Introduction to the law

CHAPTER 1 Introduction to the law

A knowledge of the law as an adjunct to a primary area of activity such as nursing requires that, in the first instance, the nurse has a rudimentary understanding of what the law is, where it comes from and how it operates. Such an understanding is essential in enabling nurses to extract from a seemingly complex system sufficient practical information to be of benefit to them in their professional activities.

Understanding what the law is

It is not desirable or necessary, in our view, to seek to precisely define what the law is. What is more important is to understand the rationale behind the development of the law and its role in society.

The sophisticated and complex legal system that exists in Australia today represents the development of many centuries of Western civilisation. The discovery and colonisation of Australia by England over 200 years ago saw the adoption in this country of the legal system and principles that existed in England at that time. The English legal system, as it then was, originated in primitive community or village systems and its historical development can be traced back over centuries of invasions. These primitive communities recognised even then the need for rules of behaviour which encompassed respect for each other and each other’s property to ensure a degree of order in the community.

Hand in hand with such recognition was the inevitable desire for dominance and power of man over man, which has played such a major role in the development and subsequent decline of civilisations over the centuries.

Inevitably what started as a primitive and crude system for rules of behaviour, operating on an individual community or village basis, was forced to develop and change over the centuries. This development and change was brought about by population growth, the diversity and sophistication of community systems, and rapid industrial and technological growth.

The law essentially comprises rules of behaviour to do with the recognition of personal and property rights. Within that process certain philosophies have clearly influenced, and continue to influence, the development of such rules. These are natural law and positive law philosophies.

Natural law philosophies, as a general rule, saw the origins of law arising from a higher or divine being which encompassed the notion of divine retribution operating in human affairs. Such a philosophy embraced the concept of sin as a transgression against the divine will, or contrary to certain principles of morality.

The development of the Greek civilisation, and to a lesser extent the Roman civilisation, was influenced by such natural law philosophies (in the shape of their gods), which stressed individual worth, moral duty and universal brotherhood. Such philosophies were developed further during the medieval period in Europe by the increasing influence of the Catholic Church, which set the tone and pattern of all speculative thought. The Catholic Church pursued this natural law view as law derived from God with one faith, one church, one empire — not man-made but conceived as part of the universe.

In summary, natural law philosophies look upon situations as they might or ought to be, as opposed to how they are. It is essentially an idealist notion with strong moral overtones. As an example, the United Nations Declaration of Human Rights is essentially a natural law document.

Positive law philosophies view law in a totally secular cast without regard for divine prescriptions or intervention. Such views emerged during the renaissance period of European history (fourteenth to sixteenth centuries), which saw the rise of independent national states and churches, and emphasis on the individual. Further development occurred during the 19th century when the existence of states was established with absolute sovereignty not subject to an external natural law. The industrial revolution and the development of science supported this imperative theory of law, which saw the key concepts of law as being:

(a) the command

(b) of a sovereign (used in this context sovereign means the person or party in power)

(c) backed by a sanction (that is, the penalty imposed for non-compliance with the command of the sovereign).

Such a view of the law takes no account of morality and indeed positive law is most evidenced in the rigid separation of law and morals.

Influence of the different philosophies on the development of our laws

Natural law philosophies have had their greatest impact on the development of the legal systems of Western civilisation in shaping statements of ideal intent. As an example, the United States Constitution states that the individual has the right to certain fundamental freedoms — two of which are the freedom of speech and freedom of the press. Although such rights are guaranteed in the Constitution, such rights are not absolute in practice, as they are subject to constraints that prohibit that freedom in certain circumstances. As an example, the freedom of the press is subject to the laws of defamation, which will prevent the publication of material in particular circumstances. Nevertheless, it is the intent of the United States Constitution to guarantee absolute freedom of speech and of the press, so that every citizen and the press should be able to speak their mind and state their views freely, without fear of reprisal.

Natural law philosophies have also been responsible for the continuing influence of morality in shaping some of our present laws, much to the disapproval of positivist lawyers who believe morality should play no part in such an activity. As an example, two areas of law-making where morality and religious influences have played a significant role in shaping the present law have been the contentious areas of abortion and homosexuality.

