Part A Flashcards
Parliament
- Creates statue law also known as legislation, statue or an act of parliament
- Two types = Federal and State
- main source of law “supreme”
- Federal = bicameral (senate and house of representatives)
- can make laws on any topic
- QLD = unicameral (Legislative assembly)
- process of making law = 7 steps
Courts
- create common law (only before the cases before them)
- laws made by judges in court also known as judge made law/common law/case law
- process of lawmaking is judicial precedence
- court hierarchy (magistrate, district, supreme: original jurisdiction, supreme court of appeal and High)
- Create common law and binding persuasive on lower courts
- Civil + criminal cases
- fill in gaps in statue + make laws on controversial topic
Lawyer
The general term for a legal practitioner; may be a barrister or a solicitor
Bill
A drafted law which has not yet been passed through Parliament or received royal assent
Common law
The body of laws made through decisions of the courts - as distinct from statue law; also referred to as judge made law or case law
Judge
The senior officer presiding in the District, Supreme or higher courts
Magistrate
The judicial officer presiding in the Magistrates court
Obiter Dicta
Literally means ‘by the way’; words used by a judge which are other comments or opinions and may be persuasive but are not binding on other courts
Ratio decidendi
Literally means “reason for decision”; it is confirmed to the reasoning of the judge that is essential to the decision in the case and becomes the binding precedent
Referendum
The process of changing the Constitution by a public vote known as a “double majority”
Senate
The upper house of the federal parliament (also referred to as the Upper House)
Legislative assembly
The lower house of State Parliaments
Beyond Reasonable Doubt
The standard proof required to prove a criminal case
Precedent
A decision made in a court which become part of the common law and is required to be followed by other courts that are equal or lower in the heirarchy if the facts of the case are substantially the same
Customs
Socially acceptable habits or norms
Rules
Regulate our lives in a more formal manner than norms. They are specifically stated, often in written form and consequences given is broken. Only binding on members of the group the made the rules
Laws
Three features
- Authority - no one person can decree that a rule is a law. Authority to make laws in Australia rests solely with parliament and in some case with law courts. Unless validly made it will not be recognised and enforced by the courts.
Statue law
Law made by parliament (also known as legislation or an act of parliament)
Judicial Precedent
The process by which judges make common law when judges are obliged to follow the decision of earlier cases in equal or higher courts when the factual circumstances are essentially the same.
Parliament
A forum where the elected representatives of the people meet, plan, deliberate upon and review the government of the Country OR state. The three divisions of Parliament are Executive, judiciary and legislature
Electorate
The area represented by one member of Parliament who is voted in the citizens of this area
Court Hierarchy
A way of structuring courts into different levels, jurisdictions and areas of responsibility based on an area of law, geography and monetary factors
Constitution
A set of rules by which a country is run
Jurisdiction
The authority of a court to act in a legal matter
Demand for Change
The first step in the parliamentary act in a legal matter
Separation of Powers Doctrine
The principles established under the Australia Constitution 1901 to distribute power to govern between the Parliament, The executive and Judiciary
Legislature
Who? GG/PM/Parliamentarians/151 electorates (voted in elections by citizens)
Role? Create law on any issue
Executive
Who? GG/PM/cabinet ministers/Police/armed forces
Role? Enforce/administer law
Judiciary
Who? Judges (appointed by executive)
Role? Interpret law only on cases before them
Court Hierarchy (lowest - highest)
Magistrate, District, Supreme Court: Original Jurisdictition, Supreme Court of appeal: appellate jurisdiction, High Court
High Court Criminal Cases
Appeals
Supreme Court of appeal Criminal cases
Appeals from lower court
Supreme Court (original) Criminal cases
- Murder
- any indictable offence with a penalty of imprisonment over 20 years
Supreme Court (original) Civil cases
Civil claims over $750,000 (e.g. breach of contract, negligence)
District Criminal Cases
- Rape, Arson
- any indictable offence with a penalty up to 20 years
District Civil cases
Civil claims between $150,000 - $750,000 (e.g. breach of contract, negligence)
Magistrates Criminal Cases
- Criminal offence with a penalty up to 3 years imprisonment
- Simple offences E.g. drink driving, shoplifting, possession of illegal firearms.
Magistrates Civil cases
Civil claims up to $150,000 (e.g. breach of contract, negligence)
Order for making a law
Before the introduction of bill in a parliament, Introduction and first reading, Committee stage, Second reading, Consideration in detail, Third reading and Royal assent,
Before the introduction of a Bill in parliament
- The need for a new law is identifies (by community), Cabinet grants Minister Authority to prepare a Bill.
