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. Crimes Act 1958 (Vic)

2. 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