Week 5/6- Legal Systems

Criminal law

*Establishes criminal offences and the penalties for their infringement *The state is responsible for prosecuting anyone that has committed a criminal offence *Standard of proof - beyond a reasonable doubt

Civil law

*Laws regulating the relationships between members of the community *A civil action is commenced by the person claiming to be harmed, not by the state *The standard of proof is 'balance of probabilities' Examples of civil law : contract law, tort law

High Court of Australia pt 2

*Original jurisdiction: * the High Court can hear cases such as cases involving constitutional issues. In its original jurisdiction, the HC is usually presided by one judge. Original jurisdiction (the court sits as a single judge): Consumer protection matters; Competition regulation matters (restrictive trade practices, misuse of market power); Intellectual property disputes (Copyright Act) Federal taxation; Immigration The Family Court: sits as a single judge and hears matters relating to the divorce process, property settlements, maintenance and custody of children. *Appellate jurisdiction:* the HC can hear appeals from State Supreme courts and the Full Court of the Federal and Family Courts. Special leave, or special permission, must be granted to appeal a matter to the High Court Appellate jurisdiction: the full court of the FC (comprising 3 judges) hears appeals on decisions from: A single Federal Court judge the Family Court sits as a Full Court and hears appeals from a single judge of the Family Court.

Finding the law: Case law (AKA common law)

*The collective recorded decisions of judges *The decisions of judges in courts (other than lower courts) are usually recorded and published. *In accordance with the doctrine of precedent, these decisions are referred to and followed by other judges *This leads to a creation of a body of law made by judges *If there is a conflict between legislation and case law, legislation prevails.

Executive law

*exercised by the executive. *This is the power to administer the law, carry on the business of govt, maintain order and security *In Australia this consists of the PM and other ministers (Fed govt), Premier and other ministers (State govts) *Day to day governance of the state *Judicial power is exercised by the courts

Purpose of law

*resolves disputes, *maintains social order, *preserves and enforces community values, *protects the disadvantaged, *stabilises the economy, and *prevents the misuse of power.

Laws can change because of

*political change, *the need to fix problems with the law, *changing community values, *pressure from lobby groups, and changing technology

Tribunals

A body established by statute to regulate specific matters. Why Tribunals?: Increasing number of cases in the court system and the need for specialisation. Tribunals are often quicker, cheaper and easier for those involved - process is less formal than the courts, parties can represent themselves (rather than use lawyers)

Case Law

Also known as common law Refers to the law made by judges, through the doctrine of precedent Contract law is an area of law that consist almost entirely of case law

Alternative dispute resolution pt1

As noted earlier, there are other methods that can be used to settle disputes, apart from litigation, including negotiation, mediation, conciliation and arbitration. ADR is becoming increasingly common in Australia and other countries because: *it is generally cheaper, faster, more private and less stressful than going to court, *in commercial situations, it is often less destructive to on-going business relationships than litigation, and *it relieves the pressure on, and therefore the costs of, maintaining the court system

Common law legal systems

Based on the British legal system. The two main sources of law are legislation and case law. The judiciary is much more powerful and influential in common law countries than in civil law countries (hence case law is a source of law in these systems). The model of law in common law countries is the British model. Courts use an adversarial system. Examples include the United Kingdom, Australia, Canada and New Zealand. The term 'common law' can mean/refer to: A type of legal system The law common to the whole of England as opposed to laws of only local application To refer to case law generally To refer to case law developed by the common law courts in England as opposed to the courts of equity

Commonwealth Administrative Appeals Tribunal (AAT)

Began in 1976, to review the decisions of Commonwealth Government departments, including ministers and statutory bodies. It can only review a decision if an Act or regulation specifically provides that the decision is subject to review by the tribunal. To date it has the power to review decisions made under approx. 400 Acts and regulations. Examples include taxation, social security, immigration and citizenship.

Law's Ideals

Certainty Flexibility Accessibility Fairness

Public law

Concerned with the relationship between the citizen and the state

Private law

Concerned with the relationships between persons within the community

Executive Council and the Cabinet

Each minister is responsible for a particular portfolio and government department. Senior ministers - more important portfolio. Junior ministers - less important portfolio. A minister can be a member of either House of Parliament. Members of the majority political party who are not allocated a ministerial portfolio are known as backbenches. The political party with the next-to-largest number of seats in the Lower House is called the Opposition. The leader of the opposition will appoint shadow ministers from within the opposition party to form a shadow cabinet. On a day to day basis, executive power is exercised by a subset of the Executive Council/Governor in Council - Cabinet.

