out such basic issues, for example, as how we employ people, the manner in which we collect and report our accounting information, and what claims can be made in an advertisement, as well as penalties for non-compliance. Secondly, the competitive nature of business makes it almost inevitable that, sooner or later, most firms will come into conflict or contention with someone else. How such disputes are managed, adjudged and resolved is an important feature of the contemporary legal environment. Our legal system may seem to focus on the responsibilities of businesses, but it also contains important rights and protections for firms. Knowing what these are, how they can be exercised, and the benefits of such measures can be a great help to the savvy business operator. Finally, our laws can be a great source of competitive advantage for those who bother to learn how they work, and why. The law matters to everyone, not just lawyers. Not everyone understands the law equally, and those who take the time to understand what the rules are, and what is permitted, can often plan strategically in a way that others don’t. Conversely, history is littered with many examples of enterprises that have come unstuck by ignoring or downplaying one or other of their legal responsibilities.

As the many cases and examples provided in this book show, the law is an evolving, challenging aspect of the business environment. It is full of fascinating and sometimes confusing issues, and there are many grey areas open to multiple analyses, challenges and debate. Its interpretation and application is not always clear, but it is always important.

This sixth edition of Business and the Law will provide you with a comprehensive overview of most of the key legal aspects you’re likely to encounter in the Australian business environment. Each of the sections in this book is valuable, and will help you to develop a better understanding of how laws are made, what they seek to do, and – perhaps most importantly – how they actually operate in practice. I commend it to you.

2016 - 07 - 04

2016 Thomson Reuters

Business and the Law 6e Preface

Preface

Over 20 years ago the Preface to the first edition of Business, Society and the Law, as this book was then titled, noted that:

The law is not simply peripheral to commerce. The transactions and relationships that constitute commerce are embedded in the law. The entire fabric of commerce is woven from a complex legal regime, statutory and judge made, which regulates all commercial activity and in relation to which the legality and enforceability of all commercial activity must ultimately be assessed.

This proposition is even more valid today in the light of a legal and regulatory regime which is increasingly pervasive and increasingly complex and increasingly significant. It is the hope of the authors that this text will lead to a more productive relationship between business students and this regulatory regime. We believe that the study of law need not intimidate students but rather that it should attract them. Its subject matter, reflecting as it does on all aspects of life, traverses the range from the gravely serious to the highly entertaining. While the law is not an easy pursuit it should interest and enthuse. This is our hope for this book.

It perhaps reflects the increasing complexity of contemporary business that this sixth edition of Business and the Law has its sixth publisher. Restructures, mergers, acquisitions and copyright assignments have seen a new publisher for each edition. I am delighted that this edition is published by Thomson Reuters, Australia’s premier legal publisher. I am grateful to Nick Riley for suggesting a new edition with Thomson Reuters and to Robert Wilson for his enthusiastic support. Particular thanks to Natasha Naude who started the project and to Vickie Ma who has had the task of managing the project to completion. Their grace and style in the face of obfuscations and excuses for deadlines not being met, and their wise counsel at all stages of the project, is acknowledged and appreciated. It reflects the virtual world we live in that I have not met my New Zealand based editor, Sarah Hullah, but my thanks to her also for converting the manuscript into the house style and to Zoe Haynes, who has edited and refined the product. My thanks also to Dr Michael Schaper, Deputy Chair of the Australian Competition and Consumer Commission for contributing the Foreword. The ACCC not surprisingly features prominently in an Australian business law text and all contributors are delighted that he has graced this edition with his Foreword.

This edition also features a new team of contributors – colleagues in the Discipline of Business Law in The University of Sydney Business School who have enthusiastically embraced the challenge of breathing new life into an established text. I am grateful for their commitment and support and contribution. And to Vinty Lim for his research and secretarial assistance. I also acknowledge the contributions of contributors to earlier editions who have all added value to the original text written by Des Giugni and me. Des has stepped back from the current edition but his influence continues to resonate and his style continues to enliven so many of the pages. My personal debt to him is inestimable.

Andrew Terry

March 2016

2016 - 07 - 04

2016 Thomson Reuters

Business and the Law 6e Table of Contents

Table of Contents

Foreword

Preface

Contributors

Table of Cases

Table of Statutes

PART 1 THE AUSTRALIAN LEGAL SYSTEM

Chapter 1: The Law, the Legal System and the Constitution

Chapter 2: The Courts and Common Law

Chapter 3: The Parliament and Statute Law

Chapter 4: The Executive and Law-making by Administrative Agencies

Chapter 5: Commercial Dispute Resolution

PART 2 GENERAL PRINCIPLES OF BUSINESS LAW

Chapter 6: Contracts: Concepts of agreement

Chapter 7: Contracts in Business

Chapter 8: Torts: Concepts of Liability

Chapter 9: Property and securities: Concepts of ownership

Chapter 10: Crime: Concepts of control

PART 3 BUSINESS ORGANISATION AND OPERATION

Chapter 11: Alternative Business Structures

Chapter 12: Relationships in Business: Distributors, Agents, Employees, Independent Contractors

Chapter 13: Franchising

Chapter 14: Privacy

Chapter 15: International Business

Chapter 16: Business Failure

PART 4 BUSINESS, CONSUMERS AND FAIR TRADING

Chapter 17: The Australian Consumer Law

Chapter 18: Misleading or Deceptive Conduct

Chapter 19: Unconscionable Conduct and Unfair Contract Terms

Chapter 20: Advertising and Sales Promotion

Chapter 21: Supply of Goods and Services

PART 5 BUSINESS AND COMPETITIVE TRADING

Chapter 22: Competition Law

Chapter 23: Intellectual Property

PART 6 BUSINESS AND THE LAW

2016 - 07 - 04

2016 Thomson Reuters

Business and the Law 6e Table of Contents

Chapter 24: Business Regulation, Risk and Compliance

Index

CHAPTER 1

The Law, the Legal System and the Constitution

Andrew Terry

THE BUSINESS CONTEXT

Australia is a well-developed nation commercially, politically and socially. Those characteristics

of an advanced society are held in place by a complex set of rules that make up the law and by a

similarly complex system which administers that law. In the daily lives of all of us the law is at

work, unceasingly, sometimes surreptitiously but as essential to the functioning of the state as is

oxygen to the body. An informed understanding of contemporary business law requires an

understanding of the underlying legal system through which laws are made and applied and

interpreted and enforced. This chapter aims to provide that understanding.

