sources of australian contemporary law 1
TRANSCRIPT
Sources of Australian Contemporary Law
Australia’s legal system is based on an adversarial system of trial
in an adversarial system, the parties to a court case are opponents who must prove their version of events to ‘win’ the case - the judge is only an impartial observer
Adversarial and Inquisitorial Systems
in an inquisitorial system, the judge is actively involved in asking questions, calling evidence and determining the case
Wood Royal commission used an inquisitorial system
Australia imported common law from
England when the country was settled by
British colonists
over time, Australia developed its own
system of courts and law as it became
independent from Britain
Common Law
‘Precedent’ is the basis of Australia’s system of common law when a court decides a case, the reason for the decision can become a precedent for future cases in this way the law develops a body of case law that is applied in future judgments this is sometimes known as ‘judge-made law’
The Doctrine of Precedent
courts are bound by precedents, and lower courts will be bound by the decisions of higher courts – this is known as binding precedent
when a court is not bound by another court’s judgment it can still be influential – this is known as persuasive precedent
Two important terms◦ Ratio Decidendi – the legal reason why a judge
came to a particular decision◦ Obiter Dicta – comments from a judge in a case
that are not directly relevant to the case (there not legally binding)
Judge making a decision
Go to my website for extensive information
Court Hierarchy
http://year11-legalstudies.wikispaces.com/The+Court+Structure
Local Court (Magistrates Court) most criminal cases
begin here presided over by
magistrate (no jury) deals with summary
matters no appellate jurisdiction committal proceedings
regarding serious matters to determine whether a prima facie case exists
coroner ensures all deaths, suspected deaths, fires and explosions which come under the his/her jurisdiction are properly investigated
inquisitorial approach◦ Video: http://www.youtube.com/watch?v=
RT3iPXklKK0
Coroner’s Court
is a closed court presided over by Magistrate (no jury) rehabilitation is the primary purpose of
sentencing◦ Video: http://www.youtube.com/watch?v=
FKBki73KnMU
Children’s Court
Specialised court enforcing environmental law
Concerned with environmental planning and offences
Land and Environment court
has appellate jurisdiction from Local Court –
presided over by a judge trial by jury or judge along deals with serious criminal (Indictable)
offences◦ Video: http://www.youtube.com/watch?v=
41UWqMyMSVI
District Court
has appellate jurisdiction from District Court and Local Court
highest court in NSW (deals with most serious criminal offences e.g. murder, attempted murder
hears bail applications presided over by judge
trial by jury◦ Video: http
://www.youtube.com/watch?v=bsWB8QmGJgs&playnext=1&list=PL8CDAD32EB1A64C76
The Supreme Court of NSW
has appellate jurisdiction from District Court and Supreme Court◦ Grounds for appeal include:
challenging a conviction involving a question of law
questions of fact, mixed questions regarding sentence severity or adequacy
The court of Criminal Appeal
To Relieve press on other federal courts It does not deal with criminal matters This court has been dissolved
The Federal Magistrates Court
Deals with industrial matters and bankruptcy
Deals with civil matters (except family matters)
The Federal Court of Australia
Complex family matters – Divorce, parenting orders, division of property
The Family Court of Australia
Deals with appeals from the federal courts and state supreme courts
Cases involving the interpretation of the Australian constitution◦ Video:http://www.youtube.com/watch?v=
lXxyTLbZNgw
The High Court of Australia