The document summarizes key aspects of the Australian legal system, including its common law origins from Britain and the development of precedent. It discusses how common law is developed through judicial decisions in a system of binding precedent. It also outlines the hierarchy of courts in Australia and how laws are made through both statutory law by government and delegated legislation, as well as the influence of international law.

1. The Legal SystemSection 2: Sources of Contemporary Australian
Law

2. Hint: Common Law is based upon precedent
which is handled through the courts (Judiciary)
Main Syllabus Points

3. How laws are made

4. Development of Common
Law
• Australia adopted common law (judge
made law) from England when the
country was settled by British colonists
• Over time, Australia developed its own
system of courts and law as it became
independent from Britain
British Origins

5. Medieval British Law

6. Reading Time

7. The Doctrine of
Precedent
• ‘Precedent’ is the basis of Australia’s system of
common law
• A Judgement made by a court that establishes
a point of law
• When a court decides a case, the reason for
the decision can become a precedent for future
cases
• Following precedent is known as stare decisis

9. • courts are bound by precedents, and
lower courts will be bound by the
decisions of higher courts – this is
known as binding precedent
• when a court is not bound by another
court’s judgment it can still be
influential – this is known as
persuasive precedent

10. Development of Common Law

11. • The concept of equity(Fairness) was
used in British law to develop a just
outcome
• Remedies such as injunctions and
specific performances were used to
resolve disputes
• Equity was used when precedents
failed to achieve justice
Equity

12. Case Law

13. Adversarial and Inquisitorial
Systems
• Australia’s legal system is based on an
adversarial system of trial
• In an adversarial system, the parties to
a court case are opponents who must
prove their version of events to ‘win’
the case - the judge is only an impartial
observer

14. • In an inquisitorial system, the judge is
actively involved in asking questions,
calling evidence and determining the
case
Wood Royal commission used an inquisitorial system

15. • Two important terms
• Ratio Decidendi – the legal reason
why a judge came to a particular
decision
• Obiter Dicta – comments from a judge
in a case that are not directly relevant
to the case (they are not legally
binding)

16. Court Hierarchy

17. • The official power to make legal
decisions and judgments
Jurisdiction

18. • Most criminal cases begin here
• Presided over by magistrate
(no jury)
• Deals with summary matters
• No appellate jurisdiction
• Committal hearings regarding
serious matters to determine
whether a prima facie case
exists
Local Courts (Magistrates)

19. • Coroner ensures all deaths, suspected deaths,
fires and explosions which come under his/
her jurisdiction are properly investigated
• Inquisitorial approach
Coroner’s Court

20. Coroners Court

21. • Closed court
• Presided over by
Magistrate (no jury)
• Rehabilitation is the
primary purpose of
sentencing
The Children’s Court

22. • Specialised court
enforcing
environmental law
• Concerned with
environmental
planning and
offences
Land and Environment Court

23. • Has appellate jurisdiction from Local Court
• Presided over by a judge
• Trial by jury
• Deals with serious criminal (Indictable)
offences
The District Court

24. • Has appellate jurisdiction from District
Court and Local Court
• Highest court in NSW (deals with most
serious criminal offences e.g. murder,
attempted murder)
• Hears bail applications presided over
by judge
• Trial by jury
Supreme Court of NSW

25. Kelli Lane Case

26. • Has appellate jurisdiction from District
Court and Supreme Court
• Grounds for appeal include:
• challenging a conviction involving a
question of law
• questions of fact, mixed questions
regarding sentence severity or
adequacy
The Court of Criminal Appeal NSW

27. • To relieve stress on other federal courts
(Family Court)
• It does not deal with criminal matters
The Federal Circuit (Magistrates) Court

28. • Deals with industrial matters and
bankruptcy
• Deals with civil matters (except family
matters)
The Federal Court of Australia

29. • Est 1975
• Complex family matters – Divorce,
parenting orders, division of property
The Family Court of Australia

30. • Deals with appeals from the federal
courts and state supreme courts
• Cases involving the interpretation of
the Australian constitution
The High Court of Australia

