Ch1 Introduction to law and the Australian legal system
Overview
记住最基本的概念，考试时考 1-2 个选择题
consti: constitution
govn: government
GG: governor general
The nature and concept of law
Different understanding and definition
Natural law, religious law, customary law, positive law (government recognizes)
*different from social norms: universally applied, criminal& civil sanctions
 Definition: The body of rules of conduct, made by parliaments and/ or the courts, that regulates or
controls the behavior or relations between individuals or groups
Role of law(function)
 To regulate the way we live (what may, how should, what cannot, what must)
 Create order/ social cohesion (adequate sanctions and remedies)
Rule of law
1. Universally applied (government, officials, individuals..) (different from social norms)(a free press
hold the government accountable under the law 舆论监督)
2. Clear…
3. Enacting process is accessible, fair and efficient
4. Judges are free from interference


Difference between law and justice
History of law
Time period Lawmaker
Type
Problems
PreEuropean
history
Aboriginal and Torres strait Islanders
Customary
law
More like a
social/cultural
norm /religious
belief
1823
UK passed NSW Act(NSW can pass law in
conjunction with English law)
British
common law
1828
Existing laws in England apply in Australia
Common law
and statutory
law
After 1828
Changes in British law did not apply to Austraia
unless specifically passed
Legal authority vested in governor--colony
developed-- legislative council--representative
government(legislature members elected by
colonists)--responsible government for
legislature
1896(P.9)
1899(P.10)
1900
1901
1967(p.15)


Australia Act 1986(UK): states can legislate
contrary to Imperial Acts, full independence
Comm Consti Bill made by colony
representatives
Commonwealth of Australia Constitution Act
1900(IMP)
Commonwealth of Australia came into being
Amend constitution to include aboriginial
people in census
European colonization: Dutch explorer and Englishmen (1788) declared the land as their
possession
Terra nullius question: 1. occupied land: conquering country imposes law with permission
2. unoccupied land: laws in conquering country come into
force insofar
The Australian constitutional system
A federal system(P.9)
Human rights(P.12)
1.no bill of rights
2.Constitution (no recognition to Torres), common law, legislation
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separation of power
Source of law(P.16)
*Why could parliament make law? Represent people--sovereign lawmaker
*Consolidating statute (P.17) assemble& reenact previous statutory provisions
*statute: also called legislation; acts of parliament; enacted law; written law
common law: also case law; precedent; unenacted law; judge-made law
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The making of statutes (P.18-19)
Parts of a statute (P.20)
1.
2.
3.
4.
5.
6.
7.
8.
9.
Act number: XXth statute enacted in XX year
Long title: a broad statement of the subject matter
Short title: citation use
Commencement date: date when the act come into force
Object or purpose
Definition: explain some ambiguous words
Sections: abbreviated by "s"/ multiple section number "ss"
Chapters, parts or divisions: consist of individual provisions
Schedules: matters of details
The interpretation of statutes
A purposive construction(p.22)
1.definition: giving meaning to the words to effect their intended purpose, rather than a strict or
literalist approach.
2.grammatical meaning of a provision is not to be taken to represent Parliament's intention as to its
meaning when the context or the purpose of the provision raises a real doubt about the applicability of
the grammatical meaning.
3.a court may read words into a legislative provision with parliament failing to deal with the word by
accident.
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Extrinsic material (p.24)
1.Acts Interpretation Acts allows the court to take into consideration certain extrinsic material in
interpreting.
2.The material which may be referred to includes: Law Reform Commission reports, relevant
parliamentary committee reports, the explanatory memorandum for the bill, the second reading speech
of the minister on the bill& relevant parliamentary debates.
3.Extrinsic materials are the last resort. It's the words of the statute that matters.
Common law rules of statutory interpretation(p.25)
1. The literal rule: the court must give the words their natural, ordinary and grammatical meaning
based on the assumption that parliament's intention is expressed in the actual words used.
2. The golden rule: depart from the literal interpretation any situation in which for good reason the
operation of the statute on a literal reading does not conform to the legislative intent as
ascertained from the provisions of the statute.
3. The mischief rule: the words are ambiguous, logically defective, inconsistent or incomplete,
interpret the statute according to the original purpose or policy.
Maxims of interpretation(P.27)
1. Ejusdem generis maxim(同类原则): where particular words are followed by a general word. The
general word may be interpreted as restricted to the same class as the particular words(the
particular words constitute a class)
2. Expressio unius est exclusio alterius maxim(明示其一则排除其他原则)
3. Generalia specialbus non derogant maxim(一般不能背离个别): where there is a conflict between
a specific and a general provision, the specific will usually be applied in preference.
