COMMON LAW & STATUE LAW

WHAT IS COMMON LAW

• law made by judges/courts through precedents (binding and persuasive)

SOURCES OF CONTEMPORARY LAWS

1. COMMON LAW

2. STATURE LAW

3. THE CONSTITUTION

4. ATSI CUSTOMARY LAW

5. INTERNATIONAL LAW

EQUITY LAW

• provides fairness and justice where common law may not offer adequate remedies

DIFFERENCE BETWEEN COMMON LAW AND EQUITY LAW

• based on christian principles and fairness cases sent to chancellor (equity)

• higher court prevails decisions of lower court (common)

PRECEDENT

• A judicial decision that serves as an authority for courts when deciding similar cases

STARE DECISIS

• to stand by what is decided, courts follow past rulings to ensure consistency

RATIO DECIDENDI

• legal reasoning as to why a judge came to a particular decision. These comments set a binding precedent upon lower courts

OBITER DICTA

• other statements made by a judge regarding the case (side comments)

2 WAYS A PRECEDENT CAN BE CREATED

1. use principles of the existing common law and statue law to make its decision

2. interpret legislation

BINDING PRECEDNET

• lower courts are bound to follow decisions of superior courts

PERSUASIVE PRECEDENTS

• superior courts are persuaded by lower courts

ADVERSARIAL SYSTEM

• a system of resolving legal conflicts that relies on the skill of representatives for each side who present their cases to an IMPARTIAL decision maker

• two sides try to provide their facts and disprove the version of the other side to the jury, ensuring the discovery of the truth

LOCAL COURT OF NSW

• matter heard infront of: magistrate

• jurisdiction to hear: civil and summary criminal offences

• monetary value up to $100,000

• cannot hear appeals

• state lower court

CORONER’S COURT OF NSW

• heard in front of specialised coroner magistrate

• examine and discuss suspicious or unnatural deaths

• if coroner believe someone is guilty, it is sent to DPP (Director of Public Prosecution)

• state lower court

• cannot hear appeals

CHILDREN’S COURT OF NSW

• heard in front of: specialised children’s magistrate

• Jurisdiction to hear: care and protection matters regarding the child under the age of 18ex; ownership, orders, guardianship, supervision order

• state lower court

• cannot hear appeals

DISTRICT COURT OF NSW

• heard in front of: judge and jury

• judge sets punishment, jury sets verdict

• civil and indictable criminal offences EXCLUDING murder, treason and piracy

• monetary value up to $750 000

• state intermediate court

• can hear appeals

SUPREME COURT OF AUSTRALIA

• heard in front of: judge, jury

• jurisdiction to hear: judge sets punishment, jury makes verdict

• civil and criminal indictable offences INCLUDING murder, treason and piracy

• monetary value $750 000 +

• state and territory superior court

• appeals go to Court of Appeal, and, Court of Criminal Appeal

LAND AND ENVIRONMENT COURT OF NSW

• heard in front of: judge and jury

• jurisdiction: judge sets punishment and jury sets verdict

• civil matters (environmental law, land and property disputes)

• state superior and territory court

• can hear appeals

FEDERAL CIRCUIT AND FAMILY COPURT OF AUSTRALIA

• heard in front of judge

• jurisdiction to hear: all family law matters (custody, divorce, property)

• circuit: immigration +minor federal matters

• cannot hear appeals

• was established in 2021, merged to improve efficiency and reduce delays in family law systems

FEDERAL COURT OF AUSTRALIA

• Judge, jury

• all complex civil matters under federal law

• can hear appeals

HIGH COURT OF AUSTRALIA

• Matter heard in front of chief justice (1 chief justice up to 6) 7

• constitutional matters

• can hear appeals but you need to be granted special leave

ORIGINAL JURISDICTION

• the power of a court to hear a case for the first time

APPELLATE JURISDICTION

• the power of a court to hear a case for an appeal

STATUE LAW

• laws made by the parliament

ROLE OF PARLIAMENT

• represents the people of Australia

• makes/proposes Australian law

• scrutinises the actions of the government

• where government is formed

STRUCTURE OF PARLIAMENT

• bicameral → 2 upper houses and 2 lower houses

• Australia has federal and state parliaments

• all states are bicameral except Queensland and the territories are unicameral ( one house)

NAMES OF HOUSES IN FEDERAL PARLIAMENT

• UPPER: SENATE

• 76 SENATORS

  LOWER: HOUSE OF REPRESENTATIVES

• 151 MEMBERS

NAMES OF HOUSES IN STATE PARLIAMENT

• UPPER: LEGISLATIVE COUNCIL

• 42 MEMBERS

• LOWER: LEGISLATIVE ASSEMBLY

• 93 MEMBERS

LEGISLATIVE PROCESS

1. NEED FOR NEW LAW IS IDENTIFIED

   • change in society’s values and ethics that reflect the view of justice

2. DRAFT BILL

   • bill is introduced

3. FIRST READING

   • bill is introduced to the HOUSE OF REP

4. SECOND READING

   • members debate and vote on the main idea of the bill

5. COMMITTEE STAGE

   • public house opportunity to give opinion/ changes are made

6. THIRD READING

   • members vote on bill in its final form

7. UPPER HOUSE

   • process is repeated

8. ROYAL ASSENT

   • governor/governor general has to sign bill

DELEGATED LEGISLATION

• laws made by non parliamentary bodies

PURPOSE OF DELEGATED LEG

• involves less important laws that parliament does not have time to draft

TYPES OF DELEGATED LEG → REGULATIONS

• laws made by the governor general, state governors or members of the executive (ex, prime ministers, ministers)

TYPES OF DELEGATED LEG → ORDINANCES

• laws made for Australian territories

TYPES OF DELEGATED LEG → RULES

• laws made for government departments usually by the department itself (procedural/ operational guidelines)

TYPES OF DELEGATED LEG → BY LAWS

• laws made by local councils for the local government area → waste disposal, parking restrictions

ADV AND DISADV OF DELEGATED LEG

ADV:

• people making the legislations are usually experts

• delegation of minor legislation fees up parliamentary time for using serious issues

• it is easier to amend delegated legislation and thus it is more flexible

  DISADV:

• elected members of parliament do not have time to fully check

• with many different bodies involved it can be inconsistent

• little publicity surrounds delegated legislation, thus public cannot voice their views,