Title of presentation

LST2BSL
Name of presenter
Introduction to Business Law and Ethics
Title of presenter
School / Faculty / Division
xx Month 201x
Sources of Law in Australia

latrobe.edu.au CRICOS Provider 00115M

Outline of lecture
Part I:
• Sources of law in Australia
• Structure of legislatures, allocation of legislative powers
• The legislative process, the structure of an Act
• Interpreting legislation; legislature and judiciary

Part II:
• Judiciaries, case law and case reports
• Court hierarchies and jurisdiction
• How precedent works
• Common law and equity
Part I
Sources of law in Australia
• Different according to the different forms of law. For instance:
▫ International law, eg multilateral treaties
▫ Customary law
▫ Delegated legislation
• 2 main sources of Australian law for our purposes:
▫ Legislation, also called statute law
 Acts made by legislature/parliament
▫ Case law
 Cases decided by judiciary/judges

▫ Business law derives from both these sources.

Structure of legislatures
• Most legislatures in Australia are bicameral:
▫ Upper house
 ‘Senate’ at Commonwealth level
 ‘Legislative Council’ at state and territory level
▫ Lower house
 ‘House of Representatives’ at Commonwealth level
 ‘Legislative Assembly’ at state level (or ‘House of Assembly’ in
South Australia & Tasmania)
• Parliaments in the territories, and in Queensland, are
unicameral (only 1 house)
• The Crown is also part of the legislature
▫ Governor-General at Commonwealth level
▫ Governors at state/territory level
Recall: allocation of legislative powers
• Federal system: different levels of government in Australia have
different law-making powers.
• According to the Constitution, 3 kinds of powers:
▫ Exclusive powers: exercised only by the Commonwealth
parliament
 Set out in ss 52, 90, 114, 115, 121, and 122
▫ Shared or concurrent powers: can be exercised by both the
Commonwealth and state/territory parliaments
 Listed in s 51
 Where conflicting legislation, commonwealth legislation overrides
state legislation, but only to the extent of the inconsistency (s 109)
▫ Residual powers: exercised only by the states
 As protected by s 107
Legislative process
• Legislature follows a particular procedure when creating
legislation:
▫ Government proposes new legislation according to current policy
▫ Parliamentary draftspersons prepare a Bill
▫ Relevant Minister introduces the Bill into House of Origin
▫ House of origin: 3 readings. 2nd reading includes a speech and debate
about the Bill. If passed, the Bill will proceed to…
▫ House of Review: 3 readings as in House of Origin. (If amendments
are made, the Bill returns to the House of Origin, etc. until both
Houses have passed the Bill.)
▫ The Bill is sent to the Governor/Governor-General for Royal Assent.
▫ The Bill becomes a Statute, or Act
▫ Publication in Government Gazette
▫ Commencement: as specified by the Act, or 28 days after royal assent
The structure of an Act
• Piece of legislation = an Act of parliament = a statute

• eg Corporations Act 2001 (Cth)

