1. Legal systems in Aus

Question 1

What is law?

Answer 1

Elizabeth Ellis: law is a means of ordering society and resolving disputes, law is also a means of telling a narrative or story

• needed to keep order
• conflict resolution
• equality and fairness
• justice

Question 2

Legal system

Answer 2

legal system: framework of rules and institutions that organise and regulate the activities of individuals with each other and the activities of states with its citizens

Australia’s legal system is founded on the concepts of the rule of law, equality before the law and justice

Question 3

Basic requirements of a legal system

Answer 3

• body of laws
• source with the power necessary to create and alter those laws
• institution or process with authority to administer and enforce laws

Question 4

Autopoiesis - law as a sub-system of society

Answer 4

• law is a sub-system of society as are social systems such as organisations, political system, economic system, religion, education, art and each sub-system has its own function
• Niklas Luhmann: German theorist is interested in internal workings of Law
• law: reproduces itself and contributes to reproduction of society, it also regulates itself
• law has a particular relationship with its surrounding environment
• the law is not politics and not the economy, not religion and not education; it produces no works of art, cures no illnesses and disseminates no news… (Luhmann, 1989) particularity maintained by its ‘self-referential closedness’
• self-regulating: it regulates its own regulation - only the law can say what is lawful and what is unlawful, and in deciding this question it must always refer to the results of its own operations and to the consequences for the system’s future operations. (Luhmann, 1989)
• law remains stable not because of what it achieves for society but because it runs its own affairs
  
  • strives for internal consistency
  • not entirely rigid but limits challenges
  • not answerable to external critique
  • self-reproducing
• goals of law:
  
  • protection: from the actions of our own or others
  • freedom of all members of society: states what we can do
  • systems to resolves disputes in society e.g. police force, correctional facilities, bailiffs
• research areas of law
  
  • socio-legal studies
  • legal studies: nature, character and power of law
  • sociology of law
  • empirical studies in law
  • jurisprudence: ‘science’ of law

Question 5

Law and society (sociology of law)

Answer 5

• dynamic relationship
  
  • law has an effect on society
  • society has an effect on law
• law does not exist outside society
  
  • it is a system within society
  • but is autonomous - it runs itself as a closed system

law reflects and impacts on (lies within) society

sociology of law

• evolution, stabilisation, function and justification of forms of social control
• nature of legal thought and reasoning and impact on particular social, political, economic setting
• how law’s nature, operation and impact are legitimated
• role played by law staff in social control
• how legal reasoning is identified and entrenched as ‘correct’
• how the individual is subject to law
• how law provides freedoms and restrictions

Question 6

Aus legal system

Answer 6

• common law as foundation of its legal system
• parliament: formation and debating of legislation, overrules common law in the same area of law
• courts: can make case law, historically primary source of law

Question 7

Civil law

Answer 7

• most common type of legal system
• does not recognise judges as sources of law, if there is a code - it is the only source of law
• absence of jury and complete separation of powers
• history:
  
  • originates in 6th century Roman law of Justinian
  • rejuvenated through 19th century Napoleonic civil code and impacted on continental European civil codes
  • spread through Spanish, Portuguese, French, Dutch, Ottoman Empires
  • decodification and growth of judge-made law in some areas e.g. torts and consumer protection in France and Germany
• law-making
  
  • function of the legislature
  • sources of law: legislation and regulations
• role of judges:
  
  • implements legal rules contained mainly in codes, statutes and regulations
  • investigative and inquisitorial role
  • only a civil servant

Question 8

Common law

Answer 8

• history
  
  • Anglo-Saxon system
  • product of constitutional evolution and check on Stuart absolutism
  • spread through british and american imperial power
• law-making
  
  • based on cases establishing binding precedent
  • judge:
    
    • discovers principles of law relevant to case under consideration and renders judicial decisions consistent with existing principles in the law
    • neutral arbiter between two opposing parties
    • judge has ability to broaden the existing law based on precedent

