FOL content test

Question 1

How was the English common law system born?

Answer 1

• Parliament grew in strength during Tudor era (15th Century) because King Henry V111 needed nobles for support in dealing with his own personal and political issues
• In the Stuart era (16th century) conflict developed between monarch, courts costing many lives but resulting in a stronger, more independent legislature and judiciary

Question 2

What is the rule of law? How is it upheld?

Answer 2

The government cannot exercise power unless it can point to a specific rule of law which authorises it to do so

No man or woman is above the law

• laws are clear, predictable and accessible
• laws are publicly made and the community is able to participate in the law-making process
• laws are publicly adjudicated in courts that are independent from the executive arm of government
  dispute settlement is fair and efficient where parties cannot resolve disputes themselves

Question 3

What is separation of powers?

Answer 3

a constitutional principle which avoids the concentration of government power by dividing it up between the three arms of government: the legislature, the executive and the judiciary

Question 4

When was the Magna Carta passed?

Answer 4

1215

Question 5

When was the bill of rights passed?

Answer 5

1689

Question 6

When was the act of settlement passed?

Answer 6

1701

Question 7

What is responsible government?

Answer 7

a system of government in which the executive government is responsible to the (generally democratically directly elected) members of legislature

Question 8

What is feudalism? How did it work?

Answer 8

a strongly hierarchical system of social and political organisation based on land ownership that was dominant in medieval Europe including the British Isles

• norman kings employed feudal system in their governance of England because they did not have sufficient power to govern their own specific territory
• all subjects were ultimately answerable to the king
• king’s role in resolving personal disputes that allowed for the emergence of the ‘common law’ system

Question 9

Why was common law successful?

Answer 9

Avoiding arbitrariness
Since king was less likely to be parochial and affected by local prejudice when he resolved disputes, people sought to the king’s justice in preference to that of local lords

Question 10

Why is it called ‘common’ law?

Answer 10

Common’ reflects the fact that the king’s rules applied throughout the land to all english people, regardless of the custom in their own county

Question 11

What does stare decisis (et non quieta movere) mean?

Answer 11

‘to stand by decisions and not disturb the undisturbed’

Question 12

Commission

Answer 12

a document certifying the appointment to a position of authority by the sovereign

Question 13

What is the Curia Regis?

Answer 13

King’s court; where king gathered a body of trusted advisors functioning as a general advisory body to advise king before he made decisions

Question 14

3 dispute resolving institutions divided under Curia Regis

Answer 14

Court of Common Pleas (remained in fixed place and heard disputes of commoners)
Court of Exchequer (heard disputes involving royal revenue)
King’s Bench (disputes involving the king himself or royal interests)

Question 15

What is the writ system?

Answer 15

originally, a written formal command from the king to a sheriff,the king’s representative in each county, that a person, against whom a complaint had been made, must be brought to court to answer the allegation

The writ system provided a means of organising the diverse types of disputes presented to the courts.

Question 16

Problems associated with writ system?

Answer 16

Lords stifled its development

Question 17

What is equity?

Answer 17

a body of law which, in opposition to the more rigid and formal common law, was applied flexibly according to notions of fairness

chancellor retained discretion not to grant remedy of plaintiff if deemed not morally deserving

Question 18

What is a writ?

Answer 18

a written command from the monarch that something has to be done

Question 19

What are the provisions of Oxford?

Answer 19

Promise that no new types of writ would be issued without express authorisation of council

Question 20

Trial procedures in early common law

Answer 20

punishment - resolve by appeal to divine intervention
trial by battle - god would not allow a party in the wrong to be victorious
wager of law/compurgation - party swears an oath to truthfulness of statement

Question 21

What Acts were involved in the reform of court procedure in 19th Century and what effect did they have?

Answer 21

The Factory Act 1833: prohibited employment of children under nine
Uniformity of Process Act 1832: most actions were to be commenced by a common writ only stating nature of claim in general terms
Judicature Acts: merged common law courts and Court of Chancellory to form Supreme Court of Judicature (concurrent admnistration of Common law and equity)

Question 22

What was the Magna Carta’s purpose, when was it signed and what were the 4 main clauses?