The positive law view that law is a command of a sovereign backed by a sanction means that no regard should be paid as to whether or not the command of the sovereign may be immoral by community standards. The mere fact that the sovereign has the power to command and impose a sanction for non-compliance legitimises such a command. An example of such a situation is the international legal recognition that is given to governments of various countries whose government regimes would be considered by any moral standards to be odious and repressive. Clearly both philosophies have had an impact on the laws that we have today and will have in the future.

Where does our law come from?

As a legacy of our colonisation by England, Australia as a nation inherited many of England’s laws — certainly its legal principles — and in doing so the historical development of its legal system. Therefore, it is necessary to examine briefly the history of the English legal system in order to understand ours.

The historical development of the English legal system saw the emergence of two major sources of law:

2. parliamentary or statute law.

Development of the common law

To understand how the common-law principles developed it is necessary to appreciate that the land mass known to us as England and Wales was not always the densely populated modern community that it now is. The initial development of English common-law principles to be established on a central unified basis goes back to the time of Henry II, who ruled England from 1154–1189. At that time Henry’s kingdom consisted of a large number of feudal villages, each presided over by the feudal lord or chief of the village. Communication as we know it did not exist, battles between warring factions were not uncommon and Henry was having the usual problem of maintaining power and control over his kingdom that English monarchs were wont to have in those times. The law, as then understood and applied, consisted of the rules of the individual villages, generally based on custom, which were administered and interpreted by the feudal lord of the village. Such rules were generally arbitrary and subjective, were changed frequently and varied from village to village. In an attempt to unify his kingdom and as an alternative to the capricious and variable nature of the individual village laws, Henry offered his subjects access to his law, known as the King’s law. This law was also based on custom but had the great advantage of universal application. Henry arranged for his knights to visit each village in his kingdom on a regular basis to deal with disputes that had arisen. The villagers had the choice of being dealt with by the feudal lord according to the laws of the village, or they could wait and be dealt with by the King’s knight according to the King’s law. The King’s emissary was usually fairer, as he was able to be more objective and his decisions were more certain and predictable. In due course more and more people chose to have disputes dealt with in this way and gradually the King’s law supplanted the village law system completely.

In offering an alternative system of administration of law to his subjects, Henry II was also responsible for commencing the first central unified system of law reporting. In travelling from village to village, not only did his knights attempt to administer the law fairly and objectively but, having applied certain principles to a particular set of facts in one village, they would do so in all future situations where the same facts arose. In order to be able to do that, they kept notes of the cases they had dealt with and referred to them as required. The recording of previous decisions and the facts upon which they were based saw the emergence of certain principles concerning personal and property rights, which became established and were known as common-law principles. As communities developed and society became more complex and sophisticated, those well-established principles were expanded and developed by the courts and judges who had long replaced Henry’s knights of old.

The common-law principles that were established as part of the King’s law gradually became rigid and inflexible — often with unfair results. To overcome the rigidity of the King’s law, the law of equity was developed. This consisted of the application of equitable principles, which attempted to soften the often harsh consequences of the common law. An example of a well-established equitable principle is the recognition given to a wife’s interest in the matrimonial home. A wife may not have made a direct financial contribution to the matrimonial home and her name may not be registered on the certificate of title as a joint owner of the property; however, the courts will recognise that her contribution towards the maintenance and upkeep of the home and family entitles her to have an equitable interest in the property, which can then be financially apportioned. Over the centuries those equitable principles recognised by the courts have also become fixed and rigid in their application. Nevertheless, that body of law known as equity and the principles developed by it are as well established and applicable today as the common-law principles.

It is interesting to speculate that the present-day District or County and Supreme Courts, which travel to cities and towns in each state and territory for one or two weeks at a time to administer the law, owe their origins to the primitive system of the King’s knights travelling on horseback from village to village administering the King’s law.

Clearly, the 800 or so years that have passed since Henry II’s time have seen the continued development by the courts of the common-law legal principles. Such principles are well enunciated and recorded in the present sophisticated system of law reporting, which represents the history of such development through decisions of the courts. The principles enunciated in the recording of cases in the law reports are the authorities relied upon by lawyers to support a legal argument based on common-law principles. This is sometimes referred to as case law.

