Chapter 2: Sources Of Contemporary Aus. Law Flashcards
What is common law?
A judge/court-made law.
What is statute law?
Parliament-made laws.
What is the main purpose of equity law?
To ensure fairness.
What is the doctrine of precedent?
When deciding cases under common law, judges follow decisions that have been made in similar cases.
What is another word for doctrine of precedent?
Stare decisis
What is the purpose of precedent?
To ensure fair treatment and that the law develops in a consistent way. Old cases are used for modern ones which limits a judges ability to be creative in their decision.
How many people are in a jury in a civil matter?
4-6
How many people are in a jury in a criminal matter?
12
What is a decision of a civil matter determined by?
A balance of probabilities.
What is a decision determined by in a criminal matter?
Beyond reasonable doubt.
What are the 2 levels of Australian Law?
State and Federal.
Can higher courts hear appeals from the lower courts and reverse them?
Yes
What is the court hierarchy?
HIGH COURT ⬇️ Supreme Court ⬇️ District court ⬇️ Local court
The Local magistrates court hears matters up to…?
$100 000
The district court hears matters up to…?
$100 000- $750
The Supreme Court hears matters up to…?
$750 000 +
The high court hears cases up to…?
Appeals only.
What does the local court deal with?
Summary and minor offences.
What does the district court deal with?
Crimes such as robbery, assault and dangerous driving.
What does the Supreme Court deal with?
Major indictable offences such as murder, kidnapping and major conspiracy.
What does the high court deal with?
Appeals from lower courts.
What is a summary offence?
A minor offence such as shop living. These are heard in a local court with no jury, normally.
What is an indictable offence?
More serious offences such as murder and assault and normally include a preliminary hearing, jury and great penalty.
What is the purpose of a preliminary/committal hearing?
In the case of indictable offences, the magistrate will listen to an outline of the evidence and determine whether or not the prosecution has a strong enough case to be able to try the defendant in the district/supreme court.
What is the role and jurisdiction of the Coroner’s Court?
To ensure that unexplained and suspicious deaths, fires and explosions are sufficiently investigated. If necessary, colonial inquests are carried out in higher courts.
What is the role and jurisdiction of the children’s court?
To deal with civil matters about the care and protection of children. Also deals with criminal cases of children under 18 at the time of the offence.
What is the role and jurisdiction of the land and environment court?
Takes care of enforcing environmental laws in NSW. Can deal with appeals against council rulings.
What is aboriginal customary laws based on?
Tradition, ritual and socially accepted conduct
Are aboriginal customary laws written or oral?
Oral
How do Indigenous societies resolve disputes?
Discussion and mediation with the Elders (as opposed to judicial processes)
In the most serious breaches of sacred law or offences against another person or property, what is the Indigenous punishment?
Ridicule, shaming, exile, spearing
Was the Indigenous methods of conciliation and mediation adopted in Australian law?
Yes
What is a state, internationally?
An independent entity recognised by other states on an international basis
What are the two components of the UN?
- The General Assembly
2. The Security council
Types of customary laws that have influenced the Australian legal system
International customary law, Aboriginal and Torres Straight Islander Law and English Customary law
What are the three aspects of justice?
- Fairness
- Equality
- Access
What are the principals of natural justice?
- The right to be heard (fair hearing)
- The right to have a decision made before an unbiased judge
- Everyone to be treated fairly
Which one (indictable or summary offences) require a preliminary hearing?
Indictable
What are the division of powers?
- Residual powers
- Exclusive powers
- Concurrent powers
- Legislative powers
What are the separation of powers?
The judiciary: the courts
The executive: Govenor general, the prime minister, the cabinet
The legislature: Parliament (house of reps and the senate)
What are the sources of international law?
- Customary international law
2. Treaties and declaration (multilateral and bilateral)
What is the upper house of Parliemant?
The senate
What is the lower House of Parliament?
The House of Representatives
How have Aboriginal and Torres straight Islander laws been integrated into Australian law?
- Australian law has adopted mediation and conciliation
2. Used their practise of sustainable development as a basis for current environmental laws
What is the upper house of NSW parliament?
Legislative Council
What is the lower house of the NSW parliament?
Legislative Assembly
What is the role of parliament?
To make and pass laws
What is the structure of Parliament?
- The ministers: members of government with special responsibility for particular departments
- Executive council: Governor General
What is the legislative process?
- A bill is introduced (normally by ministers) or if it’s not a member, it’s known as a “private members bill”
- It’s discussed and voted on
- It needs to be approved by the Governor General
What is delegated legislation?
- Legislation made my non-parliamentary bodies
Why do they use delegated legislation?
When the Parliament doesn’t have time to deal with issues not so important
What is appellate jurisdiction?
The power of a higher court to review decisions and change outcomes or decisions of lower courts.
What are the 2 levels of law?
State and federal
What are some types of delegated legislation?
- Rules: legislation made by government department
- By-laws: laws made by local council
- Regulations: laws made by the Governor General, state governors or members of executive council
- Ordinances: laws made for Australian territories
What is the division of powers?
- Residual powers
- Concurrent powers
- Exclusive powers
- Legislagive powers
What is legislative powers?
