2. Sources of Contemporary Ausralian Law Flashcards
1
Q
What is adversarial system?
A
a system resolving legal conflicts used in common law countries such as United Kingdom and Australia that relies on the skill of representatives on each side.
2
Q
What system of law has heavily influenced contemporary Australian law?
A
United Kingdom.
3
Q
Define Statute law.
A
Statute law is law made by the parliment.
4
Q
What is the difference between adversarial and inquisitorial system?
A
An adversarial system involves each side of a case (accuser and accused) gathering and presenting their own case, whereas an inquisitorial system involves the judge leading the discovery and presentation of evidence.
5
Q
Outline the role and structure of parliament and the legislative process.
A
Role and Structure of Parliament and the Legislative Process
Role of Parliament
Parliament is the primary law-making body in Australia, responsible for creating, amending, and repealing laws. Its main functions include:
Legislating: Passing new laws and amending existing ones.
Representing the Public: Acting on behalf of the electorate’s interests.
Scrutinising the Government: Examining government actions through debates, committees, and question time.
Forming Government: The political party with the majority votes in the lower house forms the government.
Structure of Parliament
Parliament in Australia follows a bicameral system (two houses):
Lower House (House of Representatives)
Consists of 151 members, each representing an electoral division.
The government is formed by the party with the majority in this house.
Initiates most legislation, especially money bills (budget).
Upper House (Senate)
Comprises 76 senators (12 from each state and 2 from each territory).
Acts as a house of review, scrutinising and amending bills from the lower house.
Represents states and territories equally to ensure fair representation.
Crown (Governor-General)
The Queen’s representative in Australia.
Provides Royal Assent to bills before they become law.
Carries out ceremonial duties and ensures the constitution is upheld.
Legislative Process
Initiation of Bill: The proposed law is drafted.
First Reading: The bill is introduced to the lower house, with its title read out.
Second Reading: The bill is debated, and members discuss its purpose and principles.
Committee Stage: The bill is examined in detail, and amendments may be suggested.
Third Reading: The final version is debated and voted on.
Senate Consideration: The bill follows the same three readings in the Senate.
Royal Assent: If both houses agree, the Governor-General gives formal approval.
Commencement: The bill becomes law on a specified date.
This process ensures laws are thoroughly debated, fair, and align with democratic principles.
6
Q
Describe the function of delegated legislation.
A
Delegated legislation refers to laws made by non-parliamentary bodies under the authority of an Act of Parliament. Parliament delegates its law-making power to government bodies, ministers, or local authorities to create detailed rules or regulations. This allows for more efficient and flexible law-making.
7
Q
What is an Inquisitorial system?
A
a legal system where the court or a part of the court
(e.g. the judge) is actively involved in conducting the
trial and determining what questions to ask.
8
Q
What is common law? How it may be used(3 ways)?
A
- Court-made law (as opposed to laws made by parliament or statute law)
- Law developed by the courts of common law, as distinct from the courts of equity.
- The system of court-based law used in the Unit
9
Q
Summarize the development of common law?
A
British Legal System Development
- Anglo-Saxon England: Rights and obligations were decided based on local custom and disputes were resolved by local courts.
- Normans: Travelling judges applied a common set of laws to all areas of England, dealing with petitions from people who felt local courts were unjust.
- Australia: The system was brought over with the First Fleet, forming a legal system based on its own statute law and common law.
- Crimes: Offences were treated as wrongs for which the offender had to compensate the victim.
- Trial by ordeal: The defendant had to fast for three days and attend a special Mass before a painful task was given.
- Consolidation: William the Conqueror sent judges to administer a common set of laws, report on threats to the throne, and assess the country’s wealth for tax levies.
- Henry II: Royal justices were sent to listen to disputes, work out solutions, apply punishments, and ensure common rulings were made.
- Common law evolved from judicial decisions based on tradition, custom, and precedent.
10
Q
Summarize the development of common law?
