2. Sources of Contemporary Australian Law

Question 1

Common Law

Answer 1

It is the set of legal rules and principles derived from decisions of judges in higher court (precedent).

Question 2

Development of Common Law

Answer 2

Began as a trial of ordeal in the 12th century
Travelling judges later wrote down the laws in books now known as the Constitution and the Common Law was created.
1215, the Magna Carta was developed - ensure had rights under the law and The King’s power was limited.

Question 3

Define Equity

Answer 3

The body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness.

Question 4

Define Precedent

Answer 4

A judgement that is followed when a court use decisions made in earlier court cases to help them decide what should be the outcome of the case.

Question 5

Binding precedent

Answer 5

Court decisions from the past that the judge who makes the decision must follow order and apply that precedent.

Question 6

Persuasive precedent

Answer 6

Court decisions that may influence the judge’s decision but a judge is not forced to apply that precedent.

Question 7

The Adversary System

Answer 7

uses a jury, magistrate or judge
the judge is unbiased and cases are bound by rules of evidence
Justice is obtained by opposing parties, represented by legal counsel in court

Question 8

NSW Court Hierarchy

Answer 8

High Court (judge)
Court of Appeal OR Criminal Court of Appeal (judge)
Supreme Court (judge)
District Court (judge)
Children’s Court (children’s magistrate) = Local Court (magistrate) = Coroners Court (coroner)

Question 9

High Court - Jurisdictions

Answer 9

Original: Interpretation of Constitution, considerations of the principles of laws, disputes between states etc.
Appellate: Appeals from Supreme Court

Question 10

Court of Appeal OR Criminal Court of Appeal - Jurisdictions

Answer 10

Appellate: Applications for appeals and appeal cases from the Supreme, High and District Courts.

Question 11

Supreme Court - Jurisdictions

Answer 11

Criminal: Murder, manslaughter, attempted murder, etc.
Civil: Claims for damages for personal injury, professional negligence.
Appellate: Appeals of District Court

Question 12

District Court - Jurisdictions

Answer 12

Criminal: Drug Trafficking, Robbery (all except murder, treason, piracy)
Civil: All motor accident cases, other claims to max $750 000 damages
Appellate: Appeals of Local Court and Children’s Court

Question 13

Local Court - Jurisdictions

Answer 13

Criminal: Minor criminal matters eg drink driving
Civil: Minor civil disputes up to $100 000

Question 14

Children’s Court - Jurisdiction

Answer 14

Criminal cases, applications for AVO’s, applications for compulsory schooling orders and cases involving the care and protection of children.

Question 15

Coroner’s Court - Jurisdiction

Answer 15

Ensures that all deaths, suspected deaths, fires and explosions are properly investigated

Question 16

FEDERAL Court Hierarchy

Answer 16

High Court
Family Court
Federal Court of Australia
Federal Circuit Court of Australia

Question 17

Federal High Court - Jurisdiction

Answer 17

Interprets Constitution, disputes between states, appeals from state/territory Supreme Courts (of appeal)

Question 18

Family Court - Jurisdiction

Answer 18

Deals with most complex family law matters

Question 19

Federal Court of Australia - Jurisdiction

Answer 19

Equal to Supreme Court in state system, handles civil matters arising from Federal law, e.g. taxation, trade practices

Question 20

Federal Circuit Court of Australia - Jurisdiction

Answer 20

Created to deal with the increasing workload of Federal Court and Family Court, by hearing less complex (+ majority of family) cases. Does not deal with criminal matters.

Question 21

Statute Law

Answer 21

law made my parliament

Question 22

Role of Parliament in Legislative Process

Answer 22

to make laws for the Commonwealth, state or territory.

This process is called passing a Statute (or Act of Parliament). These Acts regulate aspects of our society.

Question 23

Structure of Parliament in Legislative Process

Answer 23

Upper House is the Senate = 76 members
House of Representatives = 150 members
The government is formed by the political party that wins the majority seats (76) in the lower house.
Senate is made up of state representatives. State = 6 senators each Territory = 2

Question 24

Legislative Process

Answer 24

1. bill introduced
2. members debate and vote on bill
3. Public inquiry committee
4. 3rd reading and final vote

Question 25

delegated legislation + its function

Answer 25

laws made by authorities other than the Parliament
Act of Parliament (The Enabling Act)
The function - to free up the responsibilities of the Federal Parliament by referring roles and responsibilities to other authorities who have experience in the field.

Question 26

The constitution

Answer 26

the “rulebook” for governing Australia

Question 27

separation of powers vs division of powers

Answer 27

S - separation of the roles between different institutions within Australia ie Legislative, Judiciary, executive
D - sharing of powers within in the commonwealth and state governments

Question 28

Role of high court in interpreting constitution

Answer 28

settle disputes about its meaning
questions constitutional validity of laws
determine whether such legislation is within the powers granted in the Constitution to the relevant level of government

Question 29

characteristics of ATSI law

Answer 29

• passed down orally, based on tradition, manipulated for tribes
• significance of land and water
• family and kinship
• ritual and oral traditions
• mediation and sanctions

Question 30

relevance of ATSI law to contemporary Aus Law

Answer 30

past 20 years = great recognition
crime = circle sentencing etc
sustainable development = basis of environmental law