Answer 22

the ‘Great Charter’, which King John was forced by nobles to sign in 1215, restricted the king’s power in numerous respects, making it an early statement of the rule of law

Prior to this he had imposed heavy taxation burden to pay for military campaign, now no new statutes should be made without assent of commons

4 main clauses:
- the Common Pleas would be heard in a fixed place;
- justices and sheriffs would only be appointed from those who were learned in the law
- freemen would not be imprisoned or dispossessed of their property except ‘by the lawful judgement of their peers or by the law of the land’
- justice would be neither delayed nor denied

Question 23

What was the bill of rights? What year was it passed? What were its main clauses?

Answer 23

Bill of Rights 1689 was an act that settled the basis in which Mary and William took the throne

Main clauses:
- crown could not suspend operation of law
- taxation could only levied with consent of parliament
- forbid standing army in England
- parliamentary debates couldn’t be called into question by monarch
- crown ought to be summon Parliament regularly

Question 24

What was the act of settlement? What year was it passed?

Answer 24

The act of parliament was a key step in constitutional settlement passed in 1701 which provided judges with security of tenure

Judges are independent and not subject to pressure of legislature or executive

Question 25

What is the separation of powers? What are the 3 main bodies?

Answer 25

Parliament/legislative: makes laws
Judiciary: adjudicates laws
Executive: administers laws

The legislature and executive overlap as PM and relevant minsters are members of parliament and executive in Australia

Question 26

Cooper v Stuart

Answer 26

In Cooper v Stuart (1889) it was held that Australia was Terra Nullius at the time of annexation and land was treated as settled rather than conquered or ceded

Question 27

What is parliamentary sovereignty?

Answer 27

Parliament can legislate on any subject matter
No parliament can bind a later parliament
No court or other person can override legislation

Legislature has absolute supremacy over the government bodies where there is conflict, legislation overrides an judge made/common law

Parliament’s have the power to alter and repeal legislation

Aus constitution states concept of ‘ultra vires’ (‘beyond the powers’) in which High Court can overrule certain legislation if it is deemed unconstitutional

Question 28

What is responsible government?

Answer 28

Cabinet that runs executive is responsible to government and must act in peoples best interests

Question 29

Australian Courts Act date and purpose

Answer 29

Asserted in statute that english law was received by colonies in 1828
Stated that all laws acted before 25th July 1828 were followed if they were by paramount force (intended for Australian convicts)
Issues with repugnancy as each colony was not able to make laws that were against British Law

Question 30

Colonial Laws Validity Act date, purpose and three main clauses

Answer 30

Colonial Laws Validity Act 1865 - state parliaments and courts are free to alter received UK law but didn’t have plenary power i.e couldn’t enact laws extending beyond the boundaries of states and couldn’t alter or repeal UK statutes of paramount force

any colonial law that was repugnant to an English Law that was operated by paramount force was deemed ‘void and inoperative’

main clauses:
1) possibility of enactment of local (colonial) laws contrary to ordinary UK laws
2) Could alter laws before 25th July by local legislature
3) English parliament placed a restrain on colonial legislatures ability to make or change laws

Question 31

When was Australia federated what Act was responsible for this?

Answer 31

Australia was an independent state as of 1 January 1901
The Commonwealth of Australia Constitution Act 1900 (Imp) provided for federation but Commonwealth and State parliaments were still subject to CLVA restrictions

Question 32

When was the Statute of Westminster (UK) and what was its purpose?

Answer 32

Statute of Westminster 1931 (UK) granted full legislative independance from the UK removing restrictions on Commonwealth Parliament under the repugnancy doctrine

Question 33

s 2 statute of westminster 1931

Answer 33

Repealed that last vestiges of repugnancy doctrine as contained CLVA 1865 would no longer be held void on the grounds that they were inconsistent with english law

Question 34

s 3 statute of westminster 1931

Answer 34

Formally conferred upon the dominion parliaments the power to make laws of extra-territorial application (laws that could apply outside country’s own borders)

Question 35

When was the Australia Act created and what purpose does it serve?

Answer 35

Australia Acts 1986 severed Australia’s legislative links with the UK, removed limitations on powers on State Parliaments from 1865 and abolished privy council appeals

Question 36

What is the Australian Constitution and what year did it come into effect?

