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Law defined
A set of rules, developed over a long period of time regulating people’s interactions with each other and which sets standards of conduct between individuals and other individuals, and individuals and the government and which are enforceable through sanction.
Law made by Parliament
Statute Law
Law made by judges/ the courts
Case Law (sometimes referred to as Common Law)
Separation of powers
The doctrine of separation of powers seeks to confine the exercise of the legislative, executive and judicial branches of government exclusively to their respective institutions (Parliament, Cabinet and the courts).
Delegated Legislation
Where legislative authority has been delegated by the parliaments to government departments and authorities, and local councils Delegated legislation may include: Orders Regulations By-laws Local laws
Division of law-making power
Exclusive powers Concurrent powers Residual powers
Change to the balance of power between commonwealth and state governments can be achieved via:
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High Court interpretation of the Constitution Change to the Constitution Referral of Sate power to the Commonwealth
To change the Constitution requires a referendum – which is set out in section 128.
Approved by an absolute majority of both Houses of Parliament or passed twice in one house. Referendum (vote) approved by majority of the voters in at least four states.
The Governor-General gives Royal Assent
Case Law: law made by judges
Law developed through court hearings of disputes Includes principles: development prior to legislation governing matters not covered by legislation developed through statutory interpretation
Common law
Common law is the law created by the reported decisions of judges. Common law is also known as: case law; precedent; unenacted law. The typical common law remedy is damages (monetary compensation)
Equity
Equity developed as a result of the growing inflexibility and rigidity of the common law. Equity implies fairness and justice in the law. There are two types of equitable remedies sought: Injunction – a court order directing a person to stop doing something; and Specific performance – a court order directing a person to carry out an obligation.
The Doctrine of Precedent
The doctrine of precedent refers to the application of original decisions in deciding later cases of similar fact
Stare decisis
– the principle that courts follow established precedents; literally means ‘to stand by a decision’.
Res judicata
the principle that only the immediate parties to the action are bound.
The Doctrine and ... the court hierarchy
The doctrine of precedent presupposes the existence of a court hierarchy. Underlying the doctrine of precedent is the principle that lower courts in the hierarchy stand by decisions of superior courts.
The Queensland Court Hierarchy
High Court Supreme Court District Court Magistrates’ Court
Jurisdiction of the courts
Original and Appellate Jurisdiction
A court’s jurisdiction is established by its enabling Act.Original jurisdiction
is the authority to hear a case when the case is first brought before a court. For all courts other than the High Court this will consist of original criminal and civil jurisdictions
Appellate jurisdiction
is the authority of a court to hear appeals from decisions of courts of a lower level in the same court hierarchy.
The High Court
Established under s 71 of the Australian Constitution. Limited original jurisdiction in those cases authorised by the Commonwealth Constitution. Appellate jurisdiction in both civil and criminal matters arising from the State Supreme Courts and Federal Courts. Appeals do not lie “as of right”. Approval to hear an appeal must first be granted by the High Court. The High Court is the final court of appeal within the Australian legal system.
Functions of the High Court
The three functions of the High Court are:
To exercise a defined original jurisdiction; To guard and interpret the Australian Constitution; and To serve as the final court of appeal within the Australian legal system.
Binding precedent
A decision that must be followed
Persuasive precedent
A decision that may be, but need not be, followed.
Ratio decidendi
The reason for deciding; that part of a judgment that is binding on later cases of similar fact
Obiter Dictum
Sayings by the way
Adopted or affirmed...
Adopted: followed or applied. Affirmed: agree with the earlier decision.
Reversing
When a case is heard on appeal and the appellate court finds for the party who lost in the original hearing, the decision is said to be reversed.
Over-ruling
A court over-rules a decision when it considers an earlier decision of a lower court and declares it to be no longer good law.
Disapproved
if the court cannot overrule a case it may state (by way of obiter) that the earlier case is no longer good law.
Distinguishing
Distinguishing occurs where material differences between the facts of two cases are argued in order to avoid the application of a binding precedent.