A
British Legal System Development
- Anglo-Saxon England: Rights and obligations were decided based on local custom and disputes were resolved by local courts.
- Normans: Travelling judges applied a common set of laws to all areas of England, dealing with petitions from people who felt local courts were unjust.
- Australia: The system was brought over with the First Fleet, forming a legal system based on its own statute law and common law.
- Crimes: Offences were treated as wrongs for which the offender had to compensate the victim.
- Trial by ordeal: The defendant had to fast for three days and attend a special Mass before a painful task was given.
- Consolidation: William the Conqueror sent judges to administer a common set of laws, report on threats to the throne, and assess the country’s wealth for tax levies.
- Henry II: Royal justices were sent to listen to disputes, work out solutions, apply punishments, and ensure common rulings were made.
- Common law evolved from judicial decisions based on tradition, custom, and precedent.
11
Q
What is equity?
A
The body of the law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness.
12
Q
Summarize the development of equity?
A
- The formal procedure for bringing a case in court was rigid in Anglo-Saxon times.
- By the fifteenth century, petitions were brought to the king claiming unjust decisions by common law courts.
- The Chancellor, a priest and judge, was tasked with handling these petitions.
- The Chancellor’s judgments were influenced by Christian principles, leading to the development of equity.
- The Court of Chancery, as a court of equity, based its decisions on the moral principles of equity.
- In the early seventeenth century, a dispute between the Chancellor and the Chief Justice of the King’s Bench was resolved through the intervention of King James I.
- In cases of conflict between common law and equity, equity prevails, and rules of equity always override common law.
- Equitable remedies for wrongs not recognized by common law include non-financial actions or setting aside unfair contracts.
- In the 1870s, the British parliament and the Australian colonies merged the courts of common law and equity.
13
Q
What is precedent?
A
precedent a judgment that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar
facts.
* A precedent is a previous judgment on similar circumstances, providing authority for the legal principle.
14
Q
What is stare decisis?
A
‘the decision stands’; the doctrine that a decision must be followed by all lower courts
15
Q
how is common law and case law developed
A
Common Law Overview
* Common law, or case law, is developed by judges in deciding cases.
16
Q
how do judges resolve disputes? What is the purpose of doctrine of precedent or stare decisis?
A
- Common Law Overview
- Judges resolve disputes by considering previous decisions in similar cases.
- The doctrine of precedent or stare decisis ensures fair treatment and consistent law development.
- Old cases retain authority, allowing them to be used as basis for newer court cases.
17
Q
What is the drawback of a doctrine of precedent?
A
- The doctrine limits a judge’s creativity in decision-making.
18
Q
what principles do courts use?
A
- Courts use principles of existing common law and statute law to make decisions, considering social developments and common sense.
19
Q
What creates more precedents
A
- New decisions create new precedents.
20
Q
What role do courts play in relation to legislation disputes?
A
- Courts may resolve disputes about the meaning or application of legislation.
- Courts are expected to follow other courts’ interpretations of statutes, as a court decision doesn’t change the wording of legislation suggests parliament’s satisfaction with the court’s interpretation.
- A judge’s decision typically includes a ratio decidendi (essential legal reason) andobiter dicta (remarks about trial conduct), which do not set a precedent.
21
Q
Why are courts expected to follow other courts’ interpretations of statutes?
A
Courts follow other courts’ interpretations because a court decision doesn’t change the wording of legislation, implying that parliament is satisfied with the court’s interpretation.
22
Q
What is the ratio decidendi in a judge’s decision?
A
The ratio decidendi is the essential legal reason or principle behind a court’s decision, which forms the binding precedent.
23
Q
What is the difference between ratio decidendi and obiter dicta?
A
Ratio decidendi is the binding legal reason for the decision, while obiter dicta are additional remarks made by the judge that do not form a binding precedent.
24
Q
Name 3 cases where precedent does not have to be followed.
A
- Significant differences in facts or legal points from previous cases can distinguish a case.