Answer 36

Australian Constitiution Act 1900 (UK) establishes federal system of government (Commonwealth and State parliament)

confers power on 3 bodies (legislature, judiciary and executive)

underpins fundamental principles of responsible government

Question 37

Australian constitution s 51

Answer 37

Covers the major areas in which the Australian Parliament can make laws and its enumerated powers - majority of laws are concurrent

Question 38

Australian constitution s 52

Answer 38

Exclusive powers of federal parliament; can make legislation to things states can’t do but commonwealth can
(provides residual powers not listed under s 51)

Question 39

Australian constitution s 92

Answer 39

Must allow free trade amongst states (within commonwealth)

Question 40

Australian constitution s 106

Answer 40

All state constitutions are preserved e.g. victoria can only make laws for victoria, states constitutions are ultimately subject to the Cwth Constitution.

Question 41

Australian constitution s 109

Answer 41

Commonwealth law prevails over state law when they are inconsistent

Question 42

Australian constitution s 116

Answer 42

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion

Question 43

What is the victorian charter of human rights?

Answer 43

Charter of Human Rights and Responsibilities Act (VIC) 2006 is designed to protect human rights and protect abuses of power listing 20 basic human rights

The Act is not constitutionally entrenched - can easily be amended or repealed

Question 44

Victorian Charter of Human Rights and Responsibilities S 33

Answer 44

If in court or tribunal question of law arises relating to application of this charter it can be referred to Supreme Court

Question 45

Victorian Charter of Human Rights and Responsibilities s 32 (1) and (3a)

Answer 45

(1) Rights favourable interpretation: if there is an ambiguous legislation, courts should prefer the interpretation that does not infringe on human rights

‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’

(3a)
This section does not affect the validity of an Act or provision of an Act that is incompatible with a human right;

Question 46

Victorian Charter of Human Rights and Responsibilities s 36

Answer 46

Supreme Court Victoria can make a declaration of inconsistent interpretation: law is fundamentally incompatible with the protection of human rights under the charter

Question 47

Momcilovic v The Queen

Answer 47

Drugs found in Momcilovic’s apartment
S5 required proof of not posessing drugs
Court made decision of inconsistent interpretation

Concerned the rights-compatibility of a classic reverse onus provision in the Drugs, Poisons and Controlled Substances Act 1981 (Vic) („Drugs Act‟).

Under s 5, “any substance shall be deemed to be in the possession of a person so long as it is upon any land or premises occupied by him…unless. The person satisfies the court to the contrary”

S 25(1) of the victorian charter: a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law

The Court of Appeal had to consider whether the reverse legal burden in s 5 imposed an unjustifiable limitation on Momcilovic’s right to the presumption of innocence under s 25(1) of the Charter

Considered whether the rights incompatibility could be remedied through interpretation under s 32(1), which provides that all
statutory provisions must be interpreted in a way that is compatible with human rights.‟

SCV could not find a rights favourable to interpretation and held it infringed presumption of innocence (s. 36 2)

If such an interpretation was not available the Court of Appeal had to consider whether to issue a declaration of inconsistent interpretation under s 36(2) of the Charter.

Question 48

1967 referendum amendments

Answer 48

Sought to repeal s 51 AC altered - “other than aboriginal race”
Deleted s 127 AC - “in reckoning the numbers of the people of the commonwealth…aboriginal natives shall not be counted”
Sought to give commonwealth government power to make decisions
Deleted s 56 s 2 AC
Did not give aboriginal people the right to vote

Question 49

Mabo v Queensland (No 2) 1992

Answer 49

• recognised that Indigenous Australians do not hold native title
• overturned the doctrine of terra nullius (land belonging to no-one) on which British claims to possession of Australia were based
• this recognition inserted the legal doctrine of native title into Australian law.

Question 50

Natural law theory

Answer 50

“An unjust law is not a law”

Question 51

Legal positivism

Answer 51

Bentham and Austin and Kelson developed the legal positivist theory on the basis of law as it is not as it ought to be - laws are of a social construct and depends on social facts not its merit

Question 52

Natural law theory

Answer 52

Attempts to create man made rules that conform to ideas of goodness, righteousness and morality
Rules that do not abide by just and moral standards are not law, so we are not obliged to follow them
“an unjust law is not a law” - cicero

Question 53

What is feminist jurisprudence?

