Contemporary Australian Law - Sources and Systems

Sources of Contemporary Australian Law

  • Key sources of law include:
    • Common Law
    • Statute Law
    • The Constitution
    • Aboriginal and Torres Strait Islander customary laws
    • International Law
  • Each source of law addressed in separate PowerPoints.

Principal Focus

  • Understanding nature and functions of law through:
    • Examination of law-making processes
    • Study of legal institutions

Themes & Challenges

  • Importance of law in society structure
  • Rule of law as fundamental for societal operation
  • Interrelation of legal institutions and jurisdictions
  • Law's development as a societal reflection
  • Influences affecting the Australian legal system

Common Law Overview

  • Definition: Court-made law developed through judicial decisions.
  • Key Areas to Cover:
    • British origins of common law
    • Development trends in common law
    • Equity principles and historical context
    • Precedent and its role in law
    • Adversarial trial system and court hierarchy

Court Procedure

  • Modern Australian courts use an adversarial system where:
    • Two opposing parties present their cases
    • Judge acts as an impartial referee
    • Fair application of procedural rules is ensured
    • Verdicts decided by judges or juries

Origins and Development of Common Law

  • Common law originated after the Norman invasion in the 11th century:
    • Judges sent by William the Conqueror to maintain law uniformity
    • Introduced the concept of precedent for consistent legal principles
    • Formation of the Old Bailey as a significant legal venue since 1585

Development of Equity

  • Emerged due to rigid common law procedures that led to unjust outcomes:
    • Chancellor dealt with petitions claiming unfair court decisions
    • Equity developed to address injustices and has merged with common law practices

Doctrine of Precedent

  • Governs legal decisions and their establishment:
    • Courts must follow higher court rulings in the same hierarchy
    • Precedents from external jurisdictions are persuasive but not binding
    • Stare Decisis: The principle of maintaining past decisions for consistency

Importance of Precedent

  • Establish fairness and predictability in legal outcomes
  • Limits judicial discretion, promoting stability in the legal system

Development and Types of Precedent

  1. Binding Precedent:
    • Set by higher courts and must be followed
    • Only ratio decidendi (reason for the decision) is binding
  2. Persuasive Precedent:
    • Not mandatory but can influence decisions
    • Varies based on the judge's view and the court's level

When Precedent Does Not Apply

  • Judges can avoid applying precedent:
    1. Distinguishing the case
    2. Reversing a judgment in appeals
    3. Overruling a decision in new cases
    4. Disapproving irrelevant decisions from other jurisdictions

Adversarial System of Trial

  • Each case features two opposing sides and a neutral presider
  • Evidence introduced by each side is tested through cross-examination
  • Decision-making rests solely with the judge or jury

Court Hierarchy

  • Australia operates a federal and state jurisdiction system
  • Division of powers defined in the Australian Constitution
  • Courts classified by original jurisdiction (hearing cases first) and appellate jurisdiction (reviewing lower court decisions)

Key Terms Related to Court Hierarchy

  • Jurisdiction: Authority under which legal powers lie
  • Original Jurisdiction: The right to hear cases for the first time
  • Appellate Jurisdiction: Right to hear appeals from lower courts
  • Criminal Matter: Accusation against a law-breaking individual
  • Civil Matter: Legal disputes between parties

Lower State Courts Overview

  • Local Court: Deals with 98% of civil and criminal matters.
    • Summary offences and committal proceedings
  • Coroner's Court: Investigates unexplained deaths and can commit cases to higher courts
  • Children’s Court: Handles criminal matters involving minors and family welfare issues.

Intermediate Courts - District Court

  • Handles serious indictable offences and civil disputes ($100,000 to $750,000)
  • Most cases decided by a judge, with some using a jury

Superior Courts - Supreme Court

  • Highest state court for serious legal matters
  • Creates precedents through its rulings and comprises multiple jurisdictions

Federal Court System Overview

  • Exists alongside state systems, focusing on federal law issues
  • Key Federal Courts:
    • Federal Circuit Court: Handles family law, migration, and human rights.
    • Family Court of Australia: Focuses on family law and support issues.
    • Federal Court of Australia: Broad jurisdiction for trade practices, industrial relations, etc.
    • High Court of Australia: Deals with constitutional matters and appellate jurisdiction.