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GENL2021 - Introduction to The Australian Legal System - My Lecture Notes
19th September 2009

I try my best to be accurate, but I would not be surprised if I have made some errors here. Also this post is still a work in progress and I'll be making changes.

Week 1 & 2

Historical Origins of The Australian Legal System

Week 3

Rule of Law

The rule of law had origins in the Magna Carta but its not what we now consider "the rule of law".

The key theme of the Rule of Law is everyone is subject to the law.

Eight Ways to Make Law Fail (based on the allegory concerning Rex):

However at least some of these (if not all) are not law themselves. They are not in the constitution so there is nothing stopping a government from creating say retrospective law.

Law, Land & Society Before 1788

Terra Nullius is a term used to describe be land belonging to no one. The British belied Australia to be Terra Nullius as they did not see the land as having an established legal system.

Week 4

Types of Legal Systems

These legal systems "supposedly" all have the same aim.

Separation of Powers

Kept separate to balance power of any one:

  1. Legislative Arm (Parliament)
    • Amends/Creates Laws
  2. Executive Arm
    • Administrate Laws/Initiating Laws/Enforce laws
    • Government Departments, Governor General, Police...
  3. Judicial Arm
    • Courts/Judges (High Court...)
    • Interpret laws

Jurisdiction is the power of a court to exercise judgement.

Three different types of jurisdiction,

Week 5

Federation and Laws Made By Parliament

To get voted into the senate you need 1/6 + 1 of the votes. Once you reach this quota extra votes that would be used on you are distributed to the voters other preferences. Senators are only up for election every two elections (usually).

We generally get lots of independents in the senate because people rarely vote 1. Labor 2. Liberal. If someone supports party A where B is A's greatest competitor, most people will usually not vote for their opposition as 2, so they sometimes put some independents (remember once the quote is met, surplus votes are redistributed (either as the voter order their preferences, or if not chosen by the voter, how the party chooses)).

Preferential Voting ensures a strong 2 party system.

Passing a Law: (Repeated for each house)

The Australian Constitution stipulates which matters the Commonwealth have power to make laws over and which the states have power.

Week 6

Laws Made By Courts & Precedent

An indictable offence is one where you can go to prison over it.

A case begins in the local court with committal proceedings, except for the more serious cases which begin in the supreme court. But there are some exceptions, for example certain constitutional cases will go straight to the High Court.

The different courts are listed http://www.austlii.edu.au/databases.html, although the list is not complete as you also have local courts in most states.

Local court -> District Court -> Supreme Court -> High Court.

[caption id="attachment_756" align="aligncenter" width="450" caption="Hierarchy of the Australian Courts"]Hierarchy of the Australian Courts[/caption]

In a criminal case beyond a reasonable doubt must be established, this is not the case in civil cases.

Because we have a common law legal system (adversarial), "the judge can only make a decision about what was herd in court and cannot make any other inquiries about the case"1.

"A judge will usually order that the costs of the successful party be paid by the unsuccessful party."1

Week 7

The Legal Profession

Barristers and Solicitors are distinct parties. They have different roles and have no relation. "Solicitors have more direct contact with the clients, whereas barristers often only become involved in a case once advocacy before a court is needed by the client. Barristers are also engaged by solicitors to provide specialist advice on points of law. Barristers are rarely instructed by clients directly (although this occurs frequently in tax matters). Instead, the client's solicitors will instruct a barrister on behalf of the client when appropriate." (Wikipedia.org, Barrister)

In Australia Barristers are always sole traders. The research for a case is done by the solicitor who gives a brief to the barrister before they appear in the court.

Attorneys are much the same as Solicitors. The term Attorney is used more commonly in the US.

Week 9

Adversarial System

Alternative Dispute Resolution (ADR)

This is very much a scale. At the top the parties very much are in control of the outcome. Whereas at the bottom they don't have much control at all of the outcome (so long as the system is not corrupt). The top is informal, wheras the bottom is formal. At the top things are by agreement, whereas at the bottom things are much by imposition.

Other Legal Institutions

The Administrative Decisions Tribunal (ADT) is one such tribunal (they are is the NSW jurisdiction). The Administrative Appeals Tribunal is another tribunal (federal jurisdiction). As per their website "The Administrative Appeals Tribunal (AAT) provides independent review of a wide range of administrative decisions made by the Australian government and some non-government bodies. The AAT aims to provide fair, impartial, high quality and prompt review with as little formality and technicality as possible. Both individuals and government agencies use the services of the AAT."

In most cases if you are unhappy with the tribunals decision you can appeal to a court, although there are conditions on this. For example as stated on the AAT's web site "If you disagree with the Tribunal's decision you may appeal to the Federal Court on a point of law. This means that the Court can only hear an appeal from the Tribunal decision if you or your adviser believe the Tribunal made a mistake in law in deciding your case. Because there are many rules about Federal Court appeals you may wish to get legal assistance."

Week 10

Contracts and Torts

Contracts

Agreement of a Contract

There is a bunch of related conditions regarding selling of goods. See the Trade Practices Act.

Torts

Week 11

Criminal Law

(work in progress)

Criminal Law is meant to cover matters concerning the state.

Reasons for sanctions,

Need,

  1. proof of crime (actus reus)
  2. criminal intent (mens rea) (although some "strict liability" crimes don't need this)

Two types of offences,

  1. Summary offence -> Decided by a magistrate. No jury. Max 2 years imprisonment.
  2. Indictable offence -> most cases have a jury.

Sentencing,

Week 12

Mabo Decision

Native Title Act 1993 (Cth)

Wik Decision

Native Title (Amendment) Act 1998 (Cth)

References

[1] http://www.fedcourt.gov.au/videos/text_version/how_a_case_travels.html

Tags: genl2021, law.

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