Transcript Basics of the australian legal system

BASICS OF THE
AUSTRALIAN
LEGAL SYSTEM
FIRST YEAR SEMINAR 2013
JO MITCHELL
THE AUSTRALIAN
SYSTEM OF
GOVERNMENT AND
LAW
THE WESTMINSTER
SYSTEM
LEVELS OF
GOVERNMENT
1. The commonwealth parliament legislates on matters
which fall under the heads of power afforded to it by the
Commonwealth Constitution.
2. State parliaments have residual powers.
1. They legislate on matters not specifically assigned in the
Commonwealth Constitution.
2. Criminal legislation is predominately dealt with by states.
3. Whether a piece of legislation is state or federal will be
indicated.
1.
2.
Crimes Act 1958 (Vic)
Competition and Consumer Act 2010 (Cth)
BRANCHES OF LAW
IN AUSTRALIA
CRIMINAL LAW
1. Criminal law is mainly contained in statutes.
2. It is a matter for the states to legislate.
3. Some states are code jurisdictions, others like Victoria,
are common law.
4. The criminal law makes up a relatively small part of the
law, contrary to public perception.
CIVIL LAW
1. Accounts for the majority of the law.
2. There are different branches:
3. E.g.
1. Contract and Tort can both be broadly grouped under the
heading ‘the law of obligations’.
SOURCES OF LAW
IN AUSTRALIA
THE COMMONWEALTH
CONSTITUTION
THE DOCTRINE OF THE
SEPARATION OF POWERS
1. Essentially:
• The power to legislate is exercised by the legislature.
• The administration of the law should be undertaken by the
executive branch of government.
• The function of interpreting the law and applying it in the
authoritative resolution of accusations or disputes is
allocated to an independent judiciary.
The central idea is that different function provide ‘checks and
balances’, so too much power is never concentrated in one
place.
STATUTE
1. Statute is proactive. Legislation can be created or
changed before a situation arises.
2. Aims to reflect or sometimes give rise to social change.
3. Statute law is law enacted by a legislative body.
4. It overrides common law where the two overlap.
1. May codify
2. May abrogate
COMMON LAW
1. Common law is derived from custom and judicial
precedent rather than statute.
2. It is sometimes referred to as judge made law.
3. Each case is a building block of precedent, the weight of
which depends on what court it was decided in.
4. Common law is reactive. Judges can only make law when
a situation arises and a case comes before them.
5. Interprets statutes, aiming to give rise to the purpose of
the legislation.
1. In this sense, common law and statute law form layers.
EQUITY
1. Equity will not suffer a wrong to be without a remedy.
2. It is a source of law that, although complementing the
common law, is separate from it. It was historically
brought about to give an alternate means of legal redress
to the sometimes inflexible common law.
3. For example with respect to contracts, where the strict
elements of formation are not satisfied, equity may
provide an alternative route to enforce a promise that has
been made.
THE COURT
SYSTEM AND THE
COMMON LAW
THE COURT
HIERARCHY
PRECEDENT
1. Each judgment sets a precedent.
2. Depending upon the standing of the court in which the
judgment was given, the precedent may be binding or
persuasive.
3. Lower courts are bound to follow the decisions of courts
above them in the hierarchy.
4. There are limited ways that a binding precedent can be
avoided.
RATIO OR OBITER?
1. The ratio decidendi of a case is the legal point upon
which the outcome turned, or the ‘reason for decision’.
1. This forms the basis for binding precedents.
2. Obiter dictum statements are made ‘by the way’, that is,
relevant but not directly pertaining to the reasons upon
which the case was decided.
1. In higher courts authoritative obiter can provide valuable
guidance and is likely to be followed by lower courts.
READING DIFFERENT
TYPES OF JUDGMENTS
1. Unanimous
2. Majority
3. Joint
4. Dissenting
• Focus on the reasoning.
• Different reasoning in the same case:
• Sometimes leading to different conclusions
• Sometimes reaching the same conclusion with different
reasoning