Legal Foundations and the Australian Legal System
Core concepts
A candidate must distinguish law from custom, morality and rules: law is enforceable by the state through sanctions. Understand the rule of law (all persons and institutions, including government, are subject to and accountable under the law), parliamentary sovereignty, and the separation of powers between legislature, executive and judiciary. Know Australia's federal structure: the Commonwealth Parliament's enumerated powers under s 51 of the Constitution, residual State powers, and the referral of powers. Learn the division of powers (exclusive, concurrent, residual) and the role of s 109 - where a valid Commonwealth law and a State law are inconsistent, the Commonwealth law prevails.
Traps
Do not confuse the separation of powers with the division of powers: the first is between arms of government, the second between levels. Students often claim Australia has a complete separation of powers; in reality the executive is drawn from the legislature, and the separation is strictest for the judiciary (Chapter III). Do not say the High Court "writes" the Constitution; it interprets it. Avoid treating common law and equity as identical.
Worked example
A Commonwealth statute permits an activity a State statute prohibits. Apply s 109: if the Commonwealth law is constitutionally valid and the laws are inconsistent (impossible to obey both, or the Commonwealth law covers the field), the State law is inoperative to the extent of inconsistency. Rule of thumb: validity first, then inconsistency, then consequence.
Sources of law
Understand statute law as the dominant source, common law as judge-made precedent, and the doctrine of precedent (ratio decidendi binds; obiter dicta persuades).