section 2 syllabus Flashcards
What are the primary sources of contemporary Australian law?
Contemporary Australian law is derived from common law (court-made law), statute law, and the Australian Constitution
What is common law and how did it originate?
Common law is law developed by courts, originating in Britain. After the Norman Invasion in the 11th century, judges were sent around the country to administer a uniform set of laws. Their decisions set precedents for later cases. Common law is distinct from courts of equity.
What is equity and how does it relate to common law?
Equity is a body of law that supplements the common law to correct injustices by judging each case on its merits and applying principles of fairness. For several hundred years, England had two parallel legal systems: common law and equity. King James I decided in 1620 that equity decisions would prevail where conflicts arose.
What is precedent (stare decisis)?
Precedent is a judgment made by a court that establishes a point of law. It ensures fair treatment and consistent development of the law. The ratio decidendi (legal reasoning) of a higher court sets a binding precedent on lower courts, while obiter dicta (other remarks) are not binding. Superior courts may consider persuasive precedents from lower courts.
What is the adversarial system of trial?
The adversarial system is a system where two opposing sides present their cases to an impartial judge or jury, aiming to ensure fairness between the defense and the prosecution. Each party can seek a lawyer, present arguments and evidence, and cross-examine witnesses. Criticisms exist regarding potential imbalances in resources, skills, or knowledge.
How does the inquisitorial system differ from the adversarial system?
In an inquisitorial system, the court (e.g., a judge) actively participates in conducting the trial and determining what questions to ask. This system is used in countries with civil legal systems
How is the court system structured in Australia?
Australia has two overlapping jurisdictions of law: state and federal. The court hierarchy includes lower courts, intermediate courts, and superior courts. All courts have original jurisdiction (the power to hear a case for the first time), and some have appellate jurisdiction (the power to hear appeals)
What is the difference between summary and indictable offenses?
A summary offense is a criminal offense dealt with by a single judge without a jury and does not require a preliminary hearing (e.g., obstructing traffic). An indictable offense is a serious criminal offense requiring an indictment (formal charge) and a preliminary hearing, typically tried before a judge and jury, and subject to greater penalties (e.g., assault, murder).
What is statute law and what role does Parliament play?
Statute law is law made by parliament. State parliaments and the Federal Parliament are bicameral, with an upper and lower house. In NSW, the lower house is the Legislative Assembly, and the upper house is the Legislative Council. At the federal level, the lower house is the House of Representatives, and the upper house is the Senate.
What is the role of ministers and the Cabinet?
Ministers are government members with special responsibility for particular departments. The Prime Minister (federal) or Premier (state) offers them their position. The Cabinet, composed of senior government ministers, makes decisions on policy and laws for parliamentary consideration.
What is the role of the Executive Council?
The Executive Council, made up of the Governor or Governor-General and selected ministers, puts legislation into operation.
What is delegated legislation?
Delegated legislation is law made by non-parliamentary bodies. It involves “less important” laws that parliament delegates to government bodies or local councils. By-laws made by local councils are an example.
What is the Australian Constitution?
The Australian Constitution is a plan outlining rules on how Australia is governed, commencing on January 1, 1901. It protects all Australian citizens, supports the rule of law, and requires a referendum to be changed.
How does the Constitution divide powers between the Commonwealth and the states?
Section 51 of the Constitution specifies the legislative powers of the Federal Parliament, while Section 109 states that Commonwealth laws override any inconsistent state laws
What is the separation of powers?
The Australian Constitution provides for three branches of power: the legislature, the executive, and the judiciary. This ensures checks and balances, preventing any one branch from abusing its power and protecting civil liberties. The judiciary’s independence is a key feature of the separation of powers in Australia.
What are the roles of the legislature, executive, and judiciary?
Legislature: Responsible for drafting, debating, and voting on new laws, and amending existing laws. It is a bicameral system.
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Executive: Made up of government ministers and the Governor-General. The Cabinet implements laws passed by parliament and oversees government agencies.
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Judiciary: A system of judges and federal courts that interprets the law. Judges must be independent, impartial, and free from external pressures
What is the role of the High Court?
The High Court is the highest court in Australia, with seven judges. It has original jurisdiction in cases concerning the interpretation of the Constitution and the constitutional validity of laws. It also has appellate jurisdiction, dealing with appeals from lower courts. Its judgments are final and conclusive
What is judicial review?
The High Court exercises judicial review when it decides whether a particular law is constitutionally valid
What is the rule of law?
The rule of law means that the use of power must be lawful, equally available to all citizens, and can be challenged
