1

The Australian Legal System

© Oxford University Press, 2007. All rights reserved.

THE HIERARCHY OF COURTS IN AUSTRALIA

• functions of tribunals

• advantages of tribunal proceedings.

Tribunals

© Oxford University Press, 2007. All rights reserved.

Sources of Law

Three regimes:• common law (judge-made law)

eg. CBA v Amadio (1983) 151 CLR 447• statutory law (derives from Parliament) both:

federal eg. Trade Practices Act 1974 (Cth) and state eg. Goods Act 1958 (Vic)

• sources arising from the globalisation of contract.

Sources of Law cont…

The Common Law:

• making law - Mabo’s case

• the doctrine of precedent ie the law expounded in an earlier case is followed in later

similar cases in the same judicial hierarchy

• rationale: certainty, predictability and consistency

• problems.

Sources of Law cont...Equity: • concerned with preventing unconscionable conduct, that is

conduct not based on good conscience

• the development of equity

• examples: doctrine of estoppel (Walton Stores v Maher), doctrine of unconscionable bargains (Amadio’s case).

Sources of Law cont…

Legislation - our major source of law today:

• note the relationship between common law and statute

• in the event of inconsistency, statute law or legislation takes precedence over, or overrides, judge-made law

• understand why, for example, an action for misleading or deceptive conduct under s 52 of the TPA is preferable to an action for common law misrepresentation.

Sources of Law cont ...

Legislation - rules of statutory interpretation:• aids to interpretation: eg Acts Interpretation Acts, Hansard

reports, explanatory memoranda

• common law rules: (i) literal rule

(ii) golden rule

(iii) mischief rule.

Sources of Law cont ...

Delegated (subordinated) legislation:• namely, rules; regulations; orders; ordinances; by-laws;

statutory instruments; notices; proclamations

• where decision-making of detailed regulations is referred to a subordinate body

eg. minister of a relevant government department, local council.