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PBL Law – different types exists (e.g. natural, moral, religious, custom and national law) - Provides authoritative rules for how we are to behave - Accords with our realised experiences - Derived from a belief system - Obeyed as individual conscience - Established by long usage - Obeyed by peer pressure/convenience - Recognised and enforced by government How/why law shape up individual’s behaviour - For the benefits of the greater community - E.g. Restricts use of force, punish undesirable behaviour and reward particular behaviour, for the creation of rights and duties Law and justice - To achieve outcomes that are good and fair to the community - To regulate rules of conduct when the rules are clear, and their application is predictable Law and ethics - Ethics: moral or immoral, avoid unjustified and unnecessary harm - Values honesty, fairness and empathy - Has establishing standards of conduct The anatomy of law - Categories: grouping together related laws - Legal concepts: determining the scope and nature of laws - Legal principles: recognise and give effect to smth (point, policy) - Legal rules: provide the detailed mechanisms - Legal meaning: meaning or significance of a word or phrase in terms of law - Legal authorities: sources of legal principles

Structure of government in Australia

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Government: institution or organs created within the states and territories to provide formal structures of government and distribution of power, elected representatives that occupy positions within the institutions and exercise day-to-day power of governing

Constitutions of the commonwealth and the states - Constitutions: rules by which a state is formed, and governed, written documents known as law Constitutional arrangement of territories - Received power to self-govern according to the law posed by the commonwealth government - Australian Capital Territories (ACT) and Northern Territories (NT) Constitutional monarchy in Australia - AUS has a hereditary monarchy (i.e. form of gov. or succession of power from one member of the ruling family to the same member of that family) - Current monarch: Queen Elizabeth II - Also called constitutional monarchy: the hereditary monarch rules according to the rules by the constitution - This monarchy does not apply for the self-governing territories Local government - Responsible for a particular region or district within the state or territory - Exist in form of municipal councils, regional councils or district councils Institutions and powers of Australian government - Separation of power: Governmental power is separated between various branches that have different functions and responsibilities

The Crown - Head of the state

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Most government power is exercised by the organs of the government or the Crown following advice of the organs of government Considered to keep “reserved” power and this is used at the discretion of the crown Government-general= Queen’s representative

Government-general - Have specified powers such as: being the formal heads of the commonwealth and the six states - Exercise powers on the advice of the government: appoint people to office, sign treaties and granting licences and permits - Has legislative power - Commission judges The executives - Consist of the Crown, the chief minister and other ministers of government and statutory bodies and offices, has important law making powers and functions - Chief minister: elected by the political party, appoints and allocates other ministers for specific departments - Cabinet: chief minister + senior ministers, decides the policies, discuss and approves proposals for new legislations - Statutory bodies or offices: perform tasks that ministers, and public servants are unable to handle - The Crown must formally approve to legislation passed by the legislature to become a law - Ministers and other members of the executives are also able to make legal laws - Delegated legislation: regulations made by the ministers and other members of the executives whose power is given by the legislature Legislatures - A body with authority to make law - Elected by the majority voters at an election to represent the voters - Aka representative democracies Bicameral: upper and lower house Exp- QLD has single (unicameral) legislature In commonwealth: Upper house: senates Lower house: house of the representatives In state parliaments: upper house: legislative councils In NSW, QLD, VIC and WA: Lower house: legislative assemblies In SA and TAS: Lower house: House of assembly Commonwealth legislature is given its legislative power by the commonwealth constitution, applies throughout Australia State laws: operates only within the border of the state State government: share their legislative power with the federal government and have concurrent power Commonwealth government has exclusive power to legislation

Self-governing territories has more governmental power compared to the other territories Because of some overlap between the law-making power of the AUS gov. it is possible for the legislation on the same matter to be enacted by the legislature of both the commonwealth and the state/territories. If there is no conflict between the federal and state, the legislation/ Act co-exists and apply to any situation in the provision. If there is a conflict, the commonwealth law prevails over the state law and but only when the state law in inconsistent with the commonwealth law. The power to prevail is given by the commonwealth government and this is done by enacting contrary legislation. The courts - Function: hear and decide disputes in accordance with the law - When a decision is taken to a higher court to be reconsidered it is known as an appeal - Jurisdiction: the power to hear and decide cases

The high court of Australia - The highest court - Consist of seven judges appointed by the government general on the advice of the prime minister, where one of them is the chief justice - Power is given by the commonwealth constitution - To bring an appeal in the high court, the applicant must seek a special leave which is only granted if the case involves an important or uncertain point of the law - The bench: judges presiding over a case Superior courts - Federal court of Australia

