2. sources of contemporary Australian law Flashcards
common law
judge made law which establishes precedent bound on all lower courts
common law will be made:
if the law is silent- Doli incapax, cyber warfare, BWS, if social values change - gay marriage and if legislation needs to be interpreted
in a common law judgement, what are the two components?
radio decidendi- the precedent and the reasoning and obiter dicta- remarks/impressions made in relation to the case.
persuasive precedent
a past decision in a legal case that does not have to be followed in future similar cases, but which may help a judge reason
outline the origin of common law
legal process and practices used in Australia today are based on the model developed in England. When the British came to Australia in 1788, they bought with them the law that applied in Britain, known as common law. Contemporary Australian law has evolved from both common law and statute law. Common law refers to laws created in court; that is, decisions made by judges
court hierarchy
local, district, supreme, appeal, federal, high.
equity
moral principles on which equitable decisions were based were called the rules (or maxims). The 1970s merge of courts now allows judges to apply the rules of common law or equity (or both) in a particular case.
adversarial system
used in common law countries, two advocates represent their parties’ case before an impartial person or group (usually a judge or jury) who attempt to determine the truth and pass judgement accordingly.
inquisitorial system
the court, or a part of the court, is actively involved in investigating the facts of the case
examine the hierarchy and jurisdiction of state courts
local court- summary offences, $1-$100,000, 1 magistrate, responsible for 95% of all cases. District court- indictable offences, $100001-$750000). Supreme court- serious indictable offences, $750,000+. Court of criminal appeal- appeal from district or supreme court, 3 judges. High court- only hears matters of significance, where the law needs to be made cleared e.g. interpreting the constitution, 6 judges.
examine the hierarchy and jurisdiction of federal courts
federal magistrates court- was created to ease the caseload of the federal, family and state courts. e.g. bankruptcy, copyright disputes. Family court- Jurisdiction over marital status dispute, annulments/divorces. maintenance of children. Only deal with the more complex family cases, fed magistrates deal w/ most/ Federal court- equivalent to supreme court, e.g. terrorism, immigration, customs and taxation. High court.
statute law
a written law produced by Parliament which originates from decisions made in other courts and the country’s written constitution
role and structure of parliment
refers to laws made by parliament, In both NSW and the commonwealth, the parliament is bicameral, thus allowing a check on power and to ensure just bills are passed.
role and strcuture of legislative process.
bill is introduced into parliament- by minister or via a private member’s bill. First reading- reading aloud in parliament, second reading (read again, more detail). Committee stage- parliament can debate bill. Third reading + vote. If voted no- amendments or bill is thrown out. If voted yes- goes to senate and steps 1-5 are repeated. If bill is passed it needs the Governor-General’s assent then bill is made public.
why is statute law made?
to update exisiting law, when the law is silent e.g. tech laws, to accept and codify common law, to overrule common law, changing social values and ethics, fulfil the legislative mandate e.g. terrorism laws and to protect society.
