Legal Systems and Law Making

Question 1

What is common law?

Answer 1

law created by the courts through a gradual build up of cases and judgements (precedent)

An important example of common law impact: Mabo vs Queensland 1992

Question 2

What is civil law?

Answer 2

civil law - based on codified law (laws written down in a document), sometimes referred to as Roman Law

Question 3

What is the difference between common law and civil law?

Answer 3

civil law

• codified text of norms
• judges interpret law
• no binding precedent

common law

• a case as precedent
• judges make law
• binding precedent = stare decisis (decision stands/is binding)

Question 4

What are features of common law?

Answer 4

• directly affects only the parties of the dispute
• subordinate to Parliament (except for High Court)
• judgements only cover matters relevant to the case
• interprets existing statutory law
• details of application have to be decided
• settle disputes after one has arisen
• checks and balances function - to ensure authorities i.e. Parliament, do not exceed their power (ultra vires)

Question 5

What is the structure of Australia’s legal system?

Answer 5

• with colonial settlement came the introduction of the common law and statute law of England
• there is a single common law that applies universally across the country. Our federal system adds Commonwealth common law to the mix
• our legal system has now moved from a system dominated by common law to one in which statutes, enacted by legislatures have become the primary source of law
• court hierarchy based on importance
• Constitution - supreme law under which the government operates under
• laws made through parliament are sovereign

Question 6

What are the reasons for the court hierarchy?

Answer 6

• specialisation: workload is shared, each court has specific areas of jurisdiction and develops expertise and specialised understanding of law
• precedent: provides consistency in the law
• appeals: right to appeal fundamental to concept of justice, would not be possible w/o court hierarchy, allows precedent to be developed
• administrative convenience: more efficient use of resources (time and money), minor cases allocated to lower courts where they can be dealt with quickly
• expertise and experience: complex matters heard by higher qualified judges

Question 7

What is the federal hierarchy of courts in Australia?

Answer 7

1. High Court of Australia
   
   • overalls all other courts including its own previous decisions though this is rare
   • holds govt. accountable
   • deals with cases such as constitutional matters
2. Federal Court
   
   • original jurisdiction is to hear criminal and civil cases concerned with Commonwealth law
   • i.e. terrorism, immigration, customs, industrial relations, taxation, corporate law
3. Family Court
   
   • hear matters concerned with family law
   • W.A. only state to have State Family Court

Question 8

What is the state hierarchy of courts in Australia?

Answer 8

1. Supreme Court of (State)
   
   • serious criminal matters i.e. murder, armed robbery, treason, arson
   • unlimited jurisdiction in civil matters
2. District Court
   
   • indictable offences i.e. stealing, assault, breaking and entering
   • civil cases involving amounts between $75 000 and $750 000
3. Magistrates Court
   
   • less serious offences i.e. petty theft, disorderly conduct, minor assault, driving offences
   • civil matters up to $75 000
   • also conduct committal hearings to decide if there is sufficient evidence for serious criminal charges to be heard in the Supreme Court
4. Children’s Court
   
   • special court for juveniles aged 10-17

Question 9

What is jurisdiction?

Answer 9

the lawful authority of a court or tribunal to decide a particular case according to the severity of the case, also refers to the geographical boundaries of a court’s power

Question 10

What is original juridiction?

Answer 10

the authority of a court to hear a case for the first time

Question 11

What is appellate juridiction?

Answer 11

the authority of a court to hear a case on appeal

Question 12

What is case law?

Answer 12

the whole body of judge-made law. The entire collection of published legal decisions of the courts that form large part of the legal rule operating in modern society

Question 13

What is the doctrine of precedent?

Answer 13

the principle that a lower court is bound by the legal prinicples created by decisions of a higher court. It created a consistent and predictable outcome in the operation of the law fairly

Question 14

What is persuasive precedent?

Answer 14

a persuasive decision of a similar court is one that does not need to be followed (not binding). They are used as an influence in the court’s decision and are usually followed to promote consistency in the law

Question 15

What is stare decisis?

Answer 15

foundation principle of laws by which precedents are considered binding and authoritative - means “to stand on what has been decided”

Question 16

What is ratio decidendi?

Answer 16

the reasoning for deciding - the key reasons for a judge’s decision. It is the binding part of the judgement, the statement of law that is to be followed in the future

Question 17

What is obiter dicta?

Answer 17

“sayings by the way” - a comment on another case or a legal question in the case, said in order to clarify their judgement. Not binding but can influence subsequent cases

Question 18

What is statute law?