- Higher court upholds appeal against lower court’s decision, reversing lower court’s decision.
- Courts can refuse to follow lower court’s decision, overruling lower court’s decision.
25
What are the 2 types of precedent?
- Binding precedent.
- Persuasive precedent.
26
What is a binding precedent, and which part of a superior court's decision must lower courts follow?
1. Binding Precedent:A precedent is 'binding' on a court if the precedent was made by a superior court that is higher in the hierarchy of courts.
2.
* Lower courts must follow decisions of superior courts, regardless of the judge's belief in the court's correctness.
* Examples include the Local Courts and District Court of New South Wales, and all state and federal courts in Australia.
* Only the ratio decidendi of the superior court is binding.
27
What is persuasive precedent?
* Superior courts can use lower court decisions as 'persuasive precedent'.
28
What is the persuasive precedent?
A precedent is 'persuasive' if it was established by a superior court that is not higher in the hierarchy of courts.
- Persuasive precedent may also include obiter dicta of a judge in a higher court.
29
What is obiter dicta, and how can it influence judicial decisions?
* This precedent may include obiter dicta from a higher court judge.
- Obiter dicta refers to comments made by a judge that are not directly related to the legal reasoning needed to decide the case. Although not legally binding, they can be influential in future cases, especially if made by a higher court judge.
30
How can decisions from other Australian states or common law countries impact Australian court judgments?
* Decisions from other Australian states or common law countries can influence Australian judgments . Thus, used to guide their reasoning.
31
Why do higher courts within a jurisdiction's hierarchy carry more persuasive authority?
* Higher courts in their jurisdiction's hierarchy have more persuasive precedents.
- Higher courts, such as the Supreme Court or Court of Appeal, have more legal authority due to their position in the court hierarchy. Their decisions are often more persuasive to lower courts because of the experience and seniority of the judges.
32
Brief description of Dow Jones & Co Inc v Gutnick.
Internet Defamation Case: Gutnick vs. Dow Jones
* Plaintiff Gutnick, a prominent Melbourne businessman, alleged defamation on the internet due to an article in an online news magazine.
* The article, originating in New York, was accessed in Melbourne, demonstrating defamation.
* The Supreme Court of Victoria and the High Court of Australia upheld this decision in 2002.
* This case was one of the first to consider the internet as a source of defamation, setting a precedent for defamation claims across jurisdictions.
* The decision emphasized that internet communication is subject to the same laws as other forms of communication.
33
What are the 2 jurisdictions? Give 4 features of a jurisdiction?
1/ * Australia has two overlapping jurisdictions: state and federal.
2/ * Each jurisdiction has its own court structure.
* All courts can hear a case for the first time.
* Some courts can hear appeals from lower courts.
* State courts in New South Wales operate under a hierarchy: lower courts, intermediate courts, and superior courts.
34
What is the highest court in australia? What is that divided into
- High Court of Australia.
divided into:
- Federal superior courts.
- State and territory superior courts.
35
What is the State and territory superior courts incharge of?
- Land and Environmental Court of NSW.
- Supreme Court of New South Wales.
- Court of Appeal and Court of Criminal Appeal.
36
What is below the hierachy of State and territory superior courts?
Federal superior courts?
1. - State intermediate courts
- State lower courts.
2. - Inferior and intermediate courts
37
What does the Inferior and intermediate courts divide into?
- Federal Circuit
- Family Court of Australia.
38
What does state lower courts divide into?
- Local Court of NSW.
- Coroners Court of NSW.
- Children's Court of NSW.
39
What is indictable offences? Summary offences?
- indictable offence
a serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than non-indictable offences
- summary offence
a criminal offence that can be dealt with by a single judge without
a jury and does not require a preliminary hearing
40
What is an appeal?
appeal is an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law
41
What does Local Court handle?
* Local Court: Handles minor criminal and civil disputes.
such as: civil disputes.
42
What is Magistrates Court?
