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Privy Council代寫Australian Legal System

    An Introduction to the Australian Legal System


    What is law?

    “Law” can be defined as follows: ‘the law consists of all the rules of conduct or organisation that are recognised, applied and enforced by the power and organs of the state.’ Another possible definition is: ‘the rules of behaviour that a particular society, acting collectively, accepts as appropriate for its own self-governance.’  However they are defined, in a national context, “laws” tend to be handed down by a “sovereign body” – a king, a tribal chief, a council of state, a parliament or some other sufficiently authoritative body, and they tend to be handed down to that sovereign body’s “subjects”.  The subjects are then expected to obey those laws – usually under threat of some generally accepted criminal punishment or civil sanction for failing to do so.
    Australian law (which has its origins in the English law we inherited on settlement in 1788) comes from two sources: our various parliaments and/or the courts. Law that comes to us from parliament is called “statute”, and it is an example of “enacted law”.  Enacted law, as law, is made not only by our state, territory and federal parliaments, but also by other legislative bodies acting under the delegated legislative authority of those parliaments.  Our city, town and shire councils are good examples of such other bodies.  They all get their legislative power – their power to pass by-laws and ordinances – through the Local Government Acts passed by their respective state or territory parliaments.
    Unenacted Law is law that is made by the courts (which are presided over by judges) without direct parliamentary involvement.  It consists of the reasons for the decisions given by the judges in the cases that come before them. A court’s reasoning in an earlier case will, as a general rule, be regarded by a later court, faced with a similar case, as having laid down a legal principle that has to be followed in the later case. This ‘unenacted’ (sometimes also called ‘unwritten’) Law made by the courts is known as “case law” or “precedent”.

    The origins of Australian law

    When the British colony of New South Wales was established  in 1788 (and the other colonies thereafter), it (and they) immediately became subject to so much of the then existing English law as was reasonably applicable to the circumstances of the new colonies. This was because, when Captain Arthur Phillip arrived with the First Fleet in 1788, he “settled” Australia rather than “conquered” it.  This (arguably fine) distinction was important because under the then accepted view of international law, if a territory was “conquered”, the local established or customary laws continued to apply – at least until the conqueror displaced them or replaced them with laws of its own.  On the other hand, under the international law doctrine of “terra nullius” (literally, “empty land”), if a country was “settled” – because it was either uninhabited or without a settled system of law (as was originally, albeit mistakenly, seen to be the case in Australia) – the laws of the “settling” nation were deemed to be automatically applied immediately to the new settlement or colony, at least in so far as they were necessary or appropriate to the conditions in the settled territory. This principle of international law was well established in and recognised by English Law by the middle of the 18th century. This much was clearly acknowledged by Blackstone in his famous Commentaries on the Laws of England in 1765 when he said:
    “It hath been held that if an uninhabited country be discovered and planted by English Subjects all the English laws then in being, which are the birthright of every English subject, are immediately in force.”
    There is an excellent discussion of the doctrine of terra nullius and of the concept of received law in Mr Justice Brennan’s judgment in the Mabo case (Mabo v Queensland [No 2] (1992) 175 CLR 1).  Brennan J. repeats there part of Lord Kingsdown’s judgment in Advocate –General of Bengal v Ranee Surnomoye Dossee (1863) 9 Moo Ind App 391 (at 428); 19 ER 786 (at 800).  What Lord Kingsdown said (and what Brennan J. cited with approval) was:
    “When Englishmen establish themselves in an uninhabited or barbarous country, they carry with them not only the laws but also the sovereignty of their own State; and those who live amongst them and become members of their community become also partakers of, and subject to the same laws.”
    The specific application of this doctrine to NSW (and to all other Australian colonies) was tested in the Privy Council in the case of Cooper v Stuart (1889) 14 App. Cas. 286 at 291.  In that case the Governor of NSW had, before 1824, made a land grant that was subject to a reservation that the government could reacquire, at any time, a portion of the land that might be needed for public purposes. The owner of the land argued that this reservation was invalid because it was against a long-standing principle of property law known as 'the rule against perpetuities'. The Privy Council eventually held that the reservation was valid, but they first had to decide whether the laws of England operated in the colony at the time of the grant. They held that New South Wales should be treated as a ‘settled’ colony as at 1788, such that applicable English law arrived with the first settlers. They so held on the basis that the land was, at that time, 'practically unoccupied without settled inhabitants' and that therefore it could be treated as a 'settled colony'. As a consequence, the common law rule was that applicable laws of England had arrived with the First Fleet as some sort of invisible baggage.
    [NB: It is important to note that a central feature of the property law of England was the feudal doctrine of tenures. Under this doctrine, no one could establish any title to land unless such title could be traced to a grant from the Crown. This doctrine made perfectly good sense among the newcomers, but, needless to say, it set up a significant hurdle in the path of any recognition of pre-existing land rights in indigenous people. See: Lecture Notes on the Mabo case and Australian Native Title Law for further discussion of this point]
    English law, therefore, became the law of Australia and it affected not only the settlers, but also everyone else within the then colonies – including the indigenous population.  Further, having become the law of Australia, it was the sole law – at least until the infant colonies were given legislative powers of their own (in and after 1824, when the first Legislative Council was set up).
    English law’s position as “received law” in the Australian colonies was put beyond doubt by the United Kingdom Parliament in 1828, when it passed the Australian Courts Act 1828 (Imp).  That Act proclaimed that all laws that were in force in England on 25 July 1828 were to apply equally in the colonies – and were to be enforced by the colonial courts – at least in so far as they could be, given the conditions in those colonies. The Act also declared that, after 1828, new United Kingdom laws only applied in Australia if they were clearly expressed to do so. For example, in 1842 the United Kingdom Parliament passed the Australian Constitutions Act (No 1) 1842 (Imp) to permit the Australian colonies to establish their own parliaments and to pass their own laws.  This is a clear example of a United Kingdom Act which, although passed after 1828, applied to Australia because it was clearly expressed to apply to it.
    Apart from such specific statutes, the law that applied in Australia after 1828 was the whole of the law of England as it stood in 1828 and the laws that were passed by the various colonial and other legislatures thereafter: English law is, therefore, a very important part of Australian law.
    The English law that was received into Australia was in three parts:
    (a)    Common Law;
    (b)   Equity; and
    (c)    Statute.
    Common Law and Equity were both “judge-made” law. Whereas statute law (or ‘legislation’) was law that had been enacted by the United Kingdom Parliament.
    [NB: The French verb parler ‘talk’ has made a small but significant contribution to English. Amongst its legacies are ‘parlance’ (16th c.), ‘parley’ (16th c.), ‘parlour’ (13th c.) (etymologically a ‘room set aside for conversation’) and, most importantly, the word ‘parliament’ itself. This word came originally from the Old French derivative parlement, which meant ‘a formal consultative or legislative body’. Note also that the French word parler was itself a descendant of the medieval Latin word parabolāre ‘talk’, which was derived from the Latin noun parabola (itself the source of the English words parable, parabola, and parole … as in the well-known ‘parole evidence rule’ in contract law.]