Answer 18

a legally enforceable legislative act that has passed all stages in parliament, has received royal assent and has been proclaimed

Question 19

What is statutory interpretation?

Answer 19

when a judge is required to interpret the meaning of a statute before applying it to a case. These interpretations define the meaning of the statute more clearly or may change the impact of the law in some way

Question 20

Why is there a need for statutory interpretation?

Answer 20

• drafting problems: those responsible for drafting bills may lack specialist knowledge, be in a hurry or have unclear/conflicting instructions from the govt. which could lead to ambiguous clauses
• inconsistencies and contradictions: different parts of an act may be in conflict with each other or the act may be in conflict with other acts
• words and definitions: an act may be unclear because key words are not defined or are badly defined. When an act tries to be all encompassing it may not be clear how it applies to particular circumstances

Question 21

How do judges interpret statutes?

Answer 21

1. literal/plain meaning rule: requires that judges assess an act in isolation and apply it exactly in accordance with its words
2. the golden rule: if the application of a statute to an individual case will have an unfair outcome then a judge may refer to the general aim of the statute in interpreting an inconsistent part of the act
3. mischief/purpose rule: if the meaning of an act is unclear, the mischief rule requires judges to assess the purpose of the legislation/the ‘mischief’ the act seeks to prevent

Question 22

What are the common law prinicples of interpretation?

Answer 22

1. Ejusdem generis: this allows judges to assess if a new situation before them fits into the common class of the act
2. Noscitur a sociis: allows the judge to derive the meaning of a questionable or doubtful word from its association with other words within the context of the phrase

Question 23

What are judges’ guides to interpretations?

Answer 23

• standard English and legal dictionaries
• other sections of the same Act
• precedents contained in previous judgements
• authoritative statements of Parliament (i.e. relative second reading speech)
• special statutes such as WA’s Interpretation Act 1984

Question 24

What is the relationship of statute law to common law?

Answer 24

In Australia, the laws made by our parliaments have sovereignty over all other laws including common law. This means that parliament can either:

• enact statutes that endorse common law
• allow the common law to govern certain aspects of society and pass statutes complementing/partially regulating areas of common law
• enact statutes overturning common law principles on the basis that they do no adequately/accurately reflect the values of society

Constitutional decisions by the High Court are an axception as they can only be overriddent by a successful referendum to change the Constitution

Question 25

What is the legislative process in Australia?

Answer 25

ideas for legislation arises from a variety of sources

1. Drafting of bill: bill is developed and drafted by the Office of the Parliamentary Council
2. Initiation- proposed bill listed on Notice Paper of the House
3. 1st Reading- bill introduced by title and read by Clerk of the House, copies made for MPS
4. 2nd Reading- minister responsible for area bill covers speaks about intentions of bill
   
   • drveral debates ensue about purpose of the legislation
5. Consideration in detail- amendments are proposed, debated+voted in. If the bill is particularlu controverial, it may bereferred to a smaller committe for review (standing committee) Once the bill is finalised, moves to
6. 3rd Reading- whole bill is then put to vote
7. Once passed Legislative Assembly, moves to Legislative Council and follows same process (or other way around). If amendments made, must go back to other house for approval
8. Royal assent- bill is signed by GG and becomes an act of Parliament
9. Proclamation- act is enforceable by law

Question 26

What are some sources of legislative ideas?

Answer 26

• government party policy
• pressure group activity
• public opnion, media reports, outside experts (i.e. academics)
• public service advice (or advice to Ministers by political advisors)
• commissions, summits and other bodies set up by the government
• review by law reform groups
• individual parliamentarians
• parliamentary committees
• court decisions that reveal anomalies in the law

Question 27

What is delegated legislation?

Answer 27

Parliament can pass delegated legislation that gives authority for government departments and statutory authorities to create legally binding regulations. The act that gives authority to create delegated legislation is called an enabling act

Question 28

What are the pros and cons of delegated legislation?

Answer 28

Pros

• it takes care of minor issues while leaving parliament to consider large issues of public policy
• it allows experts working in specialised areas such as the Water Corporation to set specialised regulations which parliamentarians don’t have qualifications for

Cons

• the elected parliament only play an indirect role in delgated legislation and it gives considerable power to unelected bodies
• it creates a large quantity of regulations marking it harder for citizens to know the law especially as laws may vary in different regions
• delegated legislation creates complexity of the courts