IBL Assessment Quiz Notes

8/12/2019 IBL Assessment Quiz Notes

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IBL Assessment: Quiz on Australia’s legal system notes

1. The nature of law

There is no proper definition of law but a general one is: set of rules made by the state

and enforeable by proseution or litigation. !or business law a general definition

would be: a set of rules regulating businesses and business ati"ities made by the stateand enforeable by proseution or litigation.

The #positi"ist’ definition of law an be ontrasted to definitions by natural law

theory. $atural law theory and legal positi"ism are % branhes of &urisprudene

'philosophy of law(.

) $atural law theory:

To desribe nature of law there is relationship between law and set of higher "alues.

They insist that some things are fair and others unfair and that the law should be

made* administered and interpreted in suh a way that it orresponds with ob&eti"e

standards. $atural law theory was important in de"elopment of +nglish ommon law.,hen parliament and monarh struggled parliament made referene to #fundamental

laws of +ngland’ whih embodied natural law priniples and set limits to monarhy

power.

) Legal positi"ism:

Legal positi"ists say we should fous on what the law is. -onsisteny with standards f

morality and &ustie is not neessary. The only uestion that is important is whether

the law was made properly and onsistent with reuirements of the rele"ant

onstitution.

The ideals of laws are:

o -ertainty) people should be able to ma/e agreements* form relationships and

ondut affairs onfidently aware of or able to asertain rele"ant legal rules.

0o law should be lear.

o !leibility) law must respond to hanges. If not then it an beome redundant

o !airness) law must be and seen to be fair by e"eryone.

o Aessibility) e"eryone is presumed to /now the law. Ignorane is no euse

but people should find out about rele"ant laws that affet them and these laws

should be aessible to people.

The purpose of law:o 2esol"e disputes

o 3aintain soial order

o 4reser"e and enfore ommunity "alues

o 3ehanism for ensuring resoures and opportunities are fairly distributed so

no one is disad"antaged

o 3aintains stability and eonomi growth

o +nsures go"ernment does not misuse its power and omplies with the rule of

law. The rule of law has 5 harateristis:

) e"eryone will be eual in the eyes of law inluding go"ernments

) ourts will uphold legal rights on itizen inluding right to personalfreedom





e"en though it does not mean the person or organisations must be the itizen of the

lawma/ing state.

• 4ubli law: onerned with organisation and go"ernment and relationship

between go"ernment and people

• 4ri"ate law: onerned with areas in"ol"ing disputes o"er rights andobligations between people or organisations

• 0ubstanti"e law: atual rights and duties under law

• 4roedural law7ad&eti"al law: onerned with rules of i"il and riminal

proedure and e"idene that must be followed in the enforement of those rights and

duties

• -ommon law 'legal system(

) de"eloped in +ngland) Australia uses this system

) 9otrine of preedent applies where ourts loo/ at similar ases of the

past

) Aspet of stare deisis is that deisions of higher ourts are legally

binding upon lower ourts in same hierarhy

) Ad"ersarial trial method where disputes resol"ed by opposing parties

who argue their ases before an impartial ourt

) -ourt only ensures fair and proper ondut of trial and deides who

wins

) Aused an be tried by &ury

) There is also inuisitorial system in ommon law) some laws made bystatutes

• -i"il law system

) de"eloped from 2oman law and $apoleoni odes

) ourts bound by odes* ats and statues so they base their &udgement

based on these pro"isions

) preedent does not apply

) inuisitorial method whereby ase law generally not reorded nor

reognised as law soure

) ourts ta/e some responsibility of legal matters

• -ommon law 'area of law(: two ma&or laws are i"il and riminal law

# civil law

) ation bought by a person against another person

) mode of proedure is ausatorial and emphasis on remedies whih are

most often monetary ompensation

) plaintiff ommenes ation in first instane

) if a party is not happy with the outome then they an appeal to a

higher ourt. If this happens then the party that appealed is now /nown

as the appellant and the other party beomes the respondent.