[1.10] 1.1 THE NATURE AND THE ROLE OF LAW ............................................................................... 3

[1.40] 1.2 THE REQUISITES OF LAW .................................................................................................... 5

[1.50] Certainty ................................................................................................................... 5

[1.60] Flexibility ................................................................................................................... 6

[1.70] Fairness ...................................................................................................................... 6

[1.80] Accessibility ............................................................................................................... 6

[1.90] 1.3 THE SOURCES OF LAW ........................................................................................................ 7

[1.100] Customary law ......................................................................................................... 7

[1.120] Common law ............................................................................................................ 8

[1.130] Common (case) law ................................................................................................. 9

[1.140] Legislation ................................................................................................................. 9

[1.150] Common law and equity ...................................................................................... 10

[1.160] 1.4 LAW, ORDER, JUSTICE AND MORALITY ........................................................................... 10

[1.180] Law and order ........................................................................................................ 11

[1.200] Law and morality ................................................................................................... 13

[1.220] Law and justice ....................................................................................................... 14

[1.250] 1.5 THE NATURE AND ROLE OF A LEGAL SYSTEM ................................................................ 16

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[1.290] 1.6 THE DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM ........................................... 19

[1.290] The reception of English law ................................................................................. 19

[1.300] Terra nullius, Mabo and native title ...................................................................... 19

[1.340] The constitutional development of the Australian colonies ............................... 22

[1.360] State constitutions ................................................................................................. 22

[1.380] Increasing legislative authority ............................................................................. 23

[1.390] Federation ............................................................................................................... 24

[1.400] Enactment of the Commonwealth Constitution ................................................ 24

[1.410] Breaking the colonial ties ...................................................................................... 25

[1.420] 1.7 AN OUTLINE OF THE AUSTRALIAN LEGAL SYSTEM ....................................................... 26

[1.430] A constitutional monarchy .................................................................................... 26

[1.440] Federation, the Constitution and the division of powers ................................... 26

[1.450] The separation of powers ...................................................................................... 26

[1.460] Responsible government ....................................................................................... 27

[1.480] The sovereignty of Parliament .............................................................................. 28

[1.490] The rule of law ........................................................................................................ 28

[1.510] The Australian legal system ................................................................................... 29

[1.520] 1.8 THE CONSTITUTION ......................................................................................................... 30

[1.520] The Constitution .................................................................................................... 30

[1.550] Chapter I: The Parliament ..................................................................................... 32

[1.560] Chapter II The Executive Government ................................................................. 33

[1.570] Chapter III The Judicature ..................................................................................... 33

[1.580] Chapter IV Finance and trade ............................................................................... 34

[1.590] Chapter V The States ............................................................................................. 34

[1.600] Chapter VI New States ........................................................................................... 34

[1.610] Chapter VIII Alteration of the Constitution .......................................................... 34

[1.640] Implied rights under the Constitution ................................................................. 37

[1.670] 1.9 THE SEPARATION OF POWERS – LEGISLATURE, EXECUTIVE AND JUDICIAL POWERS ..................................................................................................................................... 39

[1.680] Legislative power .................................................................................................... 39

[1.690] Executive power ..................................................................................................... 40

[1.700] Judicial power ......................................................................................................... 41

[1.710] The separation of powers under the Constitution .............................................. 42

[1.780] 1.10 PARLIAMENTARY SOVEREIGNTY ..................................................................................... 45

[1.780] The struggle for legislative supremacy ................................................................. 45

[1.810] The sovereignty of Parliament in Australia .......................................................... 46

[1.820] Legal sovereignty and manner and form provisions .......................................... 47

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[1.830] Political sovereignty ............................................................................................... 47

[1.840] 1.11 THE DIVISION OF LEGISLATIVE POWER BETWEEN THE COMMONWEALTH AND THE STATES ........................................................................................................................................ 48

[1.850] Exclusive powers .................................................................................................... 48

[1.860] Concurrent powers ................................................................................................ 48

[1.870] Residual powers ...................................................................................................... 49

[1.880] 1.12 THE LEGISLATIVE COMPETENCE OF THE COMMONWEALTH .................................... 49

[1.890] The interpretation of the concurrent powers ...................................................... 51

[1.920] Inconsistency between Federal and State laws ................................................... 53

[1.950] The expansion of Commonwealth legislative competence through the external affairs power ........................................................................................................... 55

[1.1010] The expansion of Commonwealth legislative competence through the corporations power ................................................................................................ 57

[1.1040] 1.13 FREEDOM OF INTERSTATE TRADE AND COMMERCE .................................................. 60

[1.1090] 1.14 THE CONTINUING DEVELOPMENT OF THE AUSTRALIAN LEGAL SYSTEM ............... 62

[1.1100] The parliamentary system and the role of the Executive ................................... 62

[1.1110] The changing role of the High Court ................................................................... 63

[1.1130] The increasing Australianness of Australian law .................................................. 63

[1.1140] A Bill of Rights? ....................................................................................................... 64

[1.1200] The move to a republic? ........................................................................................ 66

[1.1210] Expanding Commonwealth jurisdiction .............................................................. 67

[1.1250] The financial strength of the Commonwealth .................................................... 69

[1.1260] The Uniform Tax Scheme ...................................................................................... 69

[1.1300] Tied grants .............................................................................................................. 71

[1.1330] Uniform legislation in a federal system ................................................................ 71

[1.1340] Ceding powers ....................................................................................................... 71

[1.1350] National cooperative schemes .............................................................................. 72

1.1 THE NATURE AND THE ROLE OF LAW

[1.10] The initial inquiry in a book of this nature must be as to the essential quality of the

law. This is a very big topic, which over the centuries has engaged the attention of the

world’s greatest philosophers. It does not do justice to the complexity of this debate but, for

our purposes, it is sufficient to describe the law as essentially the system of control through

which society operates. The law is a necessary and inevitable requirement of a civilised

society. Life as we know would not be possible without a comprehensive body of law that

regulates our social lives and our business lives – indeed every aspect of human endeavour.