Doctrine of precedent Example

Example: Johnny v Kate: Kate's lawyer argues that Kate does not have to repay the money allegedly owed to Johnny because Johnny has verbally promised to forgive the debt. J's lawyer argues that a promise to forgive a debt is not legally enforceable unless the promisee gives something in return and since K has not given anything to J in return for his promise, J can break his promise. Question of law: is a promise to waive a debt legally enforceable if nothing was given in return for the promise? No legislation answering this question so the judge will consider how other judges in the past have decided this question. The decision by an earlier judge about a question of law is called a 'precedent'. Only intermediate and superior courts can establish binding precedents. Binding precedent - a judge is only obliged to follow the decisions made by judges in higher courts within the same court hierarchy. Decisions of courts outside the particular hierarchy are not binding but may be persuasive.

Australian Constitution - Federal / State relations pt 1

Exclusive powers- Federal Parliament only- Examples: Customs Defence Currency Territories Concurrent powers- Federal and State Parliaments- Examples Taxation Marriage Banking External affairs See s51 Constitution (40 concurrent powers) Residual powers- State Parliaments only Examples Education Property Crime Health Transport

The executive

Executive power is the power to administer the law, carry on the business of government and maintain order and security. According to the Australian Constitution, the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General as the Queen's representative. The Governor-General is to act on the advice of the Federal Executive Council consisting of all Commonwealth ministers.

Australia's Legal System pt2

Federal legislative power Federal executive power Federal judicial power State legislative power State executive power State judicial power

Participating in business requires an understanding of the law.

For example, as a business owner you have to pay tax on your business earnings to the Federal government. There are also other laws that you may have to comply with, such as laws about licensing, advertising, industrial relations, workplace health and safety etc.

State Court Hierarchy

High Court of Australia (appellate jurisdiction) Court of Appeal / Full Court of Supreme Court (appellate jurisdiction) Supreme Court (original jurisdiction) District Court (appellate jurisdiction) District Court (original jurisdiction) Magistrates Court (original jurisdiction)

Supreme Court of Queensland

Highest court in the state hierarchy, and consists of the Trial Division, and the Court of Appeal. In its original jurisdiction, the trial division hears both civil and criminal matters. The trial division hears the most serious criminal cases including murder, manslaughter and serious drug offences. A jury is used to decide whether the defendant is guilty or not guilty. The trial division also hears all civil matters involving amounts of more than $750,000. Most civil cases are heard by a judge alone, where there is a jury, a judge will usually sit with a jury of four. The Supreme Court also exercises an appellate jurisdiction. The Court of Appeal is a division of the Supreme Court and hears all appeals from the Supreme and District Courts, and many tribunals. The Court of Appeal consists of three or five judges of the Supreme Court. Jury: A jury is a group of ordinary citizens who decide questions of fact. A jury is used for criminal matters heard for the first time (12 people). In Qld, prior to Sept 2008, the decision needed to be unanimous. some civil claims such as defamation. Unanimous verdicts have been amended by the Qld government. For trials (other than murder), if the judge believes that a unanimous decision will not be reached after 8 hours of deliberation, the judge can see if a verdict can be reached from 11/12 jurors. (s59A Jury Act 1995) The government also made provisions for judge-only trials [CC s614 and 615] Either side can apply for a judge-only trial, although if the prosecution requests it, the accused person must consent to it. Some factors considered in granting an application: the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury; there has been significant pre-trial publicity that may affectjury deliberations. Factors against granting it: trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness.

Court Procedure Example

If Johnny wants to sue Kate to recover an unpaid debt - what does he do? The decision to sue someone (to litigate) involves going to court. Litigation can be a difficult experience and there are alternative methods of dispute resolution that can be used to resolve the issue. Litigation, going to court is not the only method for resolving disputes. We will look at (p135 & p140 of textbook): The jury Burden of proof Standard of proof If Johnny sues Kate, this is a civil action. Johnny is the plaintiff and he has the burden of proof. The standard of proof is on the balance of probabilities. For criminal actions, the Crown has the burden of proof and the standard of proof is beyond a reasonable doubt.

Australian Constitution - Federal / State relations pt 2

If the Federal Parliament has not legislated in relation to any of the matters listed in s 51, then that matter remains within the regulatory authority of the States. If a State parliament has made a law in relation to one of these matters, and the Federal Parliament makes a law in relation to the same matter, then s 109 of the Australian Constitution provides that the latter shall prevail and the former shall, to the extent of the inconsistency, be invalid. This means the Federal Parliament does not have the power to make laws on any topic/area it pleases. Any challenges to the constitutional validity of Federal legislation or about the Constitution is heard by the High Court.

