The Legal SystemSection 2: Sources of Contemporary Australian

Law

Hint: Common Law is based upon precedent which is handled through the courts (Judiciary)

Main Syllabus Points

How laws are made

Development of Common Law

• Australia adopted common law (judge made 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

British Origins

Medieval British Law

Reading Time

The Doctrine of Precedent

• ‘Precedent’ is the basis of Australia’s system of common law

• A Judgement made by a court that establishes a point of law

• When a court decides a case, the reason for the decision can become a precedent for future cases

• Following precedent is known as stare decisis

• 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

Development of Common Law

Reading Time

• The concept of equity(Fairness) was used in British law to develop a just outcome

• Remedies such as injunctions and specific performances were used to resolve disputes

• Equity was used when precedents failed to achieve justice

Equity

Case Law

Precedent vs Equity

Adversarial and Inquisitorial Systems

• 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

• 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

• 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 (they are not legally binding)

Court Hierarchy

• The official power to make legal decisions and judgments

Jurisdiction

• Most criminal cases begin here • Presided over by magistrate

(no jury)• Deals with summary matters• No appellate jurisdiction• Committal hearings regarding

serious matters to determine whether a prima facie case exists

Local Courts (Magistrates)

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

• Inquisitorial approach

Coroner’s Court

Coroners Court

• Closed court

• Presided over by Magistrate (no jury)

• Rehabilitation is the primary purpose of sentencing

The 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

• Deals with serious criminal (Indictable) offences

The 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

Supreme Court of NSW

Kelli Lane Case

• 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 NSW

• To relieve stress on other federal courts (Family Court)

• It does not deal with criminal matters

The Federal Circuit (Magistrates) Court

• Deals with industrial matters and bankruptcy

• Deals with civil matters (except family matters)

The Federal Court of Australia

• Est 1975

• 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

The High Court of Australia

Statute Law

Hint: Statute law is made by governments

Parliament video

• The Australian Constitution sets out the powers of state and federal parliaments

• Acts of Parliament are created to form legislation e.g The Family Law Act 1975

• All states except QLD are Bicameral, meaning two chambers or houses of parliament

• Federal: House of Representatives and Senate

• State: Legislative Assembly and Legislative Council

• Governments are elected on holding electorate seats not overall popularity

Structure of Parliament

A new parliament video

House of Reps Video

Legislative Process

• 1. Formulation Stage• 2. Drafting Bill Stage• 3. First Reading• 4. Second Reading• 5. Committee Stage• 6. Third Reading• 7. Royal Assent Stage• 8.Enactment

When a Bill becomes a Law

Senate video

Making a law video

• Legislation made by non-parliamentary bodies – delegated to subordinates (local council)

• Types:

• Regulations – Governor-General, State Governor

• Ordinances – Australian Territories

• Rules – Government departments

• By-Laws – Local Councils

Delegated Legislation

Council Bylaws

Hint: Local Councils are often given delegated legislation

The Constitution

Hint: Remember there are two types of powers in the Constitution: Division and Separation of

Powers

Click here for a video

• Prior to the Constitution, Australia consisted of six separate colonies under the British government

• The Constitution commenced on 1 January 1901 to create the Commonwealth of Australia

• It outlined the ‘division of powers’ between the Commonwealth and states

• The Constitution defines how power is divided between the Commonwealth and states to make laws

• Section 51 of the Constitution lists powers the Commonwealth shares with the states

• section 52 lists some exclusive Commonwealth powers

• section 109 says that Commonwealth laws will override any state laws if they are inconsistent

• matters not listed are considered ‘residual powers’ for the states

Division of Powers

• Legislative Powers – the legal power or capacity to make laws

• Concurrent Powers – powers held by state and federal parliaments at the same time

• Exclusive Powers – powers that can be exercised only by federal parliament

• Residual Powers – those remaining matters on which the state can legislate that are not referred to in the Constitution

Franklin Dam Case , Tasmania

• Why is the Tasmanian Dams Case important in understanding how the constitution operates?