Even primitive societies develop systems of social control which may derive their authority

from customs which have developed over time rather than from the commands of the

person or body with the acknowledged power to make rules for that community. Today

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most of the world’s seven billion inhabitants are subject to much more sophisticated,

comprehensive and voluminous laws made by the body to which a country’s legal system

enshrined in its constitution is entrusted with that role.

A society such as ours has a ferocious appetite for law and our nine legislatures – federal,

State and Territory – enact well over 20,000 pages of legislation every year. In the words of

Henry Bosch over 30 years ago when he was the Chairman of the body that is now the

Australian Securities and Investments Commission (ASIC) – despite the lure of

deregulation it necessarily remains a fact of modern life that economic and social growth

“depends on a highly complex economy which requires sophisticated rules and enforcement

procedures across a wide range of activities”.

[1.20] In the middle ages there was wide support for a theory of natural law – that the

ultimate test of a law’s validity was its conformity with the principles of reason and justice

flowing from the law of nature (frequently identified with the law of God). The rules of

natural law were thought to bind all earthly authorities. No sovereign, government or church

could enact a law in contradiction to those rules. Any attempt to do so was thought to be

completely ineffectual. Attacks on the theory of natural law ultimately led to the

development of the jurisprudential theory which became known as positivism. In essence,

positivism requires that society be obedient to a certain superior: this superior (or sovereign,

in our case a parliament) issues commands enforced by sanctions. This is how positive law

operates. The two essential elements are that rules of conduct are enforced by the

imposition of a sanction, the whole bolstered by the sovereign power of the law maker.

Whereas today natural law may be regarded as what the law ought to be, positive law is

what the law is. Positive law is contained in the mass of statutes, regulations and case law

that together make up our law.

[1.30] A contemporary issue which raises the natural law/positivism dichotomy is the

relationship between law and morality, between law and ethics. It is accepted that the law is

a systematic set of rules to control conduct within a society and a modern view requires that

the rules should reflect the changing values of society, especially in sensitive moral and

ethical areas so that as science advances and makes possible new methods of eg healing

disabilities, the law should change to allow such processes (see the cloning debate). Justice

Windeyer of the High Court of Australia remarked that “the law marches with medicine, but

in the rear and limping a little” (Mount Isa Mines Ltd v Pusey [1970] HCA 60 at [3]). The

place of the law in a dispute with considerable social, political, economic and emotional

consequences is nevertheless clear – in the words of the Full Federal Court in Patrick

Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] FCA 397 the

business of the court is “legality”. That case arose out of a hotly contested dispute between

Patrick Stevedores, a shipping company seeking extensive reform of waterfront labour

practices, and the Maritime Union. The court stated that:

Before dealing with the case as presented, it is perhaps useful for us to say a word on what the case is not about. We do so because many commentators … appear to have laboured under a misconception of the role of a court in a situation like this.

As individuals, each member of the Bench, like all sensible Australians, is in favour of an efficient waterfront. Export income is the economic lifeblood of our nation. Most of our exports depart by sea, many through container terminals. It is obviously important to ensure that the

The law is the witness and

external deposit of our moral life. Its history is the

history of the moral

development of the race. The

practice of it, in spite of popular

jests, tends to make good

citizens and good men.

Justice Oliver Wendell

Holmes JR.

The law is like an ice-cream

container full of hot, steamy,

juicy pies … they just mix it all up together.

Sir Joh Bjelke-Petersen,

The Bulletin (20 July 1993).

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operation of container terminals is as efficient and economical as reasonably possible. But these are personal views. We each have personal views, not necessarily identical, about how this might best be achieved. But the Court, as a Court, has no view about such matters. The Court does not have the material that would be necessary for it to make a judgment about the efficiency of the Australian waterfront, either in absolute terms or relative to other countries, the causes of such inefficiencies as may exist, or the desirable steps to overcome any perceived problems. This material has not been placed before the Court because the parties have realised, although some commentators have not, that these are not issues for the Court’s determination. The business of the Court is legality. Just as it is not unknown in human affairs for a noble objective to be pursued by ignoble means, so it sometimes happens that desirable ends are pursued by unlawful means. If the point is taken before them, courts have to rule on the legality of the means, whatever view individual judges may have about the desirability of the end. This is one aspect of the rule of law, a societal value that is at the heart of our system of government. It follows that this judgment should be seen only as a judgment about legal issues, not a view about the social, economic and political arguments concerning waterfront management that have dominated the media during the last couple of weeks.

1.2 THE REQUISITES OF LAW

[1.40] The legal rules which govern the complex interactions in society and which form

the legal system under which we live depend for much of their strength on widespread

community acceptance. To gain that acceptance the laws must possess certain qualities.

While there may be some debate as to the exact range of those necessary characteristics, it

is clear that at least the following are essential:

• certainty;

• flexibility;

• fairness; and

• accessibility.

Certainty

[1.50]

The degree of certainty required, of course, falls short of the absolute. What is necessary is

that people, in both their personal and their business lives, should be able to form

relationships with others, enter into contracts, and acquire and dispose of property

reasonably secure in their knowledge of what they are doing and their understanding of its

effects. One of the powerful arguments against the retrospective operation of new laws is

that this may make unlawful an act which was lawful at the time it was done, or change the

effect of an agreement after it was entered into. Similarly, the argument raised by the

business community (in relation to the current trend to confer broad discretions on the

courts eg misleading or deceptive conduct or unconscionable conduct) is that justice

between individuals is sought at the expense of predictability on which the operation of

business relies. The orderly conduct of business is incompatible with unpredictability of the

relevant law, but to seek too great an element of certainty is inconsistent with the equally

legitimate demand for flexibility to achieve justice in individual cases.

They (the Law Lords) think the great aim is certainty in the law. My aim is justice. Lord Denning, Sunday Times, United Kingdom (1 August 1982).