Question 9

Islamic law

Answer 9

• legal system linked to the State and religion
• based on
  
  • religious principles of human conduct
  • Qu’ran, the Sunna, consensus of traditional Islamic scholars, and analogical reasoning
• History: from 7th century Arabia, spread through Islam to Arab World, Turkey, Iran, Central and SE Asia, Saudi Arabia, Maldives

common in mixed legal systems, not often exclusively used

Question 10

Indigenous legal system

Answer 10

• based on
  
  • concrete daily experience; or
  • more intellectually based on spiritual or philosophical traditions
  • customary law based on a close affinity to the land
• diversity
  
  • Indigenous legal systems in Australia, Oceania, Americas, Southern Africa, Circumpolar region…
  • some commonalities for some groups
• used in land rights cases, sentencing in criminal law cases and damages in torts cases

Question 11

Does the legal system make a difference?

Answer 11

• e.g. Rwanda transitioning from civil towards common law
• German and Belgian colonial legacy
• shift from Francophone to Anglophone elite as a result of Tutsi exile in East Africa
• joined Commonwealth in 2009 which came along with a desire to improve legal flexibility and to boost international investment
• enabled Rwanda to be more aligned with Commonwealth countries
• can allow more flexible legal responses to bottlenecks and emerging legal issues, promotes economic security and investment

Question 13

What are legal systems influenced by?

Answer 13

• influenced by worldviews, ideas about the role of rules, the place of human beings in the world and the nature of the universe

Question 14

Development of Aus legal system

Answer 14

• prior to 1788: Indigenous world views, still operate to some extent
• 1788: colonisation
  
  • legal justification: conquest, cession, settled ‘empty’ land
  • terra nullius: overturned in HC
    
    • displacement of Indigenous Legal Systems
    • Laws of England – a far as applicable to local conditions
    • overturned in Mabo decision of the High Court (1992)
  • establishment of penal colony by English, gradual development of system of govt. and law familiar to us today
• 1823: establishment of NSW Supreme Court
• Australian Courts Act (1828): under imperial system, English law received into colony of NSW
• 1829: WA settled
• 1901: Federation, power divided between 6 existing colonies (states) and new Federal govt., Australia now known as a nation
  
  • written constitution introduced (Australian Constitution Act 1901)
    
    1. provided for the creation of the institutions of the states
    2. regulate the relations between those institutions and one another
    3. regulate the relations between those institutions and the people (citizens) they govern
  • const. also set up three arms of govt. with the Commonwealth legislature, executive and judiciary
  • minimalist const. i.e. doesn’t ‘spell out’ how govt. functions and much is left to conventions (unwritten rules, accepted practices) inherited from Westminster system
  • constitutional referendum: section 128, requires majority of Australian voters and states to be successful (8/44 successful)
  • each 6 states have own constitution with their own three arms of govt.
• Australia Acts 1986: last remnants of UK’s power to legislate for Australia removed

Question 15

Washminster mutation

Answer 15

• system with combined systems and practices from the UK and USA
• presidential SoP but executive sits in legislature
• parliamentary sovereignty: inherited from UK, parliament supreme legislative source

Question 16

Federalism

Answer 16

• est. in constitution
• division of authority between central and regional governments sharing the same territory
• vertical division of power: relatively equal division of power between the different levels of government

Question 17

SoP

Answer 17

• horizontal division of power, differentiation of governmental functions across three branches – between the three arms
• structural separation in Constitution: Ch1-3
• executive: administers the law, s61, includes Queen, GG, PM and cabinet, ministry, public service
• legislature: makes the law, s51, Parliament
• judiciary: interprets the law, court system (s 71)

Question 18

Responsible government

Answer 18

• executive arm of govt. is responsible to parliament and parliament is in turn responsible to the people
• s64: no Minister of State shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives’’

Question 19

Rep. government (democratic)

Answer 19

• theoretically people have strong upwards power
• govt. where the members of parliament
• s 7: Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate
• s 24: House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.’