) the burden 'or onus( of proof on plaintiff to pro"e ase on balane of

probabilities that defendant bro/e a legally enforeable promise

) tort and ontrat laws are i"il laws

) rarely is &ury used

# criminal law) ation bought by rown on behalf of state

) onus on rown to pro"e #beyond reasonable doubt’ that aused is

guilty

) an be tried by &ury who deide uestions of fat and &udge deides

uestions of law

Laws in other ountries

) this is different between ountries

) u.s. has bill of rights

) eah ountry has different forms of go"ernment

• monarhy: head of state is /ing or ueen. There are % types:

onstitutional and absolute. In absolute the head of state is /ing or ueen

who eerises eeuti"e power diretly. In onstitutional* head of state

holding position sub&et to onstitution and with onsent of people

eerises little or no politial power. +euti"e power is eerised by

ministerial ounil led by prime minister who is also the leader of the

legislature. -ommonwealth ountries li/e Australia are onstitutional

monarhies whose head is the ueen. The ueen appoints a rown

representati"e i.e. go"ernor)general 'at federal le"el( and go"ernor 'at state

le"el( who ats as a representati"e to the ueen.

• presidential: head of state is president. There are % types: full

presidential and semi)presidential systems. In full presidential the head of

state and the head of eeuti"e go"ernment is the president. There is no

prime minister. In semi)presidential system the head of state is the

president who also has some eeuti"e power but eeuti"e power is also

eerised by ministerial ounil led by prime minister who is also the

leader of the legislature.

• parliamentary republis: head of state is president who eerises littleor no eeuti"e power and is mostly a figurehead. +euti"e power is

ati"ely eerised ministerial ounil led by prime minister who is also the

leader of the legislature.

• theoraies: head of state determined by rules of state religion.

• ne party state: politial power eerised by single politial party.

%. ;ustie* ethis and politis



The definition of &ustie an be understood as fairness. 0oures of &ustie are:

) natural law

) di"ine ommand

) authoritati"e ommand

) mutual agreement

) onsuentialism

Types of &ustie

• 9istributi"e: fair and proper distribution within a group. But when is it #fair

and proper’6

) egalitarianism: resoures to be distributed eually within a group due

to eual opportunity or eual outome

) dessert theory: resoures to be distributed aording to what a member

of a group deser"es* the basis of whih euality is not a riteria but

something else li/e need

) utilitarianism: deisions should be made or resoures distributed to

maimise total7a"erage welfare aross all members of the group

• 2etributi"e: proper response to wrongful at. 0ome answers to uestions that

relate to wrongful at are:

) <tilitarianism: ompensation and7or punishment &ustified if o"erall

welfare of ommunity is maimised by deterring offenders through

rehabilitation of eisting offenders or by ompliane of law

) retributi"ism: punishment determined by what offender deser"es and

ompensation determined by what "itim deser"es

•4roedural &ustie: fair hearing or trial

+this is a system of moral standards of ondut and assoiated with #right’ or

#wrong’. The ma&or priniples of ethis are determined by % theories:

• 9eontologial ethis ha"e the approah to ethis aording to ethial rules that

are uni"ersal that apply to e"eryone where"er they are and whene"er they may

be there. The person must omply with these rules regardless of the

onseuenes.

• -onseuentialism is theory that emphasis the onseuenes of beha"iour li/e

utilitarianism.

An ethial person has 5 harateristis: integrity* wisdom and moral ourage.

5. The Australian legal system

0oures of law in Australia: ase law7 ommon law and statute7legislati"e law.

=owe"er* most laws that are enated in Australia ome from 4arliament.

0eparation of powers: priniple that di"ides the go"ernment into 5 arms both in state

and federal le"el. The 5 arms are:

) legislati"e: ma/e law) eeuti"e: administer law



) &udiiary: interpreting law* reates law by dotrine of preedent

But separation of powers is not omplete in reality as legislati"e is eeuti"e. nly in

pure theory there are 5 distint arms.

