sources of contemporary aus law- common law Flashcards
where did Australia’s legal system come from?
the British legal system- evoked from common and statue law
what are some qualities of the adversarial system?
system of resolving legal conflicts- relies on skill of representatives (defence and prosecution lawyers) to present case in court (imperial judge)
what is an imperial judge?
listens to evidence presented by both parties and make a decision (adversarial system)
what are some qualities of an inquisitorial system?
where the members of court (judge) is actively involved in conducting trial and determining what questions to ask
doctrine of precedent (stare decisis)
similar cases are treated with similar consequences.
what is ratio decndedi?
legal reasoning/ set precedent
obiter dicta
other comments on the case
what are some considerations of judge when making a decision?
- legal principals
- similar cases
- social developments
- common sense
- the legislation
what is a binding precedent?
lower courts must follow precedent of higher courts or previous judgements made in same court
what is persuasive precedent?
higher courts don’t have to follow precedent of lower courts
what are summary offences?
minor offences –> dealt with by single judge without jury
what are indictable offences?
serious criminal offences the require indictment and preliminary hearing –> trial before a judge and jury, greater penalty
what is original jurisdiction?
hear case for the first time
what is appellate jurisdiction?
final court of appeal from state and territory courts
what is civil jurisdiction?
value of money in statement of claim
what is criminal jurisdiction?
type of criminal matter court can hear
what is statue law?
made by parliament
what is the structure of parliament?
bicameral system –>laws passed through both houses
senate- upper house
house of representatives- lower house
what is delegated legislation?
gives subordinate bodies (councils) power to pass rules, regulations and by-laws
what is the division of powers?
divides power between states and commonwealth
what is the separation of powers?
legislature (parliament)- law makers
judiciary (courts)- administer law
executive (PM, ministers)- put laws into effect
what is the role of the high court?
- ensure governments acts within commonwealth constitution
- allow for appeal from decisions of lower courts in states and territories
what are customary laws?
procedures that have developed through general usage as of the customs of people or a nation
what are ATSI customary laws made up of?
spiritual basis significance of land and water family and kinship rituals and oral traditions mediation and sanctions
what is the relevance of ATSI customary law to Australian contemporary law
- greater legal recognition of TSI community as the traditional land owners (mabo v qld case)
- customary laws taken into account when ATSI people are charged with a crime
what are some differences between domestic law and international law?
domestic law
-made by parliament
-effects all citizens within dom jurisdiction
-must be followed
-dom court hears matter
-enforced by various agencies
international law
-made by legal writings, customs or treaties
-influences law in all signatory nation states
doesn’t need to be followed word for word
limited enforceability.
what is state sovereignty?
right for a state to have control inside own borders
what are international customary laws?
developed over time and requires constant practise to be considered a law
define declaration
formal statement of parties position on an issue-not legally binding
define treaties and the different types
international agreement concluded between states in written form
- bilateral- between 2 nations on common security and respective national security
- multilateral- between many nations. more signs = more power. make specific laws
define parts of the legal decisions and writings
decisions- ICJ deals with disputes between nations over treaties
writings- respected writings of lawyers, judges, respected participants of world affairs
role of the UN
maintain global peace and security by discussing recommendations on operations
what is the role of the ICJ?
deals with issues between countries (mediator)
what is the role of the ICC?
handles war crime, genocide, crimes against humanity
what are intergovernmental organisation?
organised groups of nation states
discuss responsibilities like refugees, tariffs, wealth
shat are non-governmental organisations?
based on common interests and aims
unofficially contribute to world peace, human rights
