Chapter Seven

Question 1

Define Statute Law

Answer 1

Any law or legislation that is made in parliament

Question 2

Define Common (Case) Law

Answer 2

Law based on judgments over time made in the legal courts. This law can also be influenced through the interpretation of statute law.

Question 3

Define Hierarchy of Courts

Answer 3

The order of importance of courts in terms of legal decision making. Rules of precedent and appeals are based on this existing hierarchy.

Question 4

Define Indictable Offences

Answer 4

A serious offence including arson, assault, rape and murder.

Question 5

Define Simple Offences

Answer 5

Minor criminal offences including petty theft, minor driving offences and disorderly conduct.

Question 6

Define Precedent

Answer 6

A principal of law that is carried down and applied to subsequent disputes with similar circumstances.

Question 7

Define Appeal

Answer 7

An appeal to have one’s case reviewed in a higher court on the basis of a flaw in the legal system not fact.

Question 8

Define Original Jurisdiction

Answer 8

The first court in which a case was heard, also known as the court of first instance.

Question 9

Define Appellant jurisdiction

Answer 9

The level of a court that deals with appeals. For example in the WA supreme court a single judge will hear a plea for an appeal and if granted, it will then be heard by multiple judges.

Question 10

Define Stare decisis

Answer 10

‘To stand on what has been decided’ The main principle concerning precedent.

Question 11

Define Ratio decidendi

Answer 11

The key reasons for a judge’s ruling in a court case

Question 12

Define Binding precedent

Answer 12

Precedent is binding to all courts of a lower hierarchy in which that precedent was established, but precedent is not binding to a court in the same hierarchy.

Question 13

Define Persuasive precedent

Answer 13

Persuasive precedents are precedents established from external courts from the Australian legal system or courts of a lower or same level to a court. Persuasive precedent does not need to be followed but can be convincing to a judge.

Question 14

Define Law Reports

Answer 14

Law reports set out judgments in detail so they can be used in future decisions. They state things like the names of the parties involved in the case, the date of the decision, a summary of the facts, the arguments of both sides and the full extent of the court judgement.

Question 15

Define Obiter dicta

Answer 15

‘sayings by the way’ in which a judge details any extra comment they may have to clarify their judgement.

Question 16

Define Reversing Precedent

Answer 16

If a higher court finds that the law has been misapplied, they can establish a new ratio decidendi.

Question 17

Define Overruling Precedent

Answer 17

If a higher court finds that the legal principal created of a lower court has is not convincing enough, they can overrule that judgement and establish their own ratio decidendi.

Question 18

Define Disapproving Precedent

Answer 18

This is when a court does not decide to abide by the same decision made in the same court level.

Question 19

Define Distinguishing Precedent

Answer 19

If the court can prove that the facts of the previous case on which the precedent was established do not match the facts of the current case, then this precedent can be distinguished and a new one can be created or substituted.

Question 20

Define Caveat Emptor

Answer 20

‘buyer who had to beware’ The basis of the law of negligence, the idea that it is the consumers was responsible for using a company’s product.

Question 21

Define Damages

Answer 21

Any damage to an individual either physical, emotional or economical that will prevent them from living their normal life and can be proven in a court of law.

Question 22

Define Duty of Care

Answer 22

The idea that a manufacturer of an item owes a duty of care to its consumers.

Question 23

Define Tort of Negligence

Answer 23

The tort or wrong of being negligent to a consumer or user of a product or service.

Question 24

Define Litigation

Answer 24

The action of taking legal proceedings against another person

Question 25

Define Native title

Answer 25

A title that provided an indigenous property right when a connection had been maintained with land through communal use based on traditional law or custom, and the title had not been extinguished by the creation of a freehold title or by non-customary use of the land.

Question 26

Define Native Title Act

Answer 26

A 1993 act passed by the Keating government which is an example of Parliament endorsing the high court’s judgment in the Mabo case.

Question 27

Define Statutory interpretation

Answer 27

The process of a judge essentially making law through their interpretation of a Parliamentary statute which could be different to other interpretations.

Question 28

Define The Literal Rule

Answer 28

This rule of interpreting statutes requires that the judges follow the ‘black letter of the law’. In this case the literal definition of all words and phrases are applied directly to the case, which can often involve unfair judgments.

Question 29

Define The Golden Rule

Answer 29

This rule of interpreting statutes allows a judge to rule out any absurd outcomes when a statute is applied literally to a case and allows judges to refer to the general aim of the bill in areas where inconsistency may result in an absurd outcome.

Question 30

Define The Mischief Rule

Answer 30

The mischief rule allows judges to break apart a statute and determine what mischief the parliamentarians were trying to prevent with the creation of this statute. The judge will then make sure that if this mischief occurred in a case those who were responsible are convicted and punished.

