2. Sources of Contemporary Australian Law

Australia became a British colony in

1788

What practice did the king of England start to make law becoming more consistent and common across the country

Sending out travelling judges who began keeping records of previous disputes

Common law is

the law made by judges hearing disputes in courts

Common law is also known as

judge-made or case law

Judges determine the outcome of a case through the

application of principles of common law

What is equity

A body of law which developed in England to provide a remedy in situations where applications of common law would have led to injustice

Common law in England began to become rigid and inflexible, leading to injustice. People began to petition against this, which led to the development of

The court of chancery, which decided cases according to a whole body of law referred to as equity law

Remedies from the court of chancery suited

the individual circumstances of each case

What is precedent

A decision in a case that is the first of its kind, that establishes a new legal principle, and is used to guide decisions on later cases

Courts are bound by certain rules which dictate

When and how they must follow previous decisions

The doctrine of precedent consists of a series of rules governing the use of past decisions by different courts such as (4):

• Decisions of higher courts are binding on lower courts

• Courts are generally expected to follow their own decisions

• The High Court - not bound by own decisions

• International court decisions not binding in Australia

Precedents can be ‘binding’ or ‘persuasive’ depending on

the relationship between the court that made it and the court considering the precedent

Give an example of a ‘persuasive’ and ‘binding’ precedent

A decision made by a judge in the NSW Supreme Court is binding on the courts below but is persuasive in relation to another Supreme Court judge

The part of the decision that is binding is called

ratio decidendi (the reason for the decision)

Other comments said ‘by the way’ (called ober dicta) are

not binding but are said to be persuasive

What are some features of the adversarial system of trial (7)

1. Two opposing sides - each present evidence to support case

2. Each side can challenge evidence of the other side - evidence is tested

3. Judge/magistrate controls proceedings to ensure rules are followed

4. Decision is made by the judge/magistrate or jury

5. Only the parties of their legal representatives are allowed to cross-examine witnesses

6. Judge/magistrate and jury are not allowed to question a witness

7. Opposing sides have total control over what evidence is introduced in court

What are some characteristics of the inquisitorial system of trial (2)

1. Judge/magistrate has a more active role as the court investigates the case

2. Judge controls the direction of the inquiry and so what evidence is introduced; can question witnesses

Fill in the table for adversarial and inquisitorial system of trial

Role of Judge:
Role of Lawyers:
Focus of Trial:
Follows Precedent:

Role of Judge:	Referee/umpire	Investigator/inquires
Role of Lawyers:	Competitors	Assisting the judge
Focus of Trial:	Procedural fairness	Find facts
Follows Precedent:	Yes	No

The state court system in NSW operates under the following hierarchy

1. Lower Courts

2. Intermediate Courts

3. Superior Courts

What are summary offences?

In criminal matters, minor offences such as loitering and obstructing traffic are called summary offences

What is a summary offence?

A criminal offence that can be dealt with by a single judge without a jury and does not require. a preliminary hearing

Indictable offences are usually

More serious offences, such as assault and murder

Indictable offences are usually

tried before a judge and jury and is subject to greater penalties than non-indictable offences

Draw a diagram of Australia’s court hierarchy

Who decides the punishment in the local court

Magistrate

The local court has the jurisdiction of: (4)

Minor criminal and summary offences

Civil matters with a monetary value of up to $100,000

Committal hearings

A limited range of family law matters (eg. property settlements)

What are committal hearings

When a magistrate will determine whether the prosecution has a strong enough case to try the defendant in higher courts (indictable offences only)

What is the role of the coroner’s court

Ensure that unexplained or suspicious deaths, fires and explosions are properly invetsigated

Coroner’s court makes recommendations to the government for

Changes to the law, professional training requirements and procedures around safety

If a coronial inquest finds evidence of criminal actions, the case is sent to

trial

What is the children’s court concerned with

The protection and care of children and young people

What does the children’s court deal with

Criminal cases involving persons under the age of 18 at the time of the offence or under 21 when charged with a crime committed while under 18 years old

What does the drug court deal with

Offenders who have issues with drug addiction, which may lead them to commit crimes

The drug court is a rehabilitative court which aims to

help the accused with their drug addiction to prevent them from committing crimes

