2. Sources of Contemporary Australian Law Flashcards
Common Law
refers to laws created in court- that is, decisions made by judges
Statute Law
refers to laws made by parliament.
Common law in Australia today includes elements of:
- court-made law (as opposed to laws made by parliament)
- law developed by the courts of common law, as distinct from the courts of equity
- the system of court-based law used in the United Kingdom and many of its former colonies, including Australia, New Zealand, Canada and the United States.
Differences between Common and Statute Law
Common law refers to the laws created in Court by judges. It involves the principle of precedent, meaning courts are guided by previous decisions – making it difficult to find common law that applies to a single situation. This is contrasted with Statute law, which refers to laws made by parliament. It is the main source of law in Australia and always prevails over common law if there is a conflict.
Equity
The basis of law making in early Britain, on the principle of fairness as oppose to precedent.
Injunction
court order to prevent someone from doing something (e.g. performing, printing an article)
Specific Performance
court order that requires a person to fulfil an obligation undertaken as a contract
Main principles of Equity
o to modify a remedy in common law that is deficient, or to create a new and improved solution
o to develop remedies for wrongs that the common law does not recognise.
Outline the difference between common law and equity.
- Common law is a complete legal system, following precedent and often decided in a court by a judge. Whereas Equity is a series of principles, valid only to people specified by the court – intending to assist the diligent, instead of people who act in a lazy or tardy way.
Precedent
a judgment made by a court that establishes a point of law - A previous case or legal decision that may be or must be followed in subsequent similar cases.
Legal process of standing by a decision
Stare decisis (to stand by a decision)
Aim of precedent
- To ensure that people will be treated fairly and equally in their dealings with the legal system
Two ways of making precedent
- when a judge arrives at a decision in a case when there is no existing common or statute law. In these cases the judge must rely on common sense and the principles of law for guidance in making the decision e.g. murder/self-defence.
- By the way judges interpret legislation and the meaning of certain words – e.g. Victoria a person can only be found guilty of burglary if building is entered, what is a building?
Rules of Precedent
- Binding precedent = the court must follow the precedent already established, whether it believes the decision is correct or not
- Persuasive Precedent = May influence a decision, but is not binding to courts.
- Avoiding the use of precedent = In some cases, judges can avoid using precedent – if there is an unjust legal outcome
Ratio decidendi
A statement by the judge about the reason for their decision. It creates a precedent that lower courts must follow.
Obiter dicta
Other statements made by judges, such as their personal opinions. these create no immediate precedent, but can be used much later to justify a precedent.
Adjudication
Judge’s decision over disputes between two parties
Two factors establishing how persuasive a precedent is
- The judge- a court is more likely to take into account a precedent set by eminent and influential judge
- The court- the higher the court, the more persuasive the precedent will be
Ways in which judges can avoid precedent
- Distinguishing the case
- Reversing a judgement
- Overruling a decision
- Disapproving a decision
Adversarial system of trial
In each case there are two opposing sides who argue their case before a court, which is presided over by a neutral third party.
Cross-examination
When a lawyer for one party in a case questions of a witness called by the opposing party.
Mediation
Where two parties in dispute meet to discuss their concerns through mutual negotiation.
Criticism of Adversarial Trial system
Creates a legal system where the case is won by the best and most persuasive argument, as oppose to the evidence presented
Benefit of Adversarial trial system
the system allows the rigorous testing of evidence by both sides
jurisdiction
The power of a court to hear a case. Jurisdiction can be based on geographical area (e.g. NSW, Australia) OR on the nature of the matter/case (e.g. family law, criminal law etc)
Original Jurisdiction
The court has jurisdiction to hear and finalise the case on its first instance in court.
Appellate Jurisdiction
Refers to the power of a court to hear a case on appeal from another (usually lower) court.
Civil jurisdiction
A court’s power to hear civil cases i.e. cases involving private citizens. For example, suing a company or suing someone in a private sector.
Criminal Jurisdiction
Refers to a court’s power to hear criminal cases – i.e. cases involving a person being prosecuted by the state.
Statute Law
any law passed by the parliament
Bicameral
two houses, upper + lower (federal level + state but Queensland)
House of representatives role
The House of Representatives is responsible for the considerations and passing of new laws and amendments or changes to existing laws.
Senate Role
reviewing legislation that is proposed by the House of Representatives
Double dissolution
When there is a deadlock between the senate and house of reps and the senate fails to pass the same legislation from the house of reps twice, the constitution gives power to the governor general. The governor general calls for a new election – referred to as ‘double dissolution’
Speaker of the house role
responsible for administration (for house of reps) and presides over debates in the house. - Assisted by deputy speaker and second deputy speaker (elected by the house post election)
President of the senate role
similar role, representing one of the states or territories (also elected by members of the senate)
Governor General
Representative of the Queen in Australia. They are appointed by the Queen to advise the Prime Minister
Federal Executive Council
A body comprising. The governor-general and ministers of the commonwealth of Australia. At the state level, the executive council consists of the state governor and state ministers.
4 key areas when a Governor General can exercise power
- A Hung Parliament – no clear majority
- Dismiss a PM ( lack of confidence) – 1975 Gough Whitlam – some say this in undemocratic
- Dismiss a PM (unlawful action)
- Double Dissolution
Royal Assent
All legislation passed through Senate and House of Reps, must be approved by the Governor General - it is very rare for approval to be dismissed (considered unconstitutional)
Upper and Lower Houses
At the NSW State level the Upper House is known as the Legislative council and the Lower House is known as the legislative assembly
Bill
A piece of proposed legislation
Delegated Legislation
‘Legislation made by non- parliamentary bodies, such as councils’
Four main types of Delegated Legislation
- Regulations = Delegated legislation made by the governor-general, State Governors or members of the Executive Council.
