legal - term 1 Flashcards
What is precedent?
Judgements that become authority for legal principles and provide guidance for similar cases.
Define concurrent power
Powers shared between the Commonwealth and state governments.
Environmental protection
Taxation
Health and hospitals
- Federal governemnt adminsisters medicare
- State governements fund and operate hospitals
What does the Federal Circuit Court of Australia deal with?
Civil disputes governed by federal law and summary criminal offences.
It shares jurisdiction with the family court and the federal court of Australia, matters can be transferred between these courts depending on the circumstances.
Federal circuit court of Australia: → no criminal matters are heard. → same court hierarchy as the supreme court.
Established by the federal court of Australia act 1976 (cwth). The circuit court deals with civil disputes governed by federal law.
✅ Unfair Dismissal Claims – An employee is fired and takes their employer to court under the Fair Work Act 2009 for unfair dismissal.
✅ Asylum Seeker Cases – A refugee applicant is denied a protection visa and appeals to the court for judicial review.
discrimintaion cases.
Family Violence – The court can issue family violence protection orders, which may relate to criminal offences.
Migration Law – Some cases involve individuals facing deportation due to criminal convictions, but the court does not hear the criminal charges themselves.
sections of the constitution
51 –> external affairs powers, which relates to the seperation and division of powers.
109 –> federal law overrides state law in regards to concurrent laws.
128 –> there must be a referendum to change the constitution.
What are customs, values, ethics and rules.
Customs: Established patterns of behaviour among people in a society.
Define values.Principles, qualities or standards considered desirable within a society.
Ethics: Rules or standards governing the conduct of a person or member of a profession.
Rules: Prescribed directions for conduct, affecting people only within those groups.
What are the charcteristics of just laws?
Enforceable
Acceptable by society
Accessible.
Discoverable by all members of society ( known).
What is procedural fairness?
The idea that there must be fairness in the processes that resolve disputes.
Define anarchy
A state of chaos and disorder resulting from the absence of laws and a government body.
What is binding and persuasive precedent?
Binding precedent:
Lower courts are bound to follow decisions of superior courts.
Persuasive precedent: When superior courts may use decisions from lower courts to assist in their own decisions.
Describe the adversarial system of law
A system where two parties compete to win, each acting as an opponent, with an independent third party.
What is the inquisitorial system of trial?
A system where a judge controls evidence and the process, with less focus on legal representation.
- more than two side, expert witnesses, investigative judges
- victims, expert witnesses.
What is the role of courts in Australia?
To provide a forum for resolution of legal disputes between individuals or between individuals and the government.
What are some of NSW lower courts
Coroners Court
Land and Environment Court
Children’s Court
Drug Court
What is the legislative process?
A proposed law called a bill must be approved by both houses and the governor-general.
What is delgated legislation as well as the advantages and disadvantages. TYpes
Regulations: laws made by the government by the governor-general, state governors or members of the executive council.
Ordinances: Laws made for Australian territories.
Rules: Legislation made for government departments, usually by the department involved.
By-laws: Laws made by local councils → restricted to the area governed by that council.
Legislation made by non-parliamentary bodies for less important laws.
Expertise of those making it
Flexibility for amendments
Frees parliamentary time
Lack of time for parliamentary review
Potential inconsistencies
Minimal public awareness
What is the Australian constitution?
A document outlining the rules for the governing body of a nation.
What are exclusive, residual and concurrent powers and what are related to? Examples of each
Exclusive: Powers exercised solely by the Commonwealth government. laws regarding commerce and trade.
- Commerce and trade with other countries.
- Defence and immigration
- Foreign policy
Residual: Powers that remain with state governments.
e.g. public transport, police and ambulance services.
Concurrent:
Powers shared between the Commonwealth and state governments.
- Health and hospitals.
- Environmental protection.
All related to 51 the separation and division of powers.
Describe the seperation of powers
This process distributes the power to govern between the parliament, the executive and the judiciary. The authority is distributed between these governing bodies to ensure that the government does not become oppressive and each body provides checks and balances on each other.
Parliament - power to make and change laws.
Judiciary - Power to make judgements and interpret the law to apply it to specific cases.
Executive - To put law into action.
Describe the division of powers relating to a section of the constitution
The division of powers is the process of dividing government auhtority to ensure that they all hold appropriate jurisdiction over their respective areas. Section 51
- Prevents concentration of power
- promotes efficiency.