As the court system developed, applied the common-law principles and recorded them, certain power struggles were developing, centred on the perceived divine right of the monarchy and the right of the people to have a say in the affairs of government. This struggle culminated in the establishment of the second major source of our law — parliament.

Parliamentary or statute law

The institution of parliament as we know it today, with the power to make and unmake laws, was the result of many years of turmoil and struggle in English history. The long-established divine right of the monarchy, with the power to make and unmake laws and to tax the people at will without accountability, was gradually eroded by increasing demands for representation and participation in government. Out of the demands for representation and participation came the early beginnings of a parliament representative of the people. One of the powers which the early parliaments soon took upon themselves and away from the monarchy was the power to make laws. Although parliaments have also changed in complexity and sophistication, their fundamental right to make laws has remained unchallenged. In the last century particularly, parliaments have increased their law-making role significantly, in order to keep pace with social, industrial and technological changes in the community. In addition, many of the well-established common-law principles have been extended or replaced by statutory laws to take account of such changes.

Laws created by a parliament are embodied in documents known as Acts of that parliament and commonly referred to as legislation. When a document concerning a particular matter is placed before a parliament with the intention of creating legislation it is known as a Bill. Once it has been passed by both houses of parliament (with the exception of Queensland, which has only a lower house) and subject to any amendments on the way, it then receives the Royal Assent from the Queen’s representative and is formally proclaimed an Act of parliament. The provisions of an Act are known as statutory law (or statutory authority). Acts of parliament often have a separate document known as Regulations, which accompany the Act and should be read in conjunction with it. The Regulations generally give precise directions which must be followed in order to comply with the intent of the Act; for example, the Regulations relating to the New South Wales Poisons and Therapeutic Goods Act 1966.

Apart from their role in expounding and applying the common-law principles, the courts are now increasingly occupied in interpreting the statutory law passed by the relevant parliaments.

The application of English legal principles to Australia

The inheritance of the principles and sources of law arising from our colonisation by England laid the groundwork for the development of our legal system.

The English common-law principles have been universally adopted throughout the states and territories of the Commonwealth as the basis for future development of the law. There were also English statutes which provided constitutions for each of the Australian states and territories. For example, the English Act referred to as 4 George 4 (1823) established the New South Wales Legislative Council, with the power to make laws for the peace and good government of New South Wales. This power was clarified by another English Act known as the Australian Courts Act (1828) which stated that English law was to be applied ‘so far as it can be applied’. In other words, the state was given its own parliament with power to make laws for New South Wales. However the creation of the Federation in 1901, with concurrent parliamentary systems and their inherent law-making powers, posed significant problems.

The creation of the Federation pursuant to the Commonwealth of Australia Constitution Act 1901 (Cth), which was passed by the United Kingdom Parliament, established a Commonwealth Parliament, and the former colonies became states of the Commonwealth of Australia. In the same Act, exclusive powers to make laws in relation to certain areas were given to the Commonwealth Parliament. Those areas are set out in section 51 of the Act, and include such common policy matters as customs, currency, overseas trade, defence, and divorce and matrimonial causes. At the same time the same section provided for the sharing of certain powers between the Commonwealth and the states and territories. Such powers are known as concurrent powers. By implication, matters not mentioned in section 51 or elsewhere in the Constitution comprise the powers that can be exercised exclusively by the state or territory parliaments.

The outcome of such a sharing of powers with the right to make laws in relation to them means that all Australian citizens are subject to the laws of two parliaments — the Commonwealth Parliament and the parliament of the state or territory in which they reside. Understandably it can sometimes be confusing.

As far as the power to make laws in relation to health is concerned, it is a concurrent power shared between the Commonwealth and the states and territories. For example, the Commonwealth has responsibility for the legislation underpinning the funding of Medicare and general health insurance. Consequently, the Commonwealth has control over the level and extent of financial rebate that is paid by Medicare for general practice fees and medical specialist consultation fees. It also controls the level of fees able to be charged by health insurance companies and administers and subsidises the Pharmaceutical Benefits Scheme available to all Australians in relation to the cost of approved and prescribed medications. However, it is state and territory governments that have control of and responsibility for the delivery of hospital and public health services as well as a broad range of community-based healthcare services. State and territory governments are also responsible for legislation relating to the registration and regulation of health professionals, including nurses, who wish to work in a particular state or territory.

