1. Copyright Guy Harley 2004 1 Introduction to Law Lecture 2

2. Copyright Guy Harley 2004 2 Sources of Law  Written Law  Constitution  Legislation  Delegated (Subordinate) Legislation  Unwritten Law  Common Law  Equity

3. Copyright Guy Harley 2004 3 Unwritten Law  The oldest source of law  Developed over centuries in England by judges  Relies on the Doctrine of Precedent supported by Law Reports  Eventually two strands evolved:  common law  equity  Equity prevails over inconsistent Common Law

4. Copyright Guy Harley 2004 4 Legislation  Law made by Parliament and bodies it delegates to  STATUTES or ACTS contain the broad policy and are debated in Parliament  Sometimes the Act will delegate power to another body eg Governor, Minister, Council to pass more detailed rules  These are called DELEGATED LEGISLATION  Legislation prevails over Delegated Legislation

5. Copyright Guy Harley 2004 5 Legislation (Cont.)  Legislation overrides inconsistent Case Law  However one important role of Judges is to interpret ambiguous legislation  There is continuing debate about who should ‘make’ the law:  only Parliamentarians as elected representatives of the people?  BUT the precedent system historically has enabled judges to develop the law in new directions.

6. Copyright Guy Harley 2004 6 Sources of Law ParliamentThe Courts EquityCommon Law FederalState Contract LawUnconscionable Conduct Promissory estoppel Trade Practices Act Fair Trading Act

7. Copyright Guy Harley 2004 7 Pecking Order 1.Legislation 2.Regulation 3.Equity 4.Common Law

8. Copyright Guy Harley 2004 8 Civil & Criminal Law  Criminal Law  The law which directs that certain actions are punishable by the state.  Offences against the community  A penalty is imposed on the wrongdoer  Civil Law  Protection and enforcement of personal rights  Does not impose penalties

9. Copyright Guy Harley 2004 9 The English Legal System  Adversarial System  Civil  Plaintiff  Defendant  Criminal  The Crown  The Accused

10. Copyright Guy Harley 2004 10 The English Legal System  Adversarial System (cont.)  Decision makers  Jury  Judge  Lawyers  Solicitors  Barristers

11. Copyright Guy Harley 2004 11 Proving a Claim  Standard of Proof  Civil Cases  Balance of Probabilities  Criminal Cases  Beyond Reasonable Doubt  Burden of Proof  Civil Cases - Plaintiff  Criminal Cases - Prosecution  Presumptions

12. Copyright Guy Harley 2004 12 Criminal Cases  Minor  Complaint  Summary trial by magistrate  Conviction  Sentence  Serious  Information  Committal hearing  Indictment  Trial by judge and jury  Conviction  Sentence

13. Copyright Guy Harley 2004 13 Appeals  A party who disputes a court’s decision can appeal to a “higher” court  Usually limited to legal arguments  Adversarial  Appellant  Respondent  Can keep appealing to the next higher court if there is one  Hierarchy of Courts

14. Copyright Guy Harley 2004 14 Alternative Dispute Resolution  Negotiation  Mediation  Conciliation  Arbitration  Litigation  Annihilation

15. Copyright Guy Harley 2004 15 Reception of English Law  Conquered\Ceded  Law of territory continued unless inconsistent with fundamental principles of English law  Settled  Terra Nullius  Laws of England as at date of settlement received into territory unless:  plainly impracticable  repugnant

16. Copyright Guy Harley 2004 16 Reception of English Law in Australia  Australia was ‘settled’ not conquered  Doctrine of Terra Nullius - Aboriginal laws not recognised  Doctrine of Reception - English laws applied so far as ‘practical’  Note – English Law  English Law in force at date of settlement

17. Copyright Guy Harley 2004 17 Mabo’s Case - 1992  High Court rejected doctrine of ‘terra nullius’  Gave partial recognition to aboriginal land rights  Aboriginal title recognised unless subsequent exercise of control by parliament over land  Court raised possibility that other aboriginal law might be recognised but stressed it could not depart from “the skeleton of principle [that gave] our law its shape and internal consistency”

