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8/12/2019 Lecture on Legal Systems 2013
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Textbook discussion focuses on the AustralianLegal System- limited use.
Legal Systems and Courts in
the USP Region
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The Westminster System and
Separation of Powers DoctrineWestminster System- system of
government used in USP regionalcountries
Origins in England
Three arms of government:Legislature
Executive
Judiciary
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The Executive
The Cabinet (PM and Ministers)
Also includes Head of State and may
also include the Public Service. Policy-making arm
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The Judiciary
Courts, court personnel, magistratesand judges
Function is to interpret and apply lawsmade by the legislature
Also creates common law
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Doctrine of Separation of Powers The arms of government under the
Westminster System are to operateindependently of each other.
The Executive makes public policy and
initiates law-making function;The Legislature considers proposed laws
and approves or rejects them;
The Public Service applies and enforces thelaws; and
The Courts interpret and apply the laws toindividual cases without interference fromeither the Legislature or Executive
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Court Procedure in the USP Region
The Adversary System
Court procedure used in USP regionalcountries
as well as those countries using theEnglish-
based common law system.
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So, how does the adversar ial court
process work?
2 parties argue their case before a
magistrate/judgeLawyers for parties call their ownwitnesses
After hearing submissions from both sides,
judge/magistrate makes a decision.Judge/magistrate takes little part in the
presentation of the caseComplex rules of evidence followed
Win-lose system
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The Inquisitorial System
Some countries in Europe use thissystem
Judge takes active role
Special judge appointed to take
charge of criminal investigation before
court proceedings
Adversarial system- Police takecharge of investigation
Concerned with the search for truth
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Burden (onus) of Proof
Adversarial system- partymaking theclaim/allegation has burden of proving
the claim/allegation Criminal cases: the prosecut ion
carries the burden of proof
Civil cases- the plaint i f fcarriestheburden of proof
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Standard of Proof
Refers to how strong the evidence hasto be for the party making theclaim/allegation to win their case
Criminal cases- the standard isbeyond reasonable doubt(a very highstandard)
Civil cases- the standard is on thebalance of probabilities (more likelythan not i.e. 50% likelihood of being
true)
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Alternative Dispute Resolution
Courts criticized for lengthy delays, complexprocedures and high costs
Outside the region, diversion towards otherforms of resolving disputes
Aim of ADR- to get parties to resolve disputesamongst themselves within a controlledenvironment.
Presided by third party- arbitrators/mediators E.g. pre-trial conference- allows parties to
reach agreement on large number of factsand matters (reduces trial time and costs)
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In Pacific societies- traditional forms ofdispute resolution.
E.g. disputes resolved in villages andareas outside large towns. (Think of howdisputes are resolved traditionally inyour communities)
Law reform bodies need to considertraditional forms of dispute resolution forefficiency in judicial system
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Court Hierarchies in the
Region
Judiciary- one of the three keyinstitutions under Westminster system.
Courts- mouthpiece of the judiciary ininterpreting and applying laws.
Various levels of Court in USP regional
countriesThese various levels of court ranging
from the lowest to the highest is knownas the court hierarchy
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Regional Court HierarchyFurther Appellate
Court
This is the highest court for appeals
Appellate Court Appeals from the High Court or the
Principal Court can commence here
Principal Court This is the main court of the country,
normally known as the High Court. Ithas unlimited civil and criminal
jurisdiction
Subordinate Court This is the Magistrates Court or
District Court, where most claims
below a certain amount are filed and
proceedings on less serious criminal
offences take place
Lower Subordinate Some countries have Tribunals to
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Jurisdiction of Courts
Jurisdiction- may have number of meanings
depending on the context It could refer to the geographical area over
which the court has authority to hear cases
It could refer to the type of cases that thecourt may hear.
E.g. legislation in some countries stateswhich types of criminal matters subordinate
courts may hear. It could also refer to the penalties or
remedies the court may order. E.g.Magistrates Courts may have jurisdiction to
impose sentences of 5 years only.
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Jurisdiction
Further Appellate Court
Judicial Committee of Privy Council: Cooks,Kiribati, TuvaluSupreme Court: Fiji
Jurisdiction:To hear appeals from AppellateCourt
Appellate Court
Court of Appeal: Cooks, Fiji, Kiribati, Nauru,Niue, Solomons, Tokelau, Tonga, Tuvalu,Vanuatu, Samoa
Jurisdiction:to hear appeals from the Principal
Court
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Principal Court
High Court: Cooks, Fiji, Kiribati, Niue, Solomons, Tuvalu
Supreme Court: Nauru, Tonga, Vanuatu, Samoa
Jurisdiction:All principal courts have unlimited civil andcriminal jurisdictions
Subordinate CourtMagistrates Court: Fiji, Kiribati, Solomons, Tonga, Tuvalu,Vanuatu, SamoaDistrict Court: Nauru
Jurisdiction: variousFiji- Monetary limit: $50,000 for most claims and unlimited fortrespass or recovery of landSolomons: SI$6,000 Principal Magistrates Court, SI$12,000
First Class Magistrates Court
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Lower Subordinate Court
Island Court: Tuvalu, VanuatuLocal Court: Solomons
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Tribunals
Semi-judicial bodies
Set up in some regional countries to divert caseloads of courts
Simple procedures with restricted powers, lawyers
do not represent clients (may use representatives),rules of evidence need not be followed.
Decision-maker: Referee
Decisions appealable to subordinate courts
(procedural grounds)
E.g. Small Claims Tribunal (Fiji)
Set up in 1991 by the Small Claims Tribunal Decree
Jurisdiction: hears civil claims with monetary limit of
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Civil and Criminal Cases Sharp distinction between criminal and civil
cases under adversarial system
Criminal cases:
State(represented by the Police, public officeror govt lawyer) is a party to the proceedings
Wrongdoing seen as being done against thesociety as a whole
Parties- Prosecution and Accused/Defendant
Victim (if any) is not a party to the case
Accused if convicted- is sent to prison or fined.
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Civil Cases
Usually between private individuals,companies, businesses
Police or public officials not involved
Govt could be a party (to sue in its owncapacity)
Parties- Plaintiff and Defendant
If claim is proven- defendant ordered to pay
compensation to Plaintiff
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For your own Reading Read up on major sources of law from
Chapter 1 of your text.
Read up on common law rules of statutory
interpretation from your text:Literal Rule, Golden Rule, Mischief Rule,
Purpose Approach