Contempoary Australian Law Flashcards
System of precedent
A judgement made by a court that establishes a point of law and serves to provide guidance for deciding cases that have similar facts
Cross examination
Barrister has the opportunity to test the evidence of the opposing side by questioning their witness
Common law system
Made by judges
The rules are derived in part from specific court rulings
Adversarial
Equity
Rules of equity always override common law
The body of law that supplements the common law and corrects in justice by judging each case on its merits and applying principles of fairness
Precedent developed by
A decision made by a judge in a court of common law
Types of courts in order
Local District Supreme Criminal court of appeal High
Jurisdiction
Powers of the court Authorities of the court Based geographically Seriousness of case Type of case- criminal family etc
Civil law
Protect individual rights
Criminal law
Protect society
Local court
Summary offences
Magistrate
Children’s court
Any matter, indictable or summary U18 Magistrate Closed court- no public Degree of crime may be heard in Supreme Court
Coroners court
Any suspicious death
Fire damaged property
Coroner- officer
If needed sent to a higher court for trial
Drug court
Non violent drug related crimes
Offender must plead guilty to drug use
Aim is to send them to drug rehabilitation program
District court
All indictable offences (not murder, attempted murder, serious sexual assaults)
Appeals from local court
Judge+jury officer
Supreme Court
Serious indictable offences (murder, treason)
Single judge
Court of criminal appeal
Single judge from Supreme Court
Three judges
High court
No original jurisdiction
Hears appeals from court of criminal appeal
No automatic right of appeal
Final court of appeal
Federal court system
top to bottom
Full court of high court:
Determined disputes on constitutional matter
High court:
Cases brought by or against federal government
Cases between states or residents of different states
Full court of federal court:
Appeals from single judge of federal court
Same level as above..,,,,,,,…
Full court of family court:
Appeals from single judge of family court
Federal court: Involving trade, industry, bank ruptcy In capital cities of each state On same level as above............. Family court of Australia: Involving dissolution of marriage and children of marriage
Appeals
From a courts decision must be made to a higher court
Civil case procedure
- Plaintiff claim= pleadings
- Defence counter claim
- Discovery- parties can obtain more information about each other’s arguments
- Resolution
- Trial jury and judge (cross examination)
- Compensation or damages in junction order
Eg Monica Samaan ill after eating off in acoma for 6months wanted money
Criminal case procedure
- Types of offences
- nature of offence (summary,indictable)
- where is it heard? Local, supreme etc
- by whom? Magistrate, judge
- how punished? Fine, jail, good behav - Team who defends the accused to get off charge
- Hearing to commit you to court process
- Jury receives the closing address from each side
- judge sums up case
- jury decides guilty or not
Role and stuttered of parliament
Body of elected representatives
Debates proposed legislation, passes or rejects it and amends legislation
Upper and lower houses
Delegated legislation
Made by non parliament bodies
Involves less important laws- passed by local councils
Body that makes delegated legislation is ‘enabling act’
Examples of delegated legislation
Regulations- laws made by local council, State gov etc
Ordinances- laws made from Australian territories
Rules- legislations made for gov departments
By-laws: laws made by local councils
Division of powers
Legislative, executive and judicial Powers are divided b/w States and the federal gov
Separation of powers
Power is distributed b/a the three arms of gov, b/w the legislature, the executive and the judiciary
Judiciary
The courts interpret and apply the law
Legislative
Law makers
Executive
Ministers and gov departments who administer the law
Constitution
Set of rules that may apply to a social club, a large scale organisation or even a nation
ATSI customary laws characteristics
Divers nature: groups have their own variations of customary law
Spiritual basis: the dreaming- how the land animals plants and sky were created
- loosing land that belonged to a group is like loosing the groups culture and history
Ritual and oral traditions: most laws relate to marriage child- resting religion family and kinship
Laws passed from generation to generation by word of mouth
Enforcement and sanctions: Order is maintained through self- regulation and consensus among family heads
Elders helps guide revisions related to enforcing the law
Customary law
Principles and procedures that have developed through general usage according to the customs of a people or nation or groups of nation
Domestic law
System of law which operates within one country
International law
System which governs relationships b/w countries
Organisations in international law
UN
Courts and tribunals
Intergovernmental organisations
NGOs
Role of organisations in international law:
UN
‘Maintain global peace and security’
Friendly relations among nations based on respect for equal rights and each nations right to govern its own political economic and social development
Role of organisations in international law:
Courts and tribunals
Settles disputes suited to it by states and gives advisory opinions on legal questions
Role of organisations in international law:
Intergovernmental organisations
Organised groups of nation- state
Established to pursue mutual interests in a wide variety of areas
(world labour organisation)
Role of organisations in international law: NGOs
Associations based on common interests and aims
Make contributions in a wide range of area, from world peace, disaster relief and environmental protection and promoting education and alleriating property
Civil law system
A codified system that uses a set of rules that are applied and interpreted by judges
Inquisitorial
Adversarial system
Relates to the way evidence is presented to the court
