The Nature of Law. CML101 Lecture 1 The Australian Legal System. Derya Siva

Transcription

1 CML101 Lecture 1 The Australian Legal System Derya Siva Derya.Siva@cdu.edu.au 1 At the end of this topic you should know and this lecture will focus on: Nature of the law System Sources of law: statute law and case law (judge made law) Doctrine of precedent & Hierarchy of courts; and Classification of law and Legal proceedings 2 The Nature of Law What is law? the body of principles, standards and rules that the courts apply in the resolution of disputes brought before them. 1

2 The Nature of Law The object of law is to provide rules governing the relationships between the members of society and between the government and its citizens to avoid conflict. 4 The Nature of Law Statute Law Common Law (Judge made law) System Australia is a federation with two legal systems: the federal legal system (the Commonwealth), and a legal system for each State or Territory. The Constitution is a document setting out the powers of the federal government and its legal relationship with the states. The Constitution created the Commonwealth Parliament and gave it certain defined legislative powers, but left the Australian States as self-governing political units each with their own Constitution, Parliament and courts. 2

3 System System Legislature: makes statute law; Executive: administers the law; Judiciary: determines what the law is; interprets what the law is and determines sanctions for breaches of the law System - Separation of Powers The Constitution embodies a separation between these three branches of government. However, that separation is stronger between the judiciary and the other two branches, than between the executive and the legislature. 3

4 System - The Executive The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen s representative: s 61. The Governor-General has an Executive Council (comprising two or three government Ministers) to advise on matters concerning the government of the country: s 62. The Cabinet comprises those members of the ministry responsible for determining the policy and objectives of the government. System - The Legislature The Commonwealth Parliament: only has such power as the Constitution confers upon it; can only make laws on such matters as are expressly, or by necessary implication, mentioned in the Constitution. The State Parliaments: have exclusive power to make laws on all other matters; deal with most matters of private law, eg contract, torts and most criminal matters. System - The Legislature (Cont) Section 51, Commonwealth Constitution: sets out areas in which the Commonwealth Parliament has power to legislate; is given a wide interpretation by the High Court Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 4

5 System - The Legislature (Cont) Several of these powers are of particular relevance to business: Corporations power Trade and commerce power Taxation power External affairs power Reference power. Several restrictions upon these powers are also relevant: Freedom of interstate trade Duties of excise and customs. System - The Legislature (Cont) There are different types of legislative power: Concurrent powers can be exercised by both Commonwealth and States Exclusive powers Commonwealth power only. If a State law is inconsistent with a law of the Commonwealth, the Commonwealth law prevails and the State law, to the extent of the inconsistency, is invalid: s109 System - The Judiciary The High Court of Australia: Functions 5

6 Statute law Statutes may: bring new laws into existence; repeal old laws created by earlier statutes or common law, which have ceased to be appropriate to present social needs; or codify the law, that is, include not only previous statutory provisions but also common law principles derived from decisions of the courts. Making a Statute Bill drafted Making a Statute Introduced to House of Parliament 3 readings Once passed, sent to other House Process repeated Bill is passed unamended Sent to Governor-General Becomes Act of Parliament The need to Interpret Statutes Courts may be asked to review conflict Assistance in interpreting Acts: Commonwealth, State and Territory Acts Interpretation Acts, and Certain rules and maxims of statutory interpretation developed by the courts. 6

7 Acts Interpretation Acts set down basic rules or presumptions of interpretation; define some common terms; and deal with a number of other matters relating to form, content and operation of statutes. A purposive construction Acts Interpretation Act 1901 (Cth) s 15AA:... the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.... Extrinsic materials Acts Interpretation Act (Cth) s 15AB: now allows the court to take into consideration certain extrinsic material in interpreting, for example, an ambiguous or obscure provision in an Act. 7

8 Common law rules of statutory interpretation The literal rule give the words their natural, ordinary and grammatical meaning. The golden rule may depart from a literal interpretation where it gives rise to an absurdity. The mischief rule may depart from literal interpretation where the words are ambiguous, logically defective, inconsistent with each other or incomplete. In all circumstances, the court is to interpret the statute according to the original purpose or policy underlying its enactment. Delegated/subordinate legislation An Act of Parliament sets out the law and delegates or empowers some person or body to make the detailed rules or regulations necessary to give effect to the legislation. Why? Common law and equity Common law: the principles of law propounded by judges in deciding particular cases. Equity: developed to get rid of the harsh consequences of common law rules All the Australian States apply both common law and equitable principles in the one proceeding. 8

9 The doctrine of precedent The decision of a court in a case binds judges lower in the same court hierarchy in deciding cases of a similar nature Cases decided in one hierarchy are not strictly binding on the courts in another but will be of persuasive authority only. The doctrine of precedent The High Court has never regarded itself as bound by its own previous decisions Nguyen v Nguyen. The Full Court of the Federal Court will depart from its own previous decision if convinced that it is clearly erroneous NAGV v Minister for Immigration and Multicultural and Indigenous Affairs. A State or Territory Court of Appeal will normally follow its own previous decisions. A single judge of a lower court is not bound by an earlier decision of another judge of the same court. Ratio decidendi versus obiter dictum Ratio decidendi: reasons for a decision creates binding precedent. Obiter dictum: statement of principle made in the earlier case that was not strictly necessary for the decision is not binding. 9

10 Hierarchy of Australian courts Federal Courts High Court of Australia Federal Court of Australia Federal Circuit Court of Australia (formerly Federal Magistrates Court). State Courts Supreme Court District or County Courts Local or Magistrates Courts. Other courts and tribunals Federal tribunals and commissions A number of quasi-judicial bodies, tribunals and commissions have been established under federal legislation. eg Australian Competition and Consumer Commission and Australian Competition Tribunal. Specialist State courts and tribunals eg Small Claims Tribunals. Federal and State court jurisdiction Federal courts may only exercise the jurisdiction that is conferred upon them by the Constitution or by a federal Act, and have no power to deal with matters falling within State jurisdiction. State courts cannot exercise federal jurisdiction unless empowered to do so by a federal Act. The Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) vests State and Territory Supreme Courts with federal civil jurisdiction. However, the purported vesting of State jurisdiction in the Federal Court was invalid: Re Wakim (1999). 10

11 Classification of law Public law is concerned with matters affecting the State and its relationship with individuals. Private law deals with the relationships between private persons or organisations. Sometimes an area of law may have both private and public law aspects, so many areas of law cannot be regarded as exclusively one or the other. Classification of law Substantive law refers to actual rights and duties under the law. Procedural law refers to the formal steps to be followed in the enforcement of those rights and duties, in particular, the rules of procedure and evidence. Classification of law Civil law is the law under which a person (the plaintiff) may sue another (the defendant) to obtain redress for a wrong committed by the defendant. Criminal law relates to offences against the State (ie against the public) and provides punishment for their commission. Different procedures, different standards of proof and different remedies apply to each type of law. 11

12 Civil proceedings A person commences civil proceedings to enforce some legal right they believe they have against another eg for a breach of contract. Plaintiff: the party commencing the action. Defendant: the party against whom the action is brought. The plaintiff proves his/her case on the balance of probabilities in civil proceedings (or beyond reasonable doubt in criminal proceedings). The procedural steps for bringing a civil action vary according to the particular court. Civil proceedings Parties determine the matters in dispute via pleadings Other documentation: Interrogatories a set of questions about the facts of the case that the other party must answer on oath. Discovery a party must make a statement on oath as to all the relevant documents in their possession or control and can be required to allow the other party to inspect and take copies of these documents. 12