    The Development of the Common Law

    The development of the common law was a long and gradual process. It has its roots deep in English history. At the time of the Norman Conquest in 1066, a network of local courts existed across England, administering local or customary law to the local people. The law that they administered was customary law. As such it varied from one place to another. The differences were often heavily influenced by which groups of previous invaders – Angles, Danes, Saxons and so on – had settled in that particular area of England.  The major difficulty with this system was that it necessarily meant that there would be variations between the customary laws of different areas of the country … with the result that “justice” often depended on where you case was heard, with no real uniformity throughout the realm.
    Following the Norman Conquest, William the Conqueror left the local courts and their laws largely intact, but he did make them subject to the ultimate superiority of the justice that he dispensed personally.  He did this by appointing a number of ‘Judges of the Kings Bench’ whom he sent out to all parts of his realm with directions (among other things) to administer a uniform system of law in the name of the king.  They were to do this by applying an amalgam of the customary law that had existed before the Norman conquest with the better features of Norman law.  (This was because, in an attempt to win the population’s support, William had assured them that their traditional laws would continue to apply.)
    This unified system of law came to be referred to as the “Norman Compilation” and it was the beginning of what ultimately became the common law.  However, the main function of William’s “judges” was really to report to William on any abnormal ambitions or usurping of power by the nobles and to assess the wealth of the country through a systematic survey of land ownership (which was recorded in what was called the Domesday Book).  It was not really to set up a centralised system of law.  Therefore, the formal establishment of a common law for the entire country still had some way to go.
    However, by about the end of the 12th century, the kings who succeeded William (Henry II, in particular) had established a strong central government in London and had formalised the practice of sending judges out on circuit throughout England at regular intervals.  This marked the real beginning of the development of the “common law”, because the main function of these judges (who all had a common understanding of what the law was because they kept written records (rolls) of their decisions that were stored at Westminster and which were available there for later judges to consult when faced with similar cases)) was to administer the King’s justice (i.e. to help keep the “King’s peace” by hearing criminal charges brought against subjects and by settling disputes that had arisen between subjects over personal property and land) in a uniform way.
    Further, because these visiting judicial representatives of the Crown (who soon became known as the King’s Justices) had the royal power behind them, the law they dispensed soon became more popular with subjects than the law that was being dealt out by the local courts (because it could be more easily and more authoritatively enforced).  The proceedings conducted by the King’s Justices gradually became more formalised (that is more court-like in nature), the law they dispensed gradually became common throughout England and, in consequence, the relevance of the local courts waned and they gradually disappeared.
    By the 14th century the Kings Justices had, of necessity, become specialist lawyers, because the body of law over which they presided had so greatly expanded and developed. And the body of law which they administered had become known as the ‘common law’ because that law that was truly common to the whole realm.
    As the work of the common law courts grew, the judges began to use previous decisions as a guide for later cases. This was the beginning of the doctrine of precedent. In order to speed up that work and make it more efficient the judges also developed the writ system. A writ is simply a document setting out the details of a claim. Writs were issued to create new rights not recognised by the local courts and this helped to attract business. However, over a period of time, the writ system became extremely formal and beset with technicalities and claims would only be allowed if they could fit into an existing writ. The rule was 'no writ, no remedy'. For example, certain writs of trespass would only be issued for those acts done with force and arms against the King's Peace. If those two requirements were not met, a person had no claim. Even if a writ was obtained, the judges would often spend more time examining the validity of the writ than the merits of the claim. Writs were issued by the clerks in the Chancellor's Office and they often tried to help litigants who came before them with a case that did not fit easily within one of the established writs. They did this by drawing up and issuing new writs, in effect creating new legal rights.
    In 1258 King Henry III was on the verge of bankruptcy. He asked Parliament for a grant of revenue and agreed in return to a program of reform drafted by a royal commission.  Regarded as England's first written constitution, the Provisions of Oxford placed the government under the direction of the king and a 15-member baronial council, provided for Parliament to meet three times a year to oversee the performance of this council. The Provisions also reformed local administration and forbade the issue of new writs in the Kings Courts without the permission of the King in Council. As a result of this last change the common law became very rigid and inflexible its rules often operated unjustly. In an attempt to provide some flexibility the 1285 Statute of Westminster II authorised the clerks to resume their practice of issuing new writs but only if the claims made in them were in 'like cases' to those cases and writs that had existed before 1258. This was still very restrictive and made further development of the common law very technical. It was this unfairness and technicality that lead to the evolution of the separate Courts of Equity (see further discussion below).

    A note on the modern meanings of the term “common law”

    In its current national and international context, the term “common law” now has two connotations:
    1. It means the law made by judges in the common law courts, as distinct from either the law made in the courts of equity or statute law.  The “common law” developed in the common law courts through the use of the doctrine of precedent.  Precedent involves decisions being recorded so that other judges can use them as authority to guide or perhaps bind them in subsequent cases on similar facts.
    2. It has the broader meaning of the entire legal system of England (which has since been adopted in many countries of the world, including Australia, the United States, Canada, India, Malaysia, Hong Kong, New Zealand, various nations in Africa and in the Caribbean and elsewhere where the English established colonies).  In this sense, the term refers to the common law legal system as opposed to the Roman or Civil law legal system that is used in the European countries or other legal systems used elsewhere in the world.

    Characteristics of “common law” legal systems

    All common law legal systems exhibit a number of characteristics that are fundamental to any system of law.  Those characteristics include:
    (a)    Uniformity;
    (b)   Certainty; and
    (c)    Fairness.
    The common law, as the law that was exercised in the King’s Court, was applied uniformly throughout the realm.  The doctrine of precedent ensured that decisions were consistent so that persons in like situations were treated alike. In addition, because judges were appointed only from the ranks of the practising legal profession a good knowledge of the law, fairness and impartiality was almost always guaranteed.  Finally, in the interests of fairness, the common law system has always provided an avenue for appeals so that improper decisions can be rectified or put back in line with the existing law. In the common law system the role of Appellate Courts is to overturn any incorrect decisions of lower courts.  The appeal system is therefore a means by which it is possible to correct an inaccurate, arbitrary, capricious or improper exercise of power by any member of the judiciary.