• Usually follow a particular format or structure (not all of these are found in all
Acts):
▫ Title (also Act number and year)
▫ Long title
▫ Table of provisions
▫ Purpose section
▫ Definitions section
▫ Commencement section
▫ Divisions/parts
▫ Sections/provisions/clauses (often have headings), some of which also have subsections or
paragraphs
▫ Marginal notes/sidenotes
▫ Notes or Schedules
Statutory interpretation
• Legislation is applied by judges to decide legal disputes or
actions.
• Even when legislation appears clear, it often requires
interpreting, to decide what it means in relation to a specific
factual context.
▫ Meanings may be provided in definitions section
• When being applied, legislation must be interpreted:
▫ Judges must decide what certain words in the legislation mean.
▫ Judges cannot simply choose the meaning or interpretation
they prefer: courts must use particular rules when interpreting
legislation.
Rules of statutory interpretation
• Rules of statutory interpretation can derive from legislation (eg Acts
Interpretation Acts) or from common law.
▫ You do not need to know how to apply rules in textbook para 2.6.6
• Purpose:
▫ Courts must consider the purpose of the legislation when interpreting its
provisions (ss 15AA and 15AB Acts Interpretation Act 1901 (Cth)).
▫ When determining the purpose, court can consider:
 Intrinsic materials from within the legislation, such as the long title or the purpose
section; and
 Extrinsic materials, such as explanatory memoranda, the Minister’s second reading
speech, etc.
• Literal approach
▫ Words should be given their ordinary, everyday meaning (as in a dictionary).
• Golden rule
▫ If the literal rule gives an absurd or irrational outcome, the court can take a
commonsense approach instead.
Interaction of legislature & judiciary
• Legislature and judiciary make law in very different ways.
• But both play a critical role in the Australian legal system, and
both depend upon each other:
▫ Judges decide what legislation means when it is being applied to
resolve a particular legal dispute (statutory interpretation).
▫ Judges cannot make new laws based on current policy, like
legislatures can. Courts must wait for legal disputes to come to
them, before they can create new law through their decisions on
these disputes.
▫ Sometimes parliaments will legislate on particular issues in
response to decisions made by the judiciary. In this way,
legislation can ‘override’ judicial decisions because if there is any
inconsistency between case law and current legislation, the
legislation prevails.
Part II
How judiciary makes law
• When they decide legal disputes (cases), judges (justices)
are not simply applying law. They are also making law.
• This is unique to common law systems.
• Doctrine of precedent: ‘stare decisis’ – ‘stand by what
has been decided’.
• Only decisions from higher courts in
the hierarchy must be followed.
• The body of decisions, or judge-made law,
is called ‘case law’ or ‘precedent’.
Law reports and case citations
• Law reports contain written reports of important
decisions made by courts.
▫ See part 3.4 in the textbook for an example.
▫ Information included in the report includes:
 Court and key dates
 Names of the parties to the dispute
 Catchwords
 Headnote
 Judges
 Judgments
• Citations tell us about a case and where it is reported:
▫ eg Taylor v Johnson (1983) 151 CLR 422
▫ Medium neutral citations
Court hierarchies in Australia
• Each judiciary in Australia has a court hierarchy
• The High Court of Australia (HCA) is at the top
of every court hierarchy in Australia.
• In most states, there are several levels below the HCA:
▫ Superior Courts: Court of Appeal (Full Court of Supreme Court)
Supreme Court
▫ Intermediate Courts: County Court/District Court
▫ Lower Courts: Magistrates Court/Local Court
• The federal court hierarchy includes the Federal Court and
other specialised courts.
• Appeals proceed up a court hierarchy.
• Other tribunals, commissions and specialist courts also exist.
Court hierarchies in Australia
Jurisdiction
• Jurisdiction is the power of a court to hear and decide cases.
• It can be defined or limited in a number of different ways:
• Procedural
▫ Original Jurisdiction (hear cases at first instance)
▫ Appellate Jurisdiction (hear appeals)
• Geographical
▫ Courts generally only decide cases arising in the relevant state/territory
• Legislation
▫ Federal courts hear matters arising from federal legislation
▫ State/territory courts hear matters arising from state/territory legislation
• Criminal/civil
▫ Criminal – State/Crown v accused; onus on prosecution; standard of proof ‘beyond
reasonable doubt’
▫ Civil – disputes between 2 or more parties; plaintiff v defendant; onus on plaintiff;
standard of proof ‘balance of probabilities’
• Seriousness
▫ Summary jurisdiction – lower courts deal with small matters (less serious offences, or
disputes involving smaller sums of money)
How precedent works: legal reasoning
• When deciding a new case, the judge/magistrate must follow the
decisions made by courts higher in the hierarchy.
• If a past decision involved a similar set of facts, then the doctrine of
precedent (stare decisis) tells us that the same outcome should be
reached.
• Cases are decided by judges applying legal rules and principles, to
new facts. This is legal reasoning, a kind of deductive reasoning.
• In deciding cases, judges write ‘judgments’ where they explain the
reasons for deciding the case in a particular way.
• In a new case, the judge will look at the judgment(s) from a past
case, consider the reasoning (the legal principles) used to decide the
past case, and apply this legal reasoning or principles to the new
situation.
How precedent works: what is binding?
• Past cases (precedents) can be either:
▫ Binding (decisions from higher courts), or
▫ Persuasive (decisions from other courts, including other countries).
• Only part of a precedent is binding:
▫ the ‘ratio decidendi’ or ‘reason for the decision’,
must be applied to the new case.
▫ the ‘obiter dicta’, or other comments given by the court in the past
judgment, which did not affect the outcome, are not binding.
• If the new situation can be shown to be different in some significant
way, then the past decision is said to be ‘distinguished’, and it need
not be followed.
• Precedent creates certainty and predictability in the legal system,
while allowing judges some flexibility in deciding new disputes.
Common law and equity
• Case law, also called the ‘unwritten law’ or ‘general law’, is of 2 types:
1) common law
2) equity
• Based on the history of the English legal system, with 2 different courts.
• Common law:
▫ Derives from law common to England, as decided by the King’s Courts.
▫ Only restricted to certain types of legal disputes/wrongs.
▫ Rules applied strictly, regardless of unfair results or changing social norms.
• Equity
▫ Derives from Court of Chancery.
▫ Flexible rules and principles focused on fairness and justice.
▫ Courts have discretion whether to grant equitable remedies.
▫ Prevails when any inconsistency with common law.
▫ Rights must be claimed without delay.
• All Australian courts apply rules from both common law and equity.
Resolving legal disputes
• Most legal disputes do not end in court judgments:
they are resolved through alternative means,
or settled out of court.
• Alternative Dispute Resolution (ADR):
▫ Instead of going to court, people in a dispute use other processes
to resolve the issue, usually with the assistance of an impartial
person such as a mediator.
▫ Examples include arbitration, mediation or conciliation.
▫ Parties may choose ADR rather than going to court; a court may
order parties to undertake ADR; a contract may specify ADR.
Summary/Revision
• Main topics or points from this lecture:
▫ Source of law in Australia
▫ Legislatures, the legislative process, and legislation
▫ Statutory interpretation
▫ Legislature and judiciary
▫ Judiciaries, law reports and case citations
▫ Court hierarchies and jurisdiction
▫ How precedent works, common law and equity
▫ Resolving legal disputes and ADR
• Expand your glossary with new words:
▫ golden rule, summary jurisdiction, ratio decidendi, common law
• Next week: Making a contract
Extra support if you need it
• Subject Support Tutors Program (SSTP)
• For anyone who is finding the subject difficult and would
appreciate extra assistance.
• Simply contact one of the SSTP tutors for this subject:
▫ Engi Messih (E.Messih@latrobe.edu.au) – Bundoora
students only
▫ Mst Kanij Fatima (M.Fatima@latrobe.edu.au) –
Bundoora students only
▫ Jennifer Lay (J.Lay@latrobe.edu.au) – students in
regional campuses only