What is the Koori Court

Deals with young Aboriginal and Torres Strait Islander people influenced by Aboriginal elders and customs

The District Court in NSW deals with more serious criminal matters (indictable offences) such as: (6)

1. Manslaughter

2. Assaults

3. Sexual assaults

4. Offences relating to property (eg. robbery, breaking and entering, larceny and embezzlement)

5. Importing, supplying or possessing prohibited drugs

6. Offences including fraud (forgery, obtaining money by deception and passing valueless cheques)

The District Court’s jurisdiction is unlimited in cases for damages for

personal injuries arising out of a motor vehicle accident

District NSW Court deals with civil cases up to

$1,250,000

What is appellate jurisdiction

Ability to hear appeals of lower courts and to reject, affirm or modify those decisions

Land and Environment Court is a specialist court that deals with (3)

1. matters relating to environmental planning (eg. zoning of parks)

2. Environmental offences (eg. illegal polluting)

3. Appeals against local council meetings

What is the highest court in NSW

Supreme Court

What does the Supreme Court deal with:

1. Manslaughter

2. Murder

3. Attempted murder

4. Kindapping

5. Major conspiracy

6. Drug-related charhes

Commonwealth prosecutions for

major breaches of corporate law

Claims for damages in the Supreme Court are unlimited in terms of monetary damages that can be awarded and include:

1. Personal injury

2. Professional negligence

3. Breach of contract

4. Defamation

5. Possession of land

In the Supreme Court, mostly judges are used in civil matters but there can sometimes be

a jury

What is the Court of Appeals

Makes decisions about procedural fairness in lower courts

Appeals are held by

three judges, with a majority view taken

An individual can appeal to the High Court if they are unsatisfied with their ruling, but

only with permission from the High Court

Federal Circuit and Family Court of Australia rules on cases relating to specialised areas in family law such as:

1. Divorce

2. Parenting orders

3. Division of property

4. Spousal maintenance

Federal CIrcuit and Family Court of Australia hears appeals from a decision of

a federal magistrate or Family Court judge

Federal Magistrates Court’s aim was to

relieve some of the case load from Federal and Family Courts and reduce costs and time

In 2012, Federal Magistrate’s Court was changed to

Federal CIrcuit of Australia

Federal Circuit of Australia does not deal with criminal matters, but has jurisdiction over:

1. Family law and child support

2. Human rights

3. Copyright

4. Bankruptcy

5. Migration

6. Consumer protection and trade practices

7. Privacy

8. Administrative law

9. Industrial law

The Federal Court of Australia deals with

• Civil disputes governed by federal law (except for family law matters)

• Some summary offences

Who does the High Court hear appeals from

The Federal Court of Australia, Federal Circuit and Family Court of Australia and the state/territory Supreme Courts

What does the High Court deal with

Cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws

What is therapeutic jurisprudence

A branch of jurisprudence that focuses on questions of wellbeing in relation to those who come into contact with the law and the justice system

Statute law is made by

Parliament

Statute law was is known as

‘legislation’ or ‘Acts of Parliament’

Who has the right to make laws

State, territory and federal Parliaments

What sets out the powers of Parliament to make laws

The Constitution

Parliament is

a body of elected representatives

What is the role of Parliament

• Debates proposed legislation

• Passes or rejects legislation

• Amends legislation

State and federal Parliaments are

bicameral (Lower House and Upper House)

In NSW the lower house is known as

Legislative Assembly

In NSW the upper house is known as

Legislative Council

In federal Parliament the upper house is the

Senate

In federal Parliament the lower house is the

House of Representatives

What is the role of the Cabinet

Makes decisions on policy and laws to be drafted for consideration by parliament

Non-ministerial members of Parliament are known as the

back bench

The Executive Council is made up of, and what does it do

Governor-General and selected ministers

Enables legislation to be put into operation

When a non-ministerial member (backbencher) does this it is known as a

private member’s bill

What is the 8 step process of passing a bill through Parliament

1. Need for new law is identified

2. Draft Bill:

• Cabinet approves the drafting of a bill

• The proposed bill is drafted by parliamentary clerks and presented by the minister in the lower house

