The case study involves the following legal case:
Case – Research the case Mabo v Queensland (No.2)  HCA 23.
You must identify inconsistencies between laws and include a description of how you would revise and resolve the conflicts between laws according to either the hierarchy of sources of law or the hierarchy of courts.
1.1 Explanation of how the principles of precedent were applied in the case of Mabo v Queensland (no.2)  HCA 23.
The idea behind the principles of precedent is to formulate common reasoning amongst the judicial systems of a country. Principles of precedent fundamentally mean that while preparing a judgement a court should take due care and pay proper respect to the previously established judgements by the court. In case there’s a difference of opinion between the previous judgement and the present one, they shall change it after considering all the factors and understanding the ratio decidendi of the judgement and whatever the court made other observations.
By undermining the idea of terra nullius (land belonging to no one), on which British claims to control Australia were based, the Mabo decision changed the foundation of Australian land law. The legal notion of native title was incorporated into Australian law due to this acknowledgement. In the Mabo case, the High Court's rulings recognised the Meriam people's customary rights to their islands in the eastern Torres Strait. According to the Court before the formation of the British Colony of New South Wales in 1788, all Indigenous people in Australia had a native title.
The case of Wacando v. The Commonwealth (3) (1981), was referred to in the Mabo decision because in the judgement Gibbs C.J. explains that the passage of the Letters Patent was prompted by the fact that residents of some of the islands were vulnerable to violence and that the islands served as a base for people seeking to circumvent Queensland's income and immigration regulations. The Crown's acquisition of beneficial ownership of property does not appear to have been one of the objectives pursued by either the Queensland or Imperial governments during the annexation process. The point of this reference by the Hon’ble court is to establish the vulnerable state of the islanders and how their rights had been violated over time, which is post the annexation and until such decision.
Another principle of precedent that is notable in this case is that if at any point the court finds out that the previously pronounced judgement is defective in nature or there some part of it that is inconsistence with the established laws or goes against the principles of natural justice, they are not bound to follow that precedent but rather have the power to overturn such a judgement. In the case of Milirrpum v Nabalco Pty Ltd. the decision noted that the Crown had the power to extinguish native title if it existed. The Supreme Court of Northern Territory gave this decision. This judgement was overturned in the Mabo decision, where the High Court of Australia dissented from the opinion of the Supreme Court and found the notion of Terra Nullis void. So, precedent from the same level of courts is persuasive in nature, so they give direction to the court’s decision, but if any higher court of law passed the precedent, then it has a binding effect on lower courts while interpreting statutes.
It is important to understand that while overturning any decision, the principles of precedents and the hierarchy of courts are particularly required to be taken into consideration to avoid any lacunas or defects on the part of the Judicial authorities.
Another reference made in the judgement is the case of Southern Rhodesia, wherein a beautiful comparison is drawn between common and international law with reference to racial discrimination. The importance of mentioning these referred to judgements is that they are essential in establishing the true essence of the judgement and understanding the court's reasoning while establishing a landmark judgement. The precedents followed by the courts instead referred to establishing the courts' understanding and common thought process on different levels. The Mabo decision resulted in the Native Title Act (1993), which resulted from the following and applying such precedents.
2.0 Resolve the conflicts between pieces of common law with reference to the Court hierarchy that exists in the Australian legal system.
2.1 A description of how I would resolve the conflicts between pieces of common law with reference to the court hierarchy
A corpus of unwritten laws founded on judicial precedents is known as common law. In exceptional instances where present laws or written legal regulations cannot determine the outcome, the decision-making process is guided by common law. In most countries, even though statutory or codified law exists common law in the form of precedents judicial pronouncements and judicial amendments to such laws continue to be one of the major sources of law.
The hierarchy of courts in the Australian legal system is such that the lower courts are bound to follow the precedents established by the higher courts and they need to put to use the reasoning used by the higher courts while establishing or interpreting the statute. Whenever there is a dispute between or amongst courts, the hierarchy of such courts is always considered to determine which decision or judgement would precede the other.
Since common law is not a codified law and rather is a law that is established by the courts themselves, at any given point if there is a conflict between two pieces of the common law the court's hierarchy would establish which decision would resolve the conflict. To put it into context any decision by the supreme court of any state will always be superseded by the High Court of Australia.
A conflict in common law arises when there is any inconsistency between the judgements or the decisions of the higher and the lower court and they interpret a certain circumstance differently and according to their perspective. To resolve such a conflict, it is essential to refer back to the hierarchy of the courts because it very well establishes what exactly would be the conclusion of such a dispute and which judgement will be held as valid at the end of the day.
Mostly, when there’s a conflict of common law, the jurisdiction of the courts, i.e., the power and the limitation of the court to entertain a dispute, is taken into question. A court cannot contribute to the common law through a judicial pronouncement if they don’t have the power to determine or resolve the particular matter at hand. It also helps us establish whether one court can supersede the other or the previously established precedent in regards to the matter in dispute. Such conflicts in common law mostly happen because the courts overstep their jurisdiction and act outside the bounds of their power.
In the case of Pell v, The Queen, the case started from the lower courts of Queens and went up in the hierarchy to the high court of Australia. In the present case, the issue raised was establishing an offence “beyond reasonable doubt” by the jury in the lower courts. However, when the High Court assessed the same case with the same facts and evidence, they found that the available evidence was not substantial enough to establish the accused’s guilt. This case provided a notable legal precedent that establishes how the hierarchy of courts helps resolve conflicts in pieces of common law. For possible future conflicts, the case provided clarity.
3.0 Resolve the conflicts between Australian statute and Australian common law with reference to the hierarchy of the sources of law in the Australian legal system.
