Foundations of Australian Law:

The Creation of Law:

Laws are created in one of three ways in Australia:

By the commonwealth parliament By a state parliament By a commonwealth or state court

Parliaments make laws in the form of legislation called Acts. The collection of all acts is called statute law.

Make(s) laws in the form of

Collection of all Acts are called

The Application of Law:

The law applies to everyone in society, rich or poor, young or old. As long as a person is within the geographical area over which a law-making institution can make laws, that person is bound by those laws. The law applies regardless of a person’s nationality, knowledge of the law, background or beliefs.

The enforcement of laws:

Laws in Australia are enforced by the Australian legal system, in Criminal Law, if a court finds that a person has committed a crime that court may order the wrongdoer to:

Pay a fine; Perform some sort of community services; Be placed under a good behaviour bond; or Spend time in prison

Commonwealth Parliament

State Parliament

Courts

Commonwealth Acts of Parliament

State Acts of Parliament

Precedents

Commonwealth Statute Law

State Statute Law Common Law

In Civil law, if a court finds that person A, has negligently crashed his car into person B’s car, the court can order person A to pay damages –usually in the form of financial compensation – to person B.

Statute & Common Law:

Australian Law falls into 2 classifications: Statute Law & Common Law

Statute Law Common Law Is the legislation created by parliaments Also called statutes or ACTs Also includes delegated legislation made

with the authority of parliament, e.g. regulations and by-laws

Can be classified into 2 sub-categories according to its effect:

1. Public Law: this classification affects people as a community and involves the state

2. Private Laws: this classification is concerned with disputes between individuals or groups and may involve the state

Laws made by judges when deciding cases

Describes the legal principles or precedents established and developed by the decisions of the various courts over a period of time

Also referred to as precedents case law or judge-made law

Statute law overrules common law.

Commonwealth and State Law:

At federal level, federal bodies take care of all areas considered to be national matters including interstate trade, customs, immigration, and defence.

At state level, state bodies address matters that affect the particular state or areas within the state such as education, transport, health and local government matters.

Federal & State Levels

Parliaments

Government

Laws

Law Enforcemen

Courts

Legislation created by the parliament of the Commonwealth of Australia is called Commonwealth or Federal Law. It applies throughout Australia in all states and territories. Legislation created by any state parliament is called state law and only applies to that state.

Criminal & Civil Law:

Criminal Law:

A crime is an act that is harmful to society.

Criminal law is concerned with behaviour that not only affects the individuals, but also affects the welfare of the community as a whole. In Australia, both commonwealth and state parliaments legislate in the area of criminal law.

Commonwealth Criminal Law: Smuggling Defrauding social services or The taxation office

State Criminal Law Murder Kidnapping Theft Fraud Assault Driving offences

Indictable Offences:

Major indictable offences:- Are serious criminal offences heard by a judge and a jury in superior courts i.e.

supreme and district court- E.g. murder, robbery, rape

Minor Indictable offences:- Offences which give the defendant the right to apply for the matter to be dealt

summarily in the Magistrates’ Court

Summary Offences:

Most common criminal offences Less serious crimes Heard at the lowest level court, i.e. the Magistrates’ Court, and are heard by a magistrate

and not by a judge and jury E.g. traffic offences

Criminal responsibility can be proven if two (2) elements are present:

Mens Rea: means that the evidence against the accused shows that he/she had the intention to commit the crime

Actus Reus: refers to the actual act of committing the crime

Both need to be present and proven in most crimes, however in strict liability offences, it is only necessary to prove actus reus.

The Structure of Parliament:

Australia has a national or federal parliament as well as state and territory parliaments. Parliament is the supreme law-making institution in Australian society. Parliament in Australia is based upon the Westminster system, which is made up of 2 assemblies of people called houses. This system is known as a bicameral system and consists of 2 houses.

- Lower house- Upper house- E.g. NSW, VIC, SA, WA, TAS

Unicameral system is that which contains only 1 house. E.g. QLD, NT and the ACT.

Commonwealth of Australia Constitution Act 1900 (UK)

Constitution Act 1902 (NSW)

Houses of Parliament:

House of Review (upper house) – main function is to review bills that have been passed from the lower house

House of Origin (lower house) – house which introduces 90% of all bills, main function of lower house is to form a government which is ‘representative and responsible’’. They may also amend or repeal legislation, establish committees to investigate and report on important issues, and scrutinise delegated legislations.