    Just as the term “common law” refers to that branch of the judge made law that was developed in the common law courts, “equity” refers to that branch of the judge made law that was developed in the courts of equity.
    Equity really evolved in or about the 14th century, and its development was directly attributable to deficiencies of the common law.  The common law courts had become highly formalised and inflexible because the judges adhered rigidly to the laid-down law and the rules of procedure.  To invoke the jurisdiction of the common law courts, plaintiffs had to bring their actions under one of only a few forms of “wrong” that the common law courts recognised.  These included “trespass to land or to goods”, “detinue” for the wrongful detention of goods and “debt” for the recovery of money.  If a plaintiff had a complaint outside one of these recognised actions, the common law courts were of little assistance.
    In addition, damages (a monetary award designed to compensate the injured party for his or her actually losses), which was the sole remedy provided by the common law courts, was often an inadequate or an inappropriate remedy.  For instance, if a vendor refused to complete a contract for the sale of land, the common law courts could only give the aggrieved purchaser monetary compensation, which was frequently not a satisfactory remedy.  A purchaser in that situation wanted an order compelling the vendor to complete the contract.  Equity could provide such a remedy in the form of an order for “specific performance”.

    The development of equity

    People who were disgruntled with the treatment that they received in the common law courts could, at least initially, petition the King directly for justice.  The King eventually handed these petitions over to his Secretary of State and the Keeper of the Royal Seal, a cleric called the Lord Chancellor, for investigation.  (The Lord Chancellor was also the Royal Chaplain and “the Keeper of the King’s Conscience”.)  In the early cases, once the Lord Chancellor had completed his investigation, he referred the matter in question (along his recommendation) back to the King, who then made the formal decree or order remedying the situation. However by about the 15th century, the Lord Chancellor had been given power to make the orders himself, and by about the 16th century the proceedings conducted by the Lord Chancellor has developed into a proper court, which was called the “Court of Chancery”. The position of Lord Chancellor was always held by an ecclesiastic (i.e. someone from the hierarchy of the Church) and, while his jurisdiction was not clearly defined, he remedied defects in the common law on the grounds of good conscience, fairness and natural justice, and with a view to doing what was normally right between the parties.  He was also not unnecessarily hampered by inflexible rules, such as those that hampered the operations of the common law court.

    The difference between common law and equity

    A major difference between common law and equity can be found in the type and availability of their respective remedies.  At common law, litigants who can make out a good cause of action are entitled to damages (i.e. they have an undeniable right to monetary compensation for their loss regardless of any misconduct on their part).  In equity, the remedies are discretionary.  This means that if the judge thinks that a litigant “has not come to court with clean hands” (i.e. that he or she is guilty of some misconduct in the circumstances of the case), the judge can refuse to grant a remedy, even though that party may have made out a case.
    For instance, if a plaintiff is suing for an order for specific performance to enforce a contract for sale of land and the contract was induced by the plaintiff’s fraud, the judge in equity can refuse the order.  There are a number of “equitable maxims” that indicate the principles upon which equitable remedies are granted.  Some of the more important are:
    1. Equity acts on the conscience (i.e. it tries to ensure that fairness is done).
    2. Equity will not suffer a wrong to be without a remedy (i.e. even if the common law cannot or will not help, equity will step in to ensure that anyone whose rights have been infringed is helped by the law).
    3. Equity follows the law (i.e. while equity is prepared to augment deficiencies in the common law, it will not depart unnecessarily from the common law and it will generally produce the same result unless it is manifestly unfair).
    4. He who seeks equity must do equity (i.e. the plaintiff must be prepared to see that justice is done to both parties).
    5. He who comes into equity must come with clean hands (i.e. equity will not assist a plaintiff who is himself or herself guilty of misconduct).
    6. Equity delights in equality (i.e. it attempts to adjudicate fairly or equally between the parties).
    7. Where there are qual equities the law prevails (i.e. where both parties have an equal claim to a decision, the party with the common law on his or her side will win).
    8. Where there are equal equities, the first in time prevails (i.e. where both parties have an equal claim, the party whose rights arose first will win).
    9. Equity, like nature, does nothing in vain (i.e. equity will not order anything that will either not solve the problem or which it cannot enforce).
    10. Time defeats equities (i.e. people seeking equity’s help must not delay because that could affect the rights of others.  If that occurs equity will not intervene and upset the status quo).
    11. Equity aids the vigilant (i.e. you are expected to take due care of your own interests and equity is more likely to assist you if you detect the problem and seek assistance early.)
    12. Equity will not assist a volunteer (i.e. equity will normally only provide a remedy if the defendant had acted unconscionably.  A volunteer is someone who is to receive a benefit without providing “consideration” for it – that is, without paying for it – and the traditional view is that in such cases it is not unconscionable for the promiser to withdraw his or her promise.  Consequently, if he or she does, equity will not intervene with a remedy, such as specific performance, to compel performance of the “gratuitous promise”).   Another limitation is that equitable remedies are only obtainable where the common law remedy of damages is either not available or inappropriate.  Equity can grant specific performance, injunction, declaration and rescission.  Damages are not a “normal” remedy in equity (although they can be awarded in appropriate cases).

    Equity continues to develop

    Equity has become a very important part of our law and, like the common law; it continues to develop to meet the changing requirement of the modern world.  For instance, in recent years the courts of equity have formulated and granted a new type of injunction called a Mareva injunction.  It can be granted even before judgment has been given in a case and it is designed to prevent a person, who might otherwise do so, from taking property out of the country to defeat any anticipated judgment.

    The “fusion” of common law and equity

    From the initial development of the courts of equity and common law until the 19th century, the two courts operated side by side and they were soon in conflict and there are many examples of this conflict as the two bodies of law wrestled with the issue of supremacy. Dissatisfied litigants from the common law system would seek relief from the Court of Chancery.  Equity would then often give relief by way of the common injunction which would either restrain the plaintiff from continuing with his or her common law action or restrain them from enforcing a common law judgment. The penalty for disobeying the common injunction was imprisonment. The response of the common lawyers to the common injunction was to issue writs of habeus corpus which ordered the release of people who had been imprisoned for disobeying Chancery decrees. The growing tension between the two bodies of law culminated in the Earl of Oxford's case in 1615. In that case, Coke CJ gave judgment in a common law action which was alleged to have been obtained by fraud. The Lord Chancellor, Lord Ellesmere, then issued a common injunction from the Court of Chancery, preventing proceedings to enforce the common law judgment. As the two courts were deadlocked the matter was referred to the then Attorney-General, Sir Francis Bacon, who upheld the use of the common injunction and determined that whenever there was conflict between the common law and equity, that equity would prevail.
    During the 17th to 19th centuries the fundamental principles of equity were developed and followed in the court of chancery by way of precedent. However the common law and equity continued to be administered by separate courts and litigants who had commenced their claim in the wrong jurisdiction were forced to start again in the other. The cost and time implications of this duality led to the enactment of the Judicature Act 1873 which fused the administration of the common law and equity. This Act abolished the old (dual) court system and replaced it with a single new High Court of Justice which was vested with all of the jurisdiction previously exercised by each of the separate systems of courts. There was one code of procedure for all claims and the ascendancy of equity in any situation of conflict with the common law was specifically preserved in s 25 of the Act (thus confirming a jurisdictional priority that James I has established in 1620, when the question of which of the two systems was to be paramount first became a real problem). Section 25 clearly contemplated the continued existence of separate bodies of rules for the common law and equity, despite the fact that their administration had been fused.
    Thus the passage of the Judicature Act 1873 (Imp) did not mean that the judge made law principles of equity and the judge made law principles of the common law were fused.  It merely meant that there was to be only one court system, and that the judges of that court system were to have both equity and common law at their disposal when they adjudicated in disputes.  So a judge hearing a dispute could apply the common law to the problem, reach a decision and, if that decision was unfair or if it required one of the equitable remedies to make it fair, he or she could then use equity to achieve a truly just result. Equity and common law did, however, remain separate.  In fact, it has been said about this fusion of the jurisdictions that “the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters”. The fusion of equity and the common law operates in all Australian jurisdictions and, today, all state and territory Supreme Courts exercise both common law and equitable jurisdictions in the one court.

