1.1a Davenportparker - Chap01

CHAPTER 1 The Australian Legal
System
2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

PowerPoint slides to accompany Davenport & Parker Business and Law in Australia 2nd ed 2015
Object of lecture
By the end of this lecture you will be able to:

explain the federal constitutional system in Australia
identify the main approaches to statutory interpretation
identify the courts in the Australian legal system and describe their hierarchy
explain the doctrine of precedent and how it operates in the court system
explain the classification of law and legal proceedings
explain the court process and alternative ways of resolving disputes

Overview
The Australian Constitutional System

Sources of law
The main approaches to statutory interpretation
The doctrine of precedent and how it operates
The courts in the State and federal court hierarchy
Alternative ways of dispute resolution
Classification of law
Legal proceedings
What is Law
Complex system of social control that is necessary
for the society as a whole to function. It is a
regulatory tool and tells people what to do and
what not to do
Commercial Law: Law that determine rights and
obligations of people involved in business. Focus
on sale and distribution of goods
Business Law: Focuses on other aspects of
business like forming a Company or M & A
What defines responsible citizens?

Features of Law
Certainty
Flexibility
Fairness
Capability of being known
Equal application to all
Purpose of Law: Maintain peace, Establish moral

standards, Regulate relationship between
members
Australia consists of:

a federation consisting of a central government (ie the
federal or Commonwealth government) whose powers
are found in the Commonwealth of Australia Constitution
Act 1900; and
a number of States and Territories (each of whom has
its own constitution)
The only powers possessed by the Commonwealth are
those transferred to it by the States in the 1890s which
appear in the Commonwealth Constitution.
separation of powers
S e p a r a tio n o f P o w e r s
C o m m o n w e a lth
C o n s tit u tio n
T h e L e g is la tu r e T h e E x e c u tiv e T h e J u d ic ia r y
( T h e b o d y w h ic h m a k e s t h e la w s , ie ( T h e b o d y w h ic h h a s g o v e r n in g p o w e r , ie ( T h e c o u r ts w h ic h in t e r p r e t
P a r lia m e n t) t h e C a b in e t ) a n d e n fo r c e t h e la w s )

Constitutional Powers
The Commonwealth holds most powers concurrently (eg s 51 lists 40
subject matters) with the States:
they can be exercised by either the Commonwealth or the States,
however if the Commonwealth and a State(s) make laws on the same
subject matter, the Commonwealth law prevails to the extent of the
inconsistency (s 109)
The Commonwealth has a limited number of exclusive powers which

can only be exercised by the Commonwealth, eg to impose customs
and excise (s 90)
The remaining powers (residual powers) are held by the States

The Australian Constitution
Some of the more important powers relevant to business include:
trade and commerce with other countries and among the States (s 51(i))
taxation (s 51(ii))
postal and telecommunications (s 51(v))
interstate banking and insurance (ss 51(xiii), 51 (xiv))
bills of exchange and promissory notes (s 51(xvi))
bankruptcy and insolvency (s 51(xvii))
copyright, patents, designs and trade marks (s 51(xviii))
the corporations power (s 51(xx))
external affairs (s 51(xxix))
settlement of interstate industrial disputes (s 51(xxxv))
duties of customs and excise (s 90)
free trade between the states (s 92)
Rule of Law
Law must apply to citizens equally and consistently

Legislators make the law and must not judge it or
enforce it
The executive who enforce the law must not make the
law (arbitrarily)
Note that there are many exceptions to these principles,
ie courts do in fact develop the common law and
interpret statute. However, in principle it represents a
balance between the powers, and ensures some
check and balance against a misuse of power.