Delegated legislation(p.27)
1. Definition: legislation made under the authority of an Act of Parliament (aubordianate legislation)
2. Empowered person: GG, Governor in Council, government Ministers, local authorities
3. Reasons: time; highly technical, specialized or essentially local
4. To preserve the principle of the separation of powers, a system for the parliamentary control of
executive law-making is set up.
Judge-make law
Common law may refer to(P.27):
1. Distinct from statutory law
2. Distinct from equity
3. distinct from civil law
Common law
1. Generally refer to both the common law and equity
2. The judicial law-making function is subordinate to the legislative power of parliament
Development of common law and equity
1. Chancery issued writs and Royal Court became firmly established.
2. A case would be lost for non-compliance with the existing writs.
3. This deficiency in the common law led to the rise of equity as a source of law.
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The doctrine of precedent and the hierarchy of Australian courts
The doctrine of precedent(P.28)
1. The doctrine of binding precedent: legal principals applied in similar situations should be
consistent.(stare decisis)
2. Persuasive precedent: cases decided in one hierarchy are not strictly binding on the courts in
another but will be of persuasive authority only.
3. Decision of a court in a decided case binds judges lower in the same court hierarchy in deciding
similar case
4. The High Court will normally follow its own earlier decisions and will only depart from them with
strong reasons; an appellate court in a particular hierarchy will normally follow its precious
decisions
The ratio decidendi of a case(p.29)
1. Not all of the judgment of a higher court is necessarily binding on a lower court.
2. Only the ratio decidendi(ratio)binds.
3. Obiter dictum(sing.)/obiter dicta(pl.): a statement of principle made in the earlier case that was
not strictly necessary for the decision
4. Lower courts have to determine the binding ratio.
Hierarchy of the Australian courts
Federal court
1. The high court
2. Family court
3. Federal court
4. Federal circuit court
High court(P.32)
1. Has both original and appellate jurisdiction
2. Final appeal court
Federal Court(P.33)
1. Has both an original and appellate jurisdiction
2. Has concurrent jurisdiction over bankruptcy and intellectual property matters
3. 3 judges in the appellate jurisdiction(full court)
Federal Circuit Court
1. Has concurrent jurisdiction over minor cases concerning consumer protection
2. Reduce the workload of the Federal Court
State courts(P.34)
1. Supreme Court: civil and criminal jurisdiction
2. District or County courts: statutory jurisdiction; subject matter and value of money or property
3. Local or Magistrates Court: lowest court
Other courts and tribunals (P.34)
1. The Australian Competition and Consumer Commission and the Australian Competition
Tribunal(federal)
2. Small Claims Tribunals(state)
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Law reports
Including:
1. Decisions of judges in deciding particular cases published in law reports
2. Commonwealth Law Reports(High Court)
3. The Federal Court Reports
4. State and Territories authorized law reports: XX State/ Territory law report
Form of a law report(P.35)
1. Plaintiff v defendant
2. Appellant v respondent
Classification of law and legal proceedings
Public law(P.41)
1. Constitutional law: structure of government and the rights of individuals under that government
2. Administrative law: regulates the exercise of powers and duties by government administrative
officers and authorities
3. Criminal law: defines offences against state and provides punishment
4. Taxation law
Private law
1. The law of contract :rights and duties arising out of agreements
2. The law of tort: breach of contract, commit a civil wrong
3. The law of property: deals with the ownership, possession, use and disposition of real property
and personal property
4. Corporations law:
5. The law of trusts: a person holds property on behalf of another person
Substantive law and procedural law
1. Substantive law: actual rights and duties
2. Procedural law: formal steps to be followed in the enforcement of those rights and duties
Civil law and criminal law
1. Civil law: purpose is to obtain monetary compensation even seek specific performance of a
contract
Lesser standard of proof
Succeed on the balance of probabilities(可能性较高者)
2. Criminal law: define offences against the state and provides punishment
Summary offences are triable summarily with only a judge; minor offence
Indictable offences are triable before a judge and jury: serious offences
The prosecution must prove their case beyond reasonable doubt(无可置疑)
Commercial law(private law)
1. Regulated by statutes, e.g. Commonwealth Competition and Consumer Act 2010, Corporations Act
2. Regulated by principles of the common law
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The legal profession
Solicitors
1. General practitioner of the law
2. Ascertain the facts and procure the necessary documents before the case is heard
Barristers
1. Conduct cases in court
2. Provide solicitors with legal opinions on difficult points of law
Alternative methods of dispute resolution
Commercial arbitration(商业仲裁)
Alternative dispute resolution
Negotiation
Mediation(调解)
Conciliation
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