The Australian Legal System

Question 1

What are the two main types of law that form part of the Australian Common Law System?

Answer 1

Parliment Made Law (legislation, acts, statutes)

Judge made law (Case law)

Question 2

What are the main differences between legislation & common law?

Answer 2

LEGISLATION:

• Made by parliament
• Operate prospectively (applies to the future, can back date but not usually)
• Written in one text
• Can be very broad (wide interpretation)
• Responsive to community (takes initiative)
• Easier to change
• Democratic but political

COMMON/CASE LAW

• Made by judges
• Operates reactively (retrospective)
• Precedent
• Dispersed
• Directed at particular issues (specific to the question)
• Not as responsive (litigation)
• Harder to change (often slow)

Question 3

What is delegated legislation?

Answer 3

Act of making power of parliament can be delegated (to the ACCC)

Question 4

What are 4 examples of delegated legislation?

Answer 4

Regulations (practical legal guidelines)
Legal Rules (admin procedures to support legislation)
By-Laws (geo areas)
Ordinances (territorial)

Question 5

What are the 3 common rules of statutory interpretation?

Answer 5

Literal rule
Golden rule
Mischief rule

Question 6

How is legislation interpreted?

Answer 6

By judges.

Question 7

What is the literal rule?

Answer 7

Take the statute for it’s plain meaning - the ordinary meaning given to the words even if it leads to an absurd result

Question 8

What is the golden rule?

Answer 8

If a literal interpretation would lead to an absurd result, words are given to provide meaning that would avoid absurdity

Question 9

Mischief rule

Answer 9

the “purposive approach” - search for the mischief defect which a statute was intended to remedy.

Question 10

What does the term “ratio decidendi” mean?

Answer 10

The reason for the decision.

Question 11

What is a solicitor?

Answer 11

Legal practitioners. Most of their work is non-litigious (drafting up documents, preparation of wills, commercial, family law matters etc.)

Question 12

What is a barrister?

Answer 12

SC Senior Council - Skills are smooth. They will give letters of advice. Generally do not deal with the public directly - main roles are preparation of legal opinions & court appearances.

Question 13

What is a judge?

Answer 13

Usually a barrister appointed from the bar (former barristers)

Question 14

What is a magistrate?

Answer 14

Lower courts - usually a full time public servant who has been promoted over the years.

Question 15

What is a justice of the peace?

Answer 15

Honorary positions - bulk of work involved in witnessing documents

Question 16

The Jury

Answer 16

Group of the accused’s peers

Question 17

What is an “original” jurisdiction?

Answer 17

The authority to hear a case when it is first brought before a court

Question 18

What is an “appellate” jurisdiction?

Answer 18

The authority of a court to hear appeals from decisions of courts of a lower level in the SAME hierarchy

Question 19

Who has the onus of proof in a civil claim?

Answer 19

The Plaintiff

Question 20

To what standard must a plaintiff prove their civil case?

Answer 20

On the balance of probabilities

Question 21

Who has the onus of proof in a criminal claim?

Answer 21

The crown - the person bringing the claim to court (either the 1st time or on appeal)

Question 22

To what standard must The Crown prove their criminal case?

Answer 22

Beyond reasonable doubt.

Question 23

What are 3 alternative methods to courts?

Answer 23

Ombudsman
Tribunals
Alternative dispute resolution

Question 24

What does the term “Stare decisis” mean?

Answer 24

To let the decision stand.

Question 25

In what instances is precedent binding?

Answer 25

When the decision from a higher court in the same heirachy is based on similar facts to the current case
Decisions made from the High court (decisions are binding on all courts in Australia)

Question 26

When is precedent persuasive?

Answer 26

When decisions are made based on similar facts but from a lower court in the same hierarchy or from any other court in a different hierarchy (usually a higher one)

Question 27

If there is a case where there is no precedent in Australia, where till the courts look?

Answer 27

Britain or other common law systems however this is persuasive only - not binding in any way. Usually judges will create their own law.

Question 28

What is meant by the term” Obiter dictum”?

Answer 28

“Oh by the way” - Comments of the case that may explain things on the way but is not the final decision. Remarks made in passing that are NEVER binding but may be persuasive or influential if based on similar facts.