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The Distinctiveness of Australian Law (pg3-11).!
English and Australian Law;!
• In an ideal world, law and justice would go together automatically. Much of the development of
the Australian legal system has arisen out of peoples desire for justice.!
• The rule of law means that all people are subject to the law and can rely on it to set the bounds
within which other people and governments can operate. It operates to prevent the arbitrary abuse
of power.!
• Australian law developed from the tradition of English common law, but the particular conditions
and circumstances of the colonists led to the creation of a distinctive system of law.
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•Cable v. Sinclair [1788]; Henry Kable and Susannah Kable were sentenced to
transportation. Twenty pounds was entrusted to the captain of their ship, but on landing in Sydney
it had vanished. In English Law, convicts were considered 'civilly dead', and therefore unable to
bring action against the captain who had been responsible for their property. However, in Sydney
they were able to bring action, and they won. This was the first civil action in Australian law. Thus,
although many of the traditions of English law can be seen in this case (e.g. the vicarious liability of
the captain stemming from maritime law), it also discerns a departure from English law in that the
convicts were allowed to sue.
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•The view of Australian law as a mere transplant of English law is now challenged. Those such as
Bruce Kercher demonstrate that it has been distinctive and different from the start. However, it can
be stated that the First Fleet brought a culture of law which was instrumental in the development of
a new country. !
The Current Australian Legal System;!
Characteristics Derived From English Heritage;!
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•A system of representative democracy using parliament to make laws. All Australian
jurisdictions use systems in which people vote for the parliamentary representatives who then
make laws. The majority party in the lower house forms the government. The Australian
Parliamentary Government is based on English heritage, individual liberty, and limits on
governmental power to prevent the abuse of power.!
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•A legal profession divided either formally or informally into solicitors and barristers.
Solicitors advise clients and manage their affairs. Barristers advocate in court. This division is
significant, even though many jurisdictions have rejected a rigid division of the branches of the
profession, as judges were only chosen from the advocacy branch for centuries. This rule was
occasionally broken in the late twentieth century in Australia, as solicitors and legal academics
were appointed to the judiciary.!
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•A 'common law' system; This refers to the system of law derived from the English legal
system. This system exists in several countries with colonial links to Britain, such as New Zealand
and India. This is contrasted with the civil law system derived from Roman law, existent in
countries such as France and Greece. These are characterised by inquisitorial characteristics
(rather than adversarial), and use codes as a basic form of law rather than judicially decided cases. This can also refer to the way law is made in this system, referring to the way that judges make law
based on decided cases (precedents), and develop legal principles from the judgements of these
decided cases. This can be called case law. The ratio decidendi (legal reasoning behind a
judgement) forms a binding precedent for lower courts. The doctrine of precedent is a central
source of law in this system, as is legislation or statute. This is made by parliament.
The common law system can also refer to particular branches of law. This division is based on
differences between the medieval royal courts (the 'courts of common law'), and other areas of law
(e.g. the law stemming from the Lord Chancellors role- "equity"). Within private law, equity is
distinct from common law.!
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•Decision making in courts after an adversarial trial. The adversarial system partly
relates back to 'trial by combat'- however, this was abolished after the case of Ashford v Thornton
(1818) under the statute 59 Geo III c. 46 (Abolition of Appeals of Felony and Trial by Battle. This
was overtaken by trial by jury during the time of Henry II- the role of early juries was to make
enquiries and decide what the truth was- they had to decide the material facts. In order to
determine which facts were material, judges had to determine what the law was through a process
of pleading- a method of arguing what the jury was to try. By contrast, modern juries determine the
material facts of a case after they have heard the evidence in trial.!
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•A court system for dispute resolution. The use of courts for dispute resolution, and the
division of subject matter among courts, stems from English heritage. The Victorian Supreme Court
is divided into Commercial and Equity, Common Law, and Criminal Divisions within the Trial
Division. In NSW, they are divided into Common Law and Equity Divisions. These reflect the
division of law in the historical English context.!
Distinctive Australian Characteristics;!
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•A federal system made up of a Commonwealth, and states and territories. Australia
became a Federation in 1901. A federal system is a way of separating powers into different bodies
of government. This was a pragmatic solution to the existence of separate sovereign states with
common problems such as immigration and trade.!
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•Some (limited) recognition of Indigenous customary law. When Mabo v Queensland
(No 2) (1992) was decided, the courts recognised terra nullius as legal fiction. The High Court held
that native title could exist separately from the common law, as it was based on customary law.
Although this recognition has been slightly eroded by statutory modification, the case was highly
significant in recognising Indigenous customary law. Other forms of recognition include the
Northern Territory allowing some criminal punishments to be carried out on a customary basis
rather than under the common law. Customary law marriage is recognised as marriage, and some
aspects of Indigenous heritage have been protected by statute. Although recognition is limited, the
legal system is not oblivious to its Indigenous inhabitants.!
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Courts in Action (p295).!
Adversarial and Inquisitorial Procedures;
The common law legal system uses an adversarial legal procedure whilst the civil law system
uses an inquisitorial procedure. The differences are set out below:!
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• Adversarial (common law):!
