sources of contemporary aus law- common law

Question 1

where did Australia’s legal system come from?

Answer 1

the British legal system- evoked from common and statue law

Question 2

what are some qualities of the adversarial system?

Answer 2

system of resolving legal conflicts- relies on skill of representatives (defence and prosecution lawyers) to present case in court (imperial judge)

Question 3

what is an imperial judge?

Answer 3

listens to evidence presented by both parties and make a decision (adversarial system)

Question 4

what are some qualities of an inquisitorial system?

Answer 4

where the members of court (judge) is actively involved in conducting trial and determining what questions to ask

Question 5

doctrine of precedent (stare decisis)

Answer 5

similar cases are treated with similar consequences.

Question 6

what is ratio decndedi?

Answer 6

legal reasoning/ set precedent

Question 7

obiter dicta

Answer 7

other comments on the case

Question 8

what are some considerations of judge when making a decision?

Answer 8

• legal principals
• similar cases
• social developments
• common sense
• the legislation

Question 9

what is a binding precedent?

Answer 9

lower courts must follow precedent of higher courts or previous judgements made in same court

Question 10

what is persuasive precedent?

Answer 10

higher courts don’t have to follow precedent of lower courts

Question 11

what are summary offences?

Answer 11

minor offences –> dealt with by single judge without jury

Question 12

what are indictable offences?

Answer 12

serious criminal offences the require indictment and preliminary hearing –> trial before a judge and jury, greater penalty

Question 13

what is original jurisdiction?

Answer 13

hear case for the first time

Question 14

what is appellate jurisdiction?

Answer 14

final court of appeal from state and territory courts

Question 15

what is civil jurisdiction?

Answer 15

value of money in statement of claim

Question 16

what is criminal jurisdiction?

Answer 16

type of criminal matter court can hear

Question 17

what is statue law?

Answer 17

made by parliament

Question 18

what is the structure of parliament?

Answer 18

bicameral system –>laws passed through both houses
senate- upper house
house of representatives- lower house

Question 19

what is delegated legislation?

Answer 19

gives subordinate bodies (councils) power to pass rules, regulations and by-laws

Question 20

what is the division of powers?

Answer 20

divides power between states and commonwealth

Question 21

what is the separation of powers?

Answer 21

legislature (parliament)- law makers
judiciary (courts)- administer law
executive (PM, ministers)- put laws into effect

Question 22

what is the role of the high court?

Answer 22

• ensure governments acts within commonwealth constitution

- allow for appeal from decisions of lower courts in states and territories

Question 23

what are customary laws?

Answer 23

procedures that have developed through general usage as of the customs of people or a nation

Question 24

what are ATSI customary laws made up of?

Answer 24

spiritual basis
significance of land and water
family and kinship
rituals and oral traditions
mediation and sanctions

Question 25

what is the relevance of ATSI customary law to Australian contemporary law

Answer 25

• 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

Question 26

what are some differences between domestic law and international law?

Answer 26

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.

Question 27

what is state sovereignty?

Answer 27

right for a state to have control inside own borders

Question 28

what are international customary laws?

Answer 28

developed over time and requires constant practise to be considered a law

Question 29

define declaration

Answer 29

formal statement of parties position on an issue-not legally binding

Question 30

define treaties and the different types

Answer 30

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

Question 31

define parts of the legal decisions and writings

Answer 31

decisions- ICJ deals with disputes between nations over treaties
writings- respected writings of lawyers, judges, respected participants of world affairs

Question 32

role of the UN

Answer 32

maintain global peace and security by discussing recommendations on operations

Question 33

what is the role of the ICJ?

Answer 33

deals with issues between countries (mediator)

Question 34

what is the role of the ICC?

Answer 34

handles war crime, genocide, crimes against humanity

Question 35

what are intergovernmental organisation?

Answer 35

organised groups of nation states

discuss responsibilities like refugees, tariffs, wealth

Question 36

shat are non-governmental organisations?

Answer 36

based on common interests and aims

unofficially contribute to world peace, human rights