Outcome 1B

Question 1

Sources of law

Answer 1

Statute law and common law

Question 2

Statute law

Answer 2

• A written law made by the state and commonwealth parliaments through the legislative process of passing a bill through both houses
• AKA legislation or acts

Question 3

Development of statute law

Answer 3

• A bill is a proposed law drafted by the parliamentary council which goes through parliament
• Every single proposed law in Parliament goes through 3 readings where the law is discussed and analysed in Parliament.

Question 4

Common law

Answer 4

Law made by the courts
A court’s primary responsibility is to adjudicate disputes.
As a secondary role, they may need to make law.
AKA judgements

Question 5

Development of common law

Answer 5

• When there is no legislation in place and the court needs to hand down a decision
• When the legislation is ambiguous and the court needs to interpret it and apply it. This interpretation creates law (precedent). This is called statutory interpretation.

Question 6

Statutory interpretation

Answer 6

• The process by which courts interpret and apply the words in legislation made by parliament.
• In the judgement, the judge will reference the Act, but will give reasons for their interpretation
• Creates a precedent in common law.

Question 7

Common law case examples

Answer 7

Donoghue v. stevenson (snail in drink) - courts make law when there is no legislation or law in place

Studded belt case - courts make law when the legislation is ambiguous - statutory interpretation

Question 8

Stages of a bill through parliament

Answer 8

1. Introduction and first reading
2. Second reading
3. Committee stage
4. Third reading
5. Repeat in upper house
6. Royal assent

Question 9

Introduction and first reading

Answer 9

• The MP introducing the bill will distribute copies and the long title of the bill is read out.

Question 10

Second reading

Answer 10

• The MP will explain the purpose in detail.
• A statement of compatibility is presented explaining this in relation with the charter of human rights.
• The opposition replies and a debate follows.
• A vote is taken.

Question 11

Committee stage

Answer 11

• Optional.
• The bill is examined in detail, clause by clause, and amendments are made.
• This stage is more likely to happen in the upper house where the government may not have a majority.

Question 12

Third reading

Answer 12

• This is a final stage and a vote is taken

Question 13

Royal assent

Answer 13

• A signature on a bill from the governor or governor general for it to become an act
• Proclamation date: The law takes effect

Question 14

Binding precedent

Answer 14

• Made by a superior court and must be followed by lower courts in the same hierarchy where the facts of the case are similar
• The ratio decidendi in a case is the binding part of precedent.

Question 15

Persuasive precedent

Answer 15

• Influential but not binding.
• Obiter Dictum are statements made by judges along the way that form persuasive precedent
• Formed in courts lower in the hierarchy or in other jurisdictions

Question 16

Ratio decidendi

Answer 16

Reason for the decision

Question 17

How a previous precedent can be avoided

Answer 17

• Distinguishing
• Overruling
• Reversing
• Disapproving

Question 18

Distinguishing a previous precedent

Answer 18

• If the material facts of a case are sufficiently different from the material facts in a binding precedent
• a Lower court distinguishes the facts of the case and then they do not follow that case
• They usually set a new precedent.

Question 19

Overruling a previous precedent

Answer 19

• A precedent can be overruled by a higher court in a different case.
• When a precedent is overruled it no longer applies.
• 2 separate cases - no appeal.
• Superior court changes existing precedent.

Question 20

Reversing a previous precedent

Answer 20

• A precedent can be reversed when the same case is taken to a higher court on appeals.
• When a precedent is reversed it no longer applies.

Question 21

Disapproving a previous precedent

Answer 21

• Courts of equal standing can disapprove
• Lower courts will follow the binding precedent.
• Lower courts can also disapprove however it does not change a precedent, but a higher court when deciding a later case may choose to agree with the court that disapproved of the precedent and decide to overrule it.
• Persuasive precedent is created but they still must follow the binding precedent.

Question 22

Relationship between parliament and courts

Answer 22

• When parliament passes law, the courts must apply it.
• Statutory interpretation.
• Abrogating the law
• Codifying
• Interpretation of an act
• Court influencing parliament to change laws

Question 23

Abrogating the law

Answer 23

• Parliament can abrogate/abolish precedent if it is outdated or incorrect
• A court’s interpretation of an act may be incorrect as it does not reflect the intentions of parliament.
• Courts may develop a precedent that parliament does not agree with.

Question 24

Codifying

Answer 24

• The parliament can take a precedent set by the court and enact it into legislation.

Question 25

Interpretation of an act

Answer 25

- The interpretation of an Act can become a precedent when the the meaning of the words of an Act are interpreted when cases come before the court.

Question 26

Courts influencing parliament to change the law

Answer 26

- The courts can influence parliament through the judge's comments - obiter dictum - Judges think their role is to enforce the law - Judges often believe that parliament is in a better position to change the law as parliament can carry out investigations and ask the community about changes in the law.

Question 27

What is a court hierarchy?

Answer 27

- The courts are arranged in a hierarchy. - This is a ranking of courts based on the severity or complexity of cases they can hear. - Each court has its own jurisdiction (power/responsibility)

Question 28

The court hierarchy

Answer 28

1. High court - Federal, appeals from the court of appeal from every state 2. Supreme court of Appeal - Appeals from county/supreme 3. Supreme court trial division - murder, appeals from magistrates court on point of law 4. County court - All indictable/serious offences except homicide and appeals from magistrates court on conviction 5. Magistrates court - summary offences (minor), no appeal as it is the lowest court

Question 29

Reasons for a court hierarchy

Answer 29

Specialisation Appeals Doctrine of precedent Administrative convenience

Question 30

Specialisation

Answer 30

- A court hierarchy allows each court to develop the skills, experience and processes to deal with specific types of disputes. - The judge or magistrates in each court can develop a specialised understanding of the law with respect to the types of cases that are determined in that particular court. - Skills

Question 31

Appeals

Answer 31

- People who believe that they have grounds for an appeal have the opportunity to have their case heard again in a superior court by a judge with specialist knowledge and expertise. - If there were no higher courts, there could be no system of appeals which could create unfairness if a court incorrectly determined a case. - Reviews

Question 32

Doctrine of precedent

Answer 32

- Precedent operates through the ranking of courts as ratio decidendi of superior courts are binding on the lower courts within the same hierarchy. - This system provides consistency and predictability.

Question 33

Administrative convenience

Answer 33

- Given that the courts have different jurisdictions to hear different matters, it allows smaller and minor cases to be heard in the magistrates court. - This saves time and money, while the more complicated cases go to the County and Supreme courts. - This allows for efficiency in the legal system.