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◦ Parties in the adversary system are in charge of the action ('lawsuit'). They initiate it, set it
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up, call the evidence, call witnesses and use the court as a forum.!
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◦ In theory, equal parties prepare and present their case to a neutral tribunal (judge)!
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◦ Advocates have a duty to their party and to the court!
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◦ Court is not entitled to make its own enquiries or otherwise act on its own knowledge in
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reaching its decision.!
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◦ Thus, the role of the judge is 'adversarial' - he makes rulings about what evidence is !
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admissible, what procedure should be followed, and sometimes asks questions purely to
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clarify the matters.!
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◦ After the trial, the judge decides on the law and writes a judgment which becomes !
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precedent.!
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• Where there is a jury, a judge directs the jury on the law that they should apply to the !
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facts.!
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• Inquisitorial (civil law):!
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◦ The judge has a more active role - may direct parties to present witnesses, examine the
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witnesses personally or collect evidence.!
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◦ This means the judge is more 'in charge' of running the action than the parties.
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The Chamberlains' case is a good example of a case that covers all aspects of the legal system.
The interaction of courts, experts, media and an unusual event made a tragedy for a family into a
nightmare.!
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•The Chamberlains were camping near Uluru when their baby, Azaria, disappeared from !
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the tent.!
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• Since dingos have been attacking small children around the area, the coroner's inquest
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concluded that a dingo must have taken the baby and neither parents are at fault.!
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• However, there was frenzy in the media about the rituals of the church which the !
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Chamberlains belonged too, and a (false) rumour said that Azaria meant 'sacrificed in the
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wilderness'.!
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• Suspicion of the mum intensified because the interview showed her appearing unnaturally
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stoic about her son's death. In fact, she cried so often, the network cut out all the break-!
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downs out.!
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• A forensic expert was called in, but apparently he was misled about certain facts and !
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eventually he decided that the Chamberlains are suspects and they were put on trial for !
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murder.!
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• The jury was completely swayed by the public opinion and the media, and the ! !
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Chamberlains were convicted for murder. They spent years moving between prisons and
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trying to appeal the decisions.!
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• Six years after the affair, the baby's jacket was found in Uluru. The case was reopened !
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after federal pressure on the Northern Territory government etc.!
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• It was discovered that previous findings were wrong, and the Chamberlains were !
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pardoned by the government.!
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•However, pardon still technically means they were guilty. They continued to seek an !
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acquittal to clear their names, until it happened in 1988.
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Jurisdiction;
Jurisdiction is the scope of a body’s power to hear a matter, determine what the facts are and apply
the law to make a judgment.!
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•It is the range of power and territory within which that power can be exercised. A court !
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cannot hear a case over which it has no jurisdiction.!
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• Generally a statute which establishes a court will also define its jurisdiction.
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Supreme courts;!
The Supreme Courts have a long history and tradition. They are 'Superior courts with a record of
general jurisdiction'. This means:!
•A Supreme Court has 'unlimited' jurisdiction, unless a later statute has limited it.!
◦Since Supreme Courts have unlimited jurisdiction, federal matters may be heard and ! !
determined in them. This is per the doctrine of the 'autochthonous expedient'.!
•A Supreme Court has an inherent power to regulate its own procedures, the right of the !!
audience and to grant bail.!
•A Supreme Court decision cannot be made void, but must be set aside by writ of error or by an
appeal.!
The Supreme Court deals with very serious matters. In the criminal domain, this usually means
serious offence like murder, treason or rape. In the Civil domain, it means matters which are
outside the jurisdiction of the lesser courts.!
The Supreme Court also hears appeals, either as a single judge or as the Court of Appeal.
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Intermediate courts;!
The intermediate courts are the District or County courts. They are below the Supreme Courts
and their jurisdiction is limited by their enabling act. The limits of their jurisdiction varies between
states, but is generally defined by monetary limits in civil cases (ie, the court can only hear cases
claiming $750,000 or less). In criminal cases, there are usually a number of offences which are
expressly outside jurisdiction of the intermediate court (ie murder).!
Some intermediate courts have some appellate jurisdiction (can hear appeals).
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Magistrates (local) courts;!
The Magistrate courts, or the Local courts, are the lowest courts on the chain of jurisdiction. Their
jurisdiction is limited by statute, and they usually deal with low level matters. However, they are
profoundly important because it is in the local courts where the vast majority of cases are heard
(usually about 99% of the cases). Local courts deal with:!
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•Criminal:!
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◦The committal process - checking whether there is a prima facie case to answer in relation
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to an indictable offence, and therefore whether the case should go to trial in the district or
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supreme court.!
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◦ Lesser offences (ie, traffic offences, fines etc).!
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•Civil:!
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◦Small debts and claims.
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State tribunals and specialist courts;!
Each state tribunal will have its own legislation which specifies its jurisdiction and the process of
appeal if appeals are allowed. Examples of such courts and tribunals include the Dust Diseases
Tribunal, Residential Tenancies Tribunal etc.!
A court exercises judicial power, and is headed by a judge or magistrate. Tribunals don’t always
exercise judicial power, and have specialist areas.