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Special superior court called family court also exist to hear and decide on family law matters Federal judges are appointed by the government general on the advice of the government In state and territories, superior courts are called supreme courts and judges are appointed by the state governor on the advice of the state government Territory judges are appointed by the executive branch of the territory government Original jurisdiction: hear cases at the first instance, this is presided over by a single judge May also sit as a court of appeal to hear appeals form decisions made by the lower courts or from a single judge from a superior court Full court: a court of appeal presided over by either 3 or 5 judges

Inferior courts - Intermediate courts: federal circuit court (at federal level), presided over by judges appointed by the commonwealth government - Country or district court (in the states), presided over by judges appointed by the various state governments, have limited power to hear appeal from the lower courts as the magistrates’ courts - No intermediate court in the territories Lower courts - In states and self-governing territories - Called magistrates/local courts/courts of petty session - Presided over by magistrates and justice of the peace - Chief magistrate= chief magistrates - Magistrates and justice of peace= judicial officer (lower than judges), appointed by various government, has restricted power How judges decide cases - Find out facts (evidences of each party) - Relevant rules are found and interpreted - Rules are applied to material facts to deduce an appropriate outcome that is fair and reasonable - Makes an order to favour one party or another The public service, statutory officers and statutory bodies - Public service: paid by the government to carry out various aspects of government administration, organised into departments with specified area of responsibility - Also responsible for administering legislation, implementing government policies and managing finances - Provide advice to government ministers - Statutory officers: appointed to the office created by legislation with specific responsibilities - Statutory bodies: organisations created by legislation, appointed by the government

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Responsible for ensuring compliance with particular legislation for coordinating activities and planning or providing advice

Local government - Third level or tier of government - Responsible for looking after the social, economic and environmental needs of the area

Political parties - The party with majority seats in the parliament forms government of the day - Voting majority enables it to control the legislative process by enacting law to give effect to its policies - Party with second largest seat number is the opposition

CHP 2 Legislation - Law enacted by a legislature - Act or statute: a particular legislative enactment - Law made in the form of legislation is the most prolific source What aspects of legislation need explanation? - Where does the power come from? - To what extend does the power apply? - What process and procedures are needed to enact a law? - Is it the same for all AUS government? - What additional requirements are need for a law to operate? What legislatures exist in AUS?

The legislative power of Australian legislatures - Legislation enacted by a state or territory only operates within that border

Legislative power of the territories - Similar to the states but may be overridden by the commonwealth gov. Legislative power of the commonwealth government - Has exclusive legislation power only available to the commonwealth government Legislative process outline - Understanding the legislative process - Bills – drafting new law: considered by the cabinet to settle policy issues, draft prepare by legal draft experts with all provisions needed and completed draft, bill, is produced - The explanatory memorandum: prepared by parliamentary council, summarizing and explaining the effects - Review of the bill: by relevant minister, government party committees and relevant government department, when ready, the bill is introduced Procedure of legislation - First reading – first introduced in the house of origin (except financial bill which is introduced in the lower house) - Proceeds to house of review - Second and third reading – if more detailed examination is required, committee of the whole consider the bill clause by clause (alt. a smaller committee set to examine and report the bill back to the full house) - Procedure of house of review – bill passed from house of review without amendments proceeds to next stage, if there are amendments the bill is returned to the house of origin where it is accepted or rejected - If no agreement is reached, the gov. can abandon legislation or resolve deadlock by dissolving gov. and calling and election Royal assent - If both houses approve the bill, it is sent to the Queen’s representative to receive royal assent, this is just a formality Commencement - If royal assent is received, the bill is published as an act in the government gazette

Finding information in legislation - Title: what it is about, year enacted - Table of provision: structure and contents of the act in summary - Notes: at the end, useful info not in the legislation (date of 2nd reading) - Royal assent: date an act received royal assent to indicate completed the required process (could also be the commencement date) - Parts and division: separated into subject matter - Purpose section: objective of the act as a whole - Commencement section: date the provision becomes operational - Definition section: to properly understand the special meaning - Other sections: referring to a specific section Citing and finding legislation - How legislation is cited – 3 important elements: 1. Name 2. Year 3. Abbreviated reference to enacted legislature Interpreting legislation - Why the meaning of legislation may not always be clear - When deciding the meaning of a phrase or an act, the court will use a literal approach with ordinary meaning - If not, the golden rule is used (words in an act need not be given their ordinary meaning if that would result in objective absurdity) Specially defined words- in definition section