Question 31

Define Interpretation Act

Answer 31

Interpretation acts are acts passed by Parliament with the intention of clarifying a previous act so that judges interpret the previous act in the way that Parliament wants them to.

Question 32

Define Principals of Interpretation

Answer 32

Traditional principals before the time of Interpretation Acts which assisted judges in interpreting a statute. Examples include Ejusdem generis and Noscitur a sociis.

Question 33

Define Ejusdem generis

Answer 33

‘Of the same kind’ it us used as a way to interpret a general list of terms in a law. It uses examples in the list to interpret what the general term is meant for. For example if a law refers to “John Curtin, Churchlands, Shenton and any other type of school”, then any other type of school will be interpreted to mean a government secondary school.

Question 34

Define Noscitur a sociis

Answer 34

‘It is recognized by partners’, refers to the idea that if a word is unclear it should be looked at in its context to interpret its meaning. For example if a law on beef regulations used the word ‘scraps’ a judge would look at the context in which it was used to interpret its meaning. When they see the phrase ‘large tendons, cartilage and pieces of fat’ they can interpret the meaning of scraps to be inedible to humans.

Question 35

Define Common Law right

Answer 35

Rights that have been developed through common law and not clearly outlined by a statute, these include the right of access to the courts and protection against self-incrimination.

Question 36

Define Parliamentary Sovereignty

Answer 36

Laws made by parliament have sovereignty over all common law, because parliament is elected by the people and therefore has a mandate. Thus, if Parliament disagrees with any common law they have the power to change it through new statues, as long as the law remains constitutional.

Question 37

Summarise the differences between statute and common law

Answer 37

Statute law:
• Is binding to the whole community and the parliament is the ultimate authority on law making
• Covers very broad areas of law or policy and often puts principles in very general terms
• Resolves conflict ‘in futoro’ by predicting areas of law and setting up regulations in case they should be needed
• Parliaments can refer power through delegated legislation
Common law:
• Directly effects only the parties involved in the dispute
• Rulings in courts are subordinate to those in parliament (except rulings of the high court)
• Judgments can only cover law relative to the case
• Courts have to decide on how the law will be applied
• Courts act ‘ex post facto’ settling a dispute after it has risen
• Courts can check that the parliament has not exceeded its powers (ultra vires)
• Courts cannot delegate their powers however the parliament may be able to do this for them

Question 38

Explain the Logic behind having a large variety of courts in the Australian legal system

Answer 38

The large court system in Australia ensures that a number of things occur. Cases can be funnelled into their respective areas where specialists can deal with their educated areas. The main function however is to facilitate the structural framework for the appeal system and the precedent system. Appeals can be made from the lower courts to the higher courts, and precedent made in higher courts is binding to the lower courts.

Question 39

Explain how cases are allocated into the WA judicial hierarchy

Answer 39

On a civil level, the magistrates court hears cases with claims up to $75 000, the District Court hears cases with claims up to $750 000 and the Supreme Court hears cases above a $750 000 claim. On a criminal level, the magistrates court hears simple offences and also some ‘either way’ offences. The District Court hears serious criminal cases for which the maximum penalty is up to 20 years imprisonment such as serious assaults or breaking and entering. The Supreme Court hears very serious criminal charges such as wilful murder, armed robbery and serious drug charges. Cases involving claims of under $10 000 are dealt with through the minor cases claims process of the Magistrates court.

Question 40

Outline the roles of the Federal Courts and Tribunals

Answer 40

Federal courts deal with matters that effect multiple states, or if the different parties are based in different states. They can also deal with any matters that involve the legislative powers of the commonwealth under the constitution. Tribunals are special delegated courts in which specific kinds of cases can be heard by specialists in that area and they can often be processed much quicker. Some examples include the Australian Administrative Appeals Tribunal, the Refugee review Tribunal, and the Social Security Appeals tribunal.

Question 41

and the Social Security Appeals tribunal.

Give a detailed explanation on the role and workings of one specific federal tribunal

Answer 41

The Australian administrative appeals Tribunal was established in 1975 by the Administrative Appeals Tribunal act and receives appeals from people relating to the administration of legislation made by the Commonwealth. Appeals can only be made in areas of legislation that the Commonwealth have allowed, for instance legislation on child support, taxation, social security and workers compensation have been made with the allowance that the AAT can review the administration of these laws. For example, someone that believes they have been taxed unfairly by the Commonwealth can launch an appeal directly through the AAT without having to go through the other courts. If the ATT believed that someone has been treated unfairly, they have the power to remedy their situation or if they are unable to do so, refer the case to a higher court.

