Luật học - Chapter 2: The australian court system

This is the prescribed textbook for your course.Available NOW at your campus bookstore!THE AUSTRALIAN COURT SYSTEMCHAPTER 2Learning objectivesAt the end of this chapter you should understand:the doctrine of the separation of powersthe role played by the courts in making lawthe jurisdiction of federal and state courts and tribunalsthe doctrine of precedent, including the difference between a binding and a persuasive precedentthe adversary system of justicethe trial processthe way to read a statue effectively and the purpose of dividing statutes into several partsthe rules of statutory interpretation and their application to a set of factshow to effectively read a case reported in a law report.IntroductionBusinesses operate within the Australian legal framework.You need to understand the role played by the various courts in Australia, how they operate and make decisions and how such decisions can effect the regulation and operation of business. You need to understand the effect of legislation upon the regulation and operation of business.The doctrine of separation of powersThis is the foundation upon which Australia’s system of democracy rests.It puts checks and balances in place to stop one arm of government having absolute power.Essentially provides that government is composed of three arms who should be responsible for separate functions:the legislature (parliament), which makes the lawthe judiciary (courts), which interprets and enforces the lawthe executive (ministers/cabinet), which administers the law.It provides that one arm of government should not be controlled by either of the other two arms, nor should it exercise the functions of another.Laws made by the courtsCalled common law, case law, judge-made lawCourts interpret statutes and apply common-law principles.In doing this, courts may establish legal principles that can be used in subsequent cases with similar facts.The doctrine of precedent (stare decisis)Courts should treat similar cases in similar fashion to encourage consistency and certainty in decision making and fairness for litigants.Precedent: a past judgement of a court cited as authority for the legal principle embodied in a new decision.A judgement is composed of two parts:Ratio decidendi: the reason for the decision made by the judges.Obiter dictum: observations made by judges in explaining or further clarifying their decisions.PrecedentsBinding precedentCourts must follow the ratio decidendi of judgements made in higher courts in the same court hierarchy.Persuasive precedentCourts may follow the ratio decidendi of all other courts not higher than them in the same court hierarchy, or the obiter dicta of all courts.Advantages and disadvantages of precedentThe hierarchy of the Australian courtsA dual system:Federal legal systemState legal systemCourts are graded in order of importance—‘hierarchy of courts’.Jurisdiction of courtsOriginal jurisdiction:Certain matters can be heard for the first timeAppellate jurisdiction:Hearing a matter on appeal from another courtImportance of a court hierarchySerious matters are heard by higher courts, with more experienced judgesEnsures doctrine of precedent can operate through appellate jurisdictionAllows appeals against decisions on the basis of mistakes of lawAllows for specialisationCourt hierarchyHIGH COURT OF AUSTRALIAFEDERAL COURT OF AUST.FAMILY COURT OF AUST.SUPREME COURTSINDUSTRIAL DIVISIONGENERAL DIVISIONDISTRICT COURTSMAGISTRATES &LOCAL COURTSFEDERAL MAGISTRATES COURTCross-vesting lawsA disadvantage of a federal system is the potential for legal disputes to involve both state and federal court hierarchies.To avoid this problem we have cross-vesting laws:State courts can exercise jurisdiction over federal matters.Federal courts can exercise jurisdiction over state matters.Specialist federal tribunalsAdministrative Appeals Tribunal—reviews decisions of Commonwealth departments and statutory bodies.Australian Competition and Consumer Commission (ACCC)—enforces the restrictive trade practices provisions and the consumer protection provisions of the Competition and Consumer Act 2010 (Cwlth).Australian Competition Tribunal—hears authorisation applications.Native Title Tribunal—deals with native title applications.Specialist federal tribunals (cont.)Human Rights and Equal Opportunity Commission (HREOC)—addresses the human rights concerns of both individuals and groups.The Migration Review Tribunal and the Refugee Review Tribunal—makes independent and final decisions in relation to visas to travel to, enter or stay in Australia.Specialist state tribunalsSmall claims tribunals—for consumers to complain about activities of traders.Residential tenancies tribunals—for landlords and tenants to resolve disputes relating to matters such as payment or raising of rent, security bonds, maintenance of premises and eviction.Industrial relations commissions—prevent and settle disputes, determine industrial matters, and may approve statutory employment agreements.Adversary system of justiceFeaturesTwo opposing or adverse sides in a disputeAn independent person hears the dispute and ensures compliance with certain rules.Overall concept that the competitive arena will produce the best arguments and the truth will be ascertained by the decision maker, be it judge or jury.Matters of proof:Standard of proof: the degree of proof required in order to succeed in a legal action.Burden of proof: which party is required to prove its case (in a legal proceeding).The trial processOpening by prosecution/plaintiffCalling of witnesses by the prosecution/plaintiff:Examination-in-chiefCross-examinationRe-examinationOpening by defence/defendantCalling of witnesses by the defence/defendant (Same process as for prosecution/plaintiff)The trial process (cont.)Closing addressesSumming up to jury by judge (if a jury is used)Judgment/verdictSentencing (for a defendant that has been found guilty in a criminal trial)The standard of proofUnderstanding Acts of ParliamentLook at how the statute is structured.Rules of statutory interpretationParts of an Act:Number of an actLong title and short titleEnacting wordsDateTable of contentsSections, subsections and paragraphsMarginal notesParts and divisionsDefinition sectionsActs Interpretation ActsThese statues assist in the interpretation of Acts of Parliament.Commonwealth Acts Interpretation Act 1901, s15AA(1): 'In the interpretation of a provision of an Act a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.'Rules of statutory interpretation The literal rule: The courts are to interpret the words used in an Act of Parliament literally as far as they can, i.e. they must give the words used in statutes the same meaning that they have in everyday use.The golden rule:The courts may depart from a literal reading of the Act to prevent an absurd result.Rules of statutory interpretation (cont.) The mischief rule: The courts consider the mischief or problem that existed before the statute was passed and interpret the statute in a way that is consistent with the problem or mischief that is being addressed.Rules of statutory interpretation (cont.)The purpose approach:Where a literal interpretation is not possible (e.g. the words are ambiguous), the court may interpret the statute according to the original purpose or policy underlying its enactment. Information other than statute can be used in order to understand what was meant to be achieved.General rules of interpretationLegislation is not intended to be retrospective.Where there are several matters specifically dealt with by a statute, matters not stated are not intended to be covered.Where there is reference to both general and specific matters, the general matters are limited to matters of a similar nature or class to the specific matters.General rules of interpretation (cont.)Technical words used in a statute are to be given their technical meaning.If there is conflict between a general and a specific provision in the statute, the specific provision should receive precedence.Law reportsDecision of judges are recorded in law reports.Each major court has a set of law reports.Citation is the term used to refer to a case in support of a legal principle. The correct method of citing a case is by quoting the names of the parties and giving a reference to the law report where the case can be found.How to read a case reported in alaw reportPlaintiff (person bringing action)Defendant (person against whom action brought) Norwich Winterthur Insurance (Aust) Ltd v. Harold Smith (Motors), Ltd Dick Bentley Productions, Ltd and Another (1965) 2 AllER 65 PageYear case Volume Relevantdecided law report