Copyright Guy Harley 2008 1 Week 4 Law of Contract Offer and Acceptance.
Copyright Guy Harley 2004 1 Introduction to Law Lecture 2.
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Transcript of Copyright Guy Harley 2004 1 Introduction to Law Lecture 2.
2Copyright Guy Harley 2004
Sources of Law
Written Law Constitution Legislation Delegated (Subordinate) Legislation
Unwritten Law Common Law Equity
3Copyright Guy Harley 2004
Unwritten Law
The oldest source of law Developed over centuries in England by judges Relies on the Doctrine of Precedent supported
by Law Reports Eventually two strands evolved:
common law equity
Equity prevails over inconsistent Common Law
4Copyright Guy Harley 2004
Legislation
Law made by Parliament and bodies it delegates to
STATUTES or ACTS contain the broad policy and are debated in Parliament
Sometimes the Act will delegate power to another body eg Governor, Minister, Council to pass more detailed rules
These are called DELEGATED LEGISLATION Legislation prevails over Delegated Legislation
5Copyright Guy Harley 2004
Legislation (Cont.)
Legislation overrides inconsistent Case Law However one important role of Judges is to
interpret ambiguous legislation There is continuing debate about who should
‘make’ the law: only Parliamentarians as elected representatives of
the people? BUT the precedent system historically has enabled
judges to develop the law in new directions.
6Copyright Guy Harley 2004
Sources of Law
Parliament The Courts
Equity Common LawFederal State
Contract LawUnconscionable Conduct
Promissory estoppel
Trade Practices Act
Fair Trading Act
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Civil & Criminal Law
Criminal Law The law which directs that certain actions are
punishable by the state. Offences against the community A penalty is imposed on the wrongdoer
Civil Law Protection and enforcement of personal rights Does not impose penalties
9Copyright Guy Harley 2004
The English Legal System
Adversarial System Civil
Plaintiff Defendant
Criminal The Crown The Accused
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The English Legal System
Adversarial System (cont.) Decision makers
Jury Judge
Lawyers Solicitors Barristers
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Proving a Claim
Standard of Proof Civil Cases
Balance of Probabilities Criminal Cases
Beyond Reasonable Doubt Burden of Proof
Civil Cases - Plaintiff Criminal Cases - Prosecution Presumptions
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Criminal Cases
Minor Complaint Summary trial by magistrate Conviction Sentence
Serious Information Committal hearing Indictment Trial by judge and jury Conviction Sentence
13Copyright Guy Harley 2004
Appeals
A party who disputes a court’s decision can appeal to a “higher” court
Usually limited to legal arguments Adversarial
Appellant Respondent
Can keep appealing to the next higher court if there is one
Hierarchy of Courts
14Copyright Guy Harley 2004
Alternative Dispute Resolution
Negotiation Mediation Conciliation Arbitration Litigation Annihilation
15Copyright Guy Harley 2004
Reception of English Law
Conquered\Ceded Law of territory continued unless inconsistent
with fundamental principles of English law Settled
Terra Nullius Laws of England as at date of settlement
received into territory unless: plainly impracticable repugnant
16Copyright Guy Harley 2004
Reception of English Law in Australia
Australia was ‘settled’ not conquered Doctrine of Terra Nullius - Aboriginal laws not
recognised Doctrine of Reception - English laws applied so
far as ‘practical’ Note – English Law English Law in force at date of settlement
17Copyright Guy Harley 2004
Mabo’s Case - 1992
High Court rejected doctrine of ‘terra nullius’ Gave partial recognition to aboriginal land rights Aboriginal title recognised unless subsequent
exercise of control by parliament over land Court raised possibility that other aboriginal law
might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”
18Copyright Guy Harley 2004
Timeline
1788 – 1836 States settled as English colonies 1828 Australian Courts Act 1865 Colonial Laws Validity Act 1901 Federation (Commonwealth Constitution Act (UK)) 1931 A Sovereign Nation (Statute of Westminster (UK)) 1941 Commonwealth adopts Statute of Westminster 1986 Sovereign States (Australia Act (UK))
19Copyright Guy Harley 2004
The Australian Constitution
Establishes 3 Branches of Government: Chapter I - Federal Parliament
House of Representatives The Senate
Chapter II – Executive The Governor-General (Queen’s rep) Government departments Ministers
Chapter III - The Courts High Court (s71) Power to establish other federal courts
20Copyright Guy Harley 2004
Federal Parliament
House of Representatives Each electorate elects one member All electorates are approximately the same size All members elected every 3 years for 3 year terms
Senate 12 senators from each state and 2 each from ACT &
NT Half elected every 3 years for 6 year terms Intended to protect state rights
21Copyright Guy Harley 2004
Federal Executive
Headed by the Queen of Australia She is represented by the Governor General Little information in Constitution Must give Royal Assent to an Act of Parliament before
it becomes law Can dissolve parliament and call an election Acts on advice from Ministers (the cabinet)
Prime Minister is the chief minister Each minister
heads one or more government departments Must be members of parliament – s64
22Copyright Guy Harley 2004
Courts
High Court Appellate jurisdiction Original Jurisdiction
Constitutional disputes Disputes between Commonwealth and States Disputes between the Commonwealth & others Disputes between people in different States
Federal Courts State courts can exercise federal jurisdiction
23Copyright Guy Harley 2004
FEDERAL COURTS
High Court
Federal Court Family Court
Federal Magistrates Service
Court of Appeal
District Court
Magistrates Court
Supreme Court
STATE COURTS
Privy Council
Appeals Abolished
Often
Com
bined
24Copyright Guy Harley 2004
Jurisdiction
Subject Matter Criminal Civil Administrative Appeal
Powers Length of jail sentences Monetary limits Injunctions & other remedies
Geographical limits Residence of parties Where claim arose
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Separation of Powers
Designed to avoid concentration of power Government functions divided into
legislative, Executive judicial
Different organs carry out each function Parliament Executive Courts
Functions are kept separate
26Copyright Guy Harley 2004
Separation of Powers (cont.)