The legal power or capacity to make laws
What is the concurrent powers?
Existing at the same time; powers held by both the state and federal parliaments
What are exclusive powers?
Powers that can be exercised only by the federal parliament
What are residual powers?
Those matters on which the states can legislate, as they are not referred to in the Constitution
The state court system operates under what hierarchy?
- Lower courts
- Intermediate courts
- Superior courts
What are the Lower courts of NSW?
- The local and magistrates court
- The coroners court
- The children’s court
- Land and environment court
What is the jurisdiction of the local court?
- minor criminal and summary offences
- civil matters with monetary value of up to $100 000
-committal hearings
Some family law matters
What is the jurisdiction of the coroners court?
Deals with unexplained or suspicious deaths and makes sure they are properly investigated
What is the jurisdiction of the Children’s court?
- Deals with civil matters related to the protection of young people.
- deals with criminal cases of persons under 18
What is the jurisdiction of the land and environment court?
Interprets and enforces environmental law in the state of NSW. Very wide jurisdiction (environmental planning and offences)
What is the intermediate court of NSW?
The District Court of NSW
What is the jurisdiction of the District court of NSW?
- deals with more serious criminal matters
- eg. Manslaughter, sexual assault and large scale drug importation
What is the amount of money in a civil case that the District court of NSW can deal with?
$100 001 - $750 000
What is the most superior NSW court?
The Supreme Court
What is the jurisdiction of the NSW Supreme Court?
- deals with the most serious criminal and civil matters
- deals with appeals from lower courts
- deals with murder, kidnapping, major conspiracy, and drug-related charges and serious breaches of corporations law
What are the 4 Federal Courts?
- The Federal Magistrates Court
- The federal court of Australia
- The family court of Australia
- The high court of Australia
What is the Jurisdiction of the Federal Magistrates Court?
- family and child support
- administrative law
- bankruptcy
- human rights
- consumer protection etc
- it was established to relieve some of the case load of the family and federal court
What is the jurisdiction of the Federal Court of Australia?
- deals with civil disputes governed by federal law
- some summary offences
- equal to the Supreme Court in the states
What is the jurisdiction of the family court of Australia?
- complex family matters
- divorce, parenting, the division of property, spousal maintenance
What is the jurisdiction of the High Court of Australia?
- deals with appeals from the FEDERAL COURT, THE FAMILY COURT and state SUPREME COURTS
- also interprets the Australian constitution and the validity of laws
What is the structure of Parliament?
- NSW parliament and FEDERAL parliament are bicameral
When a bill has been passed by the Governor General, what does it become?
An Act of Parliament
Who deals with DELEGATED legislation?
The delegates pass it on to the SUBORDINATE bodies like local councils
What is the role of the legislature (in the desperation of powers)?
Law makers
What is the role of the executive and who is apart of it (Seperation of powers)
The ministers and government departments who administer the laws made by parliament (the Governor General, PM and the Cabinet)
What is the role of the judiciary (Seleration of powers)?
The courts which interpret and apply the laws
How are civil liberties protected?
Separation of powers
What is the jurisdiction of the High Court of Australia?
- when matters don’t follow treaties
- deals with matters between states
What jurisdiction does the High Court have?
Original and appelate
How many judges are involved in the High Court?
7
What is a judicial review?
The high court can review administrative decisions of government bodies
What is state sovereignty?
A state has the authority to make rules for its population and the power to enforce these
What is the purpose of international law?
To govern the relationships between states AND provides mechanisms for peace among states
What are the sources of international law?
- Customary International law
- Treaties and declarations
- Legal decisions
- Legal writings
What is customary international law?
It is not written down but is based on long-established traditions or common practises hat have been accepted as fair (eg. War)
What are treaties and declarations?
An international agreement made between states in written form
What are the two types of treaties?
- Multilateral
2. Bilateral
What is the difference between a treaty and a declaration?
They state the parties position on particular issues, but aren’t legally binding
What are legal decisions (international law)
Judicial body that deals with disputes between states
- the international court of Justice (part of the UN)
What are legal writings?
Scholarly writings that may be drawn upon for the purpose of interpreting treaties.
What are the three main international organisations?
The United Nations
Intergovernmental organisations
NGOs
What is the Genera Assembly (The UN) and what does it do?
The main body of the UN, made up of all of the member states. It’s discusses and makes recommendations on the operation of the UN, conflicts, human rights and international law.
What is the Security Council?
The most powerful part of the UN and has the final say about the security and peacekeeping activities of the General Assembly. It consists of 5 permanent members and 5 non permanent members
What does the security council do?
- maintains peace and security between states
- it can make economic sanctions
- can authorise military action
What is the International Court of Justice (The UN)?
Settles disputes submitted to it by states
Give advice on legal questions submitted by the General Assembly and security council
What are intergovernmental organisations?
They are organised groups of states that make decisions about international issues like refugees and wealth
What is an example of an NGO?
Amnesty International: deals with human rights issues like the death penalty and violence against women
How does international law influence Australian law?
- the development of common law
- judicial review of decisions
What is the difference between appelate and original jurisdiction?
Original jurisdiction is the power to hear the case first
Appelate jurisdiction is the power to review decisions from a lower court
