ACCG2051 Lecture 1: Legal & Political Systems in Australia PDF

Legal Framework Legal System Tort  Legal System Australia is a common law country 2  Legal System History Saxons – regionalised and feudal - Norman conquest 1066 – strong central govt Uniformity and consistency En...

Legal Framework Legal System Tort  Legal System Australia is a common law country 2  Legal System History Saxons – regionalised and feudal - Norman conquest 1066 – strong central govt Uniformity and consistency England now has common law Need for Equity – to supplement CL and prevent injustice English system transposed to Australia via colonisation 3  Legal System Case law is judge made Uniformity is achieved through the system of reporting of decisions and the important concept of precedent Ratio decidendi - binding - ‘reason for decision’ Obiter dicta – persuasive only 4  Legal System Parliament makes statute law (‘legislation’ or an ‘Act’) Australian Constitution creates the Federal (Commonwealth) Parliament Both federal and state governments legislate A ‘Bill’ is introduced into parliament and after debate, and if sufficient support, the ‘Bill’ is assented to and becomes an ‘Act’ Acts are interpreted by the courts via a mix of a ‘literal’ and a ‘purpose’ approach 5  Legal System Courts are arranged in a hierarchy The concept of precedent means that in most cases lower courts are bound by higher court decisions Where a party is dissatisfied with a decision of a court it may be possible to appeal the decision to a court higher in the hierarchy The High Court is our highest court There are Federal and State courts In NSW the highest state court is the Supreme Court Below the court system there are levels of arbitration, tribunals, mediation, ADR 6  Legal System The parties: – Plaintiff: brings proceedings In a criminal case the party bringing the proceedings is the State (called the ‘Prosecution’, the ‘Crown’, ‘DPP’ – Department or Public Prosecutions’ or sometimes just referred to as ‘R’ meaning ‘Rex (king)’ or ‘Regina (Queen)’). – Defendant: the party defending the proceedings – Solicitor: organises the case before it goes to court, may instruct a barrister in complex or involved matters, but also can represent the client in court. – Barrister: A specialised advocate who presents the case for a client. A barrister is instructed by a solicitor and does not deal directly with the public. – Judge/Magistrate: Hears the case and decides the outcome. – Jury: only used in some criminal cases (and civil defamation cases) in Australia 7  Legal System The courts (and lower tribunals ) are where parties litigate disputes Generally each party argues with a mix of fact (evidence) and law Civil litigation (CL, Equity) has these characteristics: compensatory philosophy; standard of proof is a balance of probabilities; the outcome sought is a remedy such as damages or an injunction Criminal litigation has these characteristics: statute based; philosophy is punishment and deterrence; standard of proof is beyond reasonable doubt; outcomes include fines and imprisonment 8  Political System The Australian Constitution created a Federation. Each colony became a state. The introduction of the Constitution: - recognised the 6 colonies - created new federal authorities - regulated federal/state relations - created a common market - established a limited bill of rights 9  Political System Australia is part of the Commonwealth. Head of state is the King (GG represents the King in Australia) Each state has a parliament (each territory has an assembly). Each parliament has 2 houses (except Queensland). Upper house and lower house. Members of the public are voted into parliament in elections. Everyone over 18 must vote. Each member of parliament represents an area called an ‘electorate’ 10  Political System Section 51 of the Constitution divides powers between the states and federal parliaments – specific powers such as taxation [s 51 (ii)]are given to the federal government and where a power is not specifically identified as a federal power it is interpreted as a residual state power s109 requires that if there is a conflict the Commonwealth law will prevail to the extent of the inconsistency. s128 The Constitution can only be amended by referendum 11  Government The government must carry out (or ‘execute’) the laws passed by parliament – thus the name ‘executive’. Ministers cannot implement these laws without assistance from administrators known collectively as the ‘Public Service’ The Attorney-Generals Department has primary responsibility for supporting the Australian Government in protecting and promoting the rule of law. The rule of law underpins the way Australian society is governed. Everyone—including citizens and the government—is bound by and entitled to the benefit of laws. 12  Government The powers of government are divided into 3 branches – Legislative (parliament –makes statute law) – Judicial (the courts – interpret and apply laws) – Executive (King via the Governor General, Ministers, Public Service – carry out the laws) This is known as the ‘Separation of Powers’ This system, where the 3 arms of government are responsible for performing distinct roles and functions is called the ‘Westminster system’ of parliamentary democracy. 13  Tort Various categories of torts – assault, battery, defamation Most significant is negligence Negligence has 3 main elements: - duty > who is it owed to? - breach > would a reasonable person have foreseen the risk and taken steps to avoid it? - damage caused by that breach > must be direct not remote; idea of a causal chain; would the damage not have occurred ‘but for’ the breach? 14  Tort Donoghue v Stevenson If someone is so closely and directly affected by our actions that we ought to have reasonably had them in our contemplation when carrying out such actions then we owe that person a duty of care Foreseeability/ proximity/ objectivity 15  Tort Negligent misstatement – financial loss as a result of bad advice When a person is relying on another to give accurate advice a duty will arise > Shaddock v Parramatta Council The issue of reliance relevant to auditors > Esanda v Peat Marwick 16  Tort Breach of duty – what a reasonable person would do in response to the risk Probability of risk – Bolton v Stone Gravity of Harm – Paris v Stepney Borough Burden of eliminating risk Utility of defendants conduct Causation of damage – Overseas Tankship v Morts Dock 17  Tort Vicarious liability arises where an employer becomes liable for the negligence of an employee Distinguish contract of services (master/servant) and contract for services (independent contractor) The negligence must arise in the scope/course of employment 18  Tort Contributory negligence is where the plaintiff is partly responsible for the loss and the award of damages reflects this Voluntary assumption of risk is where the plaintiff accepted or consented to the risk and will result in a reduction (or extinction) of damages Mitigation is the obligation of the plaintiff to take reasonable steps to limit the loss sustained 19  Tort The philosophy of awarding damages in tort is to put the injured party in the position they would have been in had the tort not been committed Components of a claim include: pain and suffering; economic loss; out-of-pockets; future medical; diminution of earning capacity 20  Tort Statutory modifications to negligence: In NSW - the Civil Liability Act Aspects of breach and causation are impacted Rights to recover in relation to ‘recreational activity’ and where the tortfeasor is a professional, public authority or volunteer have changed 21