Business Law

TOPIC 1: THE AUSTRALIAN LEGAL SYSTEM

PART 2
2 LEARNING OBJECTIVES

 Explain the process by which legislation is made by parliament.

 Explain what is meant by Statutory Interpretation and who holds this fundamental role in
our legal system.
 Describe the Division of Powers between Commonwealth and State Parliaments in Australia
as well as understanding Separation of Powers (as enshrined in the Constitution).
 Understand and describe the types of jurisdiction the various State and Commonwealth
courts have in the Australian court hierarchy.
 Explaining what is alternative dispute resolution (ADR), the benefits of ADR and providing
examples of the various ADR methods.
 Understand the Key Differences between the 2 distinct classifications of laws: Criminal
Laws (Public Law) and Civil Laws (Private Law).
 Understand what is meant by Native Title in the context of our legal system.
THE LEGISLATIVE PROCESS

How is statute law made?

• Proposal for a new law
• Passage of a Bill through parliament
• presentation and ‘first reading’
• second reading
• committee
• third reading
• transmission to the House of Review (above steps repeated)
• presentation for Royal Assent;
• Bill is now an Act of Parliament (enacted law)
• Royal Assent

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 STATUTE LAW

• Statute law also includes laws made by other government

bodies.
• This is known as delegated legislation and takes the form
of:
• by-laws;
• orders;
• rules and regulations.
 STATUTORY INTERPRETATION

• With the increasing complexity of legislation, sometimes the

‘real’ meaning of a word or phrase requires clarification.
• When a dispute arises, and if the definitions in the Act are of
no help, there are a number of sources of guidance for the
courts.

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 METHODS OF STATUTORY
INTERPRETATION
1. The Literal Approach
◦ Giving the wording in the legislation its plain meaning.
◦ see Fisher v Bell [1961] 1 QB 394;

2. The Golden Rule

◦ Used when the plain meaning results in an absurdity, an injustice or
an inconsistency with the intentions of Parliament
◦ see Lee v Knapp [1967] 2 QB 442;

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 METHODS OF STATUTORY
INTERPRETATION

3. The Purposive Approach:

◦ Where words/phrases are unclear, vague or
uncertain
◦ Examine the intention of Parliament
(purpose of the legislation) in introducing
the law
◦ Can use extrinsic materials.

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 LEE V KNAPP [1967] 2 QB 442

• Lee was involved in a motor vehicle accident. He only stopped for a moment
after the accident and then, seeing that no-one was injured, drove off. He was
charged with an offence under s77(1) of the Road Traffic Act 1960 (UK):
• If, in any case, owing to the presence of a motor vehicle on a road, an accident
occurs whereby……. damage is caused to a vehicle……other than that motor
vehicle, the driver of the motor vehicle shall stop……
• Lee argued that he had stopped, although only for a very short time.
• The court held that the intention of s77(1) was that the driver of the motor
vehicle shall stop and remain stopped for as long as is necessary so that the
relevant person may personally obtain information which they may require
about the accident.
 COMMONWEALTH
CONSTITUTION
• Rule-Book for the Nation.
• Was established when federation took place:
Commonwealth of Australia Constitution Act 1900 (Cth)
• High Court is the guardian of the Constitution: assists with
interpretation of the Constitution.
 FEDERAL & STATE LEGISLATIVE
POWERS IN CTH CONSTITUTION
• Exclusive powers- Powers that belong exclusively to

Commonwealth Parliament.

• Concurrent powers- Powers that are shared between

Commonwealth and State Parliaments.

• Residual powers- Powers that are not exclusively held

by Commonwealth parliament or not shared, are powers

the State parliaments hold.

 Federal & State Legislative Powers
•What if there is a conflict between Federal and State Powers?
•Where there is any inconsistency between laws made under
the Exclusive Powers provisions of the Commonwealth
Constitution and a State, section 109 provides that the State
laws, to the extent of the inconsistency, shall be invalid.

•Most of the Commonwealth powers are held concurrently

(shared) with the states (under s 51).
SEPARATION OF POWERS IN CTH
CONSTITUTION
 AMENDMENT OF CONSTITUTION

• Majority of Australian voters.

• Majority of voters in at least 4 states.
 THE ROLE OF THE COURTS

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 THE ROLE OF THE COURTS

- To impose a legally binding decision on the parties to a civil dispute.

- To hear appeals on civil and criminal matters (incl. sentencing)
- To create precedents for lower courts to follow
- To interpret State/Federal legislation
- To interpret and apply the Commonwealth Constitution
- The courts have a criminal and civil jurisdiction. Jurisdiction means the power or
authority of a court to hear and determine a case.