• Which section of the constitution was used to make a judgment in this case?

Discussion time

Separation of Powers

• Legislature – which includes the lawmakers (i.e. parliament)

• Executive – includes the ministers and government departments who administer the law

• Judiciary – includes the judges and courts who interpret and apply the law

• In Australia, the legislature and executive are not clearly separated, but the Constitution ensures the judiciary is strictly separated from the non-judicial arms of government

Hint: Separation of Powers maintains the rule of law in a democracy

Click here

Role of the High Court

• The High Court of Australia is the highest court in Australia, higher than all other federal and state courts

• Originally, matters from state courts could still be appealed to the Privy Council in the UK, but this avenue was cut off with the Australia Act 1986 (Cth)

High Court Decision on same sex marriage

• The High Court is the highest court in Australia – its decisions are final and cannot be appealed

• Appeals can be made from state and territory supreme courts and from federal courts

• The High Court must grant leave to appeal before it will review a case – it only grants this in rare cases

Appealing to the High Court

Aboriginal and Torres Strait Islander Customary Law

• There was no single system of law between the groups, but there were many common aspects and many groups shared alliances

• Aboriginal and Torres Strait Islander law is based on tradition, ritual and socially accepted conduct

• For this reason it is known as ‘customary law’

Diverse nature of customary laws

• possession of land was a key principle in British law

• Indigenous cultures considered the land as sacred that could not be owned by any one person

Spiritual basis, significance of land and water

Hint: These areas are the main differences with British Common Law

• When the British settled in Australia, they made a legal claim under international law that the land was Terra Nullius, meaning ‘land belonging to no one.’

• Kinship refers to family relationships and extended family ties

• The law was heavily influenced from these strong links in the community

Family and Kinship

• Rituals were based on each individual clans interpretation of the Dreamtime

• Oral law was used, ‘word of mouth’ not written laws (This lead to the doctrine of Terra Nullius)

Ritual and Traditions

• Offences against tribal law, mediation and conciliation was used. For more serious offences the following were used:

Mediation and Sanctions

• customary law can sometimes be taken into account when an Indigenous Australian is charged with a crime e.g circle sentencing

• Indigenous elders can sometimes be consulted by those maintaining or enforcing the law

Relevance to Australian Contemporary Law

Circle Sentencing

• Should ATSI customary law be incorporated into the Australian Legal System?

• Is it fair?

• Should everyone be treated by the law equally?

Discussion Time

• International law governs the relationship between countries (known as states or ‘nation-states’)

• One of the main criticisms of international law is that it lacks enforcement

International Law

Main Syllabus Points

• Customary International Law - a written document, it is based on traditions and customs

• Treaties - the most common source of international law. They can be Bilateral and Multilateral

• International agreements are written and binding on the countries that sign and ratify them

Hint: Under International law terminology, ‘domestic law’ is used to describe the laws

passed by nation states

International Law

• 193 members

• 5 major organs of the UN

• Most important – General Assembly, Security Council and International Court of Justice

United Nations

United Nations

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Differences between Domestic and International Law

Hint: Very important concept to understand into Year 12

• Domestic Law - the law of the nation

• In order for International law to be effective, it must be adopted and ratified into domestic law

• For international law to become Australian law new legislation is usually required (enacted into domestic law)

• State Sovereignty of the Australian Government allows them to agree or decline areas of International Law

• E.g Kyoto Protocol

• The authority of a nation-state to govern itself without the influence of other sovereigns

State Sovereignty

Peacekeeping Forces

• UNSC controls peacekeeping forces

• Used to maintain peace in conflicts. Limited use of force

Sources of International Law

• One of the founding members of the United Nations, just finished on the UNSC 2013-14

• Also involved in peacekeeping operations (East Timor)

• International Law influences and amends Australian Law

Relevance of International Law to Australian Law