3. First Reading:

• The first formal reading of the bill and every member receives a copy
  

4. Second Reading:

• Minister speaks about the proposed act, elaborating on its aims

• Debate over the bill takes place

• The clerk of Parliament reads the title of the bill for the second time

5. Committee Stage:

• The bill is examined and debated in detail and amendments are madeThird Reading:

• During the third reading, a vote is taken and if the bill passes, moves to the upper house

6. Third Reading:

• During the third reading, a vote is taken and if the bill passes, moves to the upper house

7. Upper House:

• The same process is repeated

• If the bill does not pass the Upper House it may be returned to the lower house for amendments or be rejected

8. Royal Assent:

• If the bill passes the Upper House it is presented to the Governor or Governor-General for formal approval

• The bill becomes an act of Parliament and is law as of the date specified on the Act

What is delegated legislation

Legislation made by non-parliamentary bodies

Delegated legislation involves

‘Less important’ legislation that parliament does not have time to draft, consider and pass, and delegates the responsibility to subordinate bodies (eg. government departments, local councils)

The ‘enabling Act’ allows

a body to make delegated legislation

Four types of delegated legislation

• Regulations: Laws made by the Governor-General, state governors or members of the Executive Council

• Ordinances: Laws are made for Australian territories (eg. Norfolk Island and the Australian Antarctic Territory)

• Rules: Legislation made for governments, usually by departments involved

• By-laws: Laws made by local councils, which are restricted to the area governed by that council

What are three advantages of delegated legislation

• The people making the legislation are usually experts in that field

• Delegation of minor legislation frees up parliamentary time for very serious issues

• It is easier to amend delegated legislation, thus it is more flexible

What are three disadvantages of delegated legislation

• Elected members of parliament do not have the time or expertise to fully check the delegated legislation

• With many different bodies involved in making legislation, there can be inconsistencies

• Little publicity surrounds delegated legislation; thus, the public usually cannot voice their views

What is the constitution

A set of rules or principles that may apply to a social club, a large-scale organisation or even a nation, and outlines how these institutions function

What is the division of powers

Split of powers in the constitution between state and federal governments

What are the four areas of division of powers

Legislative powers

Exclusive powers

Residual powers

Referral of powers

What is legislative powers

Federal parliament has the power to make laws with respect to matters listed in the Constitution, known as enumerated powers

States can make laws for many sections listed, namely areas over which federal and state governments have concurrent powers

What are exclusive powers

Areas only the Commonwealth Parliament can legislate on including:

• Areas of trade and commerce with other countries

• Foreign relations

• National defence

What are residual powers

Powers that belong solely to the states; that is alll the powers leftover that are not otherwise given to the Commonwealth exclusively

Each state has its own Constitution, which enables the state to make laws in various areas, but excludes

any area directly denied to teh states by the Australian constitution

Some of the key residual powers are

• de facto relationships

• crime

• hospitals

• public transport

What is the referral of powers

States are able to give power to the Commonwealth to make laws with regard to a specific matter

What is the separation of powers

divides the power to govern between three distinct branches

What are the three powers of government

• The legislature: The law-makers (Parliament)

• The executive: The ministers and government departments who administer the laws made by Parliament (Governor-General, prime minister and Cabinet)

• The judiciary: The courts which interpret and apply the law

What happens if one person or group contracts all three powers

They have unfettered power and can lead to dictatorship

If the three powers are independent, they act as

A check on the others and ensure that civil liberties are protected

The High Court had both …… and …….. jurisdiction

original

appellate

What is original jurisdiction

The ability/power of a court to hear a case in the first instance

What is appellate jurisdiction

The ability/power of a court to hear a case upon appeal from a trial court or other lower tribunal

Cases that come under original jurisdi

When matters relating to the interpretation of the Constitution happens, how many judges decide the matter

Usually all seven judges

The High Court’s interpretation of the constitution involves stipulating what

areas the Commonwealth can legislate on and what areas belong to the states

Appellate jurisdiction of the High Court stipulates that the jurisdiction to ‘hear and determine all judgments’ from any cases emanating from:

• The High Court exercising its original jurisdiction

• Any Federal Court exercising federal jurisdiction

• The Supreme Court of any state

The system of judicial review involves

A review of the actions of a government official or department by a court of law