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Flexibility

[1.60] Modern society is complex and continually changing and the law must be able to

respond without undue delay to the challenge of change at all levels of society. In the words

of the American jurist Benjamin Cardozo, “the law, like the traveller, must be ready for the

morrow” (The growth of the law (Yale University Press, 1924) p 19). A change in moral

values brings with it a need for a corresponding adjustment of the law, not all are greeted

with unanimous approval. Additionally, the increasingly complex demands made by the

rapid advance of technology have required flexibility and change in the law. To say that

does not override the earlier requirement of certainty. What it does require is a readiness on

the part of the law to adapt to changing circumstances, to react to new and unforeseen

situations and, where possible, to predict developments and have in place rules and

structures to cater for them as they arise. The subject matter may be largely ethical (eg

dealing with the rapid advance in medical technology) or it may be largely commercial (eg

facilitating new business structures and regulating innovative commercial conduct), but in

all cases the law must respond accordingly.

Fairness

[1.70]

In a modern democratic society the effectiveness of a law ultimately depends upon its

acceptance, or at least toleration, by members of that society. That will not be available

where a law is manifestly inequitable, unfair or unreasonable. The classic example is the

prohibition laws of the United States in the late 1920s, which prohibited the production, sale

and consumption of alcohol. The view in the community that the Prohibition Amendment

was unfair and unreasonable led to its widespread violation, the growth of organised crime

and, ultimately, its repeal in 1933. The requirement of fairness also encompasses the need

for the law to reflect the moral and ethical concerns of society, and for it to endeavour to

move with changing societal standards.

Accessibility

[1.80] Ignorance of the law does not excuse liability for its breach. Despite the

often-heard assertion that everyone is presumed to know the law, the fact is that no one

knows all of it. What is important, however, is that all should have access to that knowledge

either directly or through the intermediary of a legal adviser. A former chief justice of the

High Court of Australia (Sir Garfield Barwick in Watson v Lee [1979] HCA 53 commented

that “to bind the citizen by a law, the terms of which he has no means of knowing, would be

a mark of tyranny”: at [5]. While the law is increasingly accessible in an age of information

technology (see eg http://www.austlii.edu.au) such access does not solve the more complex

problem of citizens understanding the massive regulatory regime that governs them.

The law and justice are not synonymous.

Rather, the law is to justice what

the violin is to music, simply an

imperfect vehicle. Like a Stradivarius, it

often needs fine-tuning.

Granoff LH, Letter to the editor, Time

Magazine (1 March 1993).

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1.3 THE SOURCES OF LAW

[1.90] With the increasing sophistication of society, customary law – the unwritten laws

established by habitual use by a community – is no longer a source of law of any real

significance in Australia and other developed countries. Under Australia’s common law

legal system, which is described below, the law was originally developed by judges through

their decisions in disputes that came before them. While the role of the judges in developing

the common law remains a central characteristic of our legal system it is legislation – the

written law made by the legislature, the Federal Parliament in the Australian context – that

is the dominant source of law today.

Customary law

[1.100] In its most general sense, customary law consists of unwritten law established by

the habitual use of a group of people, usually the inhabitants of a particular territory, over a

long period of time. English law, which provides the heritage for Australian law, has its

genesis in customary law administered in local community courts. It was not until after the

Norman Conquest in 1066 that customary law became incorporated as part of the common

law, and since that time it has not represented a significant force in that legal system. In a

less-developed legal system, customary law has a more important role.

With the increasing sophistication of a legal system the influence of custom as a separate

source of law is minimal. Customs that are generally applied become incorporated in the

common law and, at a later stage of development, may be enshrined in legislation. An

example is provided by the Sale of Goods Act 1893 (UK) which provided the model for the

sale of goods legislation adopted in each Australian State and Territory. The accepted trade

customs and practices of merchants which developed in England in the eighteenth and

nineteenth centuries were recognised and applied as the “law merchant” by special

mercantile courts prior to being incorporated by the common law courts as part of the

common law. The 1893 Act was virtually a codification in statutory form of the common

law that had developed from habitual mercantile customs.

Today the scope for custom to generate new law is very restricted. One area in which it

retains an influence is in contract law where the existence of a custom or usage will justify

the implication of a term into a contract if there is evidence that the matters relied on are so

well known and acquiesced in that everyone making a contract in the situation can

reasonably be presumed to have imported a term embodying them into the contract

(Con-Stan Industries of Australia Pty v Norwich Winterthur Insurance (Australia) Ltd

[1986] HCA 14).

When asked by anthropologists what the Indians called America before the white man came, an Indian said simply, Ours. Vine Deloria.

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IN CONTEXT

Indigenous customary law

[1.110] The extent to which the Australian legal system should recognise

customary Aboriginal and Torres Strait Islander laws that sit outside the formal

legal system raises complex issues. In Walker v New South Wales [1994] HCA 64,

the High Court held that Australian criminal law could not accommodate an

alternative body of customary Indigenous criminal law operating alongside it.

Mason CJ stated (at [4]-[6], references omitted) that:

counsel for the plaintiff … submitted that the question which arose was whether customary Aboriginal criminal law is something which has been recognised by the common law and which continues to this day …

That proposition must be rejected. It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters. The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated …

Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application … English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it.

There is wide acceptance that Indigenous laws have been treated with disdain

and that their recognition, particularly customary laws dealing with marriage,

adoption, inheritance and family relationships, is long overdue. The

recommendations of the Australian Law Reform Commission (Recognition of

Aboriginal Customary Laws, Report No 31 (1986)) have been given greater

impetus by the Mabo decision (see [1.300]) but recognition of Indigenous

customary laws is ultimately a matter for legislative action.

Common law

[1.120] The term “common law” has three main meanings. For present purposes, and

generally throughout this book, the term “common law” is used to describe judge-made law,

ie the source of law developed by the courts (also known as case law), as opposed to

legislation.