Question 20

Judicial review

Answer 20

• court is final arbiter of constitutionality

Question 21

Rule of law

Answer 21

• : ideas which have influenced the development of the Australian legal system
  
  • law should ‘rule’, all should be subject to the law (including government) – ‘government of laws and not of men’
  • overarching principle that ensures Australians are governed by elected representatives who also submit to the law

Question 22

Australian federal democratic constitutional monarchy

Answer 22

• federal: because the states have formed a federal government with certain powers
• democratic: ’because the people vote for their political representatives
• constitutional: because the fundamental document by which government is given power is a constitution
• monarchy: cause we have a Queen, also referred to as the Crown, as the head of state
• levels of law making:
  
  • local councils
  • state/territory parliaments
  • federal parliament

Question 23

Role of parl.

Answer 23

• sets out powers of the CW Parliament to make laws with respect to a range of matters
• cannot make laws without power to do so, s 51 sets out powers e.g. marriage (xxi) and trade and commerce with other countries and among the states (i)
• const. powers set out:
  
  • exclusive: can only be exercised by the Commonwealth Parliament
  • concurrent” can be exercised by both State and Federal Parliaments
• mechanism for resolving conflict: here a State law conflicts with a Commonwealth law, the State law is invalid to the extent of the inconsistency (s 109 Cth Const).

Question 24

Legislative process

Answer 24

• House 1: Bill introduced into House of Representatives / Senate
  
  • First Reading
  • Second Reading Speech and Debate
  • Consideration in Detail
  • Third Reading
• House 2: Senate / House of Representatives
  
  • Similar process to above
• Role of committees
• If passes both Houses, goes to Governor-General for assent and becomes law

Question 25

Statutory interpretation

Answer 25

• increasing complexity of acts from the Cth Parliament
• Statutes follow a similar format. some features you will commonly find in statutes include:
  
  • long title
  • table of contents
  • a section setting out the purpose or ‘object’ of the act
  • a definition section, that defines some of the terms used in the act
• in interpreting legislation, courts try to figure out the will or intention of parliament
• purpose approach: interpret according to what interpretation would best achieve the purpose of the act, working out the meaning of words taking into account their context
  
  • purposive approach: courts work out the meaning of words taking into account their context and purpose, (Kirby; text, context, purpose)
  • text: utilise definition section or a dictionary if a word is not defined to work out the meaning of a word, rules for interpreting the meaning of words in a statute;
    
    • meaning of a word is usually the ordinary meaning
    • ‘the law always speaks’: the meaning is the current meaning, not the meaning that existed when the statute was first enacted
  • context: of the rest of the act and the wider context
  • purpose: may be stated specifically in the Act or can be seen by looking at the Act as a whole
    
    • intrinsic materials
    • extrinsic materials: materials outside the statute
  • courts may use extrinsic materials as well when interpreting statutes incl. 2^nd reading speech and explanatory memorandum, parliamentary debates (Hansard), international treaties, dictionary – can be used to either confirm the ordinary wording of a provision or when there is an ambiguity in the provision/ordinary meaning leads to an absurd result
• Interpretation Act: require courts to interpret the underlying purpose
  
  • Act that sets down rules for interpreting legislation
  • all Australian states and territories, and the Commonwealth, have interpretation legislation (Acts Interpretation Act 1901 (Cth) – Interpretation Act 1984 (WA))
• how to interpret a word/phrase in a statute?
  
  • is it defined?
  • if not, what is the ordinary meaning?
  • context
  • does the meaning give effect/promote the purpose?

Question 26

History of case law and courts in Australia

Answer 26

• common law system:
  
  • decision stands due to hierarchy of courts
• primary sources of law: statutes, common law
• meanings of common law: law systems are based on the doctrine of precedent (sometimes also use the Latin term – stare decisis – “the decision stands”)
  
  • as a type of legal system
  • as a source of law (court made law)
  • law developed by the court (e.g. common law v equity)
• the court’s role is to interpret and apply the laws that Parliament has enacted. If there is no statute which covers a particular issue, then the law is derived from decisions made by courts. This body of decisions is called the ‘common law’.
• Supreme Court of WA:
  
