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The Australian Legal System
© Oxford University Press, 2007. All rights reserved.
THE HIERARCHY OF COURTS IN AUSTRALIA
Tribunals
• functions of tribunals
• advantages of tribunal proceedings.
© Oxford University Press, 2007. All rights reserved.
Sources of Law
Three regimes:
• common law (judge-made law)
eg. CBA v Amadio (1983) 151 CLR 447
• statutory law (derives from Parliament) both:
federal eg. Trade Practices Act 1974 (Cth) and state
eg. Goods Act 1958 (Vic)
• sources arising from the globalisation of contract.
Sources of Law cont…
The Common Law:
• making law - Mabo’s case
• the doctrine of precedent
ie the law expounded in an earlier case is followed in later
similar cases in the same judicial hierarchy
• rationale: certainty, predictability and consistency
• problems.
Sources of Law cont...
Equity:
• concerned with preventing unconscionable conduct, that is
conduct not based on good conscience
• the development of equity
• examples: doctrine of estoppel (Walton Stores v Maher),
doctrine of unconscionable bargains (Amadio’s case).
Sources of Law cont…
Legislation - our major source of law today:
• note the relationship between common law and statute
• in the event of inconsistency, statute law or legislation
takes precedence over, or overrides, judge-made law
• understand why, for example, an action for misleading or
deceptive conduct under s 52 of the TPA is preferable to an
action for common law misrepresentation.
Sources of Law cont ...
Legislation - rules of statutory interpretation:
• aids to interpretation: eg Acts Interpretation Acts, Hansard
reports, explanatory memoranda
• common law rules: (i) literal rule
(ii) golden rule
(iii) mischief rule.
Sources of Law cont ...
Delegated (subordinated) legislation:
• namely, rules; regulations; orders; ordinances; by-laws;
statutory instruments; notices; proclamations
• where decision-making of detailed regulations is referred
to a subordinate body
eg. minister of a relevant government department, local
council.