,hat is uniue about the Australian legal system6

There are si /ey harateristis about the Australian legal system.

1. Liberal demoray

) representati"e demoray in whih laws are made by and the eeuti"e

go"ernment onsists of eleted representati"es who eerise their

power sub&et to the rule of law and the onstitution.

) Theorist* Larry 9iamond asserts ele"en harateristis of a liberal

demoray.

a. outomes of eletions determined by itizens and any group omplying

with onstitutional priniples is entitled to form a party and ontest

eletion.

b. military and other demoratially unaountable institutions aresubordinate to and answerable to authority of eleted representati"es.

. itizens ha"e many hannels of epression and representation whih

they ha"e freedom to form and &oin.

d. itizens ha"e substantial freedom of belief* opinion* disussion* speeh*

publiation* assembly* demonstration and petition.

e. alternati"e soures of information inluding independent media to whih

itizens ha"e politially unfettered aess.

f. eeuti"e power onstrained by go"ernment institutions li/e

independent &udiiary and parliament.

g. i"il liberties effeti"ely proteted by independent and non

disriminatory &udiiary whose deisions are respeted and enfored by

other go"ernment arms.

h. itizens are politially eual under law.

i. minority groups not oppressed.

&. rule of law protets itizens from human right abuses.

/. onstitution is supreme.

%. -ommon law legal system

) ur system is based on ommon law legal system

) Based upon British legal system

5. -onstitutional monarhy

) =ead of ommonwealth and "arious states is the ueen of +ngland.

) =old position not by fore of arms but aording to the will of the

Australian people as epressed in onstitution.

) Queen represented by rown representati"es of the federal and state

go"ernments who are the go"ernor) general and go"ernors

respeti"ely

>. !ederation

) we ha"e a system of go"ernment where power is shared between the

federal and state go"ernment



?. 0eparation of powers

) Both state and federal go"ernments operate using dotrine of

separation of powers. In both le"els we ha"e:

• legislati"e: ma/e law

• eeuti"e: administer law

• &udiiary: interpreting and applying law

) But separation of powers is not omplete in reality as legislati"e

o"erlaps with eeuti"e due to dotrine of responsible go"ernment.

) This is different from di"ision of powers where power is shared

between the federal and state go"ernments

@. 2esponsible go"ernment

) 4riniple that eeuti"e go"ernment should be answerable to

legislature and omprised of members of legislature

) If people are not happy members of parliament an be fored to resign

by eletion

=istory

Aboriginal ustomary law was not reognised when the British arri"ed as indigenous

people were onsidered uni"ilised.

Australia was delared #terra nullius’ when olony was established. This meant

indigenous people were not reognised as owners of the land implying Australia was

deemed to ha"e been settled rather than onuered or auired by treaty. As a result

dotrine of reeption applied meaning priniple that settlors of new territory brought

with them the law of home ountry.

The 3abo -ase was signifiant beause the =igh -ourt of Australia re&eted that

Australia was #terra nullius’ and a/nowledged indigenous ustomary law. The led toreognition of nati"e title 'in 15(. But the high ourt did not re&et dotrine of

reeption and onfirmed that Australia was settled and that urrent laws are deri"ed

from British legal system.



-olonial go"ernment

The olonies were initially ontrolled by the British go"ernment as represented by the

olonial go"ernor. The go"ernors applied British law to olonies problems anddisputes. But as time passed the British go"ernment granted olonies inreasing le"els

of independene by legislati"e enatments.