3.1 A description of how I would resolve the conflicts between statute and common law with reference to the hierarchy of sources of law
Statutory law and common law are two distinctions of law, differences that exist since there has been a concept of administration of justice and establishment of law exists. Statutory laws are the codified laws written and passed by the legislature. Common law is the branch of law that has been established and interpreted by the courts over time, they are not codified in nature, an example would be the law of torts.
Common law is the kind of law that is applicable in practically all situations whereas statutory law has a limited scope as far as its applicability is concerned, however in nearly all cases, statutory law overrides common law. For a court to penalise any offence it is necessary for them to require a more specific penalty regarding the offence committed which is only available in statutory laws. One such example can be section 18 and 29 of Australian Consumer Law (ACL) which attracts a pecuniary penalty for misleading or false representations in trade of commerce.
Even though there might be certain precedents established in regards to this offence, for courts to penalise an offender they require specific monetary caps on particular degrees of misrepresentations. For example, under section 18, of ACL the pecuniary penalty shall be three times the value of the benefit received or 10% of annual turnover in the preceding 12 months for corporations greater than $10 million. When such a provision is read with the facts of the case, it gives more clarity regarding its applicability and provides for uniform penalties in similar circumstances as compared to common law precedents that have no strict method of uniformity or structure for the penalty.
There are three sources of law from top to bottom – Constitution, Statutes and agency regulations and Judicial decisions, respectively in this order. When we take a closer look at such a hierarchy of sources of law it is evident that statutory provisions will always overrule the common law provisions, which are essentially statutory laws and judicial precedents. Hence to resolve a conflict between the statutory and common law, we must refer to the hierarchy of sources of law.
If we refer to the fundamental principles of law, it is an unwritten rule that the statutory law will override the common law. Moreso, the principle of parliamentary sovereignty adopted by the constitution of Australia substantiates the idea of the overriding of statute law over common because the sole reason that the parliament makes the statutory laws. Judicial decisions fall at the bottom of the hierarchy in the sources of law and it must be understood that the judiciary, as an organ of the state, works in order to administer justice, not to make laws, the legislature as an organ is solely assigned with that task.
The statutory interpretation is an essential feature of dispute resolution between statutory and common law. The courts must understand the legislature's intention and the object of the statute and then interpret a statute so that there are no inconsistencies with the statute and the judicial pronouncements and precedents to settle the conflict between statute and common law conclusively.
4.0 Resolve the conflicts between pieces of Australian statute with reference to the hierarchy of the sources of law in the Australian legal system.
4.1 A description of how I would resolve the conflicts between pieces of a statute with reference to the hierarchy of sources of law
The three defined sources of law in the Australian legal system are- Constitution, Statutes and Agency and Judicial Precedents. When we are specifically talking about the conflicts between statutes it is pertinent to mention that we shall definitely include judicial precedents as part of the sources when we are focusing on the statute in particular because judicial precedents in its essence are a source of law for common law, we must take all of them into consideration to resolve the conflict that arose.
The concept of Pure theory of law which Sir Hans Kelson propounded explains how every legal system has an underlying basis and there is one supreme law that is the basis of all other laws that exist in that legal system. Such supreme law that validates all other laws is known as the Grundnorm. In the current legal system of Australia, the Grundnorm is the Constitution. So, all legislations or statutes derive their validity from the Constitution and any law that violates it would be considered invalid.
For instance, Certain fundamental rights of the citizens are written in the country's constitution, which has to be followed and abide by the authorities as well as the country's statutes. Whenever there is any conflict between statutes, the said rights must be taken into consideration to provide for the court's correct judgment and further help resolve the conflict. Since every law or statute derives its validity from the constitution, which is also known as law of the land or supreme law, no statute should violate the rights conferred upon the citizens by virtue of Constitutional Law. These sources of law are followed in a hierarchy and the Grundnorm, which in this case is the Constitutional Law of Australia, shall not be acted against.
One must remember while resolving such conflict that the establishment of such hierarchy provides for a resolution similar to that in the cases of the hierarchy of courts. The lower courts have to follow the precedents established by the higher courts. Similarly, all statutory laws shall work within the scope of a country's constitution and must abide by it. Constitutional Law is above statutory law in terms of the hierarchy and provisions provided by the Constitution shall be binding upon the other statutory regulations.
In the case of McBain v State of Victoria, it was held that infertility therapy is available to women who are not married or in a de facto relationship. The judgement provided that Section 22 of the Sex Discrimination Act was unlawful under Section 109 of the Australian Constitution. It can be noted that in this case, the constitution of the country prevailed over a statutory provision. Such an overruling can be done when the hierarchy of such sources of law is put into the context of such conflict between two statutes.
When we emphasise the hierarchy of sources of law to resolve a conflict in two pieces of statutory law, it is essential to resolve that dispute in that hierarchy itself. As has been previously mentioned that the constitution of a country acts as the Grundnorm of that country and if a conflict arises between two pieces, they should be referred to the constitution first in order to check for any inconsistencies within the laws that can be cleared out applying the provisions of the constitution.
Secondly, we look at the statutes and agency regulations, wherein we draw a comparison more so a parallel between two statutes and understand their workings in parallel to other existing statutes and regulations, wherein we focus on the intention of the legislature and the object of the same, in order to look into any inconsistencies therein. Two statutes with the same object have no reason to coexist because they can cause utter chaos and confusion while administering justice.
Lastly, when we are talking about judicial precedents, when there is a conflict between two statutes, the precedents passed regarding those statutes shall be taken into consideration and a parallel shall be drawn to understand the correct interpretation of the same. If there are any defects, those shall be rectified and conclusively settle the dispute.