Answer 53

Argues that law is imbued with masculine perspective and privilege and how male dominance is embodied in the law

Question 54

liberal feminism

Answer 54

law treats men and women differently when it should treat them the same (sameness feminism), law can treat women and men the same when it should treat them differently

Question 55

4 strands of critical legal theory

Answer 55

how do we think about the law and is it detached from social, political, economic and historical context?

1. legal materials do not completely determine the outcome of legal disputes
2. All law is politics
3. Law tends to serve the wealthy and powerful
4. people are determined in large part by social and political structures that surround them

Question 56

Conquered v Ceded v Settled

Answer 56

Conquest: won by war or dispute, not given but taken
Ceded: through treaty or agreement
Settlement: assumed no preexisting indigenous legal system

Question 57

Case of prohibitions del Roy 1607

Answer 57

The king may sit in the Kings Bench but the court gives them judgement, he cannot adjudge any case

Question 58

What does the adversarial system mean? How does inquisitorial system differ?

Answer 58

• conduct of litigation is left substantially in hands of parties (prior and during)
• evidence is generally elicited by procedure whereby party in turn calls witnesses whom it questions
• role of judge is to preside, acts as a form of umpire
• compliance with rules of court is enforced only at request of one of the parties

WHEREAS
- in inquisitorial system judge plays more of an active role

Question 59

Victorian Charter of Human Rights and Responsibilities S 33

Answer 59

If in court or tribunal question of law arises relating to application of this charter it can be referred to Supreme Court

Question 60

Who appoints state and federal judges?

Answer 60

State judges: appointed by Governor in Council on recommendation of state minister
Federal judges: appointed by Governor General on recommendation of Federal Cabinet

Question 61

How long are judges appointed?

Answer 61

Judicial terms are fixed but federal judges can be removed for “proved misbehaviour or incapacity” by parliament (s72 Aus constitution)

Federal judges must retire at age 70 (s72 Aus constitution)

Question 62

What is judicial independance?

Answer 62

Judges not subject to external pressures
Provisions guarantee security of tenure
Judges are immune from civil and criminal liability

Question 63

Current justices of high court

Answer 63

The Hon Susan Kiefel CJ, Steward J, Jagot J, Gordon J, Stephen Gageler Gleeson J, James Edelman

Question 64

How does a bill become an act?

Answer 64

lower house –> upper house –> royal assent

• initiation (formality)
• first reading (formality)
• second reading (purposes,principles and effect of bill)
• explanatory memorandum (reasons for bill and provisions)
• second reading debate stage (merits of proposed law)
• vote is made
• third reading is a formality
• bill is sent to upper house
• after both approve GG signs on behalf of queen

Question 65

Interpretation of legislation act s10A (1,3,4)

Answer 65

(1) IF an Act provides for act to come into operation, act confers power on Governor in Council to fix by proclamation published in Government Gazette a day for it to come in operation

(3) If an act makes no provision for the commencement of a particular provision, act must be taken to provide for the provision to come into operation on a day to be proclaimed or first anniversary of passing of act - whichever is earlier

(4) If an act makes no provision for commencement of act or of more than one provision for act, act must be taken to provide for the act or those provisions to come into operation on days to be proclaimed, first anniversary of act (whichever is earlier)

Question 66

What section of Aus constitution must be amended for First Nation Voice to parliament

Answer 66

s 128 constitution

Question 67

What is race power?

Answer 67

Commonwealth’s power to legislate with respect to the people of a particular race

Question 68

What did the Aboriginal Land Rights (NT) Act 1976 allow?

Answer 68

Allowed blocks of land in NT to be granted to land trusts if land ownership could be proven

Question 69

Compensation for extinguishment: The timber creek decision

Answer 69

High Court held that under the National Titles Act, compensation for the diminution of native title rights has three components; economic loss, interest on economic loss and cultural loss

Timber creek decision assessed compensation for cultural damage associated with extinguishment

Question 70

What is the doctrine of precedent or stare decisis?

