LWB145 Week Two (2.1) Lecture Notes
Introduction to the Australian Legal and Governmental System
The ratio decidendi (Latin for ‘reason for deciding’) of the case is the part that binds later courts. Essentially, it is the
reason for which a judge may make a decision in a case often based on previous cases which are similar. Ratio
decidendi is generally binding upon lower courts and essentially means that lower courts must respect the decisions
and precedents made by higher courts, and follow them as often as possible. This is based on the legal principle
stare decisis (derived from Latin maxim meaning ‘to stand by decisions and not disturb the undisturbed’). In a legal
context, this is understood to mean that courts should endeavour not to disturb settled matters and to abide by
Latin for ‘said in passing’, obiter dictum (plural: dicta) or more simply obiter or dictum, refers to comments and
observations made in court by the judge which are included in the court’s opinion but do not necessarily impact the
court’s actual decision. In this sense, it is dissimilar to ratio decidendi which provides a basis for making decisions
within the court.
The Judiciary (cont. from part one)
The term judiciary refers to the courts. Each court has a different jurisdiction. It is important to understand what is
meant by the term ‘jurisdiction’ (see dictionary definition):
… “The scopes of a court’s power to examine and determine facts, interpret and apply the law, make orders
and declare judgment. Jurisdiction may be limited by geographic area, the type of parties who appear, the
type of relief that can be sought, and the point to be decided.” (Butterworth’s Australian Legal Dictionary)
Note examples of different jurisdictions:
Federal v State/Territory
Civil v Criminal
Original (or ‘first instance’ or ‘trial’) v Appellate (appealed case)
Original Jurisdiction in Federal and Queensland Courts for Civil Matters
Federal (Cth) laws set up Federal Courts and give them jurisdiction over matters such as:
State laws set up State Courts and give them jurisdiction over other kinds of matters such as:
Remedies in tort (such as negligence, trespass, defamation etc);
… An appeal is “An application to a higher court to reconsider the decision of a lower court, on the ground that there
has been an error in the decision of the lower court.” (Butterworth’s Concise Australian Legal Dictionary)
An appeal can exist either ‘as of right’ (i.e. – the plaintiff has a right to the appeal) or ‘with leave’ (i.e. – the plaintiff
must seek permission to appeal). When heard, appeals may be dismissed, upheld, remitted to a lower court for
consideration, or allowed in part. Appellate Jurisdiction for Civil Matters (in Queensland)
Concerning civil matters in Queensland, the rights of appeal are granted by legislation. The legislation must be read
in order to determine which court the appeal lies to, and under which conditions.
In Queensland, see especially:
s 45 Magistrates Courts Act 1921 (Qld) – need leave of the District Court where not > $25,000;
s 118 District Court of Queensland Act 1967 (Qld) – need leave of Court of Appeal where < $150,000;
ss 35, 35A Judiciary Act 1903 (Cth) – special leave always required to appeal to the High Court of Australia.
Unlike the differences in civil jurisdiction, the State courts have jurisdiction over all breaches of Commonwealth
criminal law: s 68 Judiciary Act 1903 (Cth). Therefore, there is only one court hierarchy - in Queensland, at least - to
There are two ways for a court to ‘hear’ criminal offences:
On indictment – i.e. before a judge and jury (in the Supreme or District courts), usually following a committal
(preliminary) hearing before a Magistrate to determine if there is enough evidence to put the defendant on
Summarily – i.e. before a Magistrate sitting alone.
Furthermore, there are essentially two types of criminal matters:
Indictable offences – (crimes, misdemeanours) which are serious offences.
o Some must be tried on indictment, others may be tried summarily.
Summary offences – (simple and regulatory offences) which are less serious and are always tried summarily.
Legislation and the Common Law
The general rule is that legislation (law made by parliament) rules supreme over common (judge-made) law. The
only way in which a court can override a law made by parliament is for the court to find either that:
The proper procedures have not been complied with in enacting the law; or:
The parliament does not have the power under the relevant constitution to make a law of that nature.
However, if both of these requirements have been satisfied, the courts cannot say that a law is invalid just because,
in their view (for example) it is a bad law or the courts would have preferred different wording. On the other hand,
parliament is free to pass laws that are inconsistent with existing common law principles and judge