    Law from Parliament

    As stated previously, the two authoritative sources of law in the Australian legal system are the parliaments (state, territory and federal) and the courts (again, state, territory and federal).  The various parliaments declare the law by legislations (Acts of Parliament, or “statute”), and the courts declare the law by their decisions in the cases before them (precedent).

    How parliament gradually developed legislative power in England

    Following the Norman Conquest, William the Conqueror claimed the whole of England for himself.  He then granted out parts of the realm to his chief followers (both lay and ecclesiastical), who, in return, gave him oaths of allegiance and promised to serve in and provide men for his armies should he go to war.
    These nobles also fulfilled an advisory function. When the king was about to make an important decision, he generally called a group of the more powerful barons together to seek their advice and approval.  Although the king could make laws by himself, there were advantages in making them with the counsel and consent of the barons, because those laws were then less susceptible to challenge and dissent.  This body of advisers was the forerunner of what became the House of Lords.
    By about the end of the 13th century, this “panel” of the king’s advisers had been expanded to include two knights from each shire and two representatives from each city, in addition to the nobles who were already involved.  At first the knights and citizens used to sit with the nobles but by the early 14th century, the shire and city representatives began to sit separately and this separate body was referred to as “the commons”. It was this separation that ultimately led to the formation of the two Houses of Parliament, the upper house being the House of Lords and the lower house being the House of Commons.  The House of Lords and the House of Commons together formed the Parliament.
    Initially, proposed laws were introduced to Parliament by the king and, after consent by both the Lords and the Commons, they became “law”.  Over time this balance of legislative power changed.  When the monarch was weak or the country was doing poorly, the power of the Houses of Parliament grew and, gradually, Parliament achieved legislative ascendancy (that is, proposed and passed the laws and the Crown’s role was reduced to one of “Assent”).
    Finally, in 1688, when King James II fled England, Parliament seized the opportunity to consolidate its own power by imposing conditions on its offer of the now vacant throne to William and Mary of Orange.  William and Mary accepted these conditions, and in 1689 they were enshrined in law by the Bill of Rights.  This provided that the King could not suspend laws, dispense laws, appropriate money or keep any army without the consent of Parliament.  Thereafter, the sovereign had no right to rule by prerogative or without reference to the wishes of Parliament and all new laws were initiated by Parliament.
    The last step in the development of our modern legislative process was reform of Parliament itself – to make the lawmakers more representative of those they were governing.  This entailed some form of democracy.  Democracy, in a very basic form, arrived in England with the passage of the Reform Act 1832 (Imp).  It set up a system of representative government under which the members of the lower house were no longer appointed on the basis of the position they held in society, as they had been to that point.  Instead, members of parliament were popularly elected, even if not then on a universal franchise (i.e. Parliament was elected by a majority of qualified voters in ballots held in each borough).  Membership of the House of Lords continued to be on the basis of peerage (i.e. it was a matter of birthright – a situation that has only recently been abolished in the United Kingdom).  Since then, the franchise (the right to vote) had been considerably expanded, and in both the United Kingdom and Australia (and in other countries where the parliamentary process is based on the United Kingdom’s model), parliaments are now elected on a universal adult franchise.

    The Australian parliaments

    Australia became a nation in its own right in 1901 as a result of the federation of the six British colonies that had, up to that time existed separately here. This federation was achieved through the enactment of an Act of the Imperial (British) Parliament – called the Commonwealth of Australia Constitution Act 1900 (Imp).  Thus it is the case, strangely enough, that the Australian Constitution, which we usually think of as the fundamental cornerstone of our system of law and government, is actually just a part of an Act of the United Kingdom Parliament!
    The Commonwealth Constitution created a federal parliament and gave it a limited legislative power, which was to coexist with the legislative power of the parliaments of the new states.  What this means is that both the Federal Parliament and the various state (and, now, territory) parliaments have power to make laws for the “peace, order and good government” of the citizens – within both their constitutional powers and their territorial limits.  What this means, for example, is that no state or territory parliament can pass laws to regulate how a citizen of another state or territory is to behave – unless that person comes into that state or territory and thereby becomes subject to its laws.

    The division of state and federal legislative powers in Australia

    The Commonwealth Parliament’s legislative powers are divided into concurrent legislative powers and exclusive legislative powers.  Concurrent legislative powers (e.g. the powers to pass laws in areas such as taxation, banking and insurance) are shared between the Commonwealth and the states and territories, and both legislative bodies may make laws governing such matters – at least within their own territorial limits.  Exclusive powers (e.g. powers to make laws in areas such as defence, customs and excise) are vested in the Commonwealth Parliament alone and are only exercisable by the Commonwealth Parliament.
    If there is an inconsistency between a valid state or territory law and a valid Commonwealth law, the Commonwealth law will prevail to the extent of the inconsistency.  With state laws this is because s 109 of the Commonwealth Constitution expressly provides that “when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid”.  With territory laws, it comes about because s 122 of the Commonwealth Constitutions gives the Commonwealth Parliament a general power to make laws for the government of the territories.  It can exercise that power either directly or by setting up territory legislatures with their own legislative powers.  However, even where territory legislatures have been set up, they are still subordinate to the Commonwealth Parliament and, therefore, it can override any legislation they pass.