Sources of Law
S o u r c e s o f la w
in A u s tr a lia
S ta tu te L a w Com m on Law
( A c ts o f P a r lia m e n t a n d ( J u d g e - m a d e la w , ie
d e le g a t e d le g is la t io n ) d e c is io n s o f c o u r t s

Sources of Law Statute Law
Statute law or enacted law is made by Parliament and may be:

new laws;
repeal of earlier laws made by Parliament; or
codification of the law, eg the sale of goods by sale of goods
legislation
Delegated or subordinate legislation is made under the
authority of an Act of Parliament, eg powers to given local
governments under State local government legislation to
make local laws
Process of passing a bill or Law: A Bill passes through three
readings in both houses before it becomes an act

Statutory Aids to Statutory Interpretation
Because a statute is a written document, its meaning has to
be ascertained by those who enforce it and by those who
have to comply with it
Statutory aids that assist in interpretation include Acts

Interpretation Acts;
a direction in the Commonwealth and State Acts Interpretation
Acts to adopt a purposive construction of the statute, ie
giving meaning to the words to effect the intended purpose;
a direction in the Commonwealth and State Acts Interpretation
Acts to allow use of extrinsic materials, eg Parliamentary
debates, Committee reports Reports which prompted law

Common Law Rules to Statutory Interpretation
In addition to the statutory aids, the courts have developed a

number of common law rules of statutory interpretation:
the literal rule - the courts must give words their natural,
ordinary and grammatical meaning
the golden rule - where a literal reading would give rise to an
absurdity, the court may modify an ordinary (Literal) meaning
the mischief rule - if a literal interpretation is not possible
because of an ambiguity or inconsistency, the court may have
regard to the original purpose or policy underlying its
enactment, ie what mischief did it intend to remedy

Sources of Law The Common Law
The other important source of law is common law and may

refer to:
judge-made law as distinct from laws made by Parliament
common law as distinct from equity; or
the common law system (as practised in Australia) as
distinct from the civil law system (as practised in most
European and Asian countries)
The term common law generally refers to principles of law

arising from decisions of judges
Equity emphasises fairness and justice and prevails in the

event of a conflict with the common law

Common Law and Precedent
The decision of judges in courts of record are published in law

reports and form the basis of precedent
Precedent may be:

binding - where the decision of a court (the ratio decidendi) in a
decided case binds courts lower in the same court hierarchy in
deciding cases of a similar nature; or
persuasive - which arises in cases of a similar nature which were
decided:
in another court hierarchy;
at the same level; or
in a lower court in the same hierarchy

Ratio decidendi and obiter dicta
A judgment contains two important legal principles:

ratio decidendi (the reason for deciding the case) which is the
source of binding precedent on lower courts in the same hierarchy
obiter dicta which are other statements of the law made in a
judgment which are not relevant to the decision but can be
persuasive precedent

Hierarchy of State and Federal Courts
Figure 1.4

The Federal Courts
Federal Circuit Court:
shares jurisdictions with the Family Court and the Federal Court over matters
including family law, bankruptcy, consumer matters (CCA) (up to $750,000)
and administrative law
Federal Court of Australia:
has both an original and appellate statutory jurisdiction;
has jurisdiction over matters such as federal tax, consumer matters (CCA),
bankruptcy, intellectual property;
appeals can be made to the Full Court of the Federal Court (3 judges) from:
a single judge of the Federal Court;
the Supreme Court of the federal Territories; or
the Supreme Courts of the States exercising federal jurisdiction
is a court of record, ie can create precedent

The Federal Courts
The High Court:

highest court in Australia and final court of appeal;
limited original jurisdiction, eg to hear constitutional questions,
matters affecting foreign affairs and legislative powers of the
Federal Parliament;
appellate jurisdiction (where leave to appeal has been granted)
relating to:
appeals from the Supreme Court of any State;
any federal court;
is not bound by its own previous decisions;
is a court of record, ie can create precedent

Hierarchy of the State Courts
Local or Magistrates Courts (inferior courts):

have limited original statutory jurisdiction in civil and criminal matters
in their civil jurisdiction, hear a wide range of minor disputes up to a certain
monetary value including claims:
arising under contract;
for compensation for minor accidents
debt claims
in their criminal jurisdiction they deal with:
minor offences (summary offences);
conduct committal proceedings for more serious criminal cases
(indictable offences); and
can sit as a childrens court and a coroners court

The State Courts
District or County Courts (intermediate courts):

not found in Tasmania, the ACT or Northern Territory
have original and limited appellate statutory civil and criminal
jurisdiction
Supreme Courts (superior courts):

have unlimited original statutory jurisdiction in civil and criminal
matters (but generally only hear the more serious matters)
have an appellate jurisdiction (usually 3 judges)
NSW, Queensland and Victoria have a separate Court of Appeal
are a court of record, ie can create precedent

