Tutorial One

1. The sources of law are legislation and

precedent, which are the primary
sources. Secondary sources include
commercial custom, textbooks and
journals and Law Reform Commission
Reports. The primary sources will be
used in priority to the secondary sources,
which will be used only if there is no
primary source.
. The adversarial system of law basically
means that all trials !both criminal and
ci"il# proceed on the basis that there is a
contest between two competin$ parties.
This is the system used in %ustralia and
all &common law& countries. The
in'uisitorial system is used by ci"il law
countries. There are differences in the
role of the jud$e, onus of proof and
presumptions that apply.
(. The common law rules were de"eloped
in the common law courts and the rules
of equity were de"eloped in the
Chancery Courts. The )'uity courts were
set up by the *in$ and applied the rules
of natural justice. They were more
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flexible, in terms of jurisdiction and
remedies, than the common law courts
and were therefore more attracti"e to
liti$ants. Today, all courts apply common
law rules and the rules of e'uity.
+. Senior courts in the hierarchy of a court
system dictate to the inferior courts how
the law is to be interpreted and applied.
This leads to consistency, fairness and
predictability in the way the law is
applied. The disad"anta$es are that all
important cases ha"e to be reported and
the jud$es in the middle and lower courts
become &rubber stamps& in the
interpretation of the law.
,. Courts apply strict rules of e"idence and
procedure in the way cases are tried.
Tribunals are less strin$ent in the
application of rules and more efficient in
disposin$ of cases. The people like
tribunals because they pro"ide quick,
cheap and informal hearings that in
most cases do justice and keep e"eryone
happy. There is no appeal from tribunals
except in "ery limited circumstances, so
the matter is &o"er and done with&.
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-. Onus means burden of proof and
standard means level of proof. .n a
criminal trial the standard of proof is
"ery hi$h, bein$ &beyond reasonable
doubt&. .n a ci"il trial it is &on the
balance of probabilities&. The hi$her
standard of proof in criminal trials
reflects the community/s concern that no
innocent person should be incarcerated
!&jailed&#. The 0ritish justice system !and
therefore the %ustralian justice system#
puts a "ery hi$h "alue on the freedom
of the individual.
1. 2nder the Constitution, the %ustralian
3o"ernment has exclusive power to
legislate in areas such as defence,
mi$ration, currency, na"i$ation. .t has
concurrent power to legislate in many
other areas. Concurrent power is power
that is shared with the states.
Realistically, the states will not pass laws
in these concurrent areas of law4makin$
power if the Commonwealth has power,
because it would be futile to do so.
5. The common law rules of statutory
interpretation are the Literal ule, the
!olden ule and the "ischief ule.
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The literal rule means to $i"e the words
their literal, dictionary meanin$. .n most
cases, this works well, but it can lead to
absurd outcomes as in Bedford's Case.
The courts would then apply the $olden
rule, concludin$ that the parliament
could not possibly ha"e intended that
outcome. The mischief rule was
sometimes applied to establish what
problem !mischief# in society the %ct was
meant to remo"e, and then interpretin$
the %ct to implement that objecti"e. The
mischief rule is "irtually the same as
the purposive approach#
6. &$xtrinsic& means &outside& material.
%n example is &Hansard&, where all
parliamentary debates are permanently
recorded.
17. %elegated legislation is law made by a
delegate of the &arliament, such as
statutory rules or local laws made by
a local $o"ernment council.
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