Sources And Types Of Law Flashcards
Why is there no National piece of legislation in relation to the mental health or criminal law in Australia?
Due to the constitution’s division of power.
What Australian system divides power between the commonwealth and the state?
The constitution
Doctrine of Separation of Powers
Power separated even at state level between executive (the government ie Rudd or Newman), legislature/parliament (house of reps and senate), & judiciary (courts).
This can happen both federally and state.
Why is there separation of power (ie doctrine of separation of power)?
So that one arm of the government cannot get too powerful.
Does Australia have true separation of power between executive and legislature?
No, as government is drawn from House of Representatives rather than elected separately.
What are the 2 sources of law in Australia?
- Legislation (aka Acts or Statutes)
2. Common Law (aka Case Law)
What are the major legislations used by mental health professionals in Qld?
- The Mental Health Act 2000 (Qld)
2. The Criminal Code 1899 (Qld)
What is Case/Common Law?
Law that has developed in the courts over a long period of time which is developed and governed by precedent - ensures consistency in a court hierarchy and application of the rules.
Precedent
A principle/rule established is previous legal cases that is either binding on or persuasive for a court in relation to subsequent cases with similar facts.
Federalism
Political conception in which a group of members are bound together by covenant (Latin: foedus) with a governing representative head.
Sovereignty is constitutionally divided between central governing authority and states.
In Australia –> 01/01/1901
Executive level
Puts the law into action –> Prime Minister and ministers
Parliamentary level
Makes and amends the law –> the Queen/Governor-General, Senate, & House of Reps
Judiciary Level
Makes judgements about the law –> High Court & other federal courts
What are the advantages and disadvantages of legislation?
Regulation ensures everyone is subject to the same rules (level playing field). It reduces risk of liability for the company (since much regulation is safety related) and protects consumers by reducing risk of harm. On the other hand it has a cost both to industry (for compliance) and the regulator (for monitoring and enforcement), and in some cases can stifle innovation.
Magistrate
Presiding judicial officer of a local court - has legal quals but not strictly a judge (i.e. not called a judge)
Summary Offence
A less serious offence that is dealt with only by a magistrate. Penalty is generally a fine or jail sentence not exceeding 2yrs. Statues that create criminal offences often specify.
Local Court Criminal Jurisdiction
Summary offences only.
Indictable offences
More serious criminal offences. Go to District/Supreme Courts before judge and jury.
Civil Jurisdiction of Local Court
Extends to matters where value of the property or the amount claimed does not exceed $60K
Civil jurisdiction of District Court
limited to amounts that do not exceed $750K with an unlimited jurisdiction in motor accident cases.
de novo appeals
Appeals heard at the District Court level from decisions made from the Local Court.
Supreme Court levels
Divisional and Appellate level
Divisional Supreme Court level
Consists of ordinary judges of the Supreme Court who deal with civil, criminal, and other matters. These judges may sit alone or with a jury.
Supreme Court specialty division examples
Admiralty, Probate, & Commercial Causes
Appellate level of Supreme Court
Consists of Court of Appeal and Court of Criminal Appeal. Normally sits as full court of 3 judges or in important cases a full bench of 5+ judges.
Stare Decisis
Doctrine of Binding Precedent
Limitations - unjust with current social conditions
Ratio Decidendi
“The reason for the decision”
Not always straightforward:
* it may be difficult to identify the ratio in the strict legal sense;
* it may be possible to state the ratio at a higher/lower level of generality;
* there may be no majority in favour of a particular ratio; and
* it may be difficult to distinguish the ratio from the obiter dicta in the case.
Obiter Dicta
“Remarks in Passing”
A legal principle expounded by a judge which is not necessary for the judge’s decision in the case
Issue Estopple or Res Judicata
“the fact has been decided”
Expresses a general public interest that that same issue should not be litigated more than once even when the parties are different.