The relevance of legislature’s purpose Other statutory rules of interpretation- 1. singular nouns include plural 2. Definition of a word that applies to other grammar forms of the word Some common law principles of interpretation Presumption that assist interpretation - Rules of natural justice will be adhered to - New law does not have retrospective effect - Legal rights maybe enforced by bringing a legal action in court - Legislature has power to enact laws that interfere with property rights but the court presumes that no such interference intended unless that intention is made clear - Legislation does not bind the crown - Legislation is presumed to be consistent with the constitution - Penal provisions are construed strictly Checklist

CH3 Case law

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Australian courts do not have the direct power to make law But judges can apply existing rules and make new laws when deciding a case Doctrine of precedent: the mechanism by which judges create law when deciding on a case. When a certain law is used in a case it becomes a model for the future cases with similar facts.

When do judges have the opportunity to make law? - When the meaning of the existing law is unclear or uncertain and needs to be interpreted. Judges use and interpret (give meaning) to a law in the way they think it is most appropriate for the case. - When judges use an existing law that is appropriate for a case but has not been used in the previous similar cases. - A rule that the judges wants to apply may not previously be stated as a rule of AUS law. - When judges decide case based on the facts without using any existing rules. Common law and equity - Common law: established in England, uniform rules that were developed and applied that replaced the local laws - Equity: this court pay special attention to notions of justice or fairness - Nowadays, all courts apply both common law and equity Basic procedure in courts  Understanding court procedures – Australia’s legal system is adversarial, i.e. the parties to the dispute compete against each other to establish and argue their case  There is the inquisitorial court process, common in roman law, where court officials rather than the parties are responsible for investigating and examining all available evidences Civil and criminal cases - Civil case: when one person brings a private action against another to establish or enforce a legal right Punishment: compensation or damages - Criminal case: a person is charged with a breach of criminal law Punishment: fine Original hearing and appeals - Civil cases: plaintiff and defendant, applicant and respondent - Criminal cases: heard by judge and jury, prosecutor and accused : heard by magistrate: informant and defendant - Court of appeal: appellant and respondent An outline of procedure in a civil case - Purpose of trial: resolve issues

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Exchange of pleading: exchange of written documents to define the nature and extent of the dispute, plaintiff sends a statement of claim to defendant, defendant replies with a written plea to defend the claim Proving the facts: weighing the conflicting evidence, taking into account the probabilities, the credibility of the witnesses, etc etc, in jury trials, juries are responsible for deciding the case Ascertaining the law: argument Deciding the case: decide on facts provided and what relevant laws could be applied

Judgment- written record of decisions and reasons by the judges on a case. This is later complied into a report Parts of a law report - The court and key dates: court decision date - The name of the case: usually plaintiff v defendant, name of state and accused person - Catchwords: provide summary of the subject matter - Headnotes: outline of the report - The judges and legal representatives - Judgments: reasoning and conclusions Citing and locating a law report - Citation: case name, law report series, volume and page - OR medium neutral: abbreviated reference to the court that decided the case Applying common law and equity - Both common law and equity are considered nowadays - Common law is used first and then rules that involve equity is added to decide on a case Structure of court hierarchies

Note: the diagrams don’t include specialist courts and tribunals - Norfolk is no longer self-governing but still has their own court - No district court in commonwealth, Tasmania, ACT, NT and Norfolk - Various court shown has general power to hear both criminal and civil cases - Cross vesting legislation: one court deals with cases that involve the laws of more than one jurisdiction - Appeal from lower court generally proceeds to higher court in the SAME jurisdiction The doctrine of precedent - The material facts of two cases are sufficiently similar and cannot reasonably distinguished - Previous decision is a decision of superior court in the same hierarchy as the court deciding the new case Binding precedent - When material facts cannot be distinguished and the older case was decided by a higher court, the past decision is the binding precedent and lower court must follow the same reasoning in deciding the new case Persuasive precedent - When material facts are not sufficiently similar and the decision was not of the higher court, the decision is not binding but can be used as a persuasive decision Ratio decidendi of a case - The binding part of the previous decision, the reason for the decision - Based on material facts and precise rule of law applied Obiter dicta - The part of judgment that fall outside of ratio decidendi (explanatory discussion, historical perspective and judge’s reasoning) - To distinguish them from the essential facts and rules of law Alternative dispute resolution - Mediation, arbitration and agreed settlement The process of using case law - Find facts and identify legal issues - Look for previously decided cases and how the courts decided them - Check if the new case and old cases have similar material facts - In which court was the previous decision made - Identify the ratio decidendi of the previous cases - Apply the ratio decidendi...