In the late 1CCs si relati"ely independent self)go"erning olonies eisted* eah with

its own onstitution* legislature and ourt system. It was reognised gi"en similaritiesand ommon interests of the olonies that unifying legal system be established. The

reasons were:

) perei"ed need to defend Australia from enemies suh as Dermany

) trade disputes pro"o/ed by ustoms barriers between the olonies

) need for onsistent and effeti"e immigration poliy





There is also the loal go"ernment whih are established by state and territory

go"ernments to ta/e responsibility for ommunity and loal ser"ies. They ha"e

legislature and eeuti"e but no &udiiary. The legislature is ounil of eleted

representati"es lead by a 3ayor and eeuti"e is a subset of the ounil omprised of

/ey offie holders.

Too muh law

There are laims that we are o"er)regulated by too muh law. In business this is alled

#red tape’ and is rele"ant as many of them struggle to omply with issues li/e ta*industrial relations* wor/plae safety* onsumer protetion and orporate go"ernane.

There is too muh paperwor/ and lodging of forms* reports and statements and a lot

of legal rules and regulations applying to business unfairly and inappropriately restrit

them in earning inome.

The pereption that Australia has tendeny to litigate too ui/ly and too easily has

arisen a number of de"elopment:

) -lass ation: legal ation bought against defendant on behalf of large

number of plaintiffs with similar auses of ation

) -ontingeny fee: an arrangement between a lawyer and lient where

lient has to pay only lawyer’s legal fees if the outome of a legalation is fa"ourable to the lient

) Litigation ulture: Australian’s following steps of <.0. in terms of

litigation. Indi"iduals and organisations willing to threaten* if not then

ommene legal ation to sol"e problems.

The onstitution

9efinition: set of rules determining how: a( a nation or state or b( an organisation* will

be go"erned.



0truture of onstitution

-hapter =eading -ontent

-hapter I The 4arliament • "ests legislati"e

power in !ederal

4arliament 's. 1(

• sets out struture of

!ederal 4arliament

and powers of

!ederal 4arliament

-hapter II The +euti"e

Do"ernment• "ests eeuti"e

power in Do"ernor)

Deneral ating on

the ad"ie of the

!ederal +euti"e

-ounil 'ss. @1* @%(

• pro"ides !ederal+euti"e -ounil

onsists of

3inisters of 0tate

who must also be

3embers of

4arliament

-hapter III The ;udiature • "ests !ederal

&udiial power in

the =igh -ourt of

Australia and in

other !ederal-ourts 's. E1(

-hapter IF !inane and Trade • grants elusi"e

power to !ederal

4arliament o"er

ustoms and eise

duties 's. C(

• pro"ides that

#trade* ommere

and interourse

among the0tatesG.shall be

absolutely free’ 's.

%(

-hapter F The 0tates • preser"es the 0tate

onstitutions* 0tate

laws and powers of

0tate parliaments

'ss. 1C@) 1C(

• resol"es

inonsistenies

between 0tate and

!ederal laws 's.



1C(

• prohibits 0tates

from oining

money 's. 11?(

• prohibits the

-ommonwealthfrom legislating

with respet to

religion 's. 11@(

-hapter FI $ew 0tates • pro"ides for the

0tates to be

appended by

-ommonwealth

'ss. 1%1* 1%>(

• establishes !ederal

4arliament’s power to ma/e laws with

respet to the

Territories 's.1%%(

-hapter FII 3isellaneous

-hapter FIII Alteration of the

-onstitution• sets out how

-onstitution may

be amended 's.

1%(

!ederal and 0tate relations

The onstitution sets out how legislati"e 'law)ma/ing( power is shared between the!ederal and 0tate parliaments. This is /nown as di"ision of powers.

!ederal parliament has elusi"e and onurrent powers. +lusi"e powers are those

eerised only by !ederal parliament. -onurrent powers are those eerised by both

!ederal and 0tate parliaments. 0tate parliaments ha"e onurrent and residual powers.

2esidual powers are those eerised by 0tate parliaments e"en though they an ma/e

laws using onurrent powers under s. 1CE of -onstitution where 0tate -onstitutions

ha"e been preser"ed sine olonial times.