Sources of Law

In Australia, there are two sources of law: Law made by the legislature (parliament) *Law made by parliament is called legislation, statute or an Act of Parliament *Parliament can also delegate its law making power to another body, laws made by this body are called delegated legislation (more on this later) and Law made by the courts (judiciary).

Federal Parliament - Lower House

In the Federal Parliament, the Lower House is the House of Representatives. Each member of the House is elected to represent a particular electorate. Australia is divided into a number of electorates, each electorate containing approximately the same number of people. The political party with the majority of members in the House of Representatives forms executive government. The Prime Minister is traditionally a member of the lower house. According to the Australian Constitution, the number of members of the House of Representatives must be approximately twice the number of senators. There are 150 members of the House of Representatives.

Legislative power

Is exercised by the legislature. *This is the power to make law. *In Australia, this is the Federal parliament and the various State and Territory parliaments. *A parliament is a body of elected representatives that makes laws on behalf of the citizens. *Laws made by parliament are called legislation, statute or Act of Parliament.

Court Procedure People

Judges Juries Lawyers Barristers Solicitors Judge's associate Court reporter

What is Law?

Law is: * the set of rules, * made by the state, and * enforceable by prosecution or litigation Business law is the set of rules regulating businesses and business activities made by the state and enforceable by prosecution or litigation.

Australia's Legal System pt1

Liberal democracy: Aust is a representative democracy where laws are made by, and the executive government consists of, elected representatives (elected by the citizens) who exercise their power subject to the rule of law and to the various Federal and State constitutions. Common law legal system: Our legal system is based on the British legal system, and can be contrasted with other forms of legal system such as the civil law legal system. Constitutional monarchy: The Head of State of the Commonwealth of Australia and of the various States is the king or queen of England. The king/queen is represented in Australia by the Governor-General (Fed government) and State Governors (State govts) Federation: In addition to be the national government (referred to as either the Federal government or Commonwealth government) there are also various State governments. The State governments are not subordinate to the Federal government, power is shared in accordance with the Australian Constitution. Responsible government: The Ministers comprising the executive are elected representatives who are also members of and are answerable to the legislature. So ultimately the members of the executive govt are answerable to the citizens who elected them. Separation of powers (see before notes)

Statutory interpretation

Literal rule - Always begin by reading a legal text literally, with words and phrases given their ordinary and natural meanings Fisher v Bell Golden rule - If reading a text literally leads to an absurd result, modify the literal meaning so as to avoid the absurdity If Johnny is about to cross a road at a pedestrian crossing and the signal is flashing 'don't walk', is it OK for Johnny to run or hop or skip across the road? Lee v Knapp Mischief rule - In the event of an ambiguity in a legal text, we should consider the problem or the 'mischief' the legal text was intended to address Smith v Hughes Purposive approach - If reading the text literally does not reveal the meaning of the text, refer to the apparent purpose of the author when drafting the text. Under this approach, a legal text should be interpreted so as to promote the purpose or object underlying the text. Sometimes the Act itself contains an object clause (Armstrong v Clark). The courts are willing to admit extrinsic material in cases where there is ambiguity. Examples: explanatory memoranda, Minister's Second Reading speech.

Alternative dispute resolution pt2

Negotiation - the parties engaging directly in order to find some form of mutually acceptable solution to their dispute. Mediation - requires the disputing parties to engage an independent third party (mediator) to help them to arrive at an agreement acceptable to all parties. Such agreements are not legally binding. Role of mediator is to help the parties explore the options Conciliation - similar to mediation Neutral third party - conciliator, more active than mediator - can suggest solutions Agreement reached not binding Arbitration - parties appear before an independent third person (arbitrator) Arbitrator makes a decision that is binding Usually used in building disputes

Delegated legislation

Often the parliament will pass legislation setting out the overarching principles and objectives of a particular regulatory scheme, but then delegate to a branch of the executive government the authority to make the detailed rules, regulations or by-laws, referred to collectively as delegated legislation. These bodies include: Government departments Local Governments (Council, such as the Brisbane City Council) Laws made this way go by such names as: regulations, by-laws, local laws or orders-in-council (collectively known as delegated legislation). They have the same effect as an Act of Parliament. The delegation of power to the other body has to come from an Act of Parliament, so that there is an accountability mechanism.