Answer 70

Common law decisions that bind certain courts to follow previous decisions when material facts are similar

Decisions reached in certain courts create principles tthat guide decision making of lower courts

Promotes certainty because law follows clear guide for conduct of individuals based on the hierarchy of courts
Seeks to achieve equality by treating like cases alike
Promotes appearance of justice by creating impartial rules of law not dependant on biases

if an inferior court fails to observe doctrine superior court will correct its decision on appeal

stare decisis = ‘stand on what has been decided’

Question 71

What is ratio decidendi?

Answer 71

reason for a decision in a case; judge’s decision on material facts that is binding in lower courts

Question 72

What is obiter dicta?

Answer 72

Legal principle expounded by a judge ‘in passing’ which is not necessary to judge’s decision in case and is not binding
Usually hypothetical

Question 73

Commonwealth court hierarchy

Answer 73

High Court of Australia
Full court: Federal court, Family court
Federal Court of Aus, Family Court of Aus
Federal Circuit Court

Question 74

Victorian State Court Hierarchy

Answer 74

High Court of Australia
Court of Appeal: Supreme Court of Vic
Trial division: Supreme Court of Vic
County Court of Victoria
Magistrates Court of Victoria
VCAT, Coroners Court, Children Court of Victoria

Question 75

Whose decisions can the high court overrule?

Answer 75

High court has power to overturn decisions of all other courts in Australia
Its rationes are binding on all Australian Courts
Single high court judge is not bound by decisions of earlier single High Court Judge
Full court of the high court is not bound by its own precedents

Question 76

Ways to avoid precedent

Answer 76

Distinguish
Statement is obiter
Statement of law too wide
Changed social conditions
Precedent is wrongfully decided/unsatisfactory

Question 77

2 functions of court hierarchy

Answer 77

establishes avenues of appeals
determines which precedents are strictly binding

Question 78

How many judges usually appear at appellate level?

Answer 78

Approx 7 judges at high court

Question 79

Who makes final decision in an equally divided court?

Answer 79

Usually chief justice decides
In victoria, decision is in accordance with opinion of senior judge of appeal unless appeal is heard by a full court constituted by two judges (must be reheard by court of appeal with more than two judges)

Question 80

Per incuriam

Answer 80

they are given ‘in ignorance or forgetfulness’ of a legislative provision inconsistent with the decision or of a precedent which is binding on the court that made decision

Question 81

Farrah constructions 2007 case

Answer 81

it was stated that courts of appeal in one state or territory should no depart from the decisions of a court of appeal in another state or territory unless they are convinced that the other decision is ‘plainly wrong’

Question 82

Farrah constructions 2007 case

Answer 82

it was stated that courts of appeal in one state or territory should no depart from the decisions of a court of appeal in another state or territory unless they are convinced that the other decision is ‘plainly wrong’

Question 83

Are house of lords court decisions binding?

Answer 83

No, highly persuasive only

Question 84

who can make a proposal for legislation?

Answer 84

Government
Cabinet
Law reform commissions
Lobby groups

Question 85

Delegated legislation

Answer 85

Made by a person or body that is authorised by parliament to do so

Authorised by statute rather than passed by parliament

Question 86

Sunset clause

Answer 86

clause in legislation that states it automatically repeals/ceases to have effect after a number of years (generally 10)

Question 87

Value or weight of legislative rules (3 principles)

Answer 87

1st principle: later statute inconsistent with earlier Act on same topic in same jurisdiction repeals earlier law to extent of inconsistency

2nd principle: act or statute takes precedence over subordinate laws on same topic unless parliament specifically provides to the contrary (Henry VIII clauses: provide executive with power to use delegated legislation to override primary legislation)
3rd principle: legislation made by commonwealth prevails over inconsistent legislation on same topic made by state parliaments

Question 88

What are the 2 key federal bodies that scrutinise policy proposals leading to legislation and government expenditure

Answer 88

Parliamentary Budget Office PBO - ensures policies are properly costed before being made public
Senate legislation committees - financial accountability

Question 89

Commencement of statutes in commonwealth and states

Answer 89

Comm: 28 days after date of GG’s assent unless otherwise specified by Act
Vic: commences on the day specified in either act or proclamation

Question 90

Omnibus legislation

Answer 90

Act which amends a number of other acts