LWS011 Lecture Notes - Lecture 1: Lexisnexis, Land Law, Family Law
Week 1- Australian Legal System Podcast
-Australia was colonised by Great Britain in 1788.
-This meant that we received from Great Britain:
-our legal system
-the statute law and common law of England;
-procedures
-values and traditions; and
-the legal profession
Two key features of the English legal system:
-three branches of government :
1. Judiciary- forces and interprets the law
2. Legislature- makes the law
3. Executive- administers the law
Judiciary= courts
-Each court has a different jurisdiction
What is meant by "jurisdiction"?
"The scope of a court's power to examine and determine facts, interpret and apply the law, make
orders and declare judgement. Jurisdiction may be limited by geographic area, the types of parties
who appear, the type of relief that can be sought, and the point to be decided." (Butterworths
Australian Legal Dictionary)
-Note different jurisdictions:
-federal v state/territory;
-civil v criminal
-original (or "first instance" or "trial") v appellate.
Civil Jurisdiction (State & Federal Courts)
Federal (Commonwealth) laws set up Federal Courts, and give them jurisdiction over matters such
as:
-Trade practices/consumer protection;
-Taxation, bankruptcy/insolvency;
-Immigration;
-Family law.
State laws set up State Courts, and give them jurisdiction over other matters, such as:
-Enforcing contracts;
-Remedies in tort (such as negligence, trespass, defamation);
-Land law.
Criminal Jurisdiction (only dealt with State Courts)
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State courts have jurisdiction over all breaches of Commonwealth criminal law. Therefore, there is
only one court hierarchy (Queensland) to consider.
Two ways for court to "hear" criminal offences:
-On Indictment: ie., before a judge and jury (in the Supreme or District Courts), usually following a
committal (preliminary) hearing before a Magistrate to determine if is enough evidence to put
defendant on trial.
-Summarily: ie., before a Magistrate sitting alone.
-Essentially two types of criminal matters:
-Indictable offences (crimes, misdemeanours), which are serious offences.
Some must be tried on indictment, others may be tries summarily
-Summary offences (simple and regulatory offences), which are less serious and are always tried
summarily.
What is an appeal?
"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." (Butterworths Concise Australian Legal
Dictionary)
-An appeal can exist either "as of right" or "with leave".
-When heard, appeals may be dismissed, upheld, remitted to a lower court to reconsider, or
allowed in part.
Common law refers to the law made by the courts.
That is, it refers to the body of law that has developed through the recording of the decisions in
cases coming before the courts.
As a consequence of the 'doctrine of precedent', the courts are generally bound by decisions of
courts higher in the same court hierarchy.
-There are many rules that apply in determining which courts bind which other courts and what part
of a judgement is binding.
-This body of case law is referred to as the common law.
-But what is a case?
When a court sits to consider and decide a matter in dispute between parties, it is hearing a 'case'.
The individual matter before the court, its facts and parties and the decision made by the court is
known as a 'case'.
-The decision/judgement delivered at the conclusion of the proceedings by the court who is hearing
the matter decides the outcome of that case and also may provide a judicial statement on a legal
rule that may become a precedent for other cases that come before the legal system at a later
time.
2. Legislature
-Legislature= Parliament.
-There is the federal parliament plus a parliament for each state/territory.
find more resources at oneclass.com
find more resources at oneclass.com
