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Legal Studies > Sources of Contemporary Australian Law > Flashcards

Sources of Contemporary Australian Law Flashcards

1
Q

The role of a tribunal

A

To hear specific matters, in an informal and inexpensive manner

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2
Q

Types of court jurisdiction

A

Geographic, monetary and law classification

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3
Q

What is the purpose of precedent?

A

To establish ‘common law’ across a jurisdiction, creating consistency.

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4
Q

What are the three ways in which courts make law?

A

Interpreting legislation, filling gaps in legislation and creating common law in the absence of legislation.

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5
Q

Interpretation of legislation - Example

A

Tasmanian Damming Case (External Affairs Power)

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6
Q

Filling gaps in legislation - example

A

Criteria for separation

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7
Q

Creating common law - example

A

Mabo case - recognising native title

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8
Q

Precedent

A

Benchmarks set by higher courts which apply to lower and equal courts (except the High Court)

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9
Q

Adversarial system of trial

A

Two opposing sides present their case to an impartial decision maker

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10
Q

Inquisitorial system of trial

A

The court engages in a ‘fact-finding’ mission, asking questions and finding witnesses etc.

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11
Q

Give the three definitions of Common Law

A

Court-made Law
A system of court-based law used in the UK (& some former territories)
Law developed by the courts of common law (not of equity)

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12
Q

What was the purpose of the travelling judges in England?

A

To unify the application of the King’s Law

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13
Q

Equity

A

Treating everyone fairly according to their circumstances

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14
Q

Ratio decendi

A

The legal rationale behind a decision

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15
Q

Obiter dicta

A

Other remarks by a judge about the conduct of a trial which do not set legally binding precedent.

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16
Q

When does precedent not have to be followed?

A

When it persuasive (ie. international precedent, obiter dicta)

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17
Q

Court of equity

A

Hears matters related to monetary compensation

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18
Q

Traditional court of equity

A

Heard appeals that decisions by the common law system were unfair

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19
Q

Court of common law

A

Hears any matters not related to monetary compensation

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20
Q

The Roles of the Federal Court

A

Anything that breaches federal law, ie. copyright, human rights
Complex matters relating to industrial and administrative law
Civil disputes governed by federal law

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21
Q

The Roles of the Family Court

A

A specialist court
Deals with complex family law matters, ie. divorce cases parenting orders
Has an appeals division

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22
Q

The Roles of the Local Court

A 
Summary offences
Committal hearings
Magistrate presiding
95% of all cases
Civil disputes