Chapter 2: Sources of Australian Contemporary Law Flashcards
What is common law? (Hint: There are two answers)
- The law that comes from the decision of the courts.
- The system of law inherited from England whereby the King in the 11th century unified the law throughout the country by appointing judges who travelled on circuits and applied the law agreed to by the King.
List three important features of the Australian Legal System retained from the British System:
- Travelling judges known as magistrates, handled the Local Courts.
- The notion of compensation from a wrong committed as basis of court sanctions.
- Precedent - decisions made by judges in courts and referred to by other judges when passing down law.
What is ‘trial by ordeal’?
Between 6th and 11th century England, if a plaintiff had witnesses who swore the defendant had committed an act against them, the defendant was required to participate in a ‘trial by ordeal’. They had to fast for three days and attend a special mass before being given a painful task to complete or bear.
If the defendant completed the task without injury or death, if the wound was healed within a prescribed period, etc, the defendant was considered innocent and set free. If not, execution would usually follow.
What is the concept of ‘equity’ in regards to 15th century English governments?
Judgements influenced by Christian principles which developed to deal with the injustices that crept into the common law and was set up to hear specific petitions.
In the case of conflict between common law and equity, equity should always prevail.
Define ‘precedent.’
A legal principle that has been established by a superior court that should be followed in other similar cases by that court and other lower courts.
What is another name for precedent?
Stare Decisis - Latin for ‘the decision stands’. High court verdicts always overrule lower courts.
Why is precedent important?
- Ensures people are treated fairly and that the law develops in a consistent and coherent fashion.
- Works to limit a judge’s ability to be too creative when it comes to making a decision.
- Provides guidance for determining a case and helps courts use principles of existing common law and statute law to make its decision.
- Pays attention to social developments and common sense.
How is precedent created?
- Interpretation of legislation. Where there is a dispute about the meaning or the application of a section of an Act, or about the meaning of a word, a court may have to resolve the question.
- Decisions from a past case.
What are the two parts that make up a judge’s decision in a case?
- Ratio Decidendi: the essential legal reason why a judge came to a particular decision; a decidendi in a higher court sets a binding precedent on lower courts.
- Obiter Dicta: other remarks made by the judge about the conduct of the trial (e.g about the credibility of a witness); these do not form part of the decision.
Recall the two types of precedent.
- Binding: lower courts are bound to follow decisions of superior courts, regardless of whether the judge believes a decision of the higher court is correct.
- Persuasive: superior courts do not have to follow the decisions made in lower courts. They may however use them to help them make a decision.
What is the Adversial System of Trial?
In a trial, the two sides involved in the case try to prove their version of the facts and disprove the other side’s version.
Recall features of the Adversial System.
- The defendant does not have to prove anything as he or she is assumed innocent until proven guilty.
- The opposing sides both have the opportunity to present arguments and both have the right to challenge the arguments each side is presenting.
- Most people involved will usually retain the services of a legal team to present and argue their case (lawyer-controlled).
- An impartial judge (and sometimes a jury) will listen to the evidence presented by both parties and make a decision as to which side has proved their case.
- Passive and democratic jury.
- Defendants have some rights to silence and can plead guilty to receive a lesser punishment.
What is the Inquisitorial System of Trial?
A trial where the judge or a group of judges has the task of investigating the case before him or her. They are empowered to decide which witnesses will be called, and could even call for an outside testimony that had not been requested by either side.
Recall some features of the Inquisitorial System of Trial.
- Lawyers play little role.
- Evidence is mostly written.
- Defendants do not have rights to silence.
- No such thing as guilty pleas.
Define ‘hierarchy’.
A system in which members of an organization or society are ranked according to their relative status or authority.
Recall the Australian Court Hierarchy.
- High Court of Australia
- NSW Court of Criminal Appeal
3a. Supreme Court of NSW - District Court of NSW
- Children’s Court
6a. Local Court of NSW - Coroner’s Court
3b. Land and Environment Court of NSW - Drug Court of NSW
What is the role of the Local Court?
The Local Court is the lowest court in the judicial hierarchy and deals with minor criminal matters and minor civil disputes with monetary value of up to $100,000. It is also known as the Magistrate’s Court and sometimes serious criminal matters are heard here before progressing to the District or Supreme Courts.
What is the role of the District Court?
The District Court deals with more serious criminal matters, ranging from charges of larceny, manslaughter, sexual assault, dangerous driving and large scale drug importation. Its jurisdiction is unlimited in cases of claims for damages for personal injuries arising out of a motor vehicle accident. It also deals with civil cases where the amount claimed is below $750,000.
What is the role of the Supreme Court?
The Supreme Court is the highest court in the state or territory hierarchy. It deals with the most serious criminal matters and civil cases involving large sums of money (there are no monetary limits on its civil jurisdiction) and most cases where an equitable remedy is sought. It also deals with appeals from lower courts.
What cases does the Supreme Court deal with?
- Manslaughter
- Murder
- Major Conspiracy
- Commonwealth prosecutions for major breaches of the corporations law
What is the role of the Federal Court of Australia?
Also called the Australian Superior Court of Record, which has jurisdiction over the most serious civil disputes governed by Federal Law (except family law matters). Also deals with summary criminal offences.
What is the role of the Family Court of Australia?
Deals with the most complex family law matters. Main function is to rule on cases related to specialised areas in family law such as divorce, parenting orders, the division of property and spousal maintenance. In its appellate jurisdiction, 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 of Australia?
Deals with appeals from the Federal Court of Australia, the Family Court of Australia and the state and territory Supreme Courts. It also deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws.
Define ‘appeal.’
An application for a legal decision to be reviewed in a higher court.
Define ‘Judge’.
A court official who hears cases in the lowest court of law.
Define ‘trial’.
A process used to determine whether someone committed a criminal act or caused another person a loss.
Define ‘sue/litigation’.
To bring civil action against another person for causing damage or injury.
Define ‘Committal Hearing’.
A hearing in a Local Court to decide whether there is enough evidence to put a person on trial for an indictable (serious) offence.
Define ‘Magistrate’.
A court official who has the power to make decisions brought before a court of law.
Define ‘Jury.’
A group of people (normally 12) selected to hear the evidence in a court case.
Define ‘Statute Law’.
Laws made by Parliament.
At the Federal level, this is divided up into the Senate and the House of Representatives.
At the State level, this is divided up into the Legislative Council and Legislative Assembly.
Define ‘Bicameral System’.
Contains two chambers or Houses of Parliament.
