Chapter 1D: Sources of Law Flashcards
What is the main role of parliament?
To make laws, known as statues, legislations or acts
What does the Westminster system of parliament consist of?
A lower house, upper house and a representative of the Queen
What does a bicameral legislature refer to?
A parliament consisting of two seperate houses that are responsible for law-making
Describe how the Australian parliament is an example of a bicameral system?
It consists of the House of Representatives and Senate, which are the lower and upper houses responsible for law-making, as well as the Governor-General who is the Queen’s representative
What are exclusive powers and give an example?
Powers which can only be exercised by the federal parliament, such as defence, customs and excise
What are concurrent powers and give an example?
Powers which the state and federal parliaments have shared legislation of, such as marriage, divorce and bankruptcy
What are residual powers and give an example?
Areas not covered in the Constitution and considered to be within the state’s powers to legislate, such as education and law
What is common law?
The body of law that is made up of all the judgements of superior courts over time, which is binding
What is statute law?
Proposed laws, known as bills, drafted by politicians in parliament and agreed upon by the majority of both houses to become legislation
What is an example of common and statute law?
Statute Law = Crimes Act
Common Law = Outcome of a decision in a case
In statute law, where must all laws pass through?
Both Houses of Parliament and receive royal assent from the Queen’s representative
Where do most bills start and who can introduce a bill?
They start in the lower house and any member of parliament can introduce a bill
What occurs in the lower house and upper house during the making of statute law?
Introduction, first reading, second reading, discussion and debate, consideration of detail, amendments, final vote
What does stare decisis mean?
To stand by what has been decided, and refers to following the decisions of past cases in future cases of a similar nature
What does ratio decided refer to?
The legal reasoning behind a decision, which is treated as binding on similar cases in the future, for courts lower in the hierarchy
What does obiter dictum refer to?
Statements made ‘by the way’ which do not form the binding part of a decision, but may be used as persuasive precedent in future decisions
What is a precedent?
A legal principle created by a court in a new type of case, which may need to be followed in similar cases that come before other courts in the future
What does a binding precedent refer to?
A precedent that must be followed by all lower courts in the same hierarchy, when the facts of the case are similar to those in the precedent case
What is a persuasive precedent and when does it occur?
A precedent that can acts as a point of reference for judges who are not bound to follow it, occurring when the precedent is created in a lower or same court, or in another hierarchy
What is delegated legislation?
Laws and regulations which are passed by subordinate authorities
What are subordinate authorities?
Bodies such as local councils and government agencies, who parliament has the power to delegate its law-making power to
Describe the Donoghue vs Stephenson Case of 1932?
Donoghue’s friend purchased beer from Stephenson
Donoghue drank the beer and got sick
Donoghue could not sue Stephenson, because there was no contract between them, and during these times there was no such thing as negligence
The principle of negligence was created as a precedent
Describe the Grant vs AKM Case of 1936?
Grant wore underpants manufactured by AKM
He suffered a rash due to chemicals in the underwear
Grant sued AKM and succeeded, as the Australian court applied the persuasive precedent created in the Donoghue vs Stephenson Case of negligence
What is distinguishing and when does it occur?
A judge shows that there are significant differences between the facts of the case and the facts of the precedent setting case, in order to avoid having to follow the precedent setting case
