chapter 1: the legal system: contemporary Australian law Flashcards
common law/court-made law
is the legal system that Australia follows, inherited by the UK. it is developed by judges on a case by case basis, building on the precedent & interpretation of earlier court decisisons
development of common law
developed in England by judges administering a common set of laws throughout the kingdom. courts continue to create it by recording the outcome & reasoning of each judgement, aka. ‘precedent’. it belongs to the Commonwealth
equity
judges have to apply the principle of fairness
precedent/judge made law
the judgement is authority for a legal principal to provide guidance for deciding cases that have similar facts. i.e. if person A committed a crime that has never happened before & when it comes to the court, they will use statue law to decide. this decision will impact other cases with similar facts.
adversarial system of trial
Australia uses the adversarial system - where the burden of proof lies on the prosecution in criminal cases. however in CIVIL LAW it is the plaintiff.
presumption of innocence
the burden of proof lies on the prosecution
court hierarchy
lowest to highest:
- the local court
- the district court
- the supreme court
- court of appeal/court of criminal appeal
- the high court of Australia
jurisdiction of state & federal courts
lower courts = minor cases i.e. Local Court, Coroner’s Court
intermediate courts = serious matters i.e. appeals from lower courts & Distract Court
superior courts = most serious matters i.e. appeals from lower & intermediate courts, Supreme Court & Court of Appeal
statute law/legislation/Acts of Parliament
made by parliament, where states, territories & fed. govs. have rights to make laws. statute overrides common law.
role of parliament
to debate pubic policy & pass laws, check in the governments & represent the people
structure of parliament
has 3 elements:
1. the Queen
2. the Senate
3. the House of Representatives
legislative process
propose the bill & introduce it to the house of representatives
the bill is read & discussed, plus amended if necessary
a vote is taken after the final reading
is passed, moved to the senate
process repeats in upper house/senate
becomes an act of parliament
delegated legislation
made by non-parliamentary bodies, however still under its authority i.e. environmental laws, industry codes that concerns less important matters
the constitution
commenced in 1901. it outlines legal framework & rules that apply to the governance of Australia
division of powers
allows for law making powers to be divided by commonwealth levels, states & territory levels & local governments levels
separation of powers
the powers are divided into 3 - executive powers i.e. police as they enforce the law
- legislative powers i.e. given to parliament who make & amend the law
- judiciary powers i.e. given to courts who interpret the law
role of the High Court
created by Section 71 of the Constitution, it holds both original & appeal jurisdiction
the high court & how it was created
deals with the most serious issues - i.e. criminal law, contract, company law. Section 71 of the Constitution
Aboriginal & Torres Strait Islander peoples’ customary laws
based on tradition, ritual & socially accepted conduct. the only difference between customary & British law is the concept of ownership (possession of land)
diverse nature of customary laws
developed according to the customs of the people of nations/different tribes
spiritual basis, significance of land & water of customary laws
Indigenous & Torres Strait Islander people have special connections with this & water. they must look after the water & land for future generations. collective guardianship is that land & water is for everyone
family & kinship
Indigenous people hold strong family & kinship - there has been practices by different tribes
ritual & oral traditions
passing down of traditions by painting, fires, dreamtime stories
mediation & sanctions
as they practice customary law, sanctions can differ & may not be able to adopt by our contemporary Australia law
relevance to contemporary Australian law
there has been an increase in recognition of customary law, as seen in the Mabo case - therefore Indigenous land rights have been increased in recognition i.e. circle sentencing for less severe matters
terra nullius
land belonging to no one
native title
a legal right for Indigenous communities to live & use traditional land with which they have an ongoing association
ratio decdidenti
the reasoning in a case that drives the final judgement
international law
governs the relationship between countries, as well as regulates trade & commerce between countries & provides laws to maintain peace & security. it aims to promote the stability & resolve conflicts between nations & states, plus covers the fundamental human rights i.e. the UN declaration of human rights. i.e. the UN, international treaties.