Court Hierarchy:

High Court of Australia: - Est. in 1901 by the Commonwealth of Australia Constitution Act 1900 S71- Located in Canberra, - High Court Registries in Sydney and Melbourne; where matters are heard by

officers of the High Court and The Federal Court officers hear mattes on behalf of the High Court Registry in Adelaide, Brisbane, Darwin and Perth and in Tasmania the supreme court officers hear matters for the High Court Registry

- Decisions are binding on all courts - Main function to interpret and apply the laws of the nation- Hears cases of national significance such as disputes involving the constitution and

appeals by special leave from Commonwealth, State and Territory Courts- 7 justices, 1 of which is the Chief Justice - No jury - Justices are appointed by the Governor –General-in-control on the advice of the

Prime Minister and the federal Ministers

- 2 Jurisdictions:1. Original jurisdiction Set out in Commonwealth Constitution S73, 2. Appellate jurisdiction S75, S76 and Judiciary Act 1903 S30-35a

The Federal Court of Australia:- Federal Court of Australia Act 1976 (Cth) - 2 jurisdictions: original and appellate- CJ is a senior judge with many years of experience in Commonwealth Law, they

are responsible to maintain order in the court and discharge matters as quickly as possible

- 1 judge presides over the courts original jurisdiction and 3 are required to preside over its appellate jurisdiction

- There is no jury The Family Court of Australia:

- Family Court Act 1975 (Cth)- 90% of applications lodged to be heard in the Family Court are settled outside of

court through ARD methods- 2 jurisdictions: original and appellate

The Federal Magistrates Court:- Federal Magistrates Court Act 1999 (Cth) - 2 jurisdictions: original and appellate- Concurrent jurisdiction with Family Court and the Federal Court

Strengths and Weaknesses of the Courts:

Strengths:- Trials: structure and rules of evidence for trials given ordinary members of the

community the opportunity to present their cases and to defend themselves. The jury system ensures that people are tried by their peers

- Doctrine of Precedent: allows for uniformity and consistency in the laws made by courts, therefore promoting justice. The multi-level court system ensures that lower courts follow precedents set by higher courts in cases that have life facts and similar circumstance, without this court hierarchy, the only possible system would be one-level court system, meaning that each court could apply different sanctions for similar crimes and use a potentially inconsistent set of legal principles. Without it there would be flaws in the legal system and that would lead to injustice, causing the community to lose faith in the legal system

- Community Involvement: the courts allow the participation of ordinary members of the community in the law-making process through jury duty

- Specialisation and expertise: court hierarchy allows for some courts to special in certain areas of law and aim to become experts in those areas

- Appeals: system allows for cases to be reviewed where the parties are dissatisfied with a particular outcome. This allows for the higher courts to monitor the decisions of the lower courts

Weaknesses:- Costs: costly process which can deter people from resolving disputes using the

court system

- Delays due to appeals: besides the many advantages, they can take a long time for cases to be heard on appeal

- Judges are not elected by the community: judges are chosen by the government of the day, to a certain extent the appointment of a judge is influenced by their political views. Magistrates also have to apply to the government of the day

- Binding Precedents: Lower courts must follow the precedents of higher courts and at times are forced to apply precedents which may be outdated, however, lower court judges may express their disapproval of judgements they are obligated to follow due to precedents with which they do not fully agree in the hope that the law may be changed at some time in the future either by the courts or by parliament

- Rigid Court Procedures: although having strict rules of evidence provides consistency and uniformity, court procedures can be very complex and technical. This can exclude and discourage some members of the community from participating in the legal process

- Alternative Dispute Resolution Bodies: the courts are not the only place where parties can be settle disputes, there are other ways which may be better such as commissions and tribunals

Alternative Dispute Resolution:

Arbitration:- Less formal- Parties agree to be arbitrated by a third party in a private tribunal- Arbitrator assists the parties to settle their dispute and reach an agreement - Agreement may be optional on compulsory depending on the nature of the

dispute Mediation:

- Involves a third party – called the mediator - Mediator brings the 2 disputing parties together and assists them by isolating the

issues that may be causing the dispute and exploring options that may be available to help settle the dispute

- A good mediator will emphasise cooperation, they often present all the options available to the parties and then assist them in finding their own solutions

- Mediators role is not to suggest possible solutions but to help the parties to determine their own final agreement and to settle their dispute without embarking on expensive litigation in the courts

Conciliation:- An alternative to litigation- Conciliator is employed to help the disputing parties to reach an agreement in

accordance with the relevant legal principles- Similar to mediation - However the conciliator presents the parties with options and makes

recommendations to the parties to help them settle their dispute- Conciliator does not force the disputing parties to reach agreement, and any

decision(s) reached in the conciliation process is not binding

Doctrine of Precedent:

Courts make laws through the development of principles established in past decisions and this is referred to precedents

Allows courts to use past decisions, or precedents, in order to treat cases with similar circumstances and like facts in a consistent manner

Can be created in one of the following ways:- Novel case exist: where there is no pre-existing statute or common law principle

relevant to the case at hand, the judge will make a decision (this decision is referred to variously as: a precedent, a court-made law or judge- made law)

- Developing precedent: where no statute law exists and the common law principle is out of date, i.e. no longer good law, the court will establish a new precedent for the case at hand

- Statute law exists: words or sanctions of the statute are unclear or uncertain and the court has to interpret then and apply them to the case at hand. The court interpretation becomes precedent that is applicable only to those words, sections or parts of that particular Act.

Binding Precedent:

Is set when lower courts are bound to follow the decisions of higher courts in the same hierarchy, where the facts of the case are similar

2 prerequisites: both courts must be from the same court hierarchy, and both cases must be similar

The high court of Australia if the only court that does not have to follow binding precedents because it is already the highest court in the country

Persuasive Precedents:

Don’t have to be followed Used as a guide or reference by courts Arise in 3 instances:

1. When decisions are made by lower courts, they are not binding, can be used by higher courts

2. When decisions are made by courts at the same level in the court hierarchy, not binding

3. When decisions are made by other courts outside the hierarchy of the court using the persuasive precedents, can come from courts overseas (UK, USA, NZ, etc.)

Changing and Updating Precedents:

There are 4 ways precedents can be changed:

1. Overruling: occur when a higher court decides that a precedent –est. By a lower court in the same hierarchy where there are like facts and similar circumstances –is no longer appropriate and over turns it.

2. Reversing: involves one case and is only used in appeals, an appeal is a review of an earlier judgement. If a decision is appealed to a higher court, the higher court may set aside the precedent est. In the earlier court, thus reversing the decision.

3. Distinguishing: occurs when the relevant facts of an earlier case are not similar enough to be followed in a later case. The judge points out the difference in facts between the earlier case and the case under consideration.

4. Disapproving: a judge may express an unfavourable or disapproving opinion about a precedent that was set in an earlier case. The judge cannot overrule the precedent if it was est. In a higher court but would have to follow it as it would be a binding precedent.

Ratio Decidendi:

Latin term Is the part of a judgement that makes a precedent binding It is often referred to as ratio It is the judges legal reasoning for reaching their decision or the principle that is est. In the

case It is the part of the precedent which indicates the legal, moral, political and social values the

court has used to est. The underlying principles of a specific judgement Case may contain more than one ratio which may be cited as a precedent in various legal

area Lower courts must follow the ratio Decidendi est. in higher courts Can sometimes be difficult to identify E.g. Donoghue v Stevenson [1932], the House of Lords decided that the manufacturer had to

compensate Mrs Donoghue for loss and suffering. The reason, ratio Decidendi, was that Mrs Donoghue, as a consumer, was an owed a duty of care by the manufacturer.The principles applied in a case can be extended in a later case, for example, the principle est. in the Donoghue v Stevenson case, that manufacturer owes a duty of case to their consumer, with extent in the case Hedley Byrne v Heller to include liability for service providers when giving false information and advice as part of their service.