    The doctrine of separation of powers and its place in the Australian legal system

    Australia’s system of government at both state (and territory) and federal levels is based on the doctrine of separation of powers – a concept that we inherited from England. The doctrine of separation of powers is based on the idea that government is divided between three separate and theoretically independent organs:
    (a)    The legislature (parliament), which makes the laws;
    (b)   The executive (the Crown, the Ministry and the public service), which administers the laws and conducts the affairs of state; and
    (c)    The judicature (the judges and the courts), which interprets, applies and enforces the laws.
    In practise, there is no strict separation of powers in Australia, at least as between the legislative and executive arms of government.  This is a direct result of our system of “responsible government” under which the executive (effectively the ministers who control the various government departments and the public servants employed in them) is drawn from the ranks of elected parliamentarians (members of the legislature).  In this way, parliament theoretically at least, can control what the executive does because the ministers are “responsible” (immediately accountable) to parliament.
    One result of this is that parliament has been able to “delegate” some of its law-making function to the executive by express authority.  That is, many Acts of Parliaments now contain specific provisions, delegating some legislative power to officers of the executive. This is particularly so in the case of the power to make regulations.  Most Acts of Parliament contain some provision whereby the responsible minister (the one whose department administers that Act) is empowered to make regulations “not inconsistent with the Act” for the purpose of furthering the objectives in the Act.
    This mechanism enables the government to give detailed effect to the more general intentions expressed in the Act itself without having to go back to pass an emending Act every time some minor change has to be made to the way in which the Act is being administered.  The High Court of Australia confirmed in Dignan’s Case (Dignan v Australia Steamships Pty Ltd (1931) 45 CLR 188) that the Commonwealth Parliament has the power to delegate (but not abdicate) this subordinate law-making function to members of the executive.
    Parliament retains ultimate control over subordinate or delegated legislation in that it can, at any time, repeal the legislation that authorised the subordinate legislation, and any subordinate legislation already brought into being can also be negated by the same repealing Act.  In addition, the courts can always inquire into the validity of all subordinate legislation and invalidate any they find to be deficient.  That is, subordinate legislation is not an original source of the law – its validity is derived from an Act of Parliament and both parliament and the courts can exercise control over it.  If any subordinate legislation is not within the scope of the authority conferred by the Act of Parliament supposedly authorising it, it is said to be “ultra vires” (beyond power) and it is therefore unenforceable.
    Unlike the situation with the legislative and executive arms of government, there is a practical and very real separation of the judiciary from both the legislature and the executive.  There can be no overlap between these arms of government and our judges cannot, at the same time, also occupy positions on either the legislature or the executive.
    There are, however, numerous “administrative” tribunals (e.g. the Administrative Appeals Tribunal and the National Native Title Tribunal), which are not courts and which have been established to adjudicate upon certain “administrative” matters that can be better dealt with by specialised tribunals than by the courts.  The tribunals are part of the executive, but they exercise quasi-judicial power (i.e. they can make decisions that will be binding unless those decisions are overturned by a court).  They do, however, exercise this power in a less formal and less legalistic manner than the courts.

    The various Australian legislative bodies

    In Australia, legislation emanates from parliament at both state (and territory) and federal levels.  It can be found in Acts, regulations, rules, orders, ordinances and by-laws passed by all levels of government.
    In our legal system parliament is the sovereign law-making body; this has a number of consequences: 
    First, our legislation is not legally subject to any higher law” such as rules of morality or international law.  Therefore, parliament does not have to take such matters into account when deciding whether to legislate on a particular topic (although by adopting international treaties our parliaments do restrict, in a practical sense, some of their legislative freedom.).
    Second, parliament cannot destroy (or “fetter”) its own future sovereignty by legislating now to bind future parliaments (i.e. a parliament today cannot pass a law prohibiting future parliaments form amending or repealing present legislation).
    Third, the doctrine of parliamentary sovereignty also means that a judge cannot override or annul a law made by parliament, unless that law is constitutionally invalid.  On the other hand, statute, as the will of the people – expressed through our elective representatives, can override all forms of unenacted or “judge-made” law.
    Therefore, because states can alter existing law more rapidly and in a manner not available to the courts, statute is our most flexible method of law making.

    How legislation is passed in Australian parliaments

    The draft of a proposed Act of Parliament is referred to as a Bill.  A Bill consists of a series of numbered clauses usually drafted by the parliamentary counsel at the request of the government, and it is introduced to parliament by the appropriate minister.
    Each Bill has to go through three readings in each House of Parliament.  At the first reading, the title of the Bill is merely read and a formal motion is made that is be read a first time and printed.  There is no debate and, if the motion is carried, a date for the second reading is fixed.  At the second reading, the Bill is debated on general principles rather than on details provisions.  The Bill is not amended at this stage.  If the motion for a second reading is passed, the Bill is referred to a committee for a detailed clause-by-clause examination and specific amendments are debated.  If the motion for a third reading is carried, the Bill is deemed to have passed through that House.  The Bill is then sent to the other House of Parliament, where a similar procedure is followed.  If a Bill passes both Houses it is submitted for Royal Assent, which is given by the Queen to her representative, the Governor-General, or the relevant State Governor or the Territory Administrator as the case may be.  After Royal Assent the Bill becomes an Act of Parliament and it becomes law from the date of its proclamation (or some later date if that is what parliament decides).

    The doctrine of precedent and its application by Australian courts

    The doctrine of precedent is fundamental to the common law legal system.  A “precedent” is simply a decided case, the reasoning in which must be followed by other courts dealing with similar fact situations when they make their decisions.
    The doctrine of precedent is expressed in the maxim “stare decisis” (abide by the precedent or “stand by the decision”).  What it means is that every court in a particular court hierarchy must follow the reasoning used in decisions by courts above it (in its own hierarchy), provided the fact situation in the later case is identical to, or sufficiently similar to, the fact situation in the earlier case.  If the fact situation is identical or sufficiently similar the judge must follow the precedent rather than decided the case as he or she likes.  The earlier decision in such situations is called a “binding” or “authoritative” precedent.

    Not following a precedent

    A judge who fails or refuses to follow a binding precedent is said to be acting “per incuriam” (i.e. “through want of care”).  A decision that is made per incuriam will normally be reversed on appeal, or it will be overruled in a subsequent case.  A judge may only decide a case “as he or she likes” in the following situations:
    (a)    Where there is no binding precedent (either no precedent at all or only one from a court by which the judge is nor bound, such as a lower court in the same hierarchy or a court in a different jurisdiction);
    (b)   Where there is a precedent, but it can be distinguished on its facts (the process of “distinguishing” is discussed further on); and
    (c)    Where there are two equally authoritative precedents on similar facts but with differing decisions (as was possible, for example, when the Australian state and territory courts were bound by decisions of both the High Court of Australia and the Privy Council in England, particularly as those courts were not always in full agreement on all points of law).
    Even where there is a precedent on similar facts, there may not be a binding decision.  For example, if the judges in a multi-judge decision reach the same conclusion but reach it for different reasons, the judge in a later case will only be partially fettered.  His or her ultimate decision cannot be different from that which the earlier court reached, but the judge can “take his or her pick” of the available reasons for reaching that decision.  In other words, he or she will not be bound to follow the reasons of any particular judge in the earlier case, because there was no “ration decidendi of the court” in that earlier case (the concept of “ration decidendi” is explained below).  Therefore, the judge can choose his or her own reason or reasons for reaching the same end result that was reached in the earlier case.
    The doctrine of precedent applies to both the common law and equity.  Therefore, courts deciding cases on common law and/or equitable principles must follow the decisions of earlier courts where the application and operation of the same principles was in issue.