Second, reference is made to Australia having a common law legal system, which is often

contrasted with a civil law legal system. An integral feature of the common law system is

common law in the sense of judge-made law as a source of law, ie court decisions that

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interpret statutory provisions enacted by Parliament and develop the areas of law over

which Parliament has not legislated. Legislation is also a source of law in a common law

system. In contrast, civil law systems are codified (set out specifically in Codes), ie

authoritatively and comprehensively laid down in a systematic form.

Third, the term “common law” may refer to the judge-made law developed in the King’s

courts (or common law courts) as opposed to equity, the judge-made law developed in the

equity courts (Chancellor’s courts ie the Courts of Chancery) (see [1.150]).

Common (case) law

[1.130] What is the common law in the sense of judge-made law? Many descriptions are

offered but for present purposes it is the law that has evolved through judicial decision and

practice as distinct from law laid down by statute. In simple terms, the common law is

found in the reported decisions of the cases. It consists of case law. When Blackstone says

that the common law is “declared”, he advances the traditional theory that judges do not

make law, they simply declare the law as it exists. The theory gives comfort to those who

believe that laws should only be made by those elected for that purpose. It does not reflect

reality. Within the common law systems, judges are regularly confronted with cases that

require more than a declaration of a pre-existing precept. They have to make new law. This

reality was forcefully expressed by the then Chief Justice of the High Court, Brennan CJ, in

O’Toole v Charles David Pty Ltd [1990] HCA 44 at [17]:

Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature, judges make law. Within the proper limits, judges seek to make the law an effective instrument of doing justice according to contemporary standards in contemporary conditions. And so the law is changed by judicial decision, especially by decision of the higher appellate courts.

In essence, the doctrine of stare decisis, or binding precedent, requires a court to follow

the reason for the decision, the ratio decidendi, of a higher court within the same system

of courts.

Given the contemporary reality that statutes are numerous and far-reaching much of the

work of the courts involves the interpretation and application of legislation. In other

areas, legislation may not have been enacted and the development of the law is left to the

courts. The decisions of the courts in applying the law to individual cases, whether that

law derives from a statute, from a precedent interpreting a statute, or from a precedent in

an area not regulated by statute, all form part of the common law. Case law or

judge-made law is discussed in more detail in Chapter 2.

Legislation

[1.140] Legislation refers to the laws made by the body recognised by the particular legal

system as having the supreme power and authority to make laws. Australia, like any

complex modern society, requires regulation across a broad range of economic, commercial

and social activities and legislation enacted by the Federal and State Parliaments (on whom

legislative ownership is conferred by their respective constitutions) is the dominant source

The common law would not have survived in any of those countries which have adopted it, if it did not reflect the changing norms of the particular society of which it is the basic legal system. Cassell & Co Ltd v Broome [1972] AC 1027 at 1127 per Lord Diplock.

The message is very simple. Whatever the cultural practice, whatever the religious practice, there is no law in Australia above Australian law. PruGoward, NSW Minister for Community Services, The Australian (8 February 2014).

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of law in Australia today. Under the common law system (indeed under most modern legal

systems), supreme law-making authority resides in a legislature. Under the Commonwealth

Constitution, legislative power is conferred on the Federal Parliament and the laws it makes

are referred to as legislation, or written law, or enacted law, or more specifically, statutes or

Acts of Parliament. The Parliaments of the States and Territories also have law-making

powers. But not all legislation is statutory law.

Statutes are the products of Parliament. Subsidiary to the statutes is delegated or

subordinate legislation: the rules and regulations made pursuant to the statutes with the

purpose of setting out more detail as to the scope and application of the statute itself. Many

such matters of detail require frequent adjustment to cater for changing situations. The

cumbersome process of amending statutes in Parliament would not provide sufficient

flexibility and speed. The rule-making powers are therefore delegated to the executive arm

of government, the Executive being empowered to create rules and to amend those already

in existence. Legislation is discussed in more detail in Chapter 3. Delegated legislation is

discussed in more detail in chapter 4.

Common law and equity

[1.150] Equity evolved centuries ago to provide recourse in situations where the common

law either operated to produce a defective result or failed entirely. Equity grew initially not

as a rival to the common law but rather as a supplement in certain instances. The function of

equity was to intervene when the normal processes of common law failed. While it might

seem that such a system would lead to chaos, the birth and growth of equity was both

justified by and controlled by the Monarch’s conscience. It was simply part of the

Monarch’s duty to intervene to prevent injustice. From such simple beginnings it developed

an influence of critical significance.

1.4 LAW, ORDER, JUSTICE AND MORALITY

[1.160]

Although the principal function of law is to ensure order in an increasingly complex society,

it must at the same time respect and help shape the morality of that society and reflect that

society’s notions of “justice”. Whatever justice is – and this is a much debated topic – it is

not the same as the law. For our purposes we can regard justice as “fair play” and this is an

admirable aspiration for any law. But it must be remembered that under our legal system the

law is what it actually is and not what it should be to accord with underlying notions of

justice. No court has the power to strike down a law because it is “unjust” or does not

accord with community standards or does not represent fair play. Similarly with morality. It

is obviously desirable that in our society laws reflect underlying concepts of justice and

morality but these are abstract concepts which, in a pluralistic society, will have shades of

meaning. The fact that our politicians in Australia have to face the electorate every three

years (Federal Parliament) or four years (State Parliaments) mean that our laws will

generally accord with acceptable community standards of justice and morality.

A little government and a little luck are

necessary in life but only a fool trusts either of

them. O’RourkePJ, A

parliament of whores (Atlantic

Monthly Press, 1991).

When the nature of things

changes the rules of law must change too.

Davies v Powell (1737) Willes

46.

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A legal system does not operate in a vacuum. It exists to serve its society, and in order to

fulfil this role it requires the respect and cooperation of the members of that society. In the

words of Lyndon B Johnson, when he was President of the United States, “Respect for law

is the condition upon which our whole social order depends”. That necessary respect and

cooperation will be given more readily when the law reflects contemporary societal values.

In a complex multicultural nation such as Australia, the challenges have no easy solutions.

