CACL 6e CH1 FINAL

INTRODUCTION TO LAW
& THE AUSTRALIAN LEGAL SYSTEM
2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

PowerPoint slides to accompany Turner, Trone & Gamble, Concise Australian Commercial Law, 6e
CONTENTS
• The definition and function of law
• The Australian Legal System
• Sources of Law & Judge Made law
• The Doctrine of Precedent & hierarchy of Australian Courts
• Classification of law and legal proceedings
• Alternative methods of dispute resolution

DEFINITION AND CONCEPT OF LAW
Defining law •Natural law
•Religious law
•Customary law
•“Positivist” definition of law
•Meaning of “rule of law”
Australian is a democracy and law abiding

society and adheres to the “rule of law”
i.e. no individual or organisation is above the
law
THE AUSTRALIAN LEGAL SYSTEM
History and Development
•Terra Nullius and Doctrine of Reception
•Mabo
•Native Titles Acts
•Towards a Sovereign Nation

THE AUSTRALIAN LEGAL SYSTEM
Commonwealth of Australia Constitution Act 1900 UK
•Created the Commonwealth Constitution
•Established the Commonwealth Parliament
•Created the High Court of Australia
•Converted the six independent colonies into
“states” in a federal system of government
•This was the commencement of “federation”
and the establishment of two separate levels of
government Commonwealth and states

CONSTITUTIONAL SYSTEM (CONT.)
Law making powers: Commonwealth Constitution
•Section 51: Cth Parliament has •Section 52: Cth Parliament has
power to make laws in 39 areas. some “exclusive powers” eg
Most are “concurrent powers” ie customs & excise; defence
can also be exercised by States States/Territories have
•If conflict with State laws then s “residual powers” (what is left)
109 applies eg local government; health

Conflict of Laws in s109 Constitution
Commonwealth law will prevail in the area of conflict as State and Federal law can
overlap
THREE BRANCHES OF GOVERNMENT
“Separation of Powers” under the Commonwealth
Constitution
The 3 branches of government are:
•Legislature (parliament)
•Executive
•Judiciary (courts)

ROLE OF THREE
BRANCHES OF GOVERNMENT
(FUNCTION SEPARATELY & INDEPENDENTLY OF EACH OTHER)
Parliament: MAKES the law (statutes)

Executive: ADMINISTERS the laws made by Parliament
(The Executive consists of the Prime Minister & cabinet)
Judiciary (courts): INTERPRETS the law

CAN THE COMMONWEALTH CONSTITUTION
BE CHANGED?
COMMONWEALTH CONSTITUTION: SECTION 44 REQUIRES
THE AUSTRALIAN ELECTORATE TO VOTE YES/NO TO THE PROPOSAL.
THE REQUIREMENT IS
• A MAJORITY OF ALL VOTERS
AND
• A MAJORITY IN AT LEAST 4 STATES

SOURCES OF LAW
STATUTE LAWS: JUDGE MADE LAWS:

LAWS MADE COMMON LAW/EQUITY BY
PARLIAMENT
(LEGISLATION)
SOURCES OF LAW
How are Statutes/Acts of Parliament made?
Commonwealth laws State laws
•Bill presented and discussed 3 •Same process as
times in lower and upper Commonwealth but with
houses. CALLED “READINGS”. approval and signing by the
•If approved, signed by Governor.
Governor-General (Royal
assent from Crown).
•Published in Commonwealth
Government Gazette.
SOURCES OF LAW
Role of courts & Interpretation of statutes
It is the role of the courts to Courts use various aids in
apply the common law and applying the law including:
equity law in cases. • Precedent
It is also the role of courts to • Rules of statutory interpretation
interpret, apply and enforce • Interpretation Acts
the various statute law passed • Maxims of interpretation
by Parliament.
Hierarchy of the State /Territory Courts
Courts of Appeal (Supreme Court)
Supreme Courts (single judges)
District Courts/County Courts
Local Courts/Magistrates courts
There are also various state/territory tribunals

HIERARCHY OF COMMONWEALTH COURTS
HIGH COURT OF AUSTRALIA
FEDERAL CIRCUIT & FAMILY COURT OF AUSTRALIA

(FCFC Court)
(Note that the new combined FCFC court are structured as:
Division 1 - Family matters; and
Division 2 - General Federal matters)
DOCTRINE OF PRECEDENT (STARE DECISIS)
Similar cases decided in similar ways
Decisions of higher courts bind lower

courts in the same hierarchy in cases
with identical/similar facts
•Ratio decidendi: reasons given by the
judge – only binding part of the
decision
•Obiter dictum/dicta: passing
comment- statement that was not
strictly necessary for the decision but
influential if judge is very senior

CLASSIFICATION OF LAW & LEGAL
PROCEEDINGS
Laws can be classified as public & private law or civil & criminal
Public laws include Civil laws include
•Constitutional law •Contract law
•Criminal law •Torts
Private laws include Criminal laws include
•Contract law •Summary and indictable
•torts offences

ALTERNATE DISPUTE METHODS
Methods used to avoid /limit costly court proceedings

•Commercial arbitration
•Negotiation
•Mediation
•Conciliations


CACL 6e CH1 FINAL

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INTRODUCTION TO LAW

& THE AUSTRALIAN LEGAL SYSTEM

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

• The Australian Legal System

• Sources of Law & Judge Made law

• The Doctrine of Precedent & hierarchy of Australian Courts

• Classification of law and legal proceedings

• Alternative methods of dispute resolution

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Australian is a democracy and law abiding

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

The 3 branches of government are:

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Parliament: MAKES the law (statutes)

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

STATUTE LAWS: JUDGE MADE LAWS:

Supreme Courts (single judges)

District Courts/County Courts

Local Courts/Magistrates courts

There are also various state/territory tribunals

HIGH COURT OF AUSTRALIA

FEDERAL CIRCUIT & FAMILY COURT OF AUSTRALIA

Decisions of higher courts bind lower

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

Methods used to avoid /limit costly court proceedings

2021 Thomson Legal & Regulatory Ltd. All Rights Reserved.

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