What is ATSI law and what is it based on?
Tradition, ritual, and socially acceptable conduct.
Australian Customary Law refers to the traditional laws, practices, and customs of Aboriginal and Torres Strait Islander peoples, which have been passed down through generations. It governs aspects of life such as land ownership, kinship, dispute resolution, and ceremonies. While not formally part of Australia’s legal system, it is sometimes recognized in areas like native title, criminal sentencing, and cultural heritage protection.
What is the walama list and the rainbow lodge?
An example of Indigenous Australian law being introduced into Australian customary law can be seen through the integration of the Walama list as restorative justice.
Focuses of rehabilitation, healing and cultural involvement rather than just punishment.
The Walama list is a court which is a specialised court program designed to provide restorative justice for indigenous individuals involved in the legal system. This court differs from the traditional Australian courts as it focuses on rehabilitation, healing and cultural reconnection as opposed to just punishment.
Key features being:
- Restorative justice approach.
- Alternative sentencing ( offenders may go to a rehabilitation centre instead of jail).
- Support from the elders of the community.
- Culturally appropriate justice
Rainbow lodge:
Restorative justice, provides help and support for those who have left prison and who do not have a support network, specifically for indigenous males.
Circle sentencing?
A process by which community leaders and a magistrate together decide on the punishment of offenders.
What is the UNSC and what are the three criticisms as well as the UN and what are the criticisms.
UNSC: Has primary responsibility for maintaining international peace and security.
They are able to investigate disputes that could lead to conflict.
–> Issuing economic sanctions against nation states to persuade them to change their policies to prevent or stop aggression.
–>Send peacekeeping troops from member states into areas where there is conflict.
The UNSC requires a unanimous vote of all five permanent members for a resolution to pass. AS a result of this veto power it may be easier to pass economic sanctions instead of violent resolution.
Criticism of the unsc:
–> “Veto power” → If one of the permanent members of the UNSC votes against a resolution it will not be carried out.
–>Outdated ( anachronistic) system.
–> Russia ( a permanent member) is openly breeching international law yet they hold an influential position in the UN.
–> The UN cannot be overruled.
–> Does not reflect a broad spectrum of cultural values evident in the world today. By introducing a Muslim nation as a permanent member this could make the Security Council a more representative body.
What is the UN?
United nations:
The United nations is an organisation made up of independent sovereign states, and has limited enforceable authority.
MOst countries are a part of the UN, However only five countries are a part of the UNSC. ( UNited nations security council).
→ There are peacekeeping organisations within the UN.
It is imperative that we have the UN.
General assembly:
Made up of representatives from all member states and is the main forum for multilateral discussion on all international matters covered by the UN. The general assembly makes recommendations on the operation of the UN.
Makes the resolutions which is then presented to the UNSC to make a decision on passing it.
What are the two decisions the icj can give.
Advisory opinion: A non legally binding decision that comes from the ICJ to help the UN determine whether a country has breached international law.
This decision is not binding to the country however it has a lot of weight to it as this decision comes from one of the worlds most important courts.
Ruling:
Binding result of the court. However, countries do not have to take this into account as they can use their state sovereignty.
Evaluate State sovereignty with reference to a case
State sovereignty is a nation’s right to refuse to participate in international laws.
FEATURES OF THE ICJ
ICJ ( International court of justice): → Deals with disputes between nation states.
There are a number of international courts which have the ability to make decisions regarding international law. The largest of these is the international court of justice.
Nation states can exercise their state sovereignty to ignore international laws. E.g Japan with the whaling, they exercised their state sovereignty and were not charged as a result although the icj creates a lot of public scrutiny towards the country.
If countries do not agree with international treaties they may be ridiculed or even experience economic sanctions.
Criticism:
Russia is a member of the ICJ yet does not fully comply with the rulings.
Australia is constantly scrutinised on our:
Treatment of refugees
The rate of criminal responsibility.
FEATURES OF THE ICC
ICC ( International criminal court) → Deals with individuals who commit international crimes.
*Genocide, crime against humanity and serious war crimes.
The international criminal court was founded by the rome statute in 2002.
Criticism:
Will only hear cases from nations which approve the Rome statute.