18. Copyright Guy Harley 2004 18 Timeline  1788 – 1836 States settled as English colonies  1828 Australian Courts Act  1865 Colonial Laws Validity Act  1901 Federation (Commonwealth Constitution Act (UK))  1931 A Sovereign Nation (Statute of Westminster (UK))  1941 Commonwealth adopts Statute of Westminster  1986 Sovereign States (Australia Act (UK))

19. Copyright Guy Harley 2004 19 The Australian Constitution  Establishes 3 Branches of Government:  Chapter I - Federal Parliament  House of Representatives  The Senate  Chapter II – Executive  The Governor-General (Queen’s rep)  Government departments  Ministers  Chapter III - The Courts  High Court (s71)  Power to establish other federal courts

20. Copyright Guy Harley 2004 20 Federal Parliament  House of Representatives  Each electorate elects one member  All electorates are approximately the same size  All members elected every 3 years for 3 year terms  Senate  12 senators from each state and 2 each from ACT & NT  Half elected every 3 years for 6 year terms  Intended to protect state rights

21. Copyright Guy Harley 2004 21 Federal Executive  Headed by the Queen of Australia  She is represented by the Governor General  Little information in Constitution  Must give Royal Assent to an Act of Parliament before it becomes law  Can dissolve parliament and call an election  Acts on advice from Ministers (the cabinet)  Prime Minister is the chief minister  Each minister  heads one or more government departments  Must be members of parliament – s64

22. Copyright Guy Harley 2004 22 Courts  High Court  Appellate jurisdiction  Original Jurisdiction  Constitutional disputes  Disputes between Commonwealth and States  Disputes between the Commonwealth & others  Disputes between people in different States  Federal Courts  State courts can exercise federal jurisdiction

23. Copyright Guy Harley 2004 23 FEDERAL COURTS High Court Federal CourtFamily Court Federal Magistrates Service Court of Appeal District Court Magistrates Court Supreme Court STATE COURTS Privy Council Appeals Abolished Often Combined

24. Copyright Guy Harley 2004 24 Jurisdiction  Subject Matter  Criminal  Civil  Administrative  Appeal  Powers  Length of jail sentences  Monetary limits  Injunctions & other remedies  Geographical limits  Residence of parties  Where claim arose

25. Copyright Guy Harley 2004 25 Separation of Powers Designed to avoid concentration of power  Government functions divided into  legislative,  Executive  judicial  Different organs carry out each function  Parliament  Executive  Courts  Functions are kept separate

26. Copyright Guy Harley 2004 26 Separation of Powers (cont.)  Executive cannot  make laws or  adjudicate on contraventions of the law  Parliament cannot  adjudicate on contraventions of the law  Courts  Hears disputes between parties  Cannot make policy decissions

27. Copyright Guy Harley 2004 27 Responsible Government  Voters elect members of parliament  Major party in Parliament selects ministers  Ministers appoint the public servants  Public servants are responsible to their Minister  Ministers are responsible to parliament  Parliament is responsible to the voters

28. Copyright Guy Harley 2004 28 Australian Separation of Powers Strict Separation of Powers does not exist Ministerial responsibility Judiciary can invalidate legislation as unconstitutional Legislature can dismiss judges (joint sitting of parliament) Executive can dissolve Parliament and call new elections

29. Copyright Guy Harley 2004 29 Division of Powers  Division of Legislative Power between the States and the Commonwealth  Commonwealth Powers are limited  Concurrent - s 51 of the Constitution  Exclusive - s52 of the constitution  States retain Residual Powers

30. Copyright Guy Harley 2004 30 Exclusive Powers  Social Security  Customs and excise duties  Defence  Currency and coinage  External Affairs  Immigration  Territories  Communications

31. Copyright Guy Harley 2004 31 Concurrent Powers  Trade and commerce  Taxation  Banking  Insurance  Marriage and divorce  Industrial relations  Others set out in s51

32. Copyright Guy Harley 2004 32 Residual Powers Powers never transferred to Commonwealth but kept by States  Education  Health  Housing  Transport  Law enforcement  Environment and planning  Emergency services  Roads