Executive cannot make laws or adjudicate on contraventions of the law
Parliament cannot adjudicate on contraventions of the law
Courts Hears disputes between parties Cannot make policy decissions
27Copyright Guy Harley 2004
Responsible Government
Voters elect members of parliament Major party in Parliament selects ministers Ministers appoint the public servants Public servants are responsible to their Minister Ministers are responsible to parliament Parliament is responsible to the voters
28Copyright Guy Harley 2004
Australian Separation of Powers
Strict Separation of Powers does not exist• Ministerial responsibility• Judiciary can invalidate legislation as
unconstitutional• Legislature can dismiss judges (joint sitting of
parliament)• Executive can dissolve Parliament and call new
elections
29Copyright Guy Harley 2004
Division of Powers
Division of Legislative Power between the States and the Commonwealth
Commonwealth Powers are limited Concurrent - s 51 of the Constitution Exclusive - s52 of the constitution
States retain Residual Powers
30Copyright Guy Harley 2004
Exclusive Powers
Social Security Customs and excise duties Defence Currency and coinage External Affairs Immigration Territories Communications
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Concurrent Powers
Trade and commerce Taxation Banking Insurance Marriage and divorce Industrial relations Others set out in s51
32Copyright Guy Harley 2004
Residual Powers
Powers never transferred to Commonwealth but
kept by States Education Health Housing Transport Law enforcement Environment and planning Emergency services Roads
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Restrictions on Powers
Commonwealth & States Freedom of religion (s116) Freedom of interstate trade and intercourse (s92)
Commonwealth Cannot discriminate between states (s117) Cannot Acquire property without fair compensation
(s51(xxxi) Implied right of political assembly (Communist Party
case) Implied right to freedom of speech in support of the
political process
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Expansion of Federal Powers
State powers theoretically unlimited but: s.109 - Commonwealth legislation prevails over
inconsistent State legislation (Constitution s109) In practice, States only have power where
commonwealth does not Also
Since World War II, Commonwealth has controlled income tax collection in practice
Commonwealth uses grants to compel States to do what it wants
35Copyright Guy Harley 2004
Constitutional Interpretation
Interpretation takes into account changes in technology (R v Brislan (1935) 54 CLR 262)
Initially maintained division of powers Later expanded powers (Engineers Case 1920) External Affairs Power
Koowarta v Bjelke Peterson (1982) 153 CLR 168 Commonwealth v Tasmania (1983) 158 CLR 1
36Copyright Guy Harley 2004
Amending the Constitution
Amended by referendum Passed by a majority of both houses of
parliament A majority of electors in Australia A majority of electors in a majority of States
(i.e. 4) By vote of all State parliaments British Parliament lost power to amend (Australia
Act)(Australian Constitution s128)
37Copyright Guy Harley 2004
Stare Decisis
Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way
Precedent Binding - Courts must follow a decision of a
higher court in the same hierarchy Persuasive - Courts will consider decisions of
other courts
38Copyright Guy Harley 2004
Precedent (cont.)
Persuasiveness depends on quality of decision jurisdiction of the court that gave the decision
39Copyright Guy Harley 2004
Rules of Precedent
Lower courts must follow decisions of higher courts in the same hierarchy
A judge does not have to follow decisions of Judges at the same level. However, will be persuasive.
Judge does not have to follow decisions of higher court in a different hierarchy although they will be persuasive
Highest court in hierarchy can overrule its previous decisions
40Copyright Guy Harley 2004
The Court’s Decision
Ratio Decidendi Consists of those parts of the decision that
were necessary to decide that particular case Obiter Dictum
Statements made by Judge that are not necessary to decide the case
Remarks in passing
41Copyright Guy Harley 2004
Applying Ratio Decidendi
Can be difficult to discern Commentators often dispute what is decisions
Ration Decidendi Can be widened or narrowed by later decisions Facts are rarely exactly the same
42Copyright Guy Harley 2004
Example - Donoghue v Stevenson A drink manufacturer has a duty to persons who might
drink their product to take care that the bottle does not contain dead snails
A person has a duty to act in such a way that his or her conduct does not cause harm to others.
A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.
People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.
43Copyright Guy Harley 2004
Citing Cases – Volumes by Number
Smith v Jones (2001) 145 CLR 203, 207 Name of parties Year of publication Volume number Report name First page of judgment Page on which specific passage appears
44Copyright Guy Harley 2004
Citing Cases – Volumes by Year
Smith v Jones [1945] 2 All ER 203, 207 Name of Parties Year of Volume Volume number if more than one volume in a
year Report name Page on which specific passage appears
45Copyright Guy Harley 2004
Citing Cases – Medium Neutral
Smith v Jones (2001) HCA 203, [20] Name of Parties Year of decision Court designator Judgment number Paragraph number
46Copyright Guy Harley 2004
Problem
Give the citation for the case In what court was the case heard? Name the judge(s) and explain their titles Name the parties and give their role in the case Name the solicitors and who they represented Name a case cited in the judgement. Was it
persuasive or binding? What was the ratio decidendi of the case? Was there an obiter dicta? If so, what was it.