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Lecture BUSL 2
News and Reminders
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Tutorial Quiz A -Week 4 Tutorials-based on Weeks 1-2
(Chapters 1,2 and 3)
Mid Semester exam 10am 4th September
- based on Weeks 3-5
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CHAPTER 2
THE AUSTRALIAN LEGAL SYSTEM
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THE WESTMINSTER SYSTEM
Separation of powers
Responsible government
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A constitutional monarchy
The rule of law
COMMONWEALTH AND STATE POWERS
Exclusive, concurrent and residual powers
concurrent and residual powers
State
Commonwealth
Exclusive powers
(Commonwealth only)
Examples
s.52: Exclusive powers of Parliament
s.90: Customs, excise and bounties
s.92: Free trade between the States
s.105: Taking over state public debts
Taking over state public debts
s.114: Military forces
s.115: Currency
s.122: Government of federal territories
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Concurrent powers
(Shared powers)
Residual powers
(State only)
Examples
Insurance
Banking
Industrial Relations
Examples
Education
Local Government
Transport
COMMONWEALTH CONSTITUTION
Commonwealth Constitution
Cabinet has
Executive power
power
Parliament has
Legislative power
The Courts have
Judicial power
High Court
The Ministry
House of
Representatives
Senate
Other federal courts
Doctrine of separation of powers
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SEPARATION OF POWERS
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Legislature
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Executive
Administers law
Judiciary
Government
Makes law
Interprets law
THE AUSTRALIAN COURT SYSTEM
Responsibility for legal control is divided, principally between federal
government and state/territory government
The laws enacted by each of these require their own hierarchy of
courts for enforcement purposes
Hence, we have two hierarchies of courts representing two distinct
court systems
- Federal
- State or territory
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Civil
Civil and Criminal Trials
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Civil
Criminal
Parties
Plaintiff & defendant
Crown & defendant
Burden of Proof
Plaintiff
Crown
Standard of Proof
Balance of Probabilities
Beyond Reasonable Doubt
Juries
Sometimes
Indictable offences only
Result
Proved / not proved
Guilty/ not guilty
Outcome
Remedy
Punishment
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Federal Court Hierarchy
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High Court of Australia
Federal Court of Australia
Family Court of Australia
Federal Magistrates Court
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FEDERAL COURTS HIERARCHY
High Court of Australia
Full Federal Court (court of appeal)
Federal Court
Full Family Court (court of appeal)
Family Court
Federal Magistrates Court
Any
Any State court vested with federal jurisdiction
Federal tribunals
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THE HIGH COURT
Established under the Commonwealth Constitution in 1901
Is the most important and authoritative court in Australia
The one court common to both hierarchies
The ultimate court of appeal in both systems
7 Justices of the High Court, headed by the Chief Justice of Australia
Ordinarily, 3 justices, often 5 and occasionally all 7
- All 7 in cases involving
-interpretation of the Constitution
-overturning its own previous decision
-point of law of major public importance
Covers the whole range of Australian law
Leave to appeal must be granted
Binding on all other Australian courts
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FEDERAL COURTS
Three levels:
Federal
Federal Court Full Bench
Federal Court single judge
Federal magistrate
Deal with almost all matters involving Commonwealth civil law
- Magistrate family law, bankruptcy
family
bankruptcy
- Single judge competition law, unfair trading, corporations law, industrial
law. Appeals from magistrates in all but family law
- Full court hears only appeals from single federal judge decisions and
Federal Magistrates Court on non-family matters
Sit in all Australian capital cities
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FEDERAL COURTS cont
The Family Court of Australia
-A specialist court, hearing all family law matters not dealt with
by federal magistrates, and appeals from federal magistrate
family law decisions
Federal tribunals
-Specialist, less formal bodies dealing with a wide range of
federal law matters (e.g. immigration)
Both courts sit in all capital cities in Australia
Matters arising under Commonwealth criminal law are dealt with
in state and territory criminal cour ts
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State
State and Territory Court Hierarchies
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High
Court
Supreme Court
Intermediate Courts
Courts
Lower Courts
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STATE AND TERRITORY COURTS
Deal with
- All civil and criminal matters arising under State and Territory law
- Crimes under Commonwealth law occurring in those States and
th St
Territories
Equivalent court hierarchies in all other states and
territories
territories
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NSW COURT HIERARCHY
NSW Supreme Court (Court of Appeal and Criminal Appeal)
NSW Supreme Court (various divisions)
Land & Environment Court
Industrial Relations Commission
District courts
Local courts
State tribunals
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NSW
NSW SUPREME COURT
The highest court in NSW
There are a number of courts under this name which handle various types
of legal disputes including:
-
Common law (civil matters over $750,000)
Criminal law (the most serious crimes such as murder)
Equity (specific performance and injunctions)
Probate (Wills and property of deceased persons)
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Matters commence before a single judge and in criminal cases usually
before a judge and jury
- The court can only deal with matters occurring in NSW (State boundaries)
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NSW SUPREME COURTS OF APPEAL
Within the Supreme Court there are also courts of appeal that hear
appeals from the lower State courts and from decisions of the single
judges within the Supreme Cour t
th
The courts of appeal comprise 3-5 judges
Th
The Cour t of Appeal handles appeals in all matters except criminal
offences
The Court of Criminal Appeal hears appeals in criminal matters
Appeals may be made from these courts of appeal to the High Court
of Australia (with leave)
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NSW DISTRICT COURTS
Supervised by a judge (your honour)
Jurisdiction limited to cases within NSW
Can handle all civil matters between $60,000 - $750,000
More serious criminal matters (except murder, treason or piracy)
treason
Hears appeals from local court decisions and various tribunals