    The difference between ratio decidendi and obiter dictum

    The binding part of a precedent is called the ration decidendi (the reason for deciding).  The ratio decidendi (rationes, decidendi, pl.) is the principle of law, based upon the material facts, that caused the judge to decide the case as he or she did.
    By contrast, obiter dicta (obiter dictum, sing.) are statements of law of peripheral relevance to the case that the judge did not really need to consider to decide the particular factual issues that were before him or her.  A judge may make observations or raise examples or comparisons as obiter dicta.
    For example, if a particular case was being fought on the liability of a motorist who had been hit from the left, the judge could say, “The defendant’s failure to give right of way makes him fully responsible for the accident.”  That would be the ration decidendi, because that statement of law would be the basis upon which the judge would then award damages for the effects of the collision.  The judge might, however, have gone on to say something like, “But, if the plaintiff had been drinking I may well have apportioned liability between them instead of finding the defendant entirely liable”.  That would be obiter dicta.  It is a statement of law, but it is a statement “by the way”.  The judge did not need to say it, it did not affect his or her decision and it was simply an observation about what the result “might have been” if the facts had been different.
    An obiter dictum is not a binding part of a precedent.  It can, however, become the ration decidendi of a subsequent case.  For example, in the development of the law of negligence, obiter dicta in Hedley Byrne & Co v Heller and Partners Ltd [1964] AC 465 was subsequently adopted by the High Court of Australia and became the ration decidendi in MLC v Evatt (1968) 122 CLR 556.

    Finding the ratio decidendi of a multi-judge decisions

    To find their ration decidendi in a multi-judge decision, you need to look at all of the points of law that the judges in the majority relied on and see which of those points, if any, they relied on in common.
    Where a majority of the judges reach the same decision but rely on different legal reasons or consider different facts as material, there is no ration decidendi of the court.  The case is said to have been decided “on its facts”.  In such cases, the court’s decision will stand and wit will bind the parties, but there will be no ration decidendi that will bind subsequent courts.
    When searching for the ration decidendi of a court, ignore minority or dissenting judgments.  A ration decidendi in a particular case is never found in a minority or dissenting judgment.

    Binding and persuasive precedents

    A binding precedent is basically a case on similar facts that was decided by a court at a higher level in the same court hierarchy.  By contrast, a persuasive precedent is a decision in a case involving similar facts that was decided by a court in a different court hierarchy or by a lower court in the same court hierarchy but which, because of its merits, may persuade another court that is not bound to follow it that it should follow it anyway.
    A persuasive precedent that an Australian court is referred to in a case being argued before it (e.g. a decision of an English court) would not bind that court.  However, the Australian court could well choose to follow that decision because of the regard n which the English court and its decisions are held.
    Factors that determine how persuasive a persuasive precedent is include:
    1. Date.  The more recent a persuasive precedent is, the more persuasive it will be.  This is because a recent persuasive precedent will probably have examined all of the latest authorities and will probably have either approved or rejected them.  For example, a recent English decision may well have reviewed all the relevant Australian authorities and may have found and indicated an error in the Australian approach.  However, following that persuasive English precedent would only be a viable option for the Australian court if it were not itself bound by the earlier Australian decisions.
    2. The level of the court in the other hierarchy.  The House of Lords is the highest court in the United Kingdom court hierarchy and its decisions would be more persuasive than, for example, the decisions of the Court of Appeal, which is immediately below it.
    3. Status of the particular judge.  The opinion of a well-known and highly regarded judge of some years’ standing will often carry more weight that that of a recent appointee at the same level.
    4. Whether the decision was or was not reserved.  Where the court’s decision in the earlier case was reserved, the judge will have taken time to consider the questions of law before him or her and, therefore, that decision may carry more weight that on that was not reserved.  (When a decision has been reserved, that fact will be apparent because the case report will be annotated with the abbreviation “cur adv vult” or “curia advisari vult”, meaning “the court took time to consider”.)  If the judge’s decision was reserved, he or she will probably have considered all the relevant precedents and statutes and, therefore, it will be less likely that his or her decision will be wrong.  Consequently, it is equally unlikely that that decision will be reversed on appeal or overruled in a subsequent case.
    5. Whether there were strong dissenting judgments.  If the court is nearly evenly split and the dissenting judges are in accord, particularly if those judges are highly regarded, sever doubt can be cast upon the accuracy and hence the persuasiveness of the court’s majority decision.
    6. Whether the persuasive precedent can be distinguished on its facts.

    Distinguishing earlier cases

    A precedent is only important where a similar fact situation applies in both the present case and in the precedent.  If the facts of the two cases are materially different, the precedent may be “distinguished on its facts” and the ration decidendi of the precedent will not bind the present judge.  Distinguishing is a means whereby a court may disregard a precedent that it does not wish to follow provided the facts are sufficiently dissimilar.
    The technique of distinguishing a case is based on the principle that a ration decidendi is only binding in an identical or sufficiently similar fact situation.  The later court may decide that, because of differenced between the facts of the two cases, the decision in the earlier case is not relevant to the present case.  The practice of distinguishing effectively limits the application of precedent to cases of identical or sufficiently similar facts.
    For instance, if we take the “right of way” example that was used earlier, a later judge may be able to distinguish that decision.  He or she could say, for example,
    “It is established law that defendants who fail to give right of way to cars approaching from their right are liable for the consequences of any collisions that result.”  Here, however, the plaintiff was also at fault because he failed to obey the ‘Stop; sign predominantly displayed on his side of the road.  Accordingly, he must be held at least partially responsible for the accident that occurred.  The general rule simply cannot apply in this case because the presences of the ‘Stop’ sign brings an entirely new element into the question of liability.”