* Magistrates Court: Performs hearing, decision, and punishment for criminal offences.
43
What are the two courts that handle criminal matters in a State other than High court?
* Most criminal matters are heard in the Local or Magistrates Court.
* Intermediate Court
* Next in Supreme Court
44
What do indictable offences require?
* Indictable offences require a committal hearing for prosecution strength.
45
What does the local court in New South Wales has jurisdiction to deal with ? what is the difference between Local Court and Magistrate Court?
1/
- minor criminal
- summary offences
- civil matters up to $100,000,
- committal hearings,
- limited family law matters.
2/
- Magistrates Court: Similar jurisdiction, can hear and decide civil matters with a maximum monetary value of $250,000. where as in Local Court maximum monetary value $100,000
46
What are summary offences?
a criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing
47
What are indictable offences?
a serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than non-indictable offences
48
What is Coroners Court responsible for?(2)
* Investigates unexplained or suspicious deaths, fires, and explosions.
* Recommends changes to the law, professional training requirements, and safety protocols also finds evidence of criminal actions.
49
What is the Children's Court responsible for?
* Handles cases involving persons under 18 at the time of the offence or under 21 when charged with a crime committed while under 18.
50
What is appellate jurisdiction?
the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions.
51
What is the role of the intermediate court or district court? What can it not deal
* Handles serious criminal matters like larceny, manslaughter, sexual assault, and large-scale drug importation.
* Cannot handle murder, treason, and piracy, which are handled by the Supreme Court.
52
Name a feature of Intermediate court how these cases are heard?
* Cases are heard by a judge or jury.
53
Name the criminal offenses District Court deals with?(Intermediate Court)
- manslaughter
- malicious wounding
- dangerous driving
- assaults
- sexual assaults
- offense relating to property
- robbery
- breaking and entering
- larceny and embezzlement importing
- supplying or possessing prohibited drugs
- fraud, including forgery
- obtaining money by deception and passing valueless cheques.
* Handles civil cases under $125,000 or larger if agreed upon.
- unlimited in claims for damages from motor vehicle accidents.
- Also hears appeals : thus has an appellate jurisdiction.
54
What are the two superior courts in charge of?
(i) Land and Environment Court
(ii) Supreme court of New South Wales
- Specialized court for interpreting and enforcing environmental law which deals with environmental planning, environmental offences, and appeals against local council rulings.
- Highest court in the state or territory hierarchy which deals with serious criminal matters, civil cases involving large sums of money, and most cases seeking an equitable remedy.
55
What does the Supreme Court have jurisdiction over?(3)
* Has jurisdiction over serious indictable offences and Commonwealth prosecutions for major breaches of corporations law.
* Hears matters on claims for damages for personal injury, professional negligence, breach of contract, defamation, and possession of land.
* Hears appeals from the Court of Appeal and Court of Criminal Appeal.
56
How are appeals heard in Supreme Court?
* Appeals are usually heard by three judges, with a majority view taken if disagreements persist.
* Appeals can be to the High Court with special permission.
57
What is the Federal Circuit and Family Court of Australia in charge of?(9)
* Jurisdiction covers family law,
- child support.
- human rights
- copyright
- bankruptcy
- migration
- consumer protection
- trade practices, privacy
- administrative law
- industrial law.
58
What is Federal Circuit and Family Court of Australia not involved in? when were the 2 courts merged? why?
* Not involved in criminal matters but played a significant role in settling disputes.
* * Merged with Family Court in 2021 to address non-compliance with court orders.
(* Despite opposition from the Law Council of Australia, provides a single entry point to the Family law system.)
59
When was the Australian Parliament etablished the Family Court?
It was established in 1975.
60
When did the Australian Parliament established the Federal magistrates Court? was the name changed to federal circuit court?
- Established 1999. Changed in 2012.
61
Which act established the Federal Court of Australia? What does the Federal Court in charge of?
Federal Court of Australia Overview
* Established by the Federal Court of Australia Act 1976
* It handles civil disputes governed by federal law and some summary criminal offences.