Judiciary - jurisdiction

Original and appellate jurisdiction A court is exercising its original jurisdiction when it hears and decides a dispute that is being heard and decided for the first time - 'court of first instance'. A court is exercising its appellate jurisdiction when it hears and determines an appeal from a court lower within the hierarchy. Most courts exercise both an original and an appellate jurisdiction. Criminal and civil jurisdiction Most courts have both a criminal and a civil jurisdiction, i.e. power to hear both criminal and civil trials. SEE SLIDE 86-87

District Court of Queensland

Original jurisdiction: Civil claims between $150,000 and $750,000 Moderately serious criminal matters Jury: A jury is used for criminal matters and for few civil claims. Same procedure as SC. Appellate jurisdiction: DC judge may hear an appeal from the decision of the Magistrates Court.

Magistrates Court

Original jurisdiction: Criminally, they hear summary (minor) offences (e.g. shoplifting, traffic offenses), and committal hearings Civil matters where the amount claimed is less than $150,000. Committal proceeding: A preliminary hearing on serious crimes such as murder, in which the Magistrate determines whether or not there is sufficient evidence to justify a criminal trial. If so, the accused will be sent to a higher court for trial by a judge and jury

What are the reasons for delegated legislation?

Parliaments do not have the time to debate and vote upon every rule and regulation deemed necessary in an ever complex society. The legislative process is a time-consuming process, and parliament only sits at certain times of the year. Complex and technical rules and regulations are best made not by politicians (who may not have the expertise) but by govt departments who have the expertise Govt departments and local authorities are usually closer to the problem so better able to construct a solution.

Finding the Law:

Primary legal materials are the direct sources of the law, being: legislation, the law made by parliaments, and case law, the law made by judges.

How Laws are made

Proposal Drafting of Bill Lower House Upper House Royal Assent Commencement Proposal for new law Public servants Law reform body Media Courts Government policy Lobby groups First reading Second reading Committee Third reading

Queensland Civil and Administrative Tribunal (QCAT)

QCAT decides and reviews matters relating to numerous matters such as: *residential tenancy disputes *debt disputes *consumer and trader disputes Debt disputes involve disagreements with another person, business or company about a fixed or agreed sum of money, valued up to and including $25,000. Examples of a debt dispute include: an unpaid invoice or account wages owing

Case law Reference Example

R v Clarke (1927) 40 CLR 227 Who are the parties? Crown and Clark Is this a criminal or civil case? Criminal ( only crminal has crown- r) What is the year in which the law report is published? 1927 What is the volume number in which the law report appears? 40 What is the page number at which the case can be found? 227

Equity

Refers to case law developed by the Court of Chancery - became known as equity Based on fairness and justice, developed to supplement the common law Remedies include specific performance and injunction (discretionary) Injunction- order to not do something Where equity will become involved (people will get an injunction)- in the examples like Logging old growth forests, knocking down heritage buildings Nothing has happened- so it's kinda like blocking them before the action occurs Equity does not apply to criminal law. Equity applies to civil disputes but not to all civil disputes.

Common Law

Refers to case law developed by the common law courts in England, common to the whole of England Became rigid and inflexible Main remedy given is damages

Statute Law

Refers to law made by parliament (legislation; Act of Parliament) If there is a conflict between statute law and case law, statute law will prevail.

Changing the Constitution

The Australian Constitution sets out how the Constitution can be amended - s128. The proposed amendment must: be passed by an absolute majority of both Houses of Parliament, and be put to the Australian voters in the form of a referendum, and passed by a majority of voters, and a majority of voters in a majority of the States. Receive Royal Assent

High Court of Australia pt 1

The High Court is the highest court in the Australian judicial system. The High Court of Australia is at the peak of both the Federal and State/Territory Court hierarchies. It is the final court of appeal from the decision of any State or Territory court. Appeals to the High Court requires special leave - an application must be made to establish the importance of the dispute. Special leave will be granted if the High Court is satisfied that the case will further the process of legal development and reform. The High Court was not always the highest court of appeal in Australia. That court used to be the Privy Council (which sits in London). Since the passing of the Australia Act 1986 (Cth), appeals to the Privy Council were abolished. Membership of the High Court: seven members, six of whom are Justices and one Chief Justice.

Federal Parliament - Upper House

The Upper House is the Senate. Each State has equal representation in the Senate. There are 12 senators from each State and two senators from each Territory resulting in a total of 76 senators. The Senate is also known as the House of Review. The executive government necessarily controls the Lower House but it does not necessarily control the Upper House, so a law proposed by the executive govt may pass the Lower House but will not necessarily pass the Upper House. Website - http://www.aph.gov.au/

Doctrine of precedent

The decisions of most courts are recorded and published, leading to the creation of a second source of law: case law. Doctrine of precedent: *in cases of similar facts, a court is obliged to follow the earlier decisions of other courts higher within the same hierarchy. This provides for consistency in the law and is based on the notion that fairness and justice require similar decisions be made in similar situations and similar problems should have similar outcomes.