Accordingly, the majority of statutory law (legislation) which exists and is relevant to health personnel, and particularly nurses, in their professional capacity is state or territory legislation. As an example, in New South Wales, the list of health-related Acts and Regulations controlled by the New South Wales Parliament is as follows:

Anatomy Act 1977

Cancer Institute (NSW) Act 2003

Chiropractors Act 2001

Dental Practice Act 2001

Dental Technicians Registration Act 1975

Fluoridation of Public Water Supplies Act 1957

Health Administration Act 1982

Health Care Complaints Act 1993

Health Care Liability Act 2001

Health Professionals (Special Events Exemption) Act 1997

Health Records and Information Privacy Act 2002

Health Services Act 1997

Human Tissue Act 1983

Medical Practice Act 1992

Mental Health (Criminal Procedure) Act 1990

Mental Health Act 1990

New South Wales Institute of Psychiatry Act 1964

Nurses and Midwives Act 1991

Optical Dispensers Act 1963

Optometrists Act 2002

Osteopaths Act 2001

Pharmacy Act 1964

Podiatrists Act 1989

Podiatrists Act 2003

Poisons and Therapeutic Goods Act 1966

Private Hospitals and Day Procedure Centres Act 1988

Psychologists Act 2001

Public Health Act 1991

Smoke Free Environment Act 2000

Each state and territory would have a similar legislative basis as an indication of their respective constitutional powers in relation to health and health professionals.

It is therefore important to remember that although the common-law principles do not vary from state to state or territory, the specific provisions of individual state or territory legislation can, and sometimes do, vary.

Nurses quite often move freely between the states and territories seeking employment. Accordingly, when such a shift is made it is important that differences in legislative provisions which are relevant to a nurse’s employment are known and emphasised.

When a situation exists where two parliaments have power to make laws in relation to a particular area, it is not surprising that conflict may arise, as it has in the past. When this occurs, section 109 of the Constitution provides that, to the extent of the conflict, the Commonwealth law shall prevail. Examples where such an argument was successfully raised was the conflict that arose between the Tasmanian and Commonwealth Governments in the controversial Tasmanian dams case (1983)¹ when the Commonwealth prevailed and blocked the intention of the Tasmanian Government to dam the Franklin River as part of its hydroelectric scheme for the state. In that case, the High Court ruled the Commonwealth could prevent a state authority from damaging the environment, even though the Commonwealth had no express power in the Constitution to legislate on environmental protection. The High Court decision was based predominantly on the Commonwealth’s ability to give effect to international treaties.

A more recent example of conflict of powers between the Commonwealth and the states was the High Court decision in the WorkChoices amendments case, handed down on 14 November 2006.²

In that case, the states had challenged the Federal Government’s move to amend the Commonwealth Workplace Relations Act 1996 by inserting what is widely referred to as the WorkChoices amendments. The challenge was unsuccessful and the WorkChoices amendments were affirmed by the High Court as constitutionally valid.

The purpose and intent of the WorkChoices amendments was to give to the Commonwealth the power to regulate the employment conditions of nearly 80% of the country’s workforce. In asserting such a power, the Commonwealth relied on the corporations power as expressed in section 51(xx) of the Commonwealth of Australia Constitution Act. That power allows the Commonwealth to make laws relating to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’. Such corporations are generally referred to as ‘constitutional corporations’.

Further reference to the impact of the WorkChoices amendments on the industrial regulation affecting the employment of health personnel, including nurses, is to be found in Chapter 5 of this text.

It is always possible for a state to voluntarily hand over or refer one of it’s constitutional powers to the Commonwealth — with or without conditions. For example, early in 2007 the Commonwealth was pressing the states of Queensland, New South Wales, Victoria and South Australia to refer to it the power to take control of water management, particularly the Murray–Darling Basin. It is anticipated that will occur subject to the Commonwealth meeting certain conditions and making significant payment to the states concerned.

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Tags: Nursing and the Law

Dec 3, 2016 | Posted by admin in NURSING | Comments Off

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