Notes on the Australian Legal System

Definitions

Common law in Australia arises from several sources:

• Constitutional law
• Legislation (statutes and delegated legislation)
• Judicial precedent (common law, equity)
• Custom
• Convention
• International law

Public vs. Private Law

• Public law: Governs the relationship between the State and individuals. Examples include criminal law, constitutional law, and administrative law.
• Private law: Governs the relationship between private individuals and organizations. Examples include contract law and tort law.

Fundamental Concepts of the Australian Legal System

Washminster System

Australia operates under a Washminster system, drawing influences from both the US Washington system and the UK Westminster system of governance.

Separation of Powers

This principle dictates that governmental powers should be distinct and not absolute.

Rule of Law

A cornerstone of democracy, the rule of law asserts that all individuals are equally subject to the law. A key element is the principle of legality.

Doctrine of Precedent

This governs how court-made law evolves, based on the following principles:

• Stare decisis: Meaning "to stand by that which has been decided." This promotes consistency in judicial decisions.
• Ratio decidendi: "The reason for the decision." This is the binding part of a precedent, found in law reports.
• Obiter dicta: "Remarks in passing." These are persuasive but not binding, also found in law reports.

Court Hierarchies in Australia and ADR

Federal Court Hierarchy

1. High Court of Australia
2. Federal Court of Australia
3. Federal Circuit
4. Family Court of Australia

Tribunals

Tribunals exist within the Australian legal system but are not courts. They possess decision-making abilities in disputes, such as the ACCC (Australian Competition and Consumer Commission) and AAT (Administrative Appeals Tribunal).

State Court Hierarchy (Example: Western Australia)

1. High Court of Australia
2. Supreme Court of WA
3. Court of Appeal (highest court in WA; appeals from the Supreme Court go here)
4. District Court of WA
5. Family Court (WA is the only state/territory with this)
6. Magistrates Court

Alternative Dispute Resolution (ADR)

ADR offers dispute resolution outside of the traditional court system. Forms of ADR include:

1. Arbitration: An impartial third party has significant power over the resolution, and imposed orders must be followed.
2. Negotiation: A facilitative discussion to reach an agreeable resolution. Parties may consult with attorneys.
3. Mediation: A mediator assists parties in resolving issues themselves, particularly when negotiation fails.
4. Conciliation: A conciliator takes a more active role in achieving an amicable outcome. The conciliator encourages but does not enforce a decision.

Legislation

Legislative Process

Legislation is created by the Legislature and can be either primary or secondary.

1. Primary Legislation: Acts of Parliament (statutes made by parliament).
2. Secondary Legislation: Delegated and Subordinate legislation. This is the power to legislate delegated to other bodies or institutions, like State Governments, and the courts through common law precedents.

Making of a Bill

All legislation begins as a bill proposed in either the House of Representatives (HoR) or the Senate by a minister.

• First Reading: The bill is introduced in Parliament.
• Second and Third Readings: The bill is debated in the HoR; if successful, it moves to the Senate.
• Senate Review: The Senate conducts first, second, and third readings, scrutinizing the bill closely.
• Royal Assent: If successful in the Senate, the bill is passed to the Governor-General (GG) for royal assent. Upon completion, the bill becomes an act and is published in the Government Gazette.