chapter 2 Flashcards
common law
law made by judges, they are precedents bound on all lower courts.
ratio decidendi
a statement made by the judge about the reason for their decision. It creates a precedent tat lower courts must follow.
obiter dicta
other statements made by judges, such as their personal opinions. these create no immediate precedents but can be used later to justify another precedent.
persuasive precedent
influenced by other decisions - superior courts do not have to follow decisions made in lower courts, but may use them to help decide.
precedent
provides authority, providing the lower courts with a decision maker in newer court cases. it also limits the amount of creativity the judges get when deciding.
stare decisis
‘the decision stands’: the doctrine tat a decision must be followed by all lower courts
when a precedent doesn’t have to be followed
if the facts or relevant points of law are significantly different from a previous case, the case may be distinguished from the earlier one and its ration decidendi will not have to be follower.
purpose of a precedent
to ensure that people are treated fairly and that develop alongside society.
contemporary Australian law has evolved from…
common law and statute law. developing from English laws brought over in 1788
adversarial system
a system of resolving legal conflict - used in common law countries - relies on the skill of the representative for each side who present their cases to an impartial decision maker.
inquisitorial system
a legal system where the court or part of the court is actively involved in conducting the trial and determining what questions to ask: used in some countries that have civil legal systems rather than common law systems.
binding precedents
lower courts must follow the decisions of higher courts, whether the judge agrees with the decision made. only the Ration decidendi of the superior court is binding.
persuasive precedent
superior courts do not have o follow decisions made in lower courts. they may, however, use them to help decide. using the obiter dicta of a judge in a higher court.
the two separate jurisdiction of law
state and federal
state court hierarchy
supreme
district
local (magistrates)
federal court hierachy
federal court/family court
federal circuit court (magistrates)
what does local court deal with
- minor criminal and summary offences
- civil matter with a monetary value of up to $100,000
committal hearing - limited range of family law matters e.g. property settlement and residence orders for children. the local court has federal jurisdiction and is essentially part of the federal court hierarchy.
committal hearing
a court hearing held in the local court to decide whether there is enough evidence against the accused to trial in a higher court.
coroners court
ensures suspicious deaths, fires and explosions are properly investigated.
coronial inquest
an investigation into an unusual death, heald in the coroner’s court
children’s court
deals with civil matters concerning the protection and care of children and youth people. criminal cases involving people under the age of 18 at the time of the offence, or under the age of 21 when charged with a crime they committed while under the age of 18
land and environment court
it deals with matter related to environmental planning (e.g. zoning of parklands), environmental offences (illegal polluting or dumping) ad appeals local council ruling
intermediate courts - district courts of NSW
a judge and sometimes a jury.
deals with:
- manslaughter
- assault/sexual assault
- offence relating to property e.g. robbery, breaking entering
- civil cases amount below 750,00 or larger if both parties agree
also has appellate jurisdiction
appellate jurisdiction
the ability or power of a court to hear appeals of the decision of lower courts and to reject, affirm or modify those decisions
list the criminal jurisdiction of the Supreme Court
- manslaughter
- murder
- attempted murder
- kidnapping
list the civil jurisdiction of the Supreme court
- no upper limit of monetary damage
- personal injury, professional negligence, breach of contract, defamation and possession of land
who usually deals with the civil matters
a judge will deal with the case but in few cases a jury will be used
what superior courts can hear appeals
the court of appeal and the court of criminal appeal.
why was the federal circuit court of Australia established
it was established to relive the federal and family courts of some caseload and reduce the cost and time required to deal with more minor federal matters
list the federal circuit courts jurisdiction
- family laws and child support
- human rights
- copyright
- bankruptcy
- migration
what is the role of the family court of Australia
the family courts deals with the most complex family law matters such as:
- divorce
- parenting orders
- the division of property
- spousal maintenance
appellate jurisdiction of family court
it can hear appeals from a decision of a federal magistrate or a single family court judge
what is the role of the high court
highest court of the Australian judicial system and deals with appeals and cases concerning the interpretation of the Australian constitution
who can the high court hear appeals from
federal court of Australia, the family court of Australia and the state supreme court.
order of appeals
court of appeal - court of criminal appeals ^ supreme court ^ district court ^ local court
what is statute law also known as?
‘legislation’ and ‘Act of Parliament’
which area of parliament are allowed to make laws and where is it set out
all areas of parliament have the power to make statute law. this is set out by the Australia constitution for state and federal parliament with respect to make laws
bicameral
two houses in parliament the upper and lower house, these are also known as chambers or houses of parliament
what is the name for the upper and lower house
lower - legislative assembly
upper - legislative council
what is the name for upper lower house in federal parliament
lower - house of representatives
upper - senate