Obiter Dictum:

Latin term, obiter dicta in the Latin plural – is often referred to as ‘a statement or statements said by the way’

Refers to the comments, opinions and observations made by the judge throughout the judgement

Statements are only persuasive and can be influential in other cases This part of the precedent is not the ratio decidendi

Ratio Decidendi: Reason for the decision Binding to lower courts

Obiter dictum: Comments made by the judge Persuasive to all courts

Persuasive to higher courts and courts of equal standing

Where there is no law the ratio becomes a new precedent

May be used as a guide to future cases

Statutory Interpretation:

One of the main functions of the courts is to apply statutes or acts to particular cases Also often required to interpret acts before determining their proper application Number of common law rules have been est. to help judges to interpret statutes, Acts of

parliament by identifying the true meaning of laws by using the common law rules More than one rule may be applied to interpret an Act

Common Law Rules:

Used by judges to assist them statutory interpretation 4 common law rules used to interpret legislation:

1. Literal Rule:- Used to interpret words of the Act as it is written- Can use dictionaries to identify the meaning of particular words- However, the courts need to ensure that the meaning given to the words are in

context with the other sections of the Act- E.g.

2. Golden Rule:- Is used when the literal rule would result in an inconsistent or illogical outcome, or

when the literal rule is inconsistent with the purpose of the Act- Considering this rule, a more lenient definition is applied by taking into

consideration the circumstances and the purpose of the Act

3. Purposive Approach Rule:- Also called the mischief rule- Applied when the literal rule has been applied but the outcome is till ambiguous- Applied to determine the real purpose behind the act, the wrong that the law is

trying to prevent- Judges must determine the Act’s intention and apply it strictly to the case at hand - E.g. road regulations provide that when driving a motor vehicle, the alcohol level

in the blood stream should be below 0.05. if someone was driving a lawn mower on the road with a blood alcohol reading over 0.05, should they be charged with drink driving . The following question arises: Is a lawn mower a motor vehicle?

- Using the literal rule the lawn motor would not be considered a vehicle, however if the mischief rule is applied, the idea that legislation was trying to prevent people with high levels of from causing an accident and if we consider the intention then the lawn mower should be considered a motor vehicle

4. Class Rule:

- Refers to words that can be grouped together and labelled under a general term- E.g. Public Places refers to; Parks, libraries, car park, public toilets, public schools

Judges use these together with the guidelines of the Interpretation Acts

Interpreting Acts:

Courts have the power to interpret Acts Commonwealth level: Acts Interpretation Act 1981

- Each act passed after 1981 contains objective clauses in each section of the Act- Judges are asked to use those objective clauses to identify the aim of the

legislation under consideration- Commonwealth Acts are to be interpreted in accordance with their objective

clauses- Courts should consult intrinsic: includes all part of the act such as definition tables

& extrinsic materials: includes a variety of external resources such as: explanatory memoranda for the Act, Minister’s speeches to Parliament, committees of inquiry, the Law Reform Commission and parliamentary debates

State Level: courts interpret acts of parliament by applying the following guide:- Courts should interpret legislation in accordance to the purpose of the acts- The legislation allows courts to use extrinsic materials including: explanatory

memorandums, parliamentary debates- Courts should apply the definitions of commonly-used terms included in the above

Interpretation Acts

State/ Territory: NSW VIC

QLD SA WA TAS ACT

NT

Legislation: Interpretation Act 1987 Interpretation of the Legislation

Act 1984 Acts Interpretation Act 1954 Acts Interpretation Act 1915 Interpretation Act 1984 Acts Interpretation Act 1931 Interpretation Act 1967

Legislation Act 2001 Interpretation Act 1978

- Prior to the enactment of these acts, judges used general common law principles – called legal maxims – to interpret legislation

- Some of these Maxims, such as ejusdem generis, are still used today - Ejudem generis – which in Latin means ‘of the same kind’ – means that one word

can describe a number of individual items. E.g. housing can be used to describe a flat, unit, a house or a bungalow

Judges have the responsibility to identify the purpose of an Act before applying it to the case at hand, thus the court must ask ‘’what was parliament’s intention when passing this piece of legislation? What was the misbehaviour or wrong that parliament intended to control?’’