    How the courts perform their adjudicative and law making functions

    The main focus of attention in this unit is the law of contract and torts. In contract and torts, we are concerned with civil law as opposed to criminal law.  (“Civil law” in this context is simply a subdivision of the common law – it is not the same thing as the Civil or Roman law that is used in Europe and which was referred to earlier.)  Therefore, we need to look at the courts in their role as adjudicators in civil disputes rather than in their roles as enforces of the criminal law.
    The courts perform their civil adjudication function in a two-step process.  First, they determine the facts of the dispute by hearing evidence from both parties and their witnesses in accordance with the rules of evidence.  Second, they apply the law, as it exists, to the facts as they have found them, to arrive at a decision.  This second step may involve enforcement of a statute, interpretation of statute, application of the common law and/or an application of equity.

    The Australian court hierarchies (civil jurisdiction)

    There are three levels of courts in most Australian jurisdictions.  They are:
    (a)    the Magistrates (or Local) Courts;
    (b)   the District (or County) Courts (except in Tasmania, the Australian Capital Territory and the Northern Territory); and
    (c)    the Supreme Court.
    At each level the respective state of territory parliament has given the relevant court and “original jurisdiction’ to hear and determine disputes between citizens “at first instance”.  That is, different disputes are started in different courts depending, normally, on the amount of money involved in the case or the type of remedy that is being sought.  The jurisdiction of each of the various courts varies with the knowledge, background and expertise of the judges or magistrates who have been appointed to preside over them.  In addition to their original jurisdiction, the District (or County) and Supreme Courts also have an “appellate jurisdiction”.
    The term “original jurisdiction” refers to the court’s power to hear matters “at first instance”; that is, to be the first point at which the dispute can be litigated.  The more serious the matter, or the more money that is involved, the higher up the court hierarchy the plaintiff starts his or her case.  The term “appellate jurisdiction” refers to the court’s power to hear appeals from the decision of courts lower than its own hierarchy – and to either reverse or affirm those decisions on appeal.  Both original and appellate jurisdiction is conferred by Acts of Parliament and the powers of the courts at each level are closely regulated by those Acts.

    Level 1: Magistrates (Local) Courts

    Magistrates (or Local) Courts sit at the lowest level in our state and territory court hierarchy.  They deal with civil disputes where the amount in question is relatively small and they also deal “summarily” with the less serious criminal matters.  They also have a role with the more serious criminal matters (called “indictable offences”), where they conduct preliminary hearings (called “committals”) to determine whether the matter should proceed to trial in a higher court.  The Magistrates or Local Courts in all jurisdictions are presided over by magistrates who are appointed by the relevant State Governor – or the Executive (Australian Capital Territory) or the Administrator (Northern Territory).
    In their original civil jurisdiction, Magistrates Courts (Victoria, Queensland, South Australia, Western Australia, Tasmania and the Australian Capital Territory) or Local Courts (New South Waled and the Northern Territory) can hear matters where the amount in dispute (or the damages being claims) does not exceed a stated monetary limit.  That limit is $60,000 in New South Wales, $100,000 in Victoria and Northern Territory (though there is no limit in Victoria for Work cover and industrial matters), $50,000 in Queensland, Tasmania, Western Australia and the Australian Capital Territory (more in Tasmania provided all parties agree to the expanded jurisdiction) and $40,000 in South Australia (or $80,000 for motor vehicle personal injury claims).
    Depending on the state or territory in which the original action was brought, a party who is dissatisfied with a Magistrates or Local Court decision can appeal it to the District or County Court and/or the Supreme Court of the relevant jurisdiction.
    Magistrates and Local Courts have no appellate jurisdiction (because there is no court below them from which an appeal can be brought).

    Level 2: District (or County) Courts

    The court immediately about the Magistrates or Local Court is the District Court (New South Wales, Queensland, South Australian and Western Australia) or the County Court (Victoria).  There is no equivalent intermediate court in Tasmania, the Australian Capital Territory or the Northern Territory and all trials in those jurisdictions take place before either the Magistrates Court (or, in the Northern Territory, the Local Court) or the Supreme Court.
    District (or County) Courts are presided over by District (or County) Court judges and they, too, have an original jurisdiction to hear disputed where the amount in issue or the value of the property involved does not exceed a specified amount – except in Victoria and South Australia where the amount is unlimited.
    In Queensland the amount is generally $250,000, in Western Australia it is $500,000 (except in personal injuries claims where it is unlimited) and in New South Wales it is $750,000 (except where the claim is for personal injuries arising out of use of a motor car, where there is no limit).  In South Australia, the District Court functions as the principle trial court and, as such, it exercises essentially the same unlimited jurisdiction as the Supreme Court (expect for Probate and Admiralty matters, which are dealt with in the Supreme Court alone).  In Victoria a similar system operated but the Supreme Court normally deals with matters where the amount involved exceeds $200,000.
    In their appellate jurisdiction, District (or County) Courts can hear appeals from the decision of a magistrate.  A magistrate may also state a special case for the opinion of the District (or County) Court on any question of law.  This merely meant that if the magistrate hearing as matter is unsure of the law, he or she may refer that question of law to the District (or County) Court for its advice.  The District (or County) Court will then normally give its opinion on that question of law and remit the matter to the magistrate so that he or she can proceed with the trial and, ultimately, hand down a decision.  The procedure of stating a case is designed to avoid unnecessary appeals that could arise if the parties are dissatisfied with the way the magistrate interprets a question of law.

    Level 3: State or Territory Supreme Courts

    The Supreme Court can sit as either a single judge or a Full Court.  The Full Court usually consists of wither three or five Supreme Court judges sitting together.
    In New South Wales, Victoria, Western Australia and Queensland, the Full Court’s place has been taken by a separately constituted Court of Appeal – a separate division of the Supreme Court – with its own “Judges of Appeal”.
    Single judges of the Supreme Court mainly exercise the court’s original jurisdiction.  The Full Court (or the Court of Appeal) exercises an exclusively appellate jurisdiction.  Decisions in any appeal are made in accordance with the opinion of the majority of the judges hearing the appeal.