33. Copyright Guy Harley 2004 33 Restrictions on Powers Commonwealth & States  Freedom of religion (s116)  Freedom of interstate trade and intercourse (s92) Commonwealth  Cannot discriminate between states (s117)  Cannot Acquire property without fair compensation (s51(xxxi)  Implied right of political assembly (Communist Party case)  Implied right to freedom of speech in support of the political process

34. Copyright Guy Harley 2004 34 Expansion of Federal Powers  State powers theoretically unlimited but:  s.109 - Commonwealth legislation prevails over inconsistent State legislation (Constitution s109)  In practice, States only have power where commonwealth does not  Also  Since World War II, Commonwealth has controlled income tax collection in practice  Commonwealth uses grants to compel States to do what it wants

35. Copyright Guy Harley 2004 35 Constitutional Interpretation  Interpretation takes into account changes in technology (R v Brislan (1935) 54 CLR 262)  Initially maintained division of powers  Later expanded powers (Engineers Case 1920)  External Affairs Power  Koowarta v Bjelke Peterson (1982) 153 CLR 168  Commonwealth v Tasmania (1983) 158 CLR 1

36. Copyright Guy Harley 2004 36 Amending the Constitution  Amended by referendum  Passed by a majority of both houses of parliament  A majority of electors in Australia  A majority of electors in a majority of States (i.e. 4)  By vote of all State parliaments  British Parliament lost power to amend (Australia Act) (Australian Constitution s128)

37. Copyright Guy Harley 2004 37 Stare Decisis  Where a court has decided a case in a particular way, then subsequent cases involving similar facts should be decided in the same way  Precedent  Binding - Courts must follow a decision of a higher court in the same hierarchy  Persuasive - Courts will consider decisions of other courts

38. Copyright Guy Harley 2004 38 Precedent (cont.)  Persuasiveness depends on  quality of decision  jurisdiction of the court that gave the decision

39. Copyright Guy Harley 2004 39 Rules of Precedent  Lower courts must follow decisions of higher courts in the same hierarchy  A judge does not have to follow decisions of Judges at the same level. However, will be persuasive.  Judge does not have to follow decisions of higher court in a different hierarchy although they will be persuasive  Highest court in hierarchy can overrule its previous decisions

40. Copyright Guy Harley 2004 40 The Court’s Decision  Ratio Decidendi  Consists of those parts of the decision that were necessary to decide that particular case  Obiter Dictum  Statements made by Judge that are not necessary to decide the case  Remarks in passing

41. Copyright Guy Harley 2004 41 Applying Ratio Decidendi  Can be difficult to discern  Commentators often dispute what is decisions Ration Decidendi  Can be widened or narrowed by later decisions  Facts are rarely exactly the same

42. Copyright Guy Harley 2004 42 Example - Donoghue v Stevenson  A drink manufacturer has a duty to persons who might drink their product to take care that the bottle does not contain dead snails  A person has a duty to act in such a way that his or her conduct does not cause harm to others.  A manufacturer of food, drinks or medicines whose products are packaged in such a way that inspection of the product is not possible, has a duty to take reasonable care that the product does not contain a defect that will cause harm to the ultimate consumer.  People must take reasonable care to avoid acts or omissions that they could reasonably foresee as likely to injure persons who have a reasonable proximity to the wrongdoer.

43. Copyright Guy Harley 2004 43 Citing Cases – Volumes by Number  Smith v Jones (2001) 145 CLR 203, 207  Name of parties  Year of publication  Volume number  Report name  First page of judgment  Page on which specific passage appears

44. Copyright Guy Harley 2004 44 Citing Cases – Volumes by Year  Smith v Jones [1945] 2 All ER 203, 207  Name of Parties  Year of Volume  Volume number if more than one volume in a year  Report name  Page on which specific passage appears

45. Copyright Guy Harley 2004 45 Citing Cases – Medium Neutral  Smith v Jones (2001) HCA 203, [20]  Name of Parties  Year of decision  Court designator  Judgment number  Paragraph number

46. Copyright Guy Harley 2004 46 Problem  Give the citation for the case  In what court was the case heard?  Name the judge(s) and explain their titles  Name the parties and give their role in the case  Name the solicitors and who they represented  Name a case cited in the judgement. Was it persuasive or binding?  What was the ratio decidendi of the case?  Was there an obiter dicta? If so, what was it.