Reasons for interpreting acts of parliament:- Particular words of acts may be vague or unclear;- The acts may not clarify all future applications;

- The acts may not clarify the intention of parliament

Problems associated with Statutory Interpretation:

Difficulties in identifying the ratio decidendi; Difficulties differentiating between the ratio decidendi and obiter dictum; The fact that each precedent may have more than one ratio decidendi; The fact that, although cases may be similar, it is unlikely that they are identical; and The constraint that judges may be bound to follow decisions although they may lead to

unjust outcomes

The Adversarial System:

Trial System in Australia:- 2 Parties to a dispute present their case to a neutral third party called a judge- Judge has the role of umpire, adjudicating on the issues presented by the

disputing parties in the criminal and civil jurisdictions of the court- The judge ensure that the strict rules of evidence are applied in every trial

Role of the judge:- Is an official who presides over a court- Qualified lawyer who has practised for an extended period- Umpire, supervise and ensure that the parties to a trial have acknowledged and

are following the rules of evidence and procedure- Judges also have specific responsibilities, such as assessing whether certain

evidence is admissible Accused persons criminal history, prior convictions and the opinions of others who are not ‘experts’ in the field

being discussed- Judges may ask the jurors not take the evidence into consideration when deciding

upon a verdict- Judge has the responsibility to ensure that the parties follow the strict rules of

procedure in criminal and civil trials- In trials the judge will sum up all the evidence presented during the trial before

asking the jury to retire to consider their verdict –during the summing up process, the judge will explain the elements which must be established to prove guilt (criminal cases) or liability (civil cases) before the court

- Ascertaining the relevant laws that apply to the case at hand;- Ensuring that the rules of evidence and procedure are followed by all parties;- Charging, i.e. instructing, the jury;- Deciding on questions or points of law and making relevant decisions;- Being impartial when addressing the jury;- Ensuring that the burden of proof has been fulfilled;- Passing sentence in a criminal case where the jury has returned a guilty verdict;- Assessing the level on damages to be awarded in civil cases;- Deciding on questions of fact and law;- Discharging the jury when their role is complete; and

- Hearing appeals ( usually 3 or more judges hear appeals) Role of the jury:

- Any person registered on the electoral roll is eligible to serve as a juror- Anyone over the age of 18- An Australian citizen- Ordinary members of the community who sit in trials- In a Criminal Trial:

Role is to ascertain the facts and establish whether the accused is guilty of the crime as charged

- In Civil Trial: Role is to ascertain the facts and decide on issues being disputed

between the plaintiff and the defendant - Jury duty is compulsory; however there are some people who may be exempted

from jury duty - Jurors are selected randomly from the electoral role- Persons selected will receive a summons; a document requiring them to appear at

a particular court, at a particular time and place for a specific purpose, - Summons are usually served 2 weeks before but must be served at least four days

prior to the time specified for jury duty- People who don’t attend are committing an offence and can be penalised- It is also an offence for jurors to leave the court prematurely or without being

officially discharged - Prior to a trial, jurors must be informed of the following:

o The action or charge;o The name of the party or parties;o Names of key witnesses expected to be examined;o The estimated duration of the trial; and o Any other relevant information

Emplacement of the Jury:- Criminal Trial:

o Judges associate will read the charges to the accused and the accused will plead either guilty or not guilty

o Then the empanelment, i.e. selection of the jury occurs from the jury pool; the sheriff has a set of cards with the name and occupation of each juror

o The 27 cards are placed by the associate in a ballot box and then 12 draws cards from the box one by one at random

o Challenging stage now occurs; where potential jurors may be challengedo Both prosecution and defence can challenge a juror by calling out

‘’challenge’’ when the jurors name is called outo Numbers of peremptory challenges, i.e. without a reason are limited and

challenges for reasons acceptable to the judge are acceptable, is unlimited

o Those whose names have not been selected from the jury pool to be a part of the jury go back to the jury room to potentially be selected for another trial the same day

o After this process, the remaining jurors who have not been challenged are asked to take an oath or affirmation

- In a criminal trial; only 17 cards are put into the ballot and 6 are drawno The associate makes a list of the names and passes it to the plaintiff’s

lawyer who may cross out 3 names and then to the defendant’s lawyer who may cross off another 3 names and the remaining 6 jurors are then called to the jury box