+lusi"e powers '!ederal only(

) establishment of the seat of go"ernment of -ommonwealth and

o"ersight of -ommonwealth publi ser"ie 's. ?%() imposition of ustoms and eise duties 's. C(

) raising and maintaining of any na"al or military fore 's. 11>(

) oining of money 's. 11?(

) go"ernment of Territories 's. 1%%(

-onurrent powers '!ederal and 0tate(

There are >C onurrent powers under s.?1 of onstitution. Loo/ at pages ?C)?1 of

tetboo/ for the list. If the !ederal parliament has not legislated in relation to matters

listed in s.?1* then matter remains with the 0tates. If both the !ederal and 0tate

4arliament ma/e laws in regards to the same matter* s. 1C of the -onstitution

pro"ides that Hwhen a law of a state is inonsistent with a law of the -ommonwealth*



the -ommonwealth 'latter( will pre"ail and the 0tate 'former( shall to the etent of

inonsisteny* be in"alid.

2esidual powers '0tate only(

) eduation

) health) riminal law

) torts and ontrats

) transport

) property and land

) loal go"ernment

This is why eah state has different systems. +"en if a matters falls within the residual

powers of the 0tate* the !ederal go"ernment may be able to influene law)ma/ing in

that area by ta/ing ad"antage finanial dependene of the 0tate upon the

-ommonwealth. nly !ederal go"ernment ollets inome ta and main soure of

inome for state go"ernments is money in the forms of grants pro"ided by the !ederal

go"ernment.

There are limitations on the powers of the -ommonwealth. These are:

) annot prefer one state o"er another in regards to taation 's. ?1 'ii((

) annot auire property without &ust ompensation 's. ?1 'i((

) must try by a &ury a person harged with offene under ommonwealth

law and the trial must be held in state where offene was ommitted 's.

C(

) annot restrit free trade between states 's. %(

) annot prefer one state o"er another in regards to trade* ommere or

re"enue 's. (

) annot ma/e law establishing* imposing nor prohibiting any religion 's.

11@(

) must pre"ent residents of states being disriminated against within

other states 's. 11E(

) must protet e"ery state against in"asion 's. 11(

There are limitations on the powers of the 0tates. These are:

) annot le"y ustoms and eise duties 's. C(

) ensure that trade between states is free 's. %(

) annot raise military fores 's. 1C(

) annot oin money 's. 11?(

=igh -ourt of Australia has stated onstitution has a number of implied limitations

upon ommonwealth powers. These are:

) annot ma/e law disriminating against the states or impairing their

ontinued eistene 'Joowarta " B&el/e) 4etersen K1% 1?5 -L2

1@(

) annot ma/e law that onflits with freedom of ommuniation about

politial* go"ernmental and publi affairs implied into the onstitution

as a result of the system of go"ernment established by the onstitution

'Australian -apital Tele"ision 4ty Ltd " -ommonwealth of Australia

K1% 11E -L2 1C@M $ationwide $ews 4ty Ltd " ,ills K1% 1EE-L2 1(



-hanging the -onstitution

) it is not easy: only 7>C ha"e been suessful

) s. 1% sets out how onstitution should be amended

) There are 5 reuirements whih ha"e to be followed preisely. These

are:

a. 4roposed amendment must be passed by an absolute ma&ority of both =ouses of 4arliament

b. 4roposed amendment must be put to Australian "oters in the form of

a referendum and passed by

i( ma&ority of "oters and

ii( ma&ority of the 0tates '> or more(

. 4roposed amendment must reei"e royal assent from Do"ernor

Deneral

The legislature 'law ma/ers( aording to the -onstitution: Hthe legislati"e power of

the -ommonwealth shall be "ested in a !ederal 4arliament whih shall onsist of the

Queen* 0enate and =ouse of 2epresentati"es and whih is herein)after alled #The

4arliament’ or #The 4arliament of the -ommonwealth’ 's. 1(.This is similar for 0tate parliaments.