31. Statute Law
Hint: Statute law is made by governments
Parliament video

32. • The Australian Constitution sets out the
powers of state and federal parliaments
• Acts of Parliament are created to form
legislation e.g The Family Law Act 1975

33. House of Reps Video

34. • All states except QLD are Bicameral, meaning
two chambers or houses of parliament
• Federal: House of Representatives and
Senate
• State: Legislative Assembly and Legislative
Council
• Governments are elected on holding electorate
seats not overall popularity
Structure of Parliament
A new parliament video

35. Legislative Process
• 1. Formulation Stage
• 2. Drafting Bill Stage
• 3. First Reading
• 4. Second Reading
• 5. Committee Stage
• 6. Third Reading
• 7. Royal Assent Stage
• 8.Enactment
When a Bill becomes a Law
Senate video

36. Making a law
video

37. • Legislation made by non-
parliamentary bodies – delegated to
subordinates (local council)
• Types:
• Regulations – Governor-General,
State Governor
• Ordinances – Australian
Territories
• Rules – Government departments
• By-Laws – Local Councils
Delegated Legislation

38. Council Bylaws

40. Hint: Local Councils are often given delegated
legislation

41. The Constitution
Hint: Remember there are two types of powers
in the Constitution: Division and Separation of
Powers
Click here for a video

42. • Prior to the Constitution,
Australia consisted of six
separate colonies under the
British government
• The Constitution commenced
on 1 January 1901 to create
the Commonwealth of
Australia
• It outlined the ‘division of
powers’ between the
Commonwealth and states

43. • The Constitution defines how power is divided
between the Commonwealth and states to make laws
• Section 51 of the Constitution lists powers the
Commonwealth shares with the states
• section 52 lists some exclusive Commonwealth
powers
• section 109 says that Commonwealth laws will
override any state laws if they are inconsistent
• matters not listed are considered ‘residual powers’
for the states
Division of Powers

45. • Legislative Powers – the legal power or capacity to
make laws
• Concurrent Powers – powers held by state and
federal parliaments at the same time
• Exclusive Powers – powers that can be exercised
only by federal parliament
• Residual Powers – those remaining matters on
which the state can legislate that are not referred to
in the Constitution

47. Franklin Dam Case , Tasmania

48. • Why is the Tasmanian Dams Case
important in understanding how the
constitution operates?
• Which section of the constitution was
used to make a judgment in this case?
Discussion time

49. Separation of Powers
• Legislature – which includes the lawmakers (i.e.
parliament)
• Executive – includes the ministers and government
departments who administer the law
• Judiciary – includes the judges and courts who
interpret and apply the law
• In Australia, the legislature and executive are not clearly
separated, but the Constitution ensures the judiciary is
strictly separated from the non-judicial arms of
government

50. RULE OF
LAW

51. Role of the High
Court
• The High Court of Australia is the highest
court in Australia, higher than all other federal
and state courts
• Originally, matters from state courts could still
be appealed to the Privy Council in the UK,
but this avenue was cut off with the Australia
Act 1986 (Cth)

52. High Court Decision
on same sex marriage

53. • The High Court is the highest
court in Australia – its decisions
are final and cannot be appealed
• Appeals can be made from state
and territory supreme courts
and from federal courts
• The High Court must grant
leave to appeal before it will
review a case – it only grants
this in rare cases
Appealing to the High Court

54. Aboriginal and Torres Strait
Islander Customary Law

55. • There was no single system of law between the
groups, but there were many common aspects and
many groups shared alliances
• Aboriginal and Torres Strait Islander law is based on
tradition, ritual and socially accepted conduct
• For this reason it is known as ‘customary law’
Diverse nature of customary laws

57. • possession of land was a key principle in
British law
• Indigenous cultures considered the land as
sacred that could not be owned by any one
person
Spiritual basis, significance of land and water

58. Hint: These areas are the main differences
with British Common Law

59. • When the British settled in Australia,
they made a legal claim under
international law that the land was
Terra Nullius, meaning ‘land belonging
to no one.’

