Business Notes from Bored of Studies

Module 1: The Legal System

Focus Point 1: Basic Legal Concepts

Law: A body of official rules and regulations that are legally recognised in order to govern society

• Made by parliament and enforced by courts and enforcement agencies/institutions
• Obeyed by all within a distinct region and applies equally to all ‘no one is above the law’
• Formal consequences (punishments) if breached

Just Law

• Ensures human rights are recognised and respected
• The law must be enforceable, discoverable and acceptable

Nature of Justice

• Equality: all are treated the same way before the law
• Fairness: legal system is free from bias, dishonesty or injustice
• Access: the right or opportunity to access the legal system

Procedural Fairness

• Interchangeable with natural justice and means that there must be fairness in the process of resolving disputes
• Two main principles: the right to be heard and the right to have a decision made by an unbiased decision-maker
• Transparency in decision-making process and decisions must be based off of logical and relevant evidence

Rule of Law

• Broad concept that underpins the legal system and composed of three main concepts:

→The law should be known

→The law should be certain

→The law should apply equally to everyone

• No one is above the law including those who create and enforce law
• The application of the separation of power under the constitution in Australia maintains the rule of law

Anarchy: A state of lawlessness often due to an absence of government, subsequently resulting in chaos. Often preceded by a major disaster or war.

Tyranny: Oppressive power exerted by the government such as dictatorship. Rule of law is absent.

Focus Point 2: Sources of contemporary Australian law and common law

Origin of common law

The common law originated from England following its invasion by the Normans. A set of travelling judges went around applying a ‘common set of laws’ to each area. Those who were discontent with the manner in which the court dealt with their case created a petition that led to the formation of precedence.

Equity

The underlying principles of equity law are to develop a remedy that the common law fails to recognise and to modify a remedy in common law that is deficient or to create a new remedy.

• A series of isolated principles
• Rights of equity are valid only to those specified by the court
• Equitable remedies must be applied immediately
• Equity is discretionary

Doctrine of Precedent (stare decisis)

The doctrine of precedent is a fundamental aspect of the common law. Simply it is a document that states lower courts are bound by the decisions of higher courts’. It ensures consistency in the common law and ensures that the rule of law is upheld. Courts of higher jurisdiction can change the common law and distinguish cases so as to make sure the law is current.

Adversarial and Inquisitorial Systems

Court Hierarchy

Local → District → Supreme → Appeal → Federal → High

Local Court: deals with minor criminal matters (summary offences) and minor civil disputes ($5000-60,000).

District: Deals with more serious criminal charges such as larceny, manslaughter, various types of assault and drug importation. Deals with civil cases up to $750,000 and has appellate jurisdiction.

Supreme: The highest in the state/territory hierarchy. Has criminal jurisdiction of issues such as murder, attempted murder, kidnapping and conspiracy charges. It also deals with appeals from lower courts and Cth prosecutions for breaches of corporations law.  In civil matters there is no monetary jurisdiction, with hearing matters such as defamation and professional negligence.

Federal: Jurisdiction includes bankruptcy and industrial matters, as well as summary criminal offences. It also deals with civil disputes dictated by federal law, excluding family matters.