4arliament so"ereignty: 4arliament is the supreme law ma/er. A.F. 9iey eplained

this as the right of the British parliament #to ma/e or unma/e any law whate"er* and*

further* that no person or body is reognised by the lawGas ha"ing a right to o"erride

or set aside legislation of the 4arliament’. There are 5 important onseuenes:

1. laws made by parliament are not sub&et to any #higher law’ suh as priniples of

morality* international law or ommon law '&udge)made law(.

%. parliament annot ma/e a law binding future parliament that is a parliament is

always free to hange its own laws.

5. no person* not e"en a &udge or a member of the eeuti"e go"ernment an o"erride*ignore or disobey a "alid law made by a parliament.



-ontrary to 9iey’s notion of absolute so"ereignty* power of parliament has a

limitation. They must eerise their power as with the terms of the onstitution whih

sets out law ma/ing powers aording to the rule of law. If they don’t do this the law

will be delared unonstitutional and in"alid by the ourts.

0truture of parliamentIn +ngland:

<pper house was /nown as house of tenants)in)hief and elesiastis but now /nown

as house of lords.

Lower house was /nown as house of eleted /nights and itizens but now /nown as

house of ommons.

Australia has a similar struture. ,e ha"e adopted ,estminster system 'biameral

parliament(. At federal le"el and also some state le"els we ha"e biameral parliaments

'there are a few eeptions whih ha"e a uniameral parliament(.

In !ederal parliament upper house is /nown as the 0enate and lower house is /nown

as the =ouse of 2epresentati"es.

In 0tate parliament upper house is /nown legislati"e ounil and lower house is/nown as legislati"e assembly 'it is alled house of assemble in Tasmania and 0outh

Australia(. The eeptions are $orthern Territory* Australia -apital Territory and

Queensland who ha"e only the lower house and therefore are a uniameral

parliament. Queensland passed the -onstitution At Amendment At 1%% 'Qld(

whih abolished the upper house in 1%%.

Lower =ouse

) eah member of the =ouse is eleted to represent a partiular

eletorate* where eah eletorate ontains roughly the same number of

people so that itizens ha"e eual representation in the Lower =ouse.

) aording to onstitution the number of members of the Lower =ouse

must be approimately twie the total number of 0enators. There are

1?C members in the Lower =ouse.

) eeuti"e go"ernment is formed by the party with ma&ority of members

in the lower house.

) the prime minister is the leader of the winning party in the Lower

=ouse.

) on a state le"el the premier is traditionally a member of the lower

house and also the leader of the winning party.

<pper house) /nown as 0tate’s =ouse or =ouse of 2e"iew.

) eah state has eual representation with 1% senators from eah state

and % from eah territory totalling to E@ senators.

) as most representation in the Lower =ouse are based upon population

distribution with most representati"es from populous states* the

founders of onstitution reognised the danger of the Lower =ouse

fa"ouring these states and so the 0enate was form to redue this ris/

and gi"e other 0tates to oppose biased legislation.

) +euti"e go"ernment neessarily ontrols the Lower =ouse but not so

muh the <pper =ouse and while a law proposed may automatially

pass the Lower =ouse* it may not pass the <pper =ouse. The 0enate



) has power to "eto '"ote to blo/ or o"erride deision( any law

proposed by the eeuti"e go"ernment in the Lower =ouse.

The -rown 2epresentati"e

) represents the ueen

) onstitution grants signifiant eeuti"e powers to D)D but aordingto onstitutional on"ention* the D)D only ats on the ad"ie of the

