Lecture Notes: Sources of Law and Court Hierarchy

Key Sources of Law

• Legislation: Enacted by parliaments.
• Court Decisions: Another source of law; courts hear and decide cases.
  • Civil Cases: Disputes between individuals or companies.
  • Criminal Cases: State against an individual alleged to have broken the law.

Court Decision Process

• Courts decide cases by:
  • Establishing facts.
  • Applying the law to those facts.
• Higher courts can make new law, similar to parliaments.

Court Hierarchy in New South Wales

• Local Court: Most work handled here; includes Children’s Court and Coroner’s Court.
• District Court: Above Local Court.
• Supreme Court: Above District Court.
• Federal Courts:
  • Federal Circuit Court.
  • Federal Court.
  • Family Court.
• High Court: The highest court; can decide on state, territory, and federal law. Appeals from:
  • Federal Court
  • Family Court
  • State and Territory Supreme Courts.

Tribunals

• Less formal and cheaper than traditional courts.
• State Tribunals: Handle disputes related to renting, building, guardianship, victims’ compensation, and government decisions.
• Federal Tribunals: Handle pensions, child support, migration, and refugees.

Jurisdiction of Courts

• Each court governed by a specific act outlining its jurisdiction:
  • Geographic Jurisdiction: New South Wales courts handle NSW law.
  • Monetary Jurisdiction: Supreme Court handles higher sums than Local Court.
  • Specialized Jurisdiction: E.g., Family Court of Australia, NSW Land and Environment Court.

Appeal Process

• Appeals typically allowed only for:
  • Mistakes of law or legal errors.
  • Not simply disagreement with a decision.
• Higher court decisions have broader implications (precedents) than lower courts.

Common Law and Legislative Interpretation

• Higher courts establish benchmarks/principles known as Common Law.
• Courts can:
  • Interpret legislation.
  • Fill gaps in legislation.
  • Develop common law when no legislation exists.

Example Case: Tasmanian Dam Case

• High Court interpreted section 51 of the Constitution.
• Commonwealth needed to stop damming of Franklin and Gordon rivers.
• High Court interpreted "external affairs" to allow laws for international treaty compliance.

Filling Gaps in Legislation

• Example: Family Law Act allows separation while living together but lacks criteria.
• Courts established criteria for determining proper separation conditions.

Changing Common Law Rules

• Example: 1992 Mabo Case.
  • High Court recognized land ownership by Indigenous peoples, overturning previous legal views.
  • Led to Native Title legislation by Parliament.

Law-Making in Courts

• New law is made primarily in higher courts: High Court and occasionally State Supreme Courts.
• Local Courts follow precedents set by higher courts.
• Key roles of courts:
  • Interpreting legislation.
  • Filling legislative gaps.
  • Developing new common law.