2 Sources of law in Australia Statute law or Acts of ParliamentParliamentCommon lawJudge-made lawStatutory interpretationCourts
3 Independence of the judiciary Doctrine of Separation of PowersExecutiveLegislativeJudiciary
4 Court Hierarchy – Tasmania High Court of Australia(Original or appellate jurisdiction)Full Court of the Supreme Court(Appellate jurisdiction)Court of Criminal Appeal(Appellate jurisdiction)Criminal lawCivil lawSupreme Court(Original jurisdiction)Court of Petty SessionsMagistrates CourtCivil divisionYouth Justice DivisionCoronial Division
5 Appeals in Tasmania Appeals Matters heard in the Magistrates Courts and Tribunals can be appealed to the Supreme Court where they will be heard by a single judge. These are called Lower Court Appeals. Lower Court Appeal decisions can be appealed to the Full Court of the Supreme Court of Tasmania (for civil cases) and the Court of Criminal Appeal (for criminal cases). These appeals are heard by three judges of the Supreme Court.Appeal cases from both the Court of Criminal Appeal and the Full Court can then be appealed to the High Court. The High Court's decision is final and no further appeal can be made.
6 Federal Courts Federal Courts High Court Appeal to High Court High Court (1 Justice)Original jurisdiction Federal Law mattersFull Court of the High Court (no less than 2 Justices)Original jurisdictionAppellate jurisdiction (Federal, Family, High Courts)Full Bench of the High Court (5 – 7 Justices).Original jurisdiction - Interpretation of the ConstitutionAppellate jurisdictionFamily Court (original jurisdiction)DivorceMarriageBankruptcyChildren (parenting disputes)PropertyFull Court of Family Court (appellate jurisdiction)Federal Court (original jurisdiction)Trade PracticesCorporate LawTaxationImmigrationNative TitleFull Court of Federal Court (appellate jurisdiction)Appeal to High Court
7 Independence of the judiciary Why is this important?Ensures fair and impartial trial for all citizens (judge is an impartial umpire) - natural justiceEnsures governments do not exceed their power and that governments are subject to the rule of law (check on executive power).Interpret the Constitution and legislation (statutory interpretation)Create legal principles to resolve disputes (when the issue has not been legislated on)
8 Role of the courtsSettle disputes that arise in the community, therefore apply existing laws to the facts in cases that come before them.Common law – when a legal principle is established by a court due to limited statute law from parliament in an area of law. This includes when a new issue is brought before the court in a case or when a previous principle of law requires expansion to apply to a new situation.Statutory Interpretation – interpreting the meaning of the words in an act of parliament when applying them to a case the court is hearing.
9 When can judges make law If a case is brought before a superior courtIf there is no previous binding decision in a higher court in the same hierarchy that must be followed by the lower courts.
10 Doctrine of PrecedentWhen a court makes a decision in a case that is the first of its kind, the court is said to be setting a precedent.A precedent is the reasoning behind a court decision that establishes a principle or rule of law that must be followed by other courts lower in the same court hierarchy when deciding future cases that are similar.This creates consistency and predictabilityThe process of judges following the reasons for the decisions of higher courts is at the heart of the doctrine of precedent.Precedent example - handout
11 Doctrine of PrecedentStare decisis – another way of describing the process of lower courts following the reasons for the decisions of higher courts.Means – ‘to stand by what has been decided’.
12 Doctrine of Precedent Reason for the decision = ratio decidendi Ratio decidendi is the binding part of the judgement – the reason for the decision which is then regarded as a statement of law to be followed in the future.Read page 230 – 233 (blue), Page 221 – 223 (red)Read the following cases:Shaddock v ParramattaPinkstone v RQ1: What were the ratio decidendi in both cases (what was the precedent set)?Q2: What was the decision and penalty in both cases?Handout – How judges make law
13 Doctrine of Precedent Binding precedent For the precedent to be binding, it must be:From the same hierarchy of courtsFrom a superior court (higher in the hierarchy)To be considered binding on a new case:The main facts of the precedent are similar to the main facts of the new caseThe precedent was set in a higher court in the same hierarchy as the new case.Example: Pinkstone v R (2004) – binding precedent on similar caseExample: precedent set in the High Court – the ratio decidendi is binding on lower courts in the court hierarchy
14 Doctrine of Precedent Persuasive precedent A precedent that is not binding on the courts however as they are seen to be noteworthy and highly regarded propositions of law they may be considered by some courts as influential on their decisions.Includes:From courts in another hierarchy (other state or country)From courts on the same level of hierarchy (which are not binding)From inferior courts (courts lower in the court hierarchy)
15 Doctrine of Precedent Read page 233 -236 (blue), Page 223 – 226 (red) Read the following cases:Example: Donoghue v StevensonExample: Grant v Australia Knitting MillsQ1: What aspect of Donoghue v Stevenson (UK 1932) was used as persuasive precedent in Grant v Australian Knitting Mills (1936)?
16 Persuasive precedent comparison Donoghue v StevensonGrant v Australia Knitting MillsA consumer purchased goodsMrs Donoghue did not have a contract with the manufacturerMr Grant did not have a contract with the manufacturerThere was a snail in the bottleUnderwear contained chemical residuesThe bottle of ginger beer had been carelessly preparedThe underwear had been carelessly preparedThe ginger beer manufacturer could have reasonably foreseen that damage would result from the carelessnessThe underwear manufacturer could have reasonably foreseen that damage would result from the carelessness.Mrs Donoghue was closely and directly affected by the actions of the manufacturerMr Grant was closely and directly affected by the actions of the manufacturerMrs Donoghue suffered gastroenteritis and shockMr Grant suffered dermatitis
17 Doctrine of Precedent Obiter dictum “Things said by the way” Sometimes a judge will make a statement that is not part of the reason (ratio decidendi) for the decision, but is an important statement relating to the main issue of the case. This statement is known as obiter dictum, and can influence decisions in the future (persuasive precedent)Example: Hedley Byrne & Co Ltd (B=P236, R=P227)
18 Precedent - activities Read page 230 – 237 (Blue edition)Read page 221 – 227 (Red edition)Activity – You be the judge (precedent of Grant v Knitting Mills)
19 PrecedentsWays judges can develop precedent or avoid following an earlier decisionDistinguishing a precedent – court decides the main facts of new case are sufficiently different to previous case (where precedent was set) therefore precedent is not binding.Case: Davies v Waldron (1989) (B=P238, R=P229)
20 PrecedentsReversing a precedent (in the same case) – on appeal, the higher court makes a different decision than a lower court in the same case therefore precedent set by superior court is binding.Case: Queen v Tomas Klamo (2008) (Blue = P240, Red = P231)
21 PrecedentsOverruling a precedent – higher court decides not to follow an earlier precedent of a lower court in a different case. The higher court decision creates a new precedent.Case: Aon Risk Services Aust v Australian National University (2009) – (Blue p241, Red p231)Disapproving a precedent – court expresses disapproval of previous precedent but is bound by it if in an inferior court. If previous decision has been made in a court at the same level in the court hierarchy, and the court disapproves of the earlier decision, present court is not bound to follow precedent.Case: State Government Insurance Co v Trigwell & Ors (1978)