61. • `

62. • Kinship refers to family relationships
and extended family ties
• The law was heavily influenced from
these strong links in the community
Family and Kinship

63. • Rituals were based on each individual
clans’ interpretation of the Dreamtime
• Oral law was used, ‘word of mouth’ not
written laws (This lead to the doctrine
of Terra Nullius)
Ritual and Traditions

64. • Offences against tribal law, mediation
and conciliation was used. For more
serious offences the following were
used:
Mediation and Sanctions

65. • customary law can sometimes be taken into
account when an Indigenous Australian is
charged with a crime e.g circle sentencing
• Indigenous elders can sometimes be consulted
by those maintaining or enforcing the law
Relevance to Australian Contemporary Law

66. Circle Sentencing

67. • Should ATSI customary
law be incorporated into
the Australian Legal
System?
• Is it fair?
• Should everyone be
treated by the law
equally?
Discussion Time

68. • International law
governs the relationship
between countries
(known as states or
‘nation-states’)
• One of the main
criticisms of
international law is that
it lacks enforcement
International Law

69. Main Syllabus Points

70. • Customary International Law - a written document,
it is based on traditions and customs
• Treaties - the most common source of international
law. They can be Bilateral and Multilateral
• International agreements are written and binding on
the countries that sign and ratify them
Hint: Under International law terminology,
‘domestic law’ is used to describe the laws
passed by nation states

71. International Law

72. • The authority of a nation-state to
govern itself without the influence of
other sovereigns
State Sovereignty

73. What is this picture trying to
show?
Discussion
Point:

74. • 193 members
• 5 major organs of the
UN
• Most important –
General Assembly,
Security Council and
International Court
of Justice
United Nations

75. United Nations

76. • Domestic Law - the law of the nation
• In order for International law to be
effective, it must be adopted and
ratified into domestic law

77. • For international law to become
Australian law new legislation is
usually required (enacted into domestic
law)
• State Sovereignty of the Australian
Government allows them to agree or
decline areas of International Law
• E.g Kyoto Protocol

79. Peacekeeping Forces
• UNSC controls
peacekeeping
forces
• Used to
maintain peace
in conflicts.
Limited use of
force

80. Sources of International Law

81. • Territorial disputes
between South East
Asian Countries
• This issue has
increased tension
between US and
China relations
Dispute in the South
China Sea

82. The Economist analysis

84. • International agreement for countries rights and
responsibilities of maritime resources and the use of the
world’s oceans
• Entered into force in 1994, 166 compliant countries but still
remains debate if it codifies international customary law
The United Nations Convention
on the Law of the Sea (UNCLOS)
Click
Here

85. south china sea dispute

86. • The demarcation line by China for their
claims into the South China Sea.
• The first evidence of this sovereignty
claim was made in 1947. But there has
been some argument leading back to
the Ming Dynasty
• This land reclamation is known as the
Great Wall of Sand
The “Nine Dash” Line

87. china perspective

88. • Arbitration case at the PCA over the nine dash line
claims by China. This case was to interpret the
UNCLOS
• The PCA will make a decision in mid 2016
Philippines v. China (Permanent Court of Arbitration)

89. PCA and china

90. What does each
country believe in this case?
China - Does not
recognise the PCA
Bilateral agreements
should be used
Philippines - China’s action
violate the Economic
Exclusion Zone. They claim due
to geographic proximity
Vietnam - Supports the
Philippines but has its own claims
Malaysia and Brunei-
Have their own claims
too
Australia - All countries
should follow
the judgment
USA - Not taking sides
in this legal dispute
Indonesia - Some of
the claims are just rocks

91. • One of the founding members of the United
Nations, just finished on the UNSC 2013-14
• Also involved in peacekeeping operations (East
Timor)
• International Law influences and amends
Australian Law
• Medium Economic Power and strong primary
industry trade producer
Relevance of International Law to Australian Law