Copyright Guy Harley 2004 1 Introduction to Law Lecture 2.

1Copyright Guy Harley 2004

Introduction to LawLecture 2


Sources of Law

Written Law Constitution Legislation Delegated (Subordinate) Legislation

Unwritten Law Common Law Equity


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


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


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.


Sources of Law

Parliament The Courts

Equity Common LawFederal State

Contract LawUnconscionable Conduct

Promissory estoppel

Trade Practices Act

Fair Trading Act


Pecking Order

1. Legislation

2. Regulation

3. Equity

4. Common Law


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


The English Legal System

Adversarial System Civil

Plaintiff Defendant

Criminal The Crown The Accused


The English Legal System

Adversarial System (cont.) Decision makers

Jury Judge

Lawyers Solicitors Barristers


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


Criminal Cases

Minor Complaint Summary trial by magistrate Conviction Sentence

Serious Information Committal hearing Indictment Trial by judge and jury Conviction Sentence


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


Alternative Dispute Resolution

Negotiation Mediation Conciliation Arbitration Litigation Annihilation


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


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


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”


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))


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


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


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


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


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


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


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


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


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


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


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


Exclusive Powers

Social Security Customs and excise duties Defence Currency and coinage External Affairs Immigration Territories Communications


Concurrent Powers

Trade and commerce Taxation Banking Insurance Marriage and divorce Industrial relations Others set out in s51


Residual Powers

Powers never transferred to Commonwealth but

kept by States Education Health Housing Transport Law enforcement Environment and planning Emergency services Roads


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


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


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


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)


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


Precedent (cont.)

Persuasiveness depends on quality of decision jurisdiction of the court that gave the decision


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


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


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


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.


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


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


Citing Cases – Medium Neutral

Smith v Jones (2001) HCA 203, [20] Name of Parties Year of decision Court designator Judgment number Paragraph number


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.

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