    Level 4: The High Court of Australia

    The High Court of Australia, which normally sits in Canberra, is our highest appeal court and the final court of appeal in our legal system.  It hears appeals from all of the jurisdictions at both state and federal levels.  The High Court consists of a Chief Justice and six others ‘Justices of the Hight Court”.  The Full Bench of the High Court consist of all seven judges and the Full Court of the High Court consists of five judges.
    The High Court was created under section 71 of the Commonwealth of Australian Constitution Act 1900 (imp) to serve three purposes:
    1. To exercise a defined original jurisdiction.  The original jurisdiction of the High Court includes jurisdiction over all matter arising out of the Constitution or involving its interpretation, disputes between residents of different states or between different states themselves and disputes involving the Commonwealth government and its officials.
    2. To serve as the final court of appeal within the Australian legal system.  In its appellate jurisdiction, the High Court can hear appeals from single judges of the High Court, from the Full Court of the Federal Court (see below) and from the Full Court of the states and Northern Territory Supreme Courts (or, where they exist, their Courts of Appeal).  Appeals from the Full Courts of the state and Northern Territory Supreme Courts (or from their Courts of Appeal) and from the Full Court of the Federal Court are by special leave only.  This means that special leave mist be obtained from the High Court itself before the appeal can be commenced.  Such “special leave to appeal” may be granted;
    (a)    in cases of public importance;
    (b)   to resolve differences of opinion between different state Supreme Courts; and
    (c)    in cases that involve interpretation of the Constitution.
    1. To act as a guardian and interpreter of the Australian Constitution.  The High Court of Australia performs a function that no English court could ever perform.  That is, it can declare Acts of Parliament invalid.  The United Kingdom Parliament had no fetters on its legislative power, but he Australian Constitution only allows the Commonwealth Parliament to pass laws where it has specific legislative power to do so.  (So, for example, the Commonwealth Parliament has no power to legislate to control the activities of state police forces – because the Constitution does not give it that power.)  Where the Commonwealth Parliament acts beyond power by passing laws that it is not entitled to pass, the High Court can declare those laws invalid, and that legislation will then have no force and effect.

    Specialist courts

    Within the Australian state and territory court hierarchies there are a number of specialist state courts, such as the Children’s Court, the Coroner’s Court, the Industrial Court, the Land Court, the Local Government Court, the Mining Warden’s Court and the Small Debts Court.  These courts have little or no bearing on the enforcement of the law of contract and torts and therefore they are not dealt with any further here.  Simply be aware that they exist.

    Federal Courts

    In addition to the state and territory courts and the High Court of Australia, a number of Federal courts also operate within Australia.  They generally have very specific jurisdiction under the Australian Constitution (i.e. they adjudicate in respect of matters involving Commonwealth Acts of Parliament), although a number of those Acts (e.g. the Trade Practices Act 1974 (Cth)) do impinge on the law of contract so a number of their decisions can be important.  The more important of the Federal courts are:
    1. The Federal Court of Australia: The Federal Court of Australia Act 1976 (Cth) established the Federal Court to replace both the Australian Industrial Court and the Federal Court of Bankruptcy.  It also took over part of the jurisdiction that was previously exercised by the High Court of Australia.  The Federal Court is a superior court of record and it applies both common law and equity.  It had original jurisdiction to hear matters under more than 150 Commonwealth Acts of Parliament in areas including immigration, human rights, native title, admiralty, bankruptcy and insolvency, trade practices, consumer protection, taxation, industrial an intellectual property and Federal industrial disputes.  It also has jurisdiction to review administrative decisions by Commonwealth authorities such as the Administrative Appeals Tribunal and the National Native Title Tribunal (under the Administrative Decisions (Judicial Review) Act 1977 (Cth)).  The court also has an appellate jurisdiction, and the Full Court of the Federal Court can hear appeals from decisions of Federal Magistrates (in non-family law matters), from single judges of the Federal Court and from the Supreme Courts of the Cocos (Keeling) Islands and Norfolk Island.  It can also hear appeals from certain decisions of the various state Supreme Courts exercising Federal jurisdiction (particularly in relation to intellectual property – where all appeals are to the Full Federal Court).
    2. The Family Court of Australia: The Family Law Act 1975 (Cth) created the Family Court of Australia and gave it exclusive jurisdiction in respect of divorce, custody of nuptial children and property division upon dissolution of marriage.  It handles all matters arising directly or indirectly out of the breakdown of marriage.
    3. The Federal Magistrates Court: The Federal Magistrates Act 1999 (Cth) established this court to “promote the use of primary dispute resolution processes that are likely to assist people to resolve disputes away from the courts”.  The intent was to reduce the caseloads of the Federal and Family Courts.  Accordingly, the Federal Magistrates Court has jurisdiction to deal with cases in a number of area governed by Commonwealth legislation, especially in the areas of consumer protection, bankruptcy, family law and child support, human rights, migration, privacy and copyright.  It can also review matters under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and can hear appeals from the Administrative Appeals Tribunal when they are referred to it by the Federal Court.

    The Privy Council

    The Privy Council was established as an appeal court for the British colonies for the British Trust Territories and Protectorates and for the countries of what became the British Commonwealth.  The judges who sit on the Privy Council are almost always English and they are usually the same judges who sit in the House of Lords.  It is no longer part of the Australian court hierarchy, although it was until 1986.
    The abolition of appeals from the Australian courts to the Privy Council was a slow process.  In 1968 the Privy Council (Limitation of Appeals) Act 1968 (Cth) abolished appeals from the High Court to the Privy Council on constitutional matters.  It also abolished all appeals from inferior Federal courts and from the Supreme Courts of the Territories (but not from those of the States).  The Privy Council (appeals from the High Court) Act 1975 (Cth) abolished all appeals to the Privy Council in matters concerning Commonwealth law or where there ahas already been an appeal to the High Court of Australia.
    In 1978, the High Court, in Viro v The Queen (1978) 141 CLR 88, unanimously decided that the High Court would no longer be bound by Privy Council decisions.  A majority also said that where a state Supreme Court was confronted with conflicting decision of the High Court and the Privy Council, the High Court decision should be preferred.  Finally, in 1986, the proclamation of the Australia Act 1986 (Cth) terminated all remaining appeals to the Privy Council from all Australian courts.  Consequently, the High Court of Australia is now the final court of appeal for all Australian courts. The Privy Council’s present function in the Australian legal system is simply as a source of persuasive precedent.


    The function of tribunals is to adjudicate over administrative matters, such as disputes concerning decision of government or of ministers or their departments (see, for example, the jurisdiction of the Administrative Appeals Tribunal at Commonwealth level).  Tribunals, at a state level, regulate administrative matters, such as planning, land utilisation, workers compensation and industrial relations.  Tribunals were essentially established to avoid the delays and costs of court procedures.
    The essential differences between tribunals and courts are as follows:
    1. Under the doctrine of separation of powers, courts (the judicature) are independent of both parliament (the legislature) and the government (the executive).  Tribunals are a branch of the executive arm of government.
    2. A tribunal can review any decision brought before it for review “on the merits of the case” and can substitute its own decision for the decision being challenged.  If the courts did this it would breach that traditional “separation of powers” between the executive and the judiciary.  Therefore, the courts simply determine whether the relevant law has been followed and, if not, they order that the decision-making body retake the decision.
    3. Courts are presided over by judges drawn from the legal profession. Tribunals can be presided over by non-legally qualifies experts.
    4. Courts must abide by the rules of evidence.  Tribunals can often “inform themselves in such manner as they see fit”.
    5. Tribunal proceedings are usually less formal than those before a court.
    6. Courts are a permanent part of our constitutional framework and they administer a wider body of law.  Tribunals usually have a limited jurisdiction.


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