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 THE ROLE OF THE COURTS

Features of the Court Hierarchy:

• It provides a system of appeals from decisions of
lower courts to higher courts.
• It allows for different types of hearings
depending on the gravity or seriousness of the
case.
• It is important in building up precedent.

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 THE COURTS

Original and Appellate Jurisdiction

• A court’s jurisdiction is determined by its enabling
Act.
• Original jurisdiction is the authority to hear a case
when the case is first brought before a court (in the
first instance).
• Appellate jurisdiction is the authority of a court to
hear appeals from decisions of courts of a lower
level in the same court hierarchy.

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 THE COURTS

Local Court- Inferior Court; Summary offences; Civil and Criminal Jurisdiction; Original
Jurisdiction.

District Court- Intermediate Court; Indictable offences; Civil and Criminal Jurisdiction; Original
and Appellate Jurisdiction.

Supreme Court- Superior Court; Indictable offences; Civil and Criminal Jurisdiction; Original and
Appellate Jurisdiction.

Court of Appeal and Court of Criminal Appeal- Civil and Criminal Jurisdiction; Appellate
Jurisdiction.

High Court- Commonwealth Court; Civil and Criminal Jurisdiction; Original and Appellate
Jurisdiction; Special leave to appeal; Highest Court of the land.

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 FEDERAL COURT SYSTEM

 High Court of Australia

 Federal Court of Australia

 Family Court of Australia
 Federal Circuit Court of Australia

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 ALTERNATIVE METHODS TO COURTS

Alternative methods of dispute settlement have grown in the

last few years because of extensive delays, exorbitant costs,
and intimidation of the traditional court system.
• These include
• tribunals;
• ombudsmen; and
• alternative dispute resolution.

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 ALTERNATIVE METHODS TO COURTS

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23 CIVIL LAW VS CRIMINAL LAW

In civil law, a PLAINTIFF sues a DEFENDANT in a civil HEARING, where

FAULT or LIABILITY must be established ON THE BALANCE OF
PROBABILITIES. The court will then provide a REMEDY.

In criminal law, a PROSECUTOR takes action against an ACCUSED in a

criminal TRIAL, where GUILT must be proven BEYOND REASONABLE
DOUBT. The court will impose a SANCTION on a convicted OFFENDER.
NATIVE TITLE
NATIVE TITLE

• Mabo and Others v Queensland #2 (1992) 175 CLR 1

 Case was brought by joint plaintiffs: Eddie Mabo, David Passi
and James Rice against the State of Queensland
 The Plaintiffs sought declarations that the Meriam people were
entitled to their islands "as owners; as possessors; as
occupiers; or as persons entitled to use and enjoy the said
islands”
 The High Court abolished the doctrine that Australia was terra
nullius ('land belonging to no-one’).

Source: aiatsis.gov.au/sites/default/files/products/research_outputs_statistics_and_summaries/overturning-the-doctrine-of-terra-nullius.pdf
NATIVE TITLE

• Mabo and Others v Queensland #2 (1992) 175 CLR 1 cont…

 Pre-existing rights and interests in land survived colonisation and still
survives today:
• where the people have maintained their connection with the land;
and
• where their title has not been extinguished by legislation or any
action by the government inconsistent with that title.
 Here the title had not been extinguished.
 The HCA held that if it had been extinguished after 1975 the Government
would need to compensate due to the application of the Racial
Discrimination Act 1975 (Cth).

Source: aiatsis.gov.au/sites/default/files/products/research_outputs_statistics_and_summaries/overturning-the-doctrine-of-terra-nullius.pdf
NATIVE TITLE

• The Native Title Act 1993 (Cth)

 In direct response to the decision in Mabo #2 the Commonwealth government
introduced the Native Title Act 1993 (Cth).
 s224(1) defines Native Title as:
 The communal, group or individual rights and interests of Aboriginal people or Torres Strait
Islanders in relation to land or waters where:
(1) the rights and interests are possessed under the traditional laws acknowledged and traditional
customs observed by the Aboriginal people or Torres Strait Islanders; and
(2) the Aboriginal people or Torres Strait Islanders, by those laws and customs, have a connection
with the land and waters; and
(3) the rights and interests are recognised by the common law of Australia.

Source: aiatsis.gov.au/sites/default/files/products/research_outputs_statistics_and_summaries/overturning-the-doctrine-of-terra-nullius.pdf
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