Chapter 2: Sources Of Law Flashcards
Are judges requires to obey stature law?
- yes, if stature law does not exist, (if there is no legislation or if it’s not defined properly), the judge may turn to common law
How did equity come about?
- common law became so inflexible that people petitioned the King
- a new court was formed by the chancellor called the court if chancery (equity)
What is common law?
- a complete legal system
- rights extend to all people
- remedies enforceable at any time
- non-discretionary, follow precedent
What is equity?
- a series of isolated principles
- valid to people specified by the court
- remedies applied promptly
- discretionary, doesn’t follow precedent
What is precedent?
- ensures people will be treated equally and fairly
- judges can’t make new rulings when a decision about a similar case has already been made
- doctrine of precedent ensures this
- developed from circuit courts, judges fill in gaps in common law by comparing decisions, most appropriate became precedent decision
When is precedent created?
- when a judge arrives at a decision in a case where there is no existing law
- when judges interpret legislation
What is the difference between binding and persuasive precedent?
- binding precedent means the courts must follow precedent already set
- persuasive precedent means precedent may influence the decision but the court is not bound to follow it
What is the adversary system?
- legal system inherited from Britain
- two opposing sides argue a case before a court to win
- neutral third party (judge/jury)
- evidence introduced to court and cross examined
- advantages: allows rigorous testing of evidence
- disadvantages: cases are often won by most persuasive argument rather than evidence
What are the two levels of law that apply in Australia?
State and federal
What document grants legal powers to the commonwealth?
The constitution
Local/ magistrates court?
- settles local disputes
- criminal and civil jurisdiction (small)
Coroners/children’s/land&men ironing court?
- coroners= investigate unexplained deaths & fires
- children’s= matters regarding people under 18
- land & environment= matters involving environmental planning and land compensation
District court?
- more serious, presided over by a judge
- criminal and civil jurisdiction
- 12 jurors + judge
- appellate jurisdiction
What is appellate jurisdiction?
Appeals from inferior courts if there is an error or new evidence found
Supreme Court?
- most serious and difficult cases
- court of record, creates precedent
- criminal and civil jurisdiction
- appellate jurisdiction
- judge + jury (sometimes small)
Federal magistrates service/family court of Australia/federal court if Australia/ higher court of Australia?
- FMS: family law, bankruptcy etc.
- Family court: divorce, custody, division of property etc.
- Federal: precedent, trade, taxation, immigration etc.
- High court: matters involving the constitution, single judge
Delegated legislation?
- regulations: Governor General
- ordinances: made for territories
- rules: made for government departments
- by-laws: allows local councils to make laws that apply within the boundaries of the local government area
Advantages and disadvantages of delegated legislation?
Advantages:
- people making legislation tend to be experts in the area
- delegating some of the “less important” legislation frees up parliamentary time
- easier to amend and more flexible
Disadvantages:
- making duties to non-elected bodies= undemocratic
- insufficient time and expertise to properly check it
- very little publicity, hard for people to voice views
- hard to ensure consistency between many different bodies
What is the separation of powers?
- the power to govern is divided between:
1. The parliament that makes laws (legislative power)
2. The courts that interpret and apply laws (judicial powers)
3. The executive government that administers laws (executive power)
Concurrent legislation?
- commonwealth can make laws on a particular subject matter, states can also
- if a valid commonwealth law is inconsistent with a law of a state, the commonwealth law operates and the state law is invalid
International law vs domestic law (Australia)
International law:
- applies to nations that agree to be bound by the law
- complex legal tribunal exist
- made through negotiations between nations
Domestic law:
- applies to all
- law enforcement agencies, eg. Police, exist to enforce the law
- made by parliaments or the rulings of judges
What is a treaty?
An agreement that exists between nations that is entered into voluntarily.
What is the difference between a treaty and a declaration?
A treaty is like a contract, a declaration is a non-binding agreement between nations.
What are bilateral and multilateral treaties?
Bilateral treaties are between two nations and multilateral treaties are between more than two nations.
How are international laws made?
- Negotiation from various nations
- Consent to bound (sign treaty)
- Ratification (nation passes domestic law)
- Reservation (allows nations to withdraw)
