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)
