Sources of Australian Contemporary Law

Australia’s legal system is based on an adversarial system of trial

in an adversarial system, the parties to a court case are opponents who must prove their version of events to ‘win’ the case - the judge is only an impartial observer

Adversarial and Inquisitorial Systems

in an inquisitorial system, the judge is actively involved in asking questions, calling evidence and determining the case

Wood Royal commission used an inquisitorial system

Australia imported common law from

England when the country was settled by

British colonists

over time, Australia developed its own

system of courts and law as it became

independent from Britain

Common Law

‘Precedent’ is the basis of Australia’s system of common law when a court decides a case, the reason for the decision can become a precedent for future cases in this way the law develops a body of case law that is applied in future judgments this is sometimes known as ‘judge-made law’

The Doctrine of Precedent

courts are bound by precedents, and lower courts will be bound by the decisions of higher courts – this is known as binding precedent

when a court is not bound by another court’s judgment it can still be influential – this is known as persuasive precedent

Two important terms◦ Ratio Decidendi – the legal reason why a judge

came to a particular decision◦ Obiter Dicta – comments from a judge in a case

that are not directly relevant to the case (there not legally binding)

Judge making a decision

Go to my website for extensive information

Court Hierarchy

http://year11-legalstudies.wikispaces.com/The+Court+Structure

Local Court (Magistrates Court) most criminal cases

begin here presided over by

magistrate (no jury) deals with summary

matters no appellate jurisdiction committal proceedings

regarding serious matters to determine whether a prima facie case exists

coroner ensures all deaths, suspected deaths, fires and explosions which come under the his/her jurisdiction are properly investigated

inquisitorial approach◦ Video: http://www.youtube.com/watch?v=

RT3iPXklKK0

Coroner’s Court

is a closed court presided over by Magistrate (no jury) rehabilitation is the primary purpose of

sentencing◦ Video: http://www.youtube.com/watch?v=

FKBki73KnMU

Children’s Court

Specialised court enforcing environmental law

Concerned with environmental planning and offences

Land and Environment court

has appellate jurisdiction from Local Court –

presided over by a judge trial by jury or judge along deals with serious criminal (Indictable)

offences◦ Video: http://www.youtube.com/watch?v=

41UWqMyMSVI

District Court

has appellate jurisdiction from District Court and Local Court

highest court in NSW (deals with most serious criminal offences e.g. murder, attempted murder

hears bail applications presided over by judge

trial by jury◦ Video: http

://www.youtube.com/watch?v=bsWB8QmGJgs&playnext=1&list=PL8CDAD32EB1A64C76

The Supreme Court of NSW

has appellate jurisdiction from District Court and Supreme Court◦ Grounds for appeal include:

challenging a conviction involving a question of law

questions of fact, mixed questions regarding sentence severity or adequacy

The court of Criminal Appeal

To Relieve press on other federal courts It does not deal with criminal matters This court has been dissolved

The Federal Magistrates Court

Deals with industrial matters and bankruptcy

Deals with civil matters (except family matters)

The Federal Court of Australia

Complex family matters – Divorce, parenting orders, division of property

The Family Court of Australia

Deals with appeals from the federal courts and state supreme courts

Cases involving the interpretation of the Australian constitution◦ Video:http://www.youtube.com/watch?v=

lXxyTLbZNgw

The High Court of Australia