Australia’s people are multi-religious or non-religious and reflect diverse cultural

backgrounds. For this reason, it is not possible to have simple resort to those rules adopted

by one religious or value system, be it Christian or otherwise, in the quest for expression of

ethical and moral standards of conduct. What is now required of our law, in its ethical

content, is that it should reflect and enforce the broad ethical principles of the diverse

society.

The appropriate response to these challenges falls both to the Parliaments and the courts.

IN CONTEXT

Law and community values

[1.170] In 2000, proceedings were instituted by the South Sydney Rugby League

Club (Souths) claiming it had been improperly excluded from the National Rugby

League. Justice Finn observed that the real matter of contention was whether

commercial interests should be permitted to override something valued in the

community. Souths’ view (South Sydney District Rugby League Football Club Ltd

v News Ltd (2000) 177 ALR 611 at [564]) was that:

in our view Rugby League is an icon to be preserved for the people who love and support it, not a product to be carved up to the media for their own financial gratification.

Finn J said (at [564]) that:

It usually is only fortuitous that some legal principle can be found that could provide such preservation as is sought … I have not been able to arrive at the conclusion in the present proceeding that such a principle is available to Souths. This is not one of the fortuitous cases.

The High Court upheld the decision of Finn J (News Ltd v South Sydney District

Rugby League Football Club [2003] HCA 45) but Souths nevertheless remain in

the competition because of a change of heart by the NRL driven largely by the

massive public outpouring of support for the Rabbitohs. To the uninitiated this may

explain the delight of many – perhaps with the exception of Bulldogs supporters –

when Souths won the 2014 Premiership.

Law and order

[1.180] One of the primary functions of the state, through the legal system, is the

preservation of order within the community. It may be said that in a perfect world the force

of a legal system would be unnecessary. When, however, our society is less than perfect,

Laws are generally found to be nets of such a texture, as the little creep through, the great break through, and the middle-sized are alone entangled in. William Shenstone.

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some compulsion is necessary. It is largely for that reason that the restraints imposed by law

are tolerated, it being accepted that the alternative is chaos and damage to the legitimate

interests of everyone. Order is necessary at all levels of social interaction – from laws

governing road use to those regulating affairs of state. It is often said that law is currently

failing in its stated aim of preserving order but this opinion is of course coloured by

different perceptions of what order entails.

“NAKED RAMBLER” STEPHEN GOUGH MAKES UK LEGAL HISTORY BY FACING COURT IN THE NUDE [1.190] London: He wears boots, a hat, a backpack,

and not much else, and he’s singlehandedly making

the law an ass.

The UK’s so-called “Naked Rambler”, Stephen

Gough, suffered another loss on Tuesday, when

despite (or perhaps because of) a history-making

nude court appearance, he lost his appeal.

But legal experts are calling for an end to what one

called the “legal daftness” of the pursuit of this

56 year-old ex-Royal Marine, whose only crime is

persistent nudity.

On Tuesday Gough appeared in the Court of Appeal,

naked, via prison video link from Winchester Prison,

where he is serving a two and a half year sentence for

breach of a court order.

The sentence, imposed in 2014, was just the latest in

a string of convictions and prison terms for Gough,

who has spent eight years behind bars thanks to his

unshakeable conviction that he has the right to

wander England in the buff.

Despite often freezing temperatures he sticks to his

chosen outfit of socks, boots, hat and rucksack,

saying it was “one step in the whole process of

making people aware about our bodies because we

are so paranoid about them”.

Because public nudity is not a crime, authorities

instead imposed an Anti-Social Behaviour Order, or

“Asbo”, making it unlawful for Gough to be nude in

public.

“The result is that the only person in the country who

actually wants to wander naked around the streets of

Winchester is also the only man in the country who

commits a crime by doing so,” criminal barrister

Matthew Scott wrote.

“An eccentric who poses no risk to anybody is being

made to spend the rest of his life in jail – incidentally

at huge public expense – because of a law that has

been crafted to criminalise his chosen way of life.”

“He has chosen to look ridiculous. The law is making

itself look ridiculous.”

On Tuesday Mr Scott calculated that it had cost

£330,000 ($660,700) to keep Gough in prison, not

including legal costs.

Another legal blogger, lawyer David Allen Green,

said on Twitter on Tuesday that Gough’s case

“exposes the illiberal daftness of our legal system”.

Miller N, “Eccentric “Naked Rambler” makes legal

history”, Sydney Morning Herald (11 June 2015).

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Law and morality

[1.200]

Natural law theory and its prominence in the history of our legal system highlight the

interrelationship between law and morality. The tension in that relationship has become

critical in a society increasingly faced with great moral issues in areas such as euthanasia,

abortion, artificial reproduction, rights of frozen embryos, information technology,

surveillance, etc. The domain of morality spreads over a wide territory.

An essential conflict arises between competing viewpoints. In the context of what are

known as “victimless crimes” (eg drug-taking and prostitution), there are those who take the

view that the law should not intervene in the private lives of citizens any more than is

necessary to preserve public order and decency. This approach, in Victorian times, was put

simply in the instruction that consenting adults could do what they liked, so long as they

didn’t do it in the street and frighten the horses. Given that horses are not a common feature

of Australian streets today a more substantial standard is required, but the search for it

remains elusive.

IN CONTEXT

Law, morality and the necessity defence

[1.210] While the status of necessity as a defence to crime is uncertain, the

leading case of R v Dudley and Stephens (1884) 14 QBD 273 raises important

issues concerning the relationship between law and morality.

This celebrated case, widely known as “the case of the Mignonette” concerned the

yacht Mignonette that put to sea on 5 May 1884 from Tollesbury in Essex, with a

crew of four to sail to Sydney – a four-month voyage. Two months later, during a

severe storm in the South Atlantic Ocean, the Mignonette was struck by a massive

wave and sank within five minutes. The crew escaped in a flimsy dinghy without

fresh water and with only two tins of turnips, and a chronometer and sextant with

which they would determine that they were drifting away from shipping lanes

towards South America, over 3000 kilometres away.

