The Australian Legal System - Lecture Notes

Unit 1: The Australian Legal System Overview

• The nature of law

• The Australian legal system

  • Common law legal system

  • Australian court hierarchy

  • Sources of law

  • Doctrine of precedent

• Recognising cases and legislation

The Nature of Law

• A system of rules (legal rules)

• Enforceable by courts

• Regulate, control, influence behaviour

• Set standards of conduct

• Resolve conflict: Hear and settle disputes

• Provide security

• A body of principles established by:

  • Parliament (i.e. elected representatives), and

  • Courts (i.e. judges)

Business Law

• A set of rules to determine the rights, duties, and obligations of people who are engaged in commercial activities.

The Australian Legal System

• Common law system as a system of law

• Main feature: Judges’ decisions in pending cases are informed by the decisions of previously settled cases

• Developed in the United Kingdom

• Distinct from civil law systems

• Australia was a British colony

Sources of Law

• Enacted law: made by parliaments

  • Also known as:

    • Statute law

    • Legislation

    • Act of Parliament

• Unenacted law: made by the courts

  • Also known as:

    • Common law

    • Case law

    • Precedent

Sources of Law - Identifying Legislation

• Each Act has a name e.g. Competition and Consumer Act 2010 (Cth)

  • Competition and Consumer Act 2010 (Cth)

    • The name of the Act

    • The year of enactment

    • The enacting legislature

Sources of Law - Identifying Case Law

• After a case is decided, a written ‘law report’ is published

• Each case has its own citation, e.g. L Shaddock & Partners Pty Ltd v Parramatta City Council (1981) 150 CLR 225

  • The name of the case

  • The year of the law report

  • The law report series

What is a Court?

• Where disputes between two parties are heard and resolved

• Courts are ranked in a hierarchy from the lowest to the highest level of authority in the legal system

Court Hierarchy

• The court hierarchy has three significant purposes:

  • Allows different forms of hearing according to the seriousness of the case Administrative convenience & economy of operation

  • Provides a system of appeals

  • Instrumental in building up precedent

Basic Court Structure in Australia

• High Court of Australia

• State/Territory Courts

  • Supreme Court

  • Intermediate Courts (County/District Courts)

  • Lower Courts (Local/Magistrates Court)

• Commonwealth Courts

  • Federal Court

  • Family Court

  • Federal Magistrates Court

Doctrine of Precedent

• Rules of the Doctrine of Precedent

  • Lower courts in a judicial hierarchy are bound by earlier decisions of courts higher up in the same judicial hierarchy

  • A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding

  • Generally, a court is not bound by its own decisions

Doctrine of Precedent

• Promote certainty, consistency and predictability

Doctrine of Precedent

• Binding precedent

  • Decisions of a previous case of a higher court in the same judicial hierarchy that the lower court is obliged to follow

Doctrine of Precedent

• Persuasive precedent

  • Decisions of a superior court in a different/same level of hierarchy have persuasive value

  • Seriously considered; may or may not be followed

Doctrine of Precedent

• Ratio decidendi

  • ‘The reason for the decision’

  • Binding

• Obiter dicta

  • ‘Remarks in passing’

  • Not binding; may be persuasive

Doctrine of Precedent

• Each court is bound by decisions of courts higher in its hierarchy

• A decision of a court in a different hierarchy or lower in the same hierarchy may be persuasive but will not be binding

• Generally, a court is not bound by its own decisions

Rules of the Doctrine of Precedent – Application Question

• A case came before the Supreme Court of Victoria which handed down a decision. The impact this decision has on later decisions by:

  • a) the Victorian District Court is Binding.

  • b) the Supreme Court of NSW is Persuasive.

  • c) the High Court of Australia is Persuasive.