Question 42

Give a detailed explanation on the role and workings of one specialised WA court

Answer 42

The Wester Australian Drug Court exists in order to help drug offenders deal with their problems that have led to their offences in a much safer and specialised area. The drug court offers programs to drug users that admit they have a problem so that they can pursue an avenue of rehabilitation. The offenders will undergo a program of up to a year which included educational sessions and supervised living. After this program, they then enter the drug court again where they will receive a final sentence. Some offenders may be directed to the district or the supreme court, in this case the Drug Court passes on its report to that judge so that they can give a final sentence in light of the effort that the offender has made to cure their addiction.

Question 43

Outline the difference between a civil law and a common law system

Answer 43

A common law system is when laws are based on precedent, and these include countries such as the UK and the US. Civil law is a system of law in which all laws are made by Parliament and listed so that they can be followed directly. An example of this would be much of continental Europe including France and Germany.

Question 44

Outline the development of the tort of negligence

Answer 44

For a long time, the precedent in England regarding consumer goods was based on caveat emptor, that the buyer had to beware of the product they used and that the manufacturer had no duty of care to the consumer. This all changed with the case Donoghue Vs Stevenson in 1932. The case is based on the story of Mrs Donoghue who was out with a friend drinking ginger beer, and after she had drunk the whole bottle she found a decomposed snail at the bottom of it. She then sued the ginger beer company for negligence which caused her to suffer shock and gastroenteritis. The defence argued they had no duty of care to the consumer under the grounds of caveat emptor, however the judge decided that the manufacturer was liable for the damages done to Mrs Donoghue. Their ratio decidendi was that the manufacturer owed a duty of care to the final consumer of their product. This case then established this precedence that if a manufacturer owed a duty of care to the consumer, and if they duty of care was breached in foreseeable circumstances then negligence had been committed by the manufacturer. This case then established through precedence the modern concept of the tort of negligence. In 1936 this precedent spread to Australia in the case of Grant vs Australian Knitting Mills, in which Mr Grant purchased a pair of cotton underwear that caused dermatitis and lead him to sue the manufacturer. Despite an appeal to the House of Lords in the UK the precedent from Donoghue vs Stevenson still applied and the plaintiff was found liable. Thus the tort of negligence was introduced into Australia.

Question 45

Give Details about the Mabo case

Answer 45

Terra nullius is the idea that there was not existing government or law when the British first colonised Australia, and this formed the basis for most indigenous land cases before the Mabo case. The Government Land Rights Case (1971) found that indigenous people had ‘no customary rights’ and therefore continued to follow precedence under the idea of Terra Nullius. In 1992 Eddie Mabo successfully won his lands rights case against the Queensland government, under the ratio decidendi that Eddie’s people were in continuous use of the land and the title had not been extinguished in any non-customary use. This case also demonstrates how Statute and civil law could work in Tandem, as the Keating government at the time passes the Native Title Act (1993) to reinforce the precedent that was made in the Mabo case.

Question 46

What are some of the advantages/disadvantages of common law?

Answer 46

The advantages of common law are as follows
• The requirement that judges follow precedent ensure that all similar cases get treated equally
• It allows judges from a higher court to change precedent to adapt to changing social values
• It ensures legal advisors can provide good estimates about the outcome of their case by looking at precedence
• It creates unbiased decisions which are based on legal principle rather than opinion
The disadvantages of common law are as follows
• The law tends to lack behind social and economic norms since judges’ area reluctant to change precedent
• Decisions can be swayed to much by lawyers and the failure of judges to identify relevant precedent may cause an unfair result
• As cases are always difference uncertainty can arise from applying precedent
• Digging through precedent can be an expensive and time worthy process which could cost even more if the case is appealed
• Decisions are always made retrospectively as precedent is based on facts from a case that happened a long time ago

Question 47

Give reasons as to why statutory interpretation is often needed

Answer 47

Statutory interpretations are needed because bills are often drafted by overworked and maybe unskilled workers in the Office of the Parliamentary council, so there can drafting problems such as contradictions, vagueness and undefined words or phrases. Often bills with thousands of amendments such as the GST bill can contradict themselves in places, and often when a statute tries to broadly refer to a large branch of law it can be quite vague and not detailed about it. Language can also be very tricky to work out, as words can mean different things to different people.

Question 48

Give an example of Statutory interpretation in practice

Answer 48

The studded belt case was about a man who was arrested under the Victorian Control of weapons act for wearing a studded leather belt which in the act was considered a weapon. In the magistrates court he was found guilty but an appeal to the supreme court caused the judge to look in legal dictionaries to find the definition of a weapon. After finding that a studded belt was not a weapon, he acquitted the man under with the use of the mischief rule.