+euti"e -ounil in the eerise of those powers

) has reser"e powers whih are unwritten powers that an be eerised

independently of the ad"ie of the eeuti"e go"ernment. There are >

powers:

a. appoint prime minister

b. dismiss prime minister

. fore a dissolution of parliament

d. refuse to dissol"e parliament

) when eerising reser"e power DD ordinarily ats in aordane with

on"entions suh as appoint prime minister under s. @> of theonstitution* the D)D must by on"ention appoint the leader of the

party that has ma&ority seats in Lower =ouse

) at !ederal le"el it is the Do"ernor Deneral

) at state le"el it is the Do"ernor

) at territorial le"el it is the administrator

) the rown representati"e is part of legislature: a Bill must reei"e

2oyal Assent from the rele"ant -rown 2epresentati"e

+euti"e power

Administer law* arry on business of go"ernment and maintain order and seurity

Aording to onstitution: the eeuti"e power of the -ommonwealth is "ested in the

Queen and is eerisable by the Do"ernor) Deneral as the Queen’s representati"e and

etends to the eeution and maintenane of this -onstitution and of the laws of the

-ommonwealth 's. @1(.

3inisters are members of 4arliament appointed by D)D on the ad"ie of the 43 to

administer "arious departments.

0imilarly state onstitutions "est eeuti"e power in Do"ernor as ad"ised by the

4remier and the ministers. They are /nown as Do"ernor in -ounil.

In territories eeuti"e power is "ested in the Administrator as ad"ised by the -hief

3inister and other ministers. They are /nown as +euti"e -ounil.

+"en though eeuti"e power is "ested in -rown representati"e in pratie it isDo"ernor in -ounil7 +euti"e -ounil and publi ser"ie that eerise eeuti"e

power. 4arliaments delegate to the eeuti"e go"ernment law ma/ing power of its

own.

9otrine of responsible go"ernment is the priniple that eeuti"e go"ernment should

be answerable to the legislature and omprised of ministers.

3inisters ha"e their own portfolio whih they are responsible for. There are different

types of ministers.

0enior ministers) minister responsible for one or more important portfolio

;unior ministers) minister responsible for one or more less important portfolio

Ba/benher) member of the ma&ority politial party who is not a minister

-abinet) subset of eeuti"e ounil onsisting of senior members.



0hadow abinet) ministers of opposing party 'party with net to largest number of

seats in lower house appointed by leader of opposition( who srutinise and hallenge

deisions and ations.

uter) ministers not members of the -abinet

The 437premier and abinet are not epressly referred to in the federal7stateonstitution.

If a person is not happy with a deisions made by go"ernment department or ageny

they an:

) find an ombudsman who is a publi offiial in"estigating omplaints

about the go"ernment7organisation

) under !reedom of Information At 1% '-th( they an aess

douments and information held about them by any federal department

or ageny

Administrati"e Appeals Tribunal) reated by Administrati"e Appeals Tribunal At 1E? '-th(

) hears appeals from deisions of ministers* offiials and agenies.

) it is not a ourt rather part of eeuti"e go"ernment and eerises

administrati"e authority not &udiial authority.

) when a deision is re"iewed AAT substitutes its own deisions in plae

of original one

) ;udiial re"iew:

-ommon law offers remedies to those that ha"e suffered damage. The

remedy is for the ourt to issue prerogati"e writ whih is an order of

the ourt ordering an administrati"e offier or tribunal to at or to

refrain from ating in a partiular manner. There are > types of this

writ:

a. habeus orpus) person imprisoning another is direted to bring the

other person before a ourt of law

b. mandamus) ourt orders someone to perform their administrati"e

duties

. ertiorari) ourt orders that a reord of an administrati"e deision be

produed

d. prohibition) ourt prohibits an administrati"e offier or tribunal from

eeeding its powers

) ourts gi"en additional powers by Administrati"e 9eisions ';udiial2e"iew( At 1EE '-th( to re"iew:

a. breah of the rules of natural &ustie has ourred in onnetion with

ma/ing of the deision

b. proedures that were reuired by law to be obser"ed in onnetion

with ma/ing of the deision were not obser"ed

. person who purported to ma/e deision did not ha"e the &urisdition

to do so

d. deision was not authorised by legislation in pursuane of whih it

was purported to be made

e. ma/ing of deision was improper eerise of power onferred by the

legislationf. deision in"ol"ed error of law



g. deision was indued or affeted by fraud

h. no e"idene or other material to &ustify ma/ing of deision

i. deision was otherwise ontrary to law

) order of re"iew may uash 'anel( earlier deision* order deision

ma/er to rema/e deision aording to law or ma/e a new order

delaring rights of parties ordering them to refrain from doingsomething or performing an at.

