Health Law Lecture 1 - Australian Legal System

Question 1

What is the separation of powers

Answer 1

A doctrine that divides the government of a state into 3 branches:

1. Legislative
   - Makes the laws
2. Executive - queen’s representatives
   - ‘administers’ the law (not much separation between legislative and executive in Australia)
3. Judicial Arm
   - Judges
   - Applies the law

Question 2

What are the principles on which the legal system is based?

1. Principles of natural justice which are:
2. Presumption of
3. Law must be _____ (think war crimes amendment act 1988)
4. Law is applied _____

Answer 2

1. Principles of natural Justice
   - Right to know the charge against you
   - Right to be heard
   - Rule against bias
   - “No evidence rule” - decisions are made on reliable/logical evidence
2. Presumption of innocence
3. Law must be prospective - with exceptions
   - Notable exception: War crimes act 194, amended by the war crimes amendment act 1988 which allowed Australians who committed war crimes in WWII in Europe to be convicted in Aus.
4. Law is applied universally - no one is above the law

Question 3

Sources of Law - Where do laws come from?

Answer 3

1. Australian Constitution
   - Framework for law
   - Can only be changed by referendum
2. Statutes
   - Statutes made by Parliament
   - Fedral Laws override/trump state/territory laws
3. Common Law
   - Case law, Inherited from Britain
   - E.g. duty of care, fiduciary duty

Question 4

What is criminal law?

On whom is the burden of proof?

What is the standard of proof?

Answer 4

Concerns offences against the crown (state)

Burden of proof - on prosecution.

Beyond reasonable doubt.

Question 5

What is civil law?

On whom is the burden of proof?

What is the standard of proof?

Answer 5

Torts and contract Law - aims to compensate for civil wrongs

Burden of proof - on plaintiff

Standard of proof - balance of probabilities

Question 6

What is Equity Law?

Answer 6

Body of law that was developed in the Court of Chancery to provide a remedy when Common Law couldn’t couldn’t (developed from Christian principles)

Now operates concurrently with common law.

Examples: undue influence, unconscionable conduct.

Question 7

Court Heirarchy

Tell me about the kinds of courts you know (also think outside the normal hierarchy)

Answer 7

1. Magistrates/local courts
   - Generally damages up to $100K
2. County Court
3. Supreme courts
   - Highest court of the state
4. High court and federal courts

• There is also a family court to hear things about marriages and divorces.
• There is also a Coroners Court

Question 8

What do Tribunals do?

Burden of proof?

Answer 8

They regulate professional conduct.

Burden of proof - same a civil (balance of probabilities)

Question 9

Tell me about the Coroner’s Court

Answer 9

Exists in each state/territory

Operates as a tribunal - inquisitorial ie can ask for evidence which is not normally how a court would operate.

Purpose is fact finding in sudden and unexpected deaths.

Has the power to make recommendations but doesn’t generally impose penalties.

Question 10

What is:

A legal precedent

Ratio Descendi

Obiter Dictum

Answer 10

Legal Precedent = A legal case that establishes a principle or rule which is then used to decide later cases.

Radio Descendi = “Rationale for the decision” is the point in the case that determines the judgement. The ‘reason’ for a ruling is what should be followed by lower courts.

Obiter Dictum = Latin for “by the way” a remark said in passing in the court which is not essential to the decision of the court.