62
Name the two courts the Federal Court of Australia is in between of?
* It is equivalent to the Supreme Courts in states and territories and above the Federal Circuit and Family Court of Australia.
63
What did the case dismiss of in the Nathanson v minister for Home Affairs [2019] FCA? when
* The court dismissed an application to review a migration decision of the Administrative Review Tribunal (ART).
*1709
64
When was the high court of Australia Established?
High Court of Australia
* Established in 1901, it is the highest court in the Australian judicial system.
* Deals with appeals from the Federal Court of Australia, the Federal Circuit and Family Court of Australia, and the state and territory Supreme Courts.
* Deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws.
* In November 2023, the High Court ruled that stateless refugee 'NZYQ' should be immediately released from immigration detention, overturning 20 years of settled cases.
65
What is the Australian High Court in charge of?
* Deals with appeals from the Federal Court of Australia, the Federal Circuit and Family Court of Australia, and the state and territory Supreme Courts.
* Deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws.
66
When was the high court of Australia Established?under which section
High Court of Australia
* Established in 1901, it is the highest court in the Australian judicial system under section 71.
67
What happened in NZYQ v minister for Immigration, Citizenship and Multicutural Affairs &Anor [2023] HCA 37.?
- - In November 2023, the High Court ruled that stateless refugee 'NZYQ' should be immediately released from immigration detention, overturning 20 years of settled cases.
(overturned 20 years of settled cases in regard to ‘stateless people’ (people who do not have nationality of any country).)
68
What is statue of law? What are the two synonyms?
- Law made by the parliament. Also known as 'Legislation' or 'Acts of Parliament'
69
What is the Australian Constitutions role?
The Australian Constitution sets out the powers of the state and federal parliaments with respect to making law.
70
What is bicameral? What are the parliaments that bicameral?
- Containing two chambers of houses of parliament.
* All state and federal parliaments are bicameral, with an upper house and a lower house.
71
What is a parliament?
* Parliament is a body of elected representatives that debates, passes, or amends legislation.
72
What is the upper house and lower house in the Federal Parliament?
- the upper house is the Senate and the lower house is the House of Representatives.
73
What is the purpose of having a bicameral parliament?
The basic rationale for having two parliamentary chambers is the need to avoid a concentration of power in a single body and the risk of abuse which this entails.
74
What does the parliament consist of?
* Parliament is a body of elected representatives that debates, passes, or amends legislation.
75
Which parliament in the Australian government is unicameral? What is it called?
The Australian Capital Territory’s parliament is unicameral: it only has a lower house, called the Legislative Assembly.
76
What is name of the upper house and lower house in New South Wales?
In New South Wales, the lower house is known as the Legislative Assembly and the upper house is called the Legislative Council.
77
How is a prime minister appointed in the house of representatives? What are the ministers responsibility?
* The leader of the winning party becomes the prime minister.
* Ministers have special responsibility for specific departments and form the Cabinet(front-bench) , which makes policy and law decisions.
78
How is the government formed in the lower house?(2 ways)
- The political party that wins the majority of seats in the lower house forms the government.
- Different parties will unite to form a government (such as the Liberal–National Coalition).
- Thus, the remaining seats in the lower house form the opposition.
79
What the non-ministerial members are known as?
the 'back bench'.
80
What does the opposition party in the lower house do?
* Opposition party appoints shadow ministers to form and promote their position on defence, health, and education
81
What is the executive council made up of?
* The Executive Council, made up of the Governor or Governor-General and selected ministers, enables legislation to be put into operation.
82
How does the British Monarchy still play a role in parliament in Australia?
* The British monarchy still plays a role in parliament in Australia, with the Governor-General representing the monarch at the federal level and a governor in each state at the state level.
83
What is the most important functions of parliament? Which party introduces most laws? What is a bill? Who can introduce bills?
1/- passing laws.
2/- The party that holds government.
