Sources of Contemporary Australian Law Notes
Sources of Contemporary Australian Law
British Origins:
Introduced common law to Australia in 1788, which is based on court-made laws.
Common Law: Legal principles developed through court decisions.
Statute Law: Laws enacted by parliament.
Equity:
Supplement to common law, designed to address injustices by focusing on fairness.
Judges consider the merits of each case.
Precedent:
A legal principle established in a prior case that serves as guidance for similar cases.
Adversarial System of Trial:
Used in common law countries, including Australia.
Involves representatives for each side presenting their case to an impartial judge.
Court Hierarchy (State Courts)
High Court:
Highest court in Australia, responsible for hearing appeals from state and territory supreme courts.
Holds superior jurisdiction in both state and federal matters.
Court of Appeal:
Hears appeals primarily from the Supreme Court or District Court.
Typically consists of three judges.
Supreme Court:
The highest court within a state or territory.
Deals with the most serious criminal offenses (e.g., murder, treason) and large civil disputes.
District Court:
Intermediate court that hears serious indictable offenses but not the most severe ones.
Handles significant civil cases.
Magistrates Court:
Lowest tier, dealing with minor criminal cases and civil disputes up to $100,000.
Conducts preliminary hearings to determine if there is enough evidence to progress to higher courts.
Court Hierarchy (Federal Courts)
High Court:
The apex court in Australia, hearing appeals from all lower courts.
Key role in constitutional interpretation and validating legislation.
Full Court of the Federal Court:
Reviews appeals from decisions made in the Federal Court, consisting of 3 to 5 justices.
Federal Court:
Similar to a State Supreme Court, handling commonwealth law matters (e.g., terrorism, immigration).
Family Court:
Limited jurisdiction in family law matters such as divorce, custody, and maintenance.
Federal Magistrates’ Court:
Established in 1999 focusing on administrative law, bankruptcy, and family law cases.
Statute Law
Role and Structure of Parliament:
Responsible for debating, passing, or amending legislation.
Most state parliaments (excluding Queensland and territories) are bicameral, comprising an upper house and lower house.
Example in New South Wales: Legislative Assembly (lower) and Legislative Council (upper).
In Federal Parliament: Senate (upper) and House of Representatives (lower).
Executive Council:
Composed of the Governor or Governor-General and ministers, enabling legislation implementation.
British Monarchy represented by the Governor-General in Australia.
Legislative Process
- Steps in Legislative Process:
- Introduction of a Bill.
- Reading stages in both houses (1st Reading, 2nd Reading, Committee stage).
- Progress through amendments and approval.
- Royal Assent by the Governor-General.
Delegated Legislation
Advantages:
Created by experts, freeing parliament to focus on significant issues.
Easier to amend and more flexible.
Disadvantages:
Lack of public scrutiny and inconsistent standards due to multiple legislative bodies.
The Constitution
Division of Powers:
Specified powers outlined in sections 51 to 60 of the Constitution, determining federal and state government authority.
Exclusive Powers: Held only by the Federal Parliament.
Concurrent Powers: Shared by state and federal parliaments.
Residual Powers: Matters not specified in the Constitution, legislated by states.
Separation of Powers:
Divides power among the legislative (parliament), executive (government officials), and judiciary (courts).
Ensures a system of checks and balances.
Role of the High Court:
Protects the Constitution and assesses the legitimacy of government actions.
Serves as the final appellate court within the legal system.