For the first 11 days they subsisted on turnips and a small turtle, and the principal

problem was not hunger but thirst. By that time they had begun to drink their own

urine, a standard technique in such conditions. Then hunger became a problem. A

not-so-standard technique adopted on the twentieth day was to kill the weakest of

the four and thereafter for the remaining three to sustain themselves by eating his

body. That continued for the next four days, at which time they were rescued by a

passing ship. Their subsequent prosecution for murder tempered the joy of their

rescue. The facts, agreed upon by the jury, were that without the cannibalism, the

others would not have survived, and that the victim was likely to have died before

them. Indeed, the jury found that the only way to save life was to sacrifice one as

a source of protein for the others.

Never forget that if you leave your law to judges and your religion to bishops you will presently find yourself without either law or religion. George Bernard Shaw.

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The question then of whether this act amounted to the crime of murder was

ultimately referred, on appeal, to the Queen’s Bench Division. That court found the

defendants guilty and sentenced them to death. A reprieve followed and the

punishment was reduced to six months’ imprisonment.

The case of Dudley and Stephens is still cited today as an authority for the defence

of necessity to a murder charge. The decision captures not only many of the

peculiarities of legal reasoning but also questions of practical living and morality

with which the law must deal. These issues are commonly raised, albeit in less

dramatic circumstances. The need to achieve a workable resolution to the conflict

between the survival instinct of the individual and social demand for an objective

moral standard is not amenable to one solution for all time. It presents itself again

and again in different guises.

This is reflected, for example, in the contemporary debate over euthanasia and the

allocation of scarce medical resources. Is there to be a case-by-case approach

(probably trusting in non-observance of the law by the authorities), or is there to be

a single objective standard against which all such conduct may be measured? The

dangers inherent in either approach are obvious, but inconsistency and the

protection of some individuals where others are not so favoured can lead to

cynicism and distrust of the legal system.

The Court of Queen’s Bench in Dudley and Stephens somewhat pompously

demanded of the defendants the observance of a duty (at 287):

not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all it is to be hoped in England, will men ever shrink, as indeed they have not shrunk … It is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow.

In so far as some general statement as to the availability of necessity as a

defence can be made it seems that the defence exists, albeit with some caprice,

and in Victoria the Full Supreme Court has recognised its existence (see R v

Loughnan [1981] VR 443), provided that the consequence to be averted is serious

and that the steps taken to accomplish that aversion are in proportion and

appropriate to the gravity of the dangers.

Law and justice

[1.220] On the occasion of his swearing in as Chief Justice on 21 April 1995 Brennan CJ

spoke of law, justice and society in a provocative and stimulating way:

Justice is a social goal, a guarantee of order and peace in the community, a precondition of human development – and it is therefore of concern to every member of our community. For the Christian, justice has a special and central significance: it is a divine imperative.

Justice is not brought to the people either by populist clamour or by implementing the will of the powerful. It must be sought by careful reflection upon the interests of the individual and of society as a whole and there must be an especial concern for the powerless, the socially

Even the House of Lords can be pragmatic. The

trial of Lady Chatterley’s

Lover aroused parliamentary

comment. In the House of Lords

a noble Lord defending the

book was asked, would you want

your wife to read it? and responded, I

would not object to my wife

reading it but I don’t know

about my game-keeper.

Lady Chatterley Letters (1962)

48 American Bar Association

Journal 43 at 47.

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insignificant, the weak minority. The bruised reed may be a drug addict, an unemployed boy or girl, an innocent but discarded spouse. The dimly burning wick may present itself as a refugee, a lonely migrant, an Aboriginal group removed from the traditional land, the children of a broken family, the lonely aged.

[1.230] To the question “What is justice?” there are many answers. They range from

that cited by Thomas Aquinas that it is “the perpetual and constant will to render to each

one his right” to the view of the practising lawyer in contemporary times that “justice is

what happens when the money runs out”.

The expectation that the legal system is the complete source of justice is doomed to

disappointment for various reasons. Most significantly, the achievement of justice

requires a general approach by all in their dealings with each other – it is not always

controlled by to the specific regulation of the statute nor the individual reach of the court

in judging a case. Its field of operation is wider, indeed, it is all-encompassing.

In essence we must ourselves set standards or meanings for justice in our own

community. That such an approach is embraced by the judges is evidenced by the

comments of Sir Edward Pearce, then a member of the English Court of Appeal, when he

said that “since every case has merits one way or the other there may at any time be a

pull to deflect decision from the straight and narrow path of logic in order to secure fair

play”: Pearce E, “Our common heritage” (1959) 33 ALJ 103 at 105. In the course of the

same address (at p 105) he said that:

When the law is derived from cases, the merits of the individual case are bound to influence the decisions in some degree. It is quite useless to expect an English judge, or, I suspect, an Australian judge, to reach a decision that he feels to be unjust or unworkable if with industry and ingenuity he can produce a result that is fair and workable. His judicial duty compels him to follow decided cases and his judicial conscience compels him to follow the general direction of the riverbed. But within those limits he will slightly deflect, if thereby he can secure justice and fair play. For to the ordinary judge fairness between man and man is of paramount importance. I know that I and most of my colleagues are made miserably unhappy, if we find ourselves compelled to give a judgment that to our minds in the circumstances of the cases produces unfairness and injustice.

Abstract notions of justice are reduced to the search for “fair play”. In a very practical

sense that approach is to be applauded. “Fair play” in reality is more comforting than

“justice” in theory. It is as unrealistic to expect the law to provide justice at all times as

it is to expect pharmacology to cure all ills. The discipline must do its best. Very often

the people subjected to it must play their part also, not by a resort to self-help but by

introducing into their society the aspects of justice already described.

IN CONTEXT

The role of the judges

[1.240] On the occasion of this swearing in as a justice of High Court in 1952

((1951-1952) 85 CLR XIV) Sir Owen Dixon said:

In England, justice is open to all – like the Ritz Hotel. Mathew LJ.

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It may be that the Court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism.

