LAWS5000 Australian legal reasoning and methods Flashcards
What is meant by Obiter dicta?
Things said in passing, can influence persuasive precedent, can allow judges in lower courts to express their disapproval for a precedent they may have been bound by
Explain the doctrine of precedent.
- operates on the principle of stare decisis, meaning to stand by what has been decided
- courts in a lower position a court hierarchy are bound by the decisions of the courts above them in the same jurisdiction
What is the role of the AUS constitution?
The constitution outlines and allocates legislative power to the states and commonwealth, mainly in s51.
What is the separation of powers?
A doctrine that divides the system of government into different powers to avoid abuse of power. These branches are legislative, executive and judicial.
Explain the ‘rule of law’ principle.
The government is restricted by and can only act within the bounds of the law, the law is the highest authority, nobody is above the law.
What is meant by Ratio Decidendi?
that part of a judge’s decision that sets out the legal principle upon which the final decision is based. this part of a decision is binding for courts in lower hierarchy positions in cases with like fact.
What are the six threshold learning outcomes of law?
Knowledge (TLO1) Ethics and professional responsibility (TLO2) Thinking skills (TLO3) Research skills (TLO4) Communication and collaboration (TLO5) And self-management (TLO6)
What differentiates public and private law?
While Private law oversees relationships between parties in the community, establishing the rights and obligations owed in these relationship, Public law looks at this relationship but between the individual and the state as parties.
What is the difference between substantive and procedural law?
Substantive and Procedural law are methods of categorising the law.
s- legal rules that set out the rights and obligations of individuals and the state. Answers: Has the client committed a crime?
p-legal rules that regulate legal processes such as civil litigation or criminal prosecution.
Answers:Is a client entitled to a jury or appeal?
What is a case report?
A report of any length in which a judge or multiple judges express the facts, opinions and complexities of a case. This includes not only their decision but a detailed explanation of the logic and reason used to reach it
Name 4 areas of private law?
Torts
Contract
Property
Company
Name 4 areas of public law?
Constitutional
Administrative
Criminal
Taxation
Briefly describe the sources of domestic law in Australia?
Statute law and Judge made law.
Statue law descirbes laws in acts enacted by Federal and State Parliaments.
Judge made law: equity and common law
Common law – law that has evolved through judicial decision making and practice
Equity - ‘A system of law designed to furnish remedies for wrongs which were not legally recognized under the common law of England or for which no adequate remedy was provided by the common law” (from legal dictionary)
List three features of the Adversarial legal system.
- Role of the judge is to preside and to act as a form of an umpire rather than to take any active part in the trial.
- Court proceedings run by parties, generally including Compliance with the rules of court
- evidence collected independently by parties and cross-examined in court
- usually one continuous hearing
List three features of the civil law system.
- Inquisitorial role of the judge as active party
- Hearing at various stages
- Accessibility of the law
- System of adjudication aspires to deliver justice