- After this process the judge asks the jurors to elect a foreman or forewoman who will ensure that all members of the jury understand the proceedings, if there are any queries this person will clarify these with the judge

Category Reason for exclusionDisqualified Convicted criminals who have served 3 or more years in

prison Individuals who are on parole or other sentencing order Individuals who have been imprisoned for three or more

months in the past 5 years Individuals who are undischarged bankrupts

Ineligible People may have difficulties reading, speaking or writing English

People who are intellectually challenged or suffer from a mental illness

People who have links to the legal system such as lawyers, ministers

People who are members of the essential services such as fire and ambulance

Excused Individuals who live more than 60km from the court where they have been called for jury duty

Professions who cannot leave their job for a prolonged period of time, e.g. accountants, dentists and doctors

Other reasons such as illness, pregnancy, childcare or being the carer of aged or ill person

Temporary exemptions

Individuals travelling interstate or overseas Students sitting for exams

Role of the Jury in a Trial:- Judge first explains appropriate points of law to the jury and answers or any

questions are answered – referred to as charging the jury- Jury may be asked to leave the courtroom while the lawyers make any

clarification with the judge on legal points, jurors may also be taken to view things or places that relate to the case at hand

- Important role is to deliberate, jury has retired for deliberation, meaning the jury has been given time to consider the evidence presented and to decide on a verdict

- Jurors must try to be impartial and to respect comments made by their fellow jurors

- Decision must be made in accordance with the evidence presented during the trial and in accordance with the judge’s instruction in relation to the law(s) that apply to the case

- Burden of proof is different in criminal; jury can only pass a verdict of guilty if they are satisfied that the prosecution has proved its case beyond reasonable doubt and civil cases; jury must decide the issues of fact on the balance of probabilities

- When the jury reaches its verdict, the foreman or woman announces the jury’s verdict to the judge and usually the jurors are discharged

- In a guilty verdict the judge will decide on a sentence or sanction in a criminal case or a remedy in a civil case

Criminal Law:- Prosecution: the crown is the party that brings an action against the defendants - Burden of proof rests with the prosecution, they have the onus to prove beyond a

reasonable doubt that the accused committed the crime they have been charged with

Civil Law:- Plaintiff = the person who brings the matter to court- Plaintiff needs to show that they were wronged and as a result have suffered a

damage which was caused by the defendant - The plaintiff has the burden to prove that the defendant, on the balance of

probabilities, has violated their rights - If successful, the plaintiff seeks to be remedied by the court- Remedies are usually the form of financial compensation

Appeals:- Plaintiff or the defendant may appeal an original decision - Person lodging an appeal is called the appellant - the person responding to the appeal is called the respondent

Role of Legal Representation: - Solicitor is a qualified general practitioner who gives legal advice to clients

In matters where the client wishes to take legal action the solicitor will instruct a barrister, but will not represent the client in court

Solicitors may represent clients in the magistrates court - local courts- A barrister is an advocate in court

Barristers go to court to defend clients in accordance with instructions given by a solicitor

Not only general practitioner but also specialists in certain areas and may even practice in specific areas of the law

Every year a number of barristers become Queens Councils (QC’s) or Senior Councils (SCs)

Usually practice for a number of years as solicitors then complete a course called the Bar Readers Course before being admitted to the bar roll, which is an official list of all barristers

- Parties can present their own case without legal representation

- There is legal aid for those who wish to have legal representation but cannot afford it

Rule of Evidence:- Is comprised of all the facts presented in court, including statement, records and

testimony - There are 2 categories:

1) The control of the admission of evidence, i.e. the type of evidence permitted to be presented in court; and

2) The control of how the evidence may be used in court- Main purpose of the law of evidence is to govern the use of testimony

State/ Territory: Legislation: NSW VIC QLD SA WA TAS ACT NT

Evidence Act 1995 Evidence Act 1958 Evidence Act 1977 Evidence Act 1929 Evidence Act 1906 Evidence Act 2001 Evidence Act 1971 Evidence Act (Under Review)

Rules of Procedure:- Ensuring that the court operates in a controlled and orderly manner - Determines what happens in civil or criminal proceedings

Foundations of Australian Law, Fourth Edition, Callie Harvey, published by: Tilde Publishing and Distribution, VIC, in 2013.