Quasi-judicial Bodies
A number of quasi-judicial bodies exist in all jurisdictions in

addition to the courts. Some of the more important include:
at Federal level:
the Administrative Appeals Tribunal (AAT);
the Australian Competition and Consumer Commission
(ACCC) and Australian Competition Tribunal (ACT);
the Australian Industrial Relations Commission;
at State level perhaps the best known are:

Small Claims Tribunals

Law Reports
Decisions by courts of record are reported in official law

reports which record the facts, the decision, the law and
the legal reasoning of the courts.
When a case is reported it is given a citation which informs the

researcher where to find the law report, eg Donoghue v
Stevenson [1932] AC 562
Note the increasing use of the internet with some reporting

services only using an electronic means of reporting a case,
eg FCT v Students World (Australia) Pty Ltd 78 ATC 4040

Alternatives to the Court System
Commercial arbitration:
governed by Commercial Arbitration Acts in all jurisdictions;
a dispute is referred to an independent third party selected by the
parties or their nominee;
an arbitrator can conduct the proceedings in any matter s/he
thinks fit and is not bound by the rules of evidence;
after hearing all the evidence, the arbitrator will make an award
which is final and binding unless the arbitration agreement states
otherwise;
legal proceedings are not prevented, rather arbitration is a
condition precedent to bringing them

Alternatives to the Court System
Alternative dispute resolution (ADR):
consensual resolution of a dispute by the parties with the
assistance of a third party and may be by:
Negotiation: Discussion b/w parties seeking mutual settlement
Mediation: Voluntary negotiation process which is used when parties are
unable to negotiate. Parties may seek a mediator for the same
Conciliation: Similar to mediation but independent third party has greater
power over outcome in mediation
independent expert appraisal: Dispute settlement through
independent third party
The growing importance of alternative methods of dispute

settlement has resulted in the growth of commercial dispute
centres, eg the Australian Disputes Centre

Classification of Law
Laws can be classified in a number of ways:
public law: relationship between government and the people; and
Criminal law
private law: relationship between private persons or organisations
Torts, Contract
substantive law: actual rights and duties under the law; and
procedural law: formal steps in the enforcement of rights and duties
civil law: the law under which a person (P) may sue another for a
wrong they committed (D); and
criminal law: an offence against the State which may result in
punishment for the offender

Legal Proceedings
Legal proceedings will be either:

criminal: where the Crown (R) has to prove beyond
reasonable doubt the guilt of the accused; or
civil: where the plaintiff must prove their case on the
balance of probabilities to win
The legal profession consists of:

solicitors - whose work is mainly non-litigious;
barristers - whose work is opinions and court appearances


1.1a Davenportparker - Chap01

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

1.1a Davenportparker - Chap01

Transféré par

Droits d'auteur :

Formats disponibles

CHAPTER 1 The Australian Legal

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

By the end of this lecture you will be able to:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The Australian Constitutional System

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Purpose of Law: Maintain peace, Establish moral

Australia consists of:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The Commonwealth has a limited number of exclusive powers which

The remaining powers (residual powers) are held by the States

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Law must apply to citizens equally and consistently

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Statute law or enacted law is made by Parliament and may be:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Statutory aids that assist in interpretation include Acts

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

In addition to the statutory aids, the courts have developed a

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The other important source of law is common law and may

The term common law generally refers to principles of law

Equity emphasises fairness and justice and prevails in the

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The decision of judges in courts of record are published in law

Precedent may be:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

A judgment contains two important legal principles:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The High Court:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Local or Magistrates Courts (inferior courts):

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

District or County Courts (intermediate courts):

Supreme Courts (superior courts):

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

A number of quasi-judicial bodies exist in all jurisdictions in

at State level perhaps the best known are:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Decisions by courts of record are reported in official law

When a case is reported it is given a citation which informs the

Note the increasing use of the internet with some reporting

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The growing importance of alternative methods of dispute

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Legal proceedings will be either:

The legal profession consists of:

2015 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Vous aimerez peut-être aussi