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Medical law refers to the body of laws and regulations that govern the rights and responsibilities of medical professionals, healthcare institutions, and patients. It covers a wide range of legal issues related to medical practice, patient care, and healthcare policies. 

Key areas

Key areas of medical law include:

  • Ethics and professional conduct
  • Negligence and malpractice
  • Consent and capacity
  • End-of-life decisions
  • Patient rights and privacy
  • Regulation of healthcare professionals
  • Public health laws
  • Reproductive health and genetics
  • Medical research and ethics

In Australia, medical law is shaped by federal and state legislation, as well as common law principles established through court decisions. 

Recommended resources:

Case law in Australia refers to legal principles and rules established through judicial decisions in courts rather than legislation passed by Parliament. It is also known as common law or judge-made law and plays a crucial role in the Australian legal system.

Key features of case law

  • Precedent (Stare Decisis)
    • Courts follow previous decisions (precedents) from higher courts in the same jurisdiction.
    • Higher court rulings are binding on lower courts (e.g., High Court decisions are binding on all Australian courts).
    • Persuasive precedents from other jurisdictions (such as the UK or Canada) may influence decisions but are not binding.
  • Hierarchy of Courts
    • High Court of Australia – The highest court, with decisions that bind all Australian courts.
    • Federal and State Supreme Courts – Can set binding precedents in their respective jurisdictions.
    • Lower Courts (District, Magistrates') – Generally follow precedents set by higher courts.
  • Development of Common Law
    • Case law evolves as courts interpret statutes (legislation) and apply legal principles to new situations.
    • Judges may create new legal principles if no relevant legislation or precedent exists.
  • Interaction with Statute Law
    • Case law works alongside statute law (laws made by Parliament).
    • Courts interpret and apply statutes, resolving ambiguities or gaps in legislation.
    • If Parliament disagrees with a judicial decision, it can pass new legislation to override it.
Example
Rogers v Whitaker (1992) – Established the duty of doctors to provide sufficient information for informed consent.

Recommended resources:

  • AustLII: Open access to unreported decisions from courts and tribunals in Australia and NZ. 
  • LawCite: A freely available and international case law citator which provide information about the judicial history of a case.

  • Jade: A free resource developed by Australian barristers for the legal profession, Jade offers both full text case law searching and a case citator which finds all references to a case. 

Legislation in Australia refers to laws that are formally enacted by Parliament at the federal, state, and territory levels. It is also known as statute law or Acts of Parliament and is a primary source of law, alongside case law (common law).

Key medical legislation

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Extrinsic materials refer to documents and sources that are not part of an Act itself but can be used to help interpret legislation. They provide context, background, and insight into Parliament’s intent when enacting a law.

Purpose of Extrinsic Materials

  • Help judges and lawyers interpret unclear or ambiguous statutory provisions.
  • Clarify Parliament’s intention when drafting the law.
  • Support legal arguments in court when statutory meaning is disputed.

Example
Second reading speeches by Ministers in Parliament can be an example of extrinsic materials. Second reading speeches are given by Ministers when introducing a Bill and explain the Bill's purpose.

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Law reform publications are include issues papers, background and discussion papers, and full reports. They are produced by Law Reform Commissions which are appointed by the Commonwealth, State and Territory Governments to undertake enquiries in specific areas and recommend reforms.

Why is it important?

These publications are an excellent source of information about new areas of law and the intentions behind changes to the law. They are also useful to researchers because they provide an in-depth analysis and review of particular areas of law as well as defects in the system and legal principles.

Example
The Medicinal Cannabis [2015] VLRC 32 report published by the Victorian Law Reform Commission is an example of a law reform publication.

Recommended resources:

Law commentary refers to legal analysis, explanation, or interpretation of laws, statutes, and court decisions. It helps lawyers, judges, researchers, and students understand legal principles, case law, and legislative intent.

Why is it important?

  • Helps interpret complex legal concepts.
  • Guides legal professionals in applying the law.
  • Supports legal education and research.
  • Assists courts in understanding broader legal principles.

Example

Room, R., et al. (2021). Alcohol Marketing and Social Media: A Challenge for Public Health Control. Drug and Alcohol Review, 40, 420-422

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