- Ordinances = Laws made for territories of Australia, such as the Australian Territory, usually by the body governing the territory.
- Rules = Developed legislation made for government departments, usually by the departments.
- By-Laws = Laws made in accordance with the Local Government Act 1993 (NSW). This Act allows local councils to make laws that apply within the boundaries of the local government area.
Constitution
A document that outlines the rules for the governing body of a nation - controlling the power, authority and operation of parliament
Two constitutions that affect citizens
- The Australian Constitution: this was created by the Commonwealth of Australia Constitution Act 1900 (UK). The British Parliament passed this Act when the six colonies that made up Australia decided to federate into a single nation. It came into effect on January 1 1901 – the official date of federation.
- The Constitution of New South Wales: this was created by the Constitution Act
1902 (NSW).
Division of Power
What powers can be exercised by the Commonwealth Government and what powers remain with the state governments
First constitution developed in England
Magna Carta
parliamentary sovereignty
the right to rule without interference
the Australian Constitution was created by the British parliamentary act..
the Commonwealth of Australia Constitution Act 1900 (UK).
Exclusive Powers
- Powers granted only to the Commonwealth Parliament
Three categories of exclusive powers
- Trade
- Foreign Affairs
- Defence
Residual Powers
Powers that states retained after federation
Concurrent Powers
Powers that are shared between the commonwealth and state government
Separation of Power
Constitution ensures no one group can dominate
Constitution divides commonwealth into 3 bodies
- The parliament – outlined Chapter 1, section 51
- Commonwealth Executive – Federal Executive Council – Chapter 2
- Judicature or the Courts – Supreme court + other Federal courts – section 71
High Court of Australia
The High Court of Australia is the highest court in Australia. It was established in 1901 under section 71 of the Constitution.
3 main aims of the High Court
- Protect the constitution
- Exercise its original jurisdiction
- Act as the final Court of appeal within the Australian legal system
Privy Council
Highest court of appeal in Britain - until 1986 Aus could appeal matters under commonwealth
Aboriginal Customary Laws
A system of rules of conduct which is felt obligatory by members of a definable group of people
4 main features of Aboriginal Customary Law
- Orally based,
- based on group agreement
- rituals + traditions
- family + kinship ties
Diverse nature of Customary Laws
There are currently 500 known Aboriginal and Torres Strait Islander nations – because of this, each clan has their own territory, traditions, rituals and development of laws – making customary laws diverse.
Spiritual Basis of customary laws
Established through ‘The Dreaming’ = basis of much Indigenous law, through creation and teaching stories
Significance of land and water on customary laws
Land/water is central to culture, beliefs and the basis of law. With each member having the responsibility to take care of the land and uphold traditionally instilled customary laws.
Ritual and Oral traditions on customary laws
Law is an integral part of values, customs and ethics of Indigenous peoples, developed over thousands of years. They are often passed down from generation to generation, through word of mouth.
Sanctions
Penalties put upon people who break customary laws
Sanctions
Penalties put upon people who break customary laws
Conciliation
Law is an integral part of values, customs and ethics of Indigenous peoples, developed over thousands of years
Relevance of customary law to Australian law
There have been major improvements of ATSI recognition in law, as well as introduction of common methods of customary laws surrounding conciliation and mediation. However, there is a reluctance to formally incorporate all customary law, due to the role of persecution, defence and punishment towards offenders.
International Law
The body of law that governs the relationship between nations
Domestic Law
Applies to individual nations/countries
Ratification
process requiring national government to enact domestic law accepting the terms and conditions of the international law
state sovereignty
Nations having the right to refuse to participate in International laws
Declaration
A non-binding agreement between nations
Treaty
an agreement between nations that is entered into voluntarily
Types of Treaties
- Bilateral Treaties: Treaties between two nations
2. Multilateral Treaties: Treaties between more than two nations
Common process of making treaties
- Negotiation
- Consent to be bound
- Ratification
- Reservation
International Customary law
a rule that has been established because it has a long tradition and is followed by many nations
Ad Hoc Tribunals
temporary tribunals set up for specific purposes; once this is completed, they are disbanded
Natural Law
Laws said to have been derived from God – considered more important than the law made by monarchs or courts
Positive Law
Laws generated by parliaments, monarchs and courts
United Nations
Formed at the conclusion of WW2 (1945), aiming to establish and maintain world peace
Civil War
a war between groups within the same nation
Power of Veto
The right to reject a proposal
International Court of Justice (ICJ)
Main judicial organisation of the UN – consists of 15 judges, each representing a different geographic region
2 main functions of ICJ
- to decide on disputes brought before it by member nations
- To offer legal advice on matters of international law when requested by a member nation
Court Jurisdiction
the authority of a court to decide on a particular matte
Genocide
intentional extermination of ethnic group or nationality
International Criminal Court (ICC)
Created by a special treaty called the Rome Statute, established 2002
Intergovernmental Organisations
organisations that represent the governments of member nations
Non-Governmental Organisations
Throughout 20th century, non-governmental organisations (NGOs) representing a variety of special-interest groups grew in prominence
