Chapter 1D: Sources of Law

Question 1

What is the main role of parliament?

Answer 1

To make laws, known as statues, legislations or acts

Question 2

What does the Westminster system of parliament consist of?

Answer 2

A lower house, upper house and a representative of the Queen

Question 3

What does a bicameral legislature refer to?

Answer 3

A parliament consisting of two seperate houses that are responsible for law-making

Question 4

Describe how the Australian parliament is an example of a bicameral system?

Answer 4

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

Question 5

What are exclusive powers and give an example?

Answer 5

Powers which can only be exercised by the federal parliament, such as defence, customs and excise

Question 6

What are concurrent powers and give an example?

Answer 6

Powers which the state and federal parliaments have shared legislation of, such as marriage, divorce and bankruptcy

Question 7

What are residual powers and give an example?

Answer 7

Areas not covered in the Constitution and considered to be within the state’s powers to legislate, such as education and law

Question 8

What is common law?

Answer 8

The body of law that is made up of all the judgements of superior courts over time, which is binding

Question 9

What is statute law?

Answer 9

Proposed laws, known as bills, drafted by politicians in parliament and agreed upon by the majority of both houses to become legislation

Question 10

What is an example of common and statute law?

Answer 10

Statute Law = Crimes Act

Common Law = Outcome of a decision in a case

Question 11

In statute law, where must all laws pass through?

Answer 11

Both Houses of Parliament and receive royal assent from the Queen’s representative

Question 12

Where do most bills start and who can introduce a bill?

Answer 12

They start in the lower house and any member of parliament can introduce a bill

Question 13

What occurs in the lower house and upper house during the making of statute law?

Answer 13

Introduction, first reading, second reading, discussion and debate, consideration of detail, amendments, final vote

Question 14

What does stare decisis mean?

Answer 14

To stand by what has been decided, and refers to following the decisions of past cases in future cases of a similar nature

Question 15

What does ratio decided refer to?

Answer 15

The legal reasoning behind a decision, which is treated as binding on similar cases in the future, for courts lower in the hierarchy

Question 16

What does obiter dictum refer to?

Answer 16

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

Question 17

What is a precedent?

Answer 17

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

Question 18

What does a binding precedent refer to?

Answer 18

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

Question 19

What is a persuasive precedent and when does it occur?

Answer 19

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

Question 20

What is delegated legislation?

Answer 20

Laws and regulations which are passed by subordinate authorities

Question 21

What are subordinate authorities?

Answer 21

Bodies such as local councils and government agencies, who parliament has the power to delegate its law-making power to

Question 22

Describe the Donoghue vs Stephenson Case of 1932?

Answer 22

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

Question 23

Describe the Grant vs AKM Case of 1936?

Answer 23

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

Question 24

What is distinguishing and when does it occur?

Answer 24

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