Court Procedure continued

The onus (or burden) of proof is on the person who has to prove their case. In most instances the onus lies with the person bringing the case. The standard of proof is the level that the person must prove their case. *In a civil case, that is on the balance of probabilities. *In a criminal case, the Crown must prove their case beyond a reasonable doubt. The judge makes the decision or if there is a jury, then the jury makes a decision. If Johnny is not satisfied with the outcome/decision, then Johnny can appeal the decision to a court higher in the court hierarchy. If Johnny decides to appeal then Johnny is the appellant and the other party is the respondent. The use of a jury is intended to ensure that the outcome of the trial is determined by a group of the defendant's peers. Jurors are randomly selected from the electoral roll. Jury duty is compulsory. Not everyone summoned for jury duty will end up on a jury. When a person arrives on the day of trial for jury duty, they are placed in the jury pool. Each potential juror may be challenged by one of the parties to the trial. Number of required jury members in a civil trial is usually 6, number in criminal trials is usually 12.

Civil law legal systems

The primary source of law is legislation in the form of codes, statutes and constitutions. Case law is generally not recorded and is not recognised as a source of law. The model of law in civil law legal systems is the Roman model. Courts use an inquisitorial system. Examples include France, Germany, Russia, China, Japan, Thailand and Korea.

Court Procedure

The system of dispute resolution used in modern Australian courts is called the adversarial system . The adversarial system of trial requires that the parties conduct their case in a competitive manner. Within strict rules of procedure and evidence, the parties have complete responsibility for the conduct of their case. The judge takes the part of an impartial referee: they observe and listen to the proceedings, ensure that the rules of procedure and evidence are complied with, allow both parties to be heard and (unless there is a jury) decide the case The adversarial system can be contrasted with the inquisitorial system used in courts in civil law countries. Whereas the adversarial system is a contest between the parties, the inquisitorial system is an inquiry into the truth. The judge is a government official rather than someone appointed from the ranks of practicing lawyers. They are an active participant in all stages of the proceedings, and involved in the investigation of the facts to arrive at the truth. They also determine the manner in which a case is to be conducted.

Seperation of Powers Doctrine

The three arms of government: a distinction between the power to make law, power to administer law and the power to interpret law. Legislative power = power to make law, exercised by the legislature Executive power = power to administer the law, exercised by the executive Judicial power = power to interpret and apply the law, exercised by the judiciary The doctrine of separation of powers is the notion that the legislature, the executive and the judiciary should as far as possible remain functionally separate. This means: *The same person should not form part of more than one of the three arms of government, *One arm of government should not control or interfere with the functioning of another arm, and *One arm should not exercise a function of another arm.

Disadvantages to delegated legislation:

The undemocratic nature of the process. Within a liberal democracy laws are supposed to be made by elected representatives in a way that is open to public scrutiny. With delegated legislation, the laws are made by unelected officials, behind closed doors, no public consultation. Delegated legislation also facilitates the making of more rules and regulations.

Resolving Deadlock

What if a Bill passes one House but is rejected by the other House? This is knows as a deadlock. Deadlocks are resolved (in relation to the Federal Parliament) by s57 of the Australian Constitution: if the Upper House fails to pass a Bill passed by the Lower House, and after three months the Bill is once again passed by the Lower House and rejected by the Upper House the Governor-General is empowered to dissolve both Houses. This is known as double dissolution. If after the new Parliament is appointed the deadlock reoccurs, the Governor-General can convene a joint sitting of both Houses. Likely then that the Bill will be passed at a joint sitting because Lower House contains twice as many members as the Upper House. Double dissolutions are relatively rare. In Qld, deadlock provisions are not necessary because Qld only has one House of Parliament.

Judiciary - hierarchies

Within Australia, each of the six States and two Territories has its own court hierarchy; there is also a Federal court hierarchy. The hierarchy of courts is the ranking of courts according to their ability to hear matters. A court hierarchy: allows a system of appeals, allows different forms of hearing according to the gravity of the case, and facilitates the operation of the doctrine of precedent (explained later).

Bicameral parliament

indicates that the parliament has two Houses - a Lower House and an Upper House.

Unicameral

indicates the parliament only has one House.

Finding the law: Legislation

law made by parliament. Also referred to as statute law or an Act of Parliament

Tort law:

provides a remedy for those harmed by the acts or omissions of another

Administrative law:

regulates the administrative activities of the government

Constitutional law:

regulates the relationship between the various arms of government and between the government and its citizens

Contract law:

the law regulating contracts Intellectual property law: the law regulating copyright, trade marks