Australian Law and Court Precedents: Key Concepts and Cases

Case law

Law made by judges when resolving disputes and creating precedents that must be followed in future cases.

How do judges make law?

By extending precedent (when there's no parliamentary law) and by interpreting statutes and resolving disputes, creating new precedents.

Example of case law made by judges

Donoghue v Stevenson (1932).

Statutory interpretation

When judges decide on the meaning of words in an Act during a dispute, creating a precedent (e.g. meaning of 'vehicle').

Doctrine of precedent

The principle that court decisions (precedents) are used as authority for future cases with similar facts.

Types of precedent

Original: Set for the first time (e.g. Donoghue v Stevenson), Binding: Must be followed by lower courts, Persuasive: Not binding, but influential.

Why do we use precedent?

To ensure consistency and certainty in the law.

Tort

A civil wrong.

Negligence

Failure to take reasonable care when a duty of care exists.

Legal neighbour

Anyone likely to be affected by your acts or omissions.

Case establishing the tort of negligence

Donoghue v Stevenson (1932).

Four elements of negligence

Duty of care owed, Duty of care breached, Loss or damage occurred, Breach was reasonably foreseeable.

Consumer protection from negligence

State and federal legislation.

Three main rules of statutory interpretation

Literal rule, Golden rule, Mischief rule.

Resources for interpreting statutes

Hansard and the object clause of an Act.

Mabo (No. 2) decision

Introduced native title into Australian law, recognising Indigenous people's land rights.

Act following Mabo (No. 2)

Native Title Act 1993 (Cth).

Positive outcomes of Mabo (No. 2)

Recognition of Indigenous land rights; companies must pay royalties and sign contracts with Indigenous groups.

Criticisms of Mabo (No. 2) and the Native Title Act

Didn't go far enough; burdens of proof too high; Crown and private land mostly excluded; socially divisive.

NZYQ decision

The High Court ruled indefinite immigration detention unconstitutional if deportation isn't possible.

Consequences of the NZYQ case

Gov can't detain people indefinitely, New laws introduced (ankle monitors, curfews), $408m deal with Nauru to resettle 280-350 detainees.

Current federal government (2025)

The Australian Labor Party.

Difference between parliament and government

Parliament

Law-making body (all parties, both houses).

Government

Formed by the party with majority seats in the lower house (76 federal, 24 SA).

Functions of parliament

Citizens elect members, enact statutes, control public spending (budget bills), scrutinise government through question time and committees.

Parliamentary privilege

Protects MPs from being sued for what they say in parliament.

Representative government features

Rule of law, universal franchise (compulsory voting 18+), regular elections (3 years federal, 4 years state), parliamentary privilege, freedom of protest, association, and communication, open parliament for public scrutiny.

Who leads the government?

The Prime Minister.

Cabinet

Group of ministers chosen by the PM to oversee portfolios and form the executive government.

Ministers accountability

They must answer honestly in parliament and can be dismissed if they mislead parliament.

Weak accountability reason

Because the cabinet dominates parliamentary discussions.

Sources of law in Australia

Parliament and Courts.

Process of making laws

Bills are proposed → debated in both houses → if passed, become Acts/statutes.

Section of the Constitution for Commonwealth powers

Section 51.

Federal government powers

Tax, migration, treaties, marriage/divorce, foreign affairs.

State powers

Education, police, and crime.

Who can introduce laws to parliament?

Only elected members of parliament.

Common sources of new laws

Political parties, court decisions, protests, pressure groups, and ordinary citizens.

Main categories of bills

Public bills: Government bills; Private members' bills: From independents or non-ministers.

Public bill types

Ordinary bills: Don't involve taxes or spending; Supply/tax bills: Involve taxes or government spending; must start in lower house.

Types of bills by purpose

Original bills: New areas of law (e.g. Family Law Act 1976); Amending bills: Modify existing laws (e.g. Workplace Relations Amendment 2005).

Voting methods in parliament

On voices: Members call "Aye" or "No"; Division: Members physically move sides to vote.

Crossing the floor

When a member votes against their party's position.

Types of voting

Party line votes: Must follow party leader; Conscience votes: Free to vote based on personal belief (usually on moral issues).