9elegated legislation

Legislation made by a body other than parliament and to whom parliament has

delegated law)ma/ing power

Ad"antages: parliaments do not ha"e time or epertise to debate and "ote upon e"ery

rule and regulation* omple and tehnial rules made better by ualified eperts in

that area and go"ernment departments and loal authorities are usually loser to

problem and an better onstrut a solution.

9isad"antages: <ndemorati natures of proess as laws are made by uneleted

offiials and as a result there are more rules to be made and the reason why there is somuh o"er)regulation.

The &udiiary

Interpret and apply law. Aording to onstitution: the &udiial power of the

-ommonwealth is "ested in a !ederal 0upreme -ourt* to be alled the =igh -ourt of

Australia and in suh other federal ourts as the 4arliament reates and in suh other

ourts as it in"ests with the !ederal &urisdition. The =igh -ourt shall onsist of a

-hief ;ustie and so many other ;usties* not less than two as the 4arliament

presribes 's. E1(.

+ah state and territory has their own ourt system and there is also a federal ourt

system and they are organised into a hierarhy system.

The ad"antage of ha"ing a hierarhy system:

permits ourts to be lin/ed by a"enues of appeal) if a party is not happy with a

deision they an appeal to a higher ourt within the hierarhy

enables partiular ourts to speialise in partiular types of trial and failitates

effiient alloation of legal resoures

failitates operation of the dotrine of preedent N deisions of higher ourts are

legally binding upon lower ourts

3ost ourts eerise original &urisdition 'hears and deides disputes for first time(and appellate &urisdition 'hears appeals from ourts lower on hierarhy(.

0ummary offene) less serious offene

Inditable offene) more serious offene

4reedent is important in ommon law. There are % types:

Binding preedent 'ratio deidendi of earlier ase deision( eah ourt is bound by

deisions of ourts of the same le"el or higher than it in the same hierarhy.

4ersuasi"e preedent an only influene a deision.

In some ases a deision an be both.

9istinguishing the preedent emphasis the differene between a preedent and the present ase in order to &ustify and refuse to follow the preedent.



;udiial ati"ism) o"ert law ma/ing that is the eerise of legislati"e power by a &udge

or &udges.

A92) other methods rather than going to ourt. It is heaper* faster* pri"ate and less

stressful than going to ourt. Also it is less destruti"e to business relationships than

litigation. It also relie"es pressure on and osts of maintaining the ourt system.

Type of A92 ,hat is it6 Benefits

$egotiation !ailitati"e proess

in"ol"ing "oluntary and

onfidential disussion

between parties either with

or without third party.

utome remains

onfidential

3aintains ongoing

relationships

3ediation !ailitati"e proess

in"ol"ing "oluntary and

onfidential disussion between parties with an

independent and neutral

third party alled the

mediator who assists the

parties to resol"e disputes.

utome remains

onfidential

3aintains ongoing

relationships

-oniliation 0imilar to mediation where

the parties meet before

neutral third party alled

the oniliator who is

s/illed in the area ofdispute.

utome remains

onfidential

3aintains ongoing

relationships

-oniliator will gi"e

opinions about positions of

parties and suggest

solutions

-oniliator is s/illed in

that partiular area

Arbitration 0imilar to going to ourt

where the parties meet before neutral third party

alled the arbitrator who

onsiders merits of eah

ase and ma/es deision

binding upon both parties.

Laws eist that regulate

arbitration

Internationally reognised

9eision is binding upon

both parties

Documents

IBL Assessment Quiz Notes