3/- A drafted law that has not been passed yet.
4/ - * Bills can be introduced by any Member of Parliament, including non-ministerial members (backbenchers).
84
What influences the time consummation when passing of a bill?
The process is open to public scrutiny and, as a result, well-organised pressure groups and members of the public can influence parliamentarians’ opinions.
85
Why are some bills redrafted by members of the parliament?
* Members of parliament are aware of the consequences of passing unpopular legislation, leading to frequent discussions and redrafting.
86
What is required for a bill to be passed?
* Bills require approval from both Houses of Parliament and the Governor-General before becoming federal law.
(* The process in New South Wales Parliament is similar to federal parliament.)
87
How is the New South Wales parliament different and the same from how the federal parliament to pass laws?
- As they both are bicameral parliament the passing of laws are the same, however, New South Wales, aka, The Australian Capital Territory's Legislative Assembly has a single chamber, fewer steps, and no governor or administrator, allowing for more efficient law-passing processes. unlike the Federal Parliament.
- (* The Legislative Assembly of the Australian Capital Territory has fewer steps due to a single legislative chamber.)
88
Summarize the process of passing a Bill though parliament?
- need for new law is identified.
- Draft Bill
- First reading
- Second reading
- Committee Stage
- Third reading
- Upper house
- Royal assent.
89
What is amendments?
A constitutional amendment is a modification of the constitution of a polity, organization or other type of entity. Amendments are often interwoven into the relevant sections of an existing constitution, directly altering the text.
90
Step 1(of passing legislation) How is need for new law identified?
Influences on Lawmaking
* Community interest/lobby groups.
* Electoral mandate.
* Need to continue/enhance existing laws.
* Party policy.
* National/international events.
* Proposals during election campaigns.
91
Step 2( of passing legislation): What is required to draft a bill?
Cabinet Approval of Bill Drafting
* Drafted by parliamentary clerks.
* Timetabled for lower house first reading.
* Minister presents Bill for first reading.
92
Step 3&4 ( First reading): What is the purpose of the First reading? Second reading?
1/
Formal Bill Reading
* Clerk of Parliament reads Bill title.
* Members receive proposed Act copies.
2/
Minister's Speech on Proposed Act
* Details general aims.
* Conducts Bill debate.
* Clerk reads Bill title for second time.
93
Step 5& 6 : What is committee stage? third reading?
1/ Bill Examination and Debate
* In-depth examination and discussion.
* Amendments made if necessary.
2/ Third Reading Bill Voting
* Bill passed.
* Moves to upper house.
94
Step 7&8: Who is reads the bill that is proposed after lower house approvement? What does the head of head of that department do after the bill is heard?
1/ Upper House Process
* Repeated in upper house.
* Bill may return for amendments or rejected.
2/ Bill Passage Process
* Bill passed in upper house.
* Presented to Governor or Governor-General for approval.
* Bill becomes an Act of Parliament.
* Act becomes law as of specified date.
95
What is delegated legislation?
delegated legislation
laws made by authorities other than parliament, which are delegated the power to do this by an Act of Parliament
96
What are the 4 types of delegated legislation?
- regulations
- ordinaces
- rules
- by-laws
97
Define regulations? ordinances? rules? by-laws?
regulations – laws made by the Governor-General, state governors or members of the Executive Council
ordinances – laws made for Australian territories (e.g. Norfolk Island and the Australian Antarctic Territory)
rules – legislation made for government departments, usually by the department involved
by-laws – laws made by local councils, which are restricted to the area governed by that council.
98
Give 3 advantages of delegated legislation? disadvantages?
AD:
Delegation of Legislation Benefits
* Experts make legislation.
* Frees up parliamentary time for serious issues.
* Easier amendments, enhancing flexibility.
DIS:
Delegated Legislation Challenges
* Elected parliament members lack time and expertise.
* Multiple bodies involved can cause inconsistencies.
* Limited public visibility hinders public voice.
99