Appeals can be made against NSW District Court decisions to
either NSW Supreme Court (Court of Appeal) or NSW Supreme
Court (Court Criminal of Appeal) depending on type of case
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LOCAL COURTS IN NSW
Supervised by Magistrates (your honour)
Geographic limits (operate in specific local areas in NSW)
Civil matters between $10,000 - $60,000
In criminal cases, they are the courts in which all offences are first mentioned
- Thereafter, procedure depends upon whether the matter is dealt with
summarily (by
drunk
-summarily (by single magistrate alone e.g. drunk driving and minor property
offences)
- on indictment (by Supreme or District Court judge and jury e.g. murder, rape,
robbery), following magistrates committal
bb
Court has limited powers to hear family law matters and criminal matters involving
children
Effectively, all appeals from local courts (civil or criminal) go to the District Court
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THE ADVERSARY SYSTEM
The general nature of the legal system is adversarial
adversarial
i.e parties fight or dispute their legal claims in court
In recent times various bodies/tribunals have been established to provide
alternate places and methods to resolve certain types of disputes These
methods are called alternate dispute resolution and examples of
such tribunals include:
- Community Justice Centres
- Small Claims Division of the Local Court
- Consumer Trader & Tenancy Tribunal
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PEOPLE IN THE COURT
The judge:
Appointed to all cour ts above the inferior cour ts
th
Is responsible for adjudicating a trial
Their duties include:
- deciding any questions of law
- if there is a jury, instructing the jury on questions of law, deciding questions of law and
summing up arguments impartially
- ensuring rules of evidence and procedure are followed
- passing sentence in criminal cases or determining appropriate compensation in civil cases
- hearing appeals
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PEOPLE IN THE COURT cont
The Jury
- a group of laypersons who decide questions of fact
- only available in cer tain cour ts
- duty is compulsory
- selected randomly from the electoral roll
- exemptions
- challenges
- usually six in civil trial; usually twelve in criminal trial
- charging the jury process
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PEOPLE IN THE COURT cont.
The lawyers
- Barristers
- Solicitors
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LEGAL
LEGAL TERMS/PARTIES IN COURT CASES
Plaintiff: The person starting legal action
Defendant: The person being sued
Appellant: The person appealing
Respondent: Opposing party in the appeal
Burden of proof: Responsibility to prove case
Standard of proof: Amount of proof required
Civil: One party sues another. Plaintiff has burden of proof on
balance of probabilities
Criminal: Crown prosecutes offender & standard of proof is
beyond reasonable doubt
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LEGAL
LEGAL TERMS/PARTIES CONT
Contract: Agreement that creates legal rights & obligations
that are enforced by the law
Torts: Civil wrongs that allow for the innocent party to claim
damages or injunction
Civil law: The law under which a plaintiff may sue a
defendant to obtain a remedy for a wrong committed by that
person
Criminal law: Defines offences against society and the state
Private law: Laws dealing with relationships between
individuals
Public law: Laws that apply to society generally
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PROCESS OF BRINGING A CIVIL ACTION
Considerations
Commencing proceedings
Pre-trial
Trial
Evidence
Decision
Appeal
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THE TRIAL PROCESS
Opening statement by
plaintiff's lawyer
Calling of plaintiff's first
witness
Questioning of witness:
Examination in chief
Cross examination
Re-examination
Calling and questioning of
defendant's witnesses
Opening statement by
defendant's lawyers
Calling and questioning of
plaintiff's other witnesses
Closing addresses by
plaintiff's and defendant's
lawyers
Summing up by judge to
jury
Judgement
Remedies
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EVIDENCE
EVIDENCE
The evidence
- used to prove the facts in issue in a court proceeding
- necessary to back up claim
- must be able to prove a case
- can take several forms :
*documents, sound and video recordings and witness statements
*oral statements (testimony) made at court by witnesses
- number of rules of evidence established to ensure fairness in the trial
process and to ensure best evidence is admitted.
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SOME COMMON TERMS FROM THE
DOCTRINE OF PRECEDENT
Stare decisis
- to stand by things decided
Ratio decidendi
- the reasoning of the decision
Obiter dicta
- things said in passing
Res judicata
- a thing adjudicated
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RULES OF PRECEDENT
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Decisions of higher courts are usually binding authority on
lower courts in the same hierarchy where cases have similar
facts
Decisions of judges on the same level are not binding but may
be followed for consistency
Decisions of lower courts or courts outside the hierarchy are
not binding
Superior
Superior appeal courts are not required to follow their own
previous decisions (unless obviously wrong) but try to do so for
consistency
Lower courts are not bound by the obiter dicta of a higher
court but may choose to follow it (persuasive precedent)
COMMON
COMMON LAW AND EQUITY
Common law
Equity
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THE COMMON LAW
After the Norman Conquest (1066), English monarchs sent travelling
judges around the country to administer royal justice.
The judges initially applied local customs, which varied from place to
place.
Eventually the judges began to follow earlier decisions and the rules
gradually
gradually became consistent.
These rules came to be known as the common law.
th
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EQUITY
Development of the common law was restricted by procedural
limitations.
Petitions for relief from the inadequacies of the common law were
considered by the Lord Chancellor.
Cases were initially decided according to the Chancellors ideas of
equity and good conscience.
In time, a complex body of law developed, supplementary to the
common law, and known as equity.
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SYNTHESIS
SYNTHESIS OF COMMON LAW AND EQUITY
At the end of the 19th century, two separate judicial systems and structures
existed side by side in England.
The Judicature Acts of 1873 abolished the separate court systems and
established a High Court of Justice, which administered both common law
and equity.
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ALTERNATIVE DISPUTE RESOLUTION
Negotiation
Mediation
Conciliation
Arbitration
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