- A bill is prepared (a proposal written down in the form of an act)
Committee stage
The committee (made up of parliamentarians + experts) takes up to 6 months to consider the bill and prepare a report
Second reading
- Report is tabled in parliaments.
- Minister makes a speech outlining reasons for bill + responding to report + debate + question time
Consideration in detail
Parliament considers every section of the bill + vote (if yes)
Third Reading
The clerk reads the title for a third and final time. The bill is passed by a majority vote.
Royal Assent
The Governor or Governor general signs off the bill. Bill becomes an Act of parliament (law, legislation, statue)
Queensland Court Structure
Magistrate, District, Supreme Court, Court of appeal and High Court
Differences between customs, rules and laws
- consequences of breaking laws are more severe than rules
- anyone can make a custom where as the parliament and courts can only make laws
- rules are only binding on those in that organisation whereas laws are made for everyone to follow
Changing the constiution
Proposal - A bill is passed in parliament - proposal put to the people - double majority vote (majority 1 & 2) - change in the constitution - royal assent
Proposal
can come from a range of different sources in the community - parliament, a constitutional convention, parliamentary committees and pressure groups
A bill is passed
Both houses of Federal Parliament must vote FOR the proposed change to the constitution
Proposal put to the people
For two to six moths after the bill is passed, the public is informed about the details of the proposal
Double majority vote 1
More than the majority of eligible voting citizens (18+) in ALL of Australia (states + territories) vote yes
Double majority 2
AND majority of eligible voters in 4/6 states (8/44 bills have been successful)
Change in the constitution
The wording of the constitution is changed
Royal assent
The bill changing the wording of constitution, goes to the Governor-General for royal assent
Higher courts bind on the lower courts
True
Both ratio decidendi and the obiter of a precedent are binding precedent
False - only ratio decidendi is binding
The ratio decidendi is the judge’s reasons for the decision which may be binding or persuasive precedent
True
Judges cannot avoid following binding precedent in any circumstances
False - if the facts are substantially the same
Queensland courts are bound by decisions made in other state jurisdiction is no Queensland precedent can be applied
False - can be persuasive
The high court of Australia is the highest court in the land
True
The Hugh court of Australia makes decisions that require interpretation of the constitution
True
All courts are bound by their previous decisions
True - when facts are substantially the same
Obiter dicta are the other opinions or comments of the judge which are not binding precedent
True
The doctrine of precedent
- the doctrine of precedent requires judges to follow the earlier decisions of cases in higher courts when the factual circumstances are essentially the same
- The legal system uses the doctrine of precedent to ensure that the outcome of trials are fair and consistent
- Precedent can be either binding or persuasive
- Binding precedent means that the earlier case must be followed.
- Persuasive precedent means that the earlier case my be followed
An earlier decision is binding on a court when
- the facts of the case are essentially the same
- the decision was made by a higher court
- the higher court is in the same heirarchy
An earlier decision of a court of lower, equal or higher rank is persuasive to a court
- the facts of the case are essentially the same
- there are no relevant binding precedents
- the decision was made by a court in the same court hierarchy
MODEL RESPONSE + QUESTION
A magistrates courts is deciding a case. Relevant legal principles were decided by the Supreme Court recently: are these principles binding or persuasive on the Magistrates court
Relevant legal principles by the supreme court are binding in the magistrates court because it is higher in the court hierarchy and the facts of the case are substantially the same.
Ration decidendi
- binding
- The ratio decidendi is that part of the reasons for the decision that relates directly and specifically to the particular law or facts of the case.
- It is the ratio that makes the decision a binding precedent for the future
Obiter Dicta
- not binding
- is that part of the reasons for the decision that includes an additional observation made by a judge about the law generally.
- it does no relate specifically to the particular facts of the case.
- While obiter is not binding, it may be persuasive in later cases
Deciding Ratio and Obiter in a scenario
The court is dealing with the case mentioned in the How precedent is used in practice handout. The courts decides that because the man feared for his safety and did not use excessive force, he is not guilty of assault on the grounds of self defence. However, the court added that if the man had used much more physical force, or used a gun, this may have been excessive force, and he may not have been able to claim self defence.
Ratio - because the man feared for his safety and did not use excessive force, he is not guilty of assault on the grounds of self defence.
Obiter - if the man had used much more physical force, or used a gun, this may have been excessive force, and he may not have been able to claim self defence.
High Court Civil cases
- Appeals
- Disputes between Commonwealth and States and Territories
- Interpreting the constitution
Supreme Court of appeal Civil cases
-Appeals