  • highest court in WA
  • main appeal court
  • divided into general division incl. murder, arson and court of appeal – generally hears civil disputes involving >$750 00
• case law: law that has been made generally by the decisions of superior judges rather than by the enactment of statutes
• UK history:
  
  • pre-Norman Conquest (1066): Anglo-Saxon law, King involved with local courts as superior legal power
  • post-Norman Conquest (1066): administrative flair, centralisation of govt., growth of royal justice
  • Henry II (1154-1184): judges started ‘taking note’ of other judges’ decisions, recording of decisions began
  • Donoghue v. Stevenson (1932): important case in negligence
• history within Australia:
  
  • colonisation: settled under terra nullius so English law implemented
  • 1828: statute stating English law to apply and be enforced in Australia, development of state courts
  • by the time of federation, court system was generally working
  • 1903: High Court est. in s71 in Constitution sits for the first time
  • Interpretation Act (1984): established WA as existing since 1829
  • 1986: appeals to the British Privy Council ended, severing direct English influence on court system

Question 27

Court hierarchy:

Answer 27

• HCA
• Court of Appeal
• Supreme Court of WA
• District Court of WA
• Magistrates Court of WA

Question 28

Jurisdiction

Answer 28

• ‘authority to act or decide’
• limits on jurisdiction: can relate to factors such as civil/criminal nature of cases and the amount of money involved
• decisions appealed to the HCA are binding
• Supreme Court of WA: serious criminal charges e.g. murder, armed robbery and arson, only really hears civil cases if the amount in dispute is >$750 000
  
  • less than 3% of the civil matters before the Supreme Court are finalised by trial
• District Court of WA
• specialist courts in WA:
  
  • Family Court
  • State Administrative Tribunal: covers anything involving public officials and local govt., human rights, commercial and civil disputes, development and resources disputes
  • Children’s Court: defendants under 18 years old with diversion as a potential outcome
  • Coroner’s Court: investigations into strange deaths
  • Drug Court: drug offenders who have pleaded guilty in another court are diverted here for rehabilitative sentencing options

Question 29

Judges

Answer 29

• appointed from the Bar, but solicitors and other legal professionals may be appointed
• duties include;
  
  • deciding questions of fact and law if sitting along
  • if there is a jury, instructing the jury on questions of law, deciding questions of law and summing up arguments

Question 30

Reading a decision

Answer 30

• significant decisions are reported (published) in series of ‘law reports’ – can be found using citations
• civil case involves appellant and respondent
• criminal cases: R – for Regina/the Crown

Question 31

Precedent

Answer 31

• court must follow the decision of a court higher in the same hierarchy when the material facts of both cases are similar/same
• doctrine of precedent: determines relative weight of each case, applies to both case law and the interpretation of statutes
• binding precedent: where the decision of a court (ratio decidendi) in a decided case binds courts lower in the same court hierarchy in deciding cases of a similar nature
  
  • lower court must follow a previous decision if decisions of higher court, in same hierarchy, same material facts, lower court has no choice
• persuasive precedent: arises in cases of a similar nature which were decided in another court hierarchy, at the same level, in a lower court in the same hierarchy
  
  • court may follow previous decision if material facts in both cases are the same and decision
• hierarchy can be formed within decisions of the same court as a case can be decided by either a single judge or full court (e.g. Court of Appeal – 3 judges, HCA – 7 justices)
• legal principles in judgements:
  
  • ratio decidendi: reason for deciding the case, the source of binding precedent on lower courts in the same hierarchy
  • obiter dicta: other statements of the law made in a judgement which are not relevant to the decision but can be persuasive precedent
• to avoid precedent, can:
  
  • distinguish
  • statement is obiter
  • statement of law too wide
  • changed social conditions
  • precedent ‘unsatisfactory’ or ‘wrongly decided’

Question 32

Other methods of dispute resolution (ADR)

Answer 32

• form of non-judicial decision making
• includes negotiation, mediation, arbitration
• less formal: parties represent themselves
• cheaper, quicker, easier: less common for lawyers to be involved