Russia does not recognise the ICC and is not a member of the rome statute yet Russia is a body of the UNSC when they consistently go against the rules of the UN.
Specialised courts
Specialised courts: → e.g nuremberg trial ( first ever example).
There are also specialised courts which have been set up intended to deal with disputes from particular conflicts.
E.g. Criminal tribunal for the Former Yugoslavia (ICTY) → The guy that drank poison and killed himself after he was convicted for war crimes. He was a bosnian Croat war criminal.
Criticism:
A very slow process which can take many years and many war generals and criminals will die before they are trialled.
Individuals may not want to testify against influential rulers/generals.
What are international treaties, provide examples and how are they adopted into domestic law?
CROC - Convention on the rights of the child. (1989).
To be adopted into domestic law the nation state must ratify the treaty and in Australia it must pass through the bicameral system to become legislation.
What are the role of IGO’S with examples. How do they impact Australian law.
IGO’S: Organisations which represent the governments or member nations.
The UN is the most significant of these organanisations another region based example in the european union.
These organisations have their own international laws ad regulations and some also have their own tribunals.
→ e.g. The African union suspense the membership of Guinea in December in 2008 after the overthrow of the government by a group of soldiers. CASE FOR INTERGOVERNMENTAL ORGANISATIONS.
Impact on Australian Law:
Intergovernmental organisations impact Australian law as organisations like the UN and the international criminal court will create and enforce international law. Australia will then review and have the option to ratify these international treaties and legislations to incorporate them into the Australian domestic law.
What are the role of NGO’S with examples. How do they impact Australian law.
Non- governmental organisations ( example of non-legal responses e.g. NGO and media):
Associations based on common interests, aims which have no connection to the government. These NGO’s contribute to world peace, disaster relief and enviroenmental protection. They do this by informing the public and lobbying governments to take action on issues of concern.
E.g. → Red cross, World vision, Amnesty international.
Impacts Australian law by, NGO’s can play a role in advocating for the international legal standards to be introduced into Australia. For example the human rights ngo’s may pressure the government into adopting these international standards into domestic law.
Amnesty international
Amnesty international: Global movement of over seven million people committed to defending those who are denied justice or freedom. —> HUman rights
What consists in public and private law. ( what are they all responding to)
Public Law:
- Criminal law ( individual vs State, breach of the crimes Act 1900)
Tort law ( civil wrongs):
Deals with situations in which someone ( or an organisation) breached or fails to fulfil a duty that he or she owes to someone (interfering with the rights of another person).
What are the three ways a person can seek a review of a government agency?
Internal review:
Occurs when an officer or member of an agency has made a decision that can be reviewed by someone else within the agency.
External Review: Where a person outside the agency ( administrative appeals tribunal) reviews the merits of a decision made by an agency. More serious
Judicial review: Only courts can provide a judicial review of administrative decisions. The only area a court can consider is whether a decision was lawfully, fairly and rationally made. The high court has the power to give specified remedies against unlawful actions by federal government officers.
Internal Review:
A review conducted within the same government agency by a different officer or a higher authority.
This process allows the agency to reconsider and potentially correct its own decision.
External Review:
Conducted by an independent body outside the agency, such as the Administrative Appeals Tribunal (AAT).
This review examines the merits of the decision, meaning it considers whether the decision was correct and fair.
More serious and formal than an internal review.
Judicial Review:
Conducted by the courts (e.g., the Federal Court or High Court).
Courts do not review the merits of a decision but determine whether it was made lawfully, fairly, and within the agency’s legal authority.
The High Court can provide remedies (e.g., invalidating a decision) if a federal agency acted unlawfully.
What remedies are available for a breach of a contract?
Injunction - Directs a party not to do something, in special cases an injunction can order a party to do something.
Specific performance :An order in which a court specifies the way in which the breaching party is to perform the contract. Only ordered if the amount of damages provides insufficient compensation.
What does tort law deal with.
Deals with situations in which someone ( or an organisation) breached or fails to fulfil a duty that he or she owes to someone (interfering with the rights of another person).
Nuisance
Defamation
Nuisance
Trespass
False Imprisonment
What is the rome statute (2002)
The Rome Statute (2002) is the treaty that established the International Criminal Court (ICC).
It defines the ICC’s jurisdiction, structure, and legal framework for prosecuting individuals for:
- genocide
- war crimes
crimes against humanoty.