Four decades later in the occasion of his swearing in as a justice of the High

Court Michael Kirby said (“Farewell Speech” (1996) 70 ALJ 271 at 275-276

(footnotes omitted)):

Since that April day in 1952 much has changed. The world, our country and its law have changed. Technology has put our species into Space. Scientists have unravelled the double helix of DNA. Information technology has revolutionised our planet and now reaches towards simple artificial intelligence. But the abiding judicial duties of neutrality, integrity and the provision of persuasive reasoning remain as strong today as they were in Sir Owen Dixon’s time. The termination of Privy Council appeals has finally released Australian law from accountability to the judicial values of England that lasted so long. The slow realisation of this fact, and its implications, in a profession often so resistant to change, presents to this, as to other Australian courts and courts of the region, challenges which are exciting and sometimes difficult.

There will be no returning to the social values of 1952 when Sir Owen Dixon spoke, still less those of 1903 when this Court was established. It falls to each generation of Australian lawyers, led by this Court, to fashion new principles of the Constitution, common law, and of equity, which will contribute wisely to the good governance of the Australian people. There is now a greater public understanding of the limited, but still very real, scope for judicial creativity and legal development. Judges are now more candid about this aspect of their function. Without a measure of creativity how else would the common law have survived seven centuries, from feudalism to the spaceage? How else would it have endured in so many lands after the sun had set on the British Empire?

In any case, the “good old days” were not always so good in the law of Australia, including the common law. They were not so good if you happened to be an Australian Aboriginal. Or indeed, a woman. Or an Asian confronted by the White Australia policy. Or a homosexual Australian. A conscientious objector. A person with heterodox political views. A homeless person. A publisher of the mildly erotic. A complainant against official oppression. A person with little English involved in a court case. We in Australia have now taken a confident turn in our legal journey towards enlightenment and justice for all under the law. But the lesson of our present enlightenment must be that there are other injustices to which we are still impervious, or indifferent or which we do not yet see clearly. We need to defend our legal institutions and to adhere to time-honoured legal principles. Not blindly. And not mechanically. But with ears, minds and hearts always open to the call of justice. Only the quest for justice gives our profession its claim to nobility.

These two passages obviously reflect very different attitudes to the judicial rule

in accommodating changing community values.

1.5 THE NATURE AND ROLE OF A LEGAL SYSTEM

[1.250] The totality of the laws that regulate a state – a legally organised community – is

known as a legal system which comprises not so much the rules and regulations governing

that community but the more basic issues of how those laws are made and applied and

Faced with glaring injustice, the judges are, it is said, impotent,

incapable and sterile. Not so with us in this

court. Nothman v Bomet London

Borough Council [1978] 1 WLR 220 at 228 per

Lord Denning MR.

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administered. Although Australia’s legal system shares traditions, principles, procedures,

rules and institutions with other common law countries that derived their legal system from

England, such as New Zealand, Canada and the United States, given that the law reflects the

general character of the society in which it exists, it is not surprising that over a period of

200 years there is a lack of complete uniformity between the laws of those countries

influenced by British settlement. There are obviously important differences between the

legal systems of these countries both at the lofty level of constitutional arrangements and at

the more basic level of the particular rules and regulations. Nevertheless, those systems

have more in common than they have elements of difference. The common law model

shares common values, institutions and principles.

[1.260]

There are other legal systems throughout the world. Most countries in Western Europe,

Latin America, and Asia have adopted the civil law system, which has its heritage in Roman

law. Other systems include those based in religion (such as Islamic law) or politics (such as

socialist law).

[1.270]

Figure: World Legal Systems

Source: University of Ottawa, Faculty of Law JuriGlobe – World Legal Systems Research

Group (http://www.juriglobe.ca/eng).

[1.280] The basis of the legal system of any state is its constitution, defined by Professor

Hood Phillips as “the system of laws, customs and conventions which define the

Reporter: What do you think of Western civilisation? Mahatma Gandhi: I think it would be a very good idea.

It has been said that democracy is the worst form of government except all those other forms that have been tried from time to time. Winston Churchill, speech in the House of Commons, November 1947.

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composition and powers of the organs of the state and regulate the relations of the various

state organs to one another and to the private citizen”: Constitutional and administrative

law (5th ed, 1973, p 5). The constitution of any country must, at the very least, provide for

the process of government and the allocation of legislative (law-making), executive

(administrative) and judicial powers, to those bodies which are to exercise them.

The development of a country’s constitution – its fundamental political and legal framework

– is shaped by history. In the United Kingdom it has developed from the experience of

centuries of struggle between the Crown, its council of advisers and the courts. The

Constitution of the United Kingdom is unusual in that it is unwritten (New Zealand

provides one of the few other examples). Instead of one fundamental document enshrining

the country’s government, the principles and rules are found in various statutes, judicial

decisions and the unwritten usages and practices (the “conventions”) which have evolved

over centuries.

The United States on the other hand has a written Constitution, which was drawn up in

1787, the preamble to which declares that:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Similar sentiments are expressed in the preamble to the French Constitution, which

declares that:

the people freely created the political institutions, based on the “common ideal of liberty, of equality and fraternity” and that France “is a republic, indivisible, secular, democratic and social”.

The US Constitution represented that country’s breaking away from imperial dominance

and marked the start of a new era. The sentiments which brought to a head the breaking

away from Britain are dramatically expressed in the 1776 Declaration of Independence,

the opening words of which state that:

When in the Course of Human Events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same

A legal tradition … is not a set of

rules of law about contracts,

corporations, and crimes, although

such rules will almost always be

in some sense a reflection of that tradition. Rather

it is a set of deeply rooted,

historically conditioned

attitudes about the nature of

law, about the role of law in

the society and the polity, about

the proper organisation and

operation of a legal system, and

about the way law is or should

be made, applied, studied,

perfected and taught.

Merryman JH, The civil law

tradition (Stanford

University Press,1976).

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Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

In Australia the driving force behind the Constitution was the recognition in the late

1890s that several independent colonies locked within the one island would be better served

by a form of cooperative federalism. It came into effect on 1 January 1901. Whereas the US

Constitution was a product of revolution and was enacted through that emerging nation’s

own processes, the Commonwealth Constitution, a product of evolution, was enacted for

Australia by the Imperial (British) Parliament (Commonwealth of Australia Constitution Act

1900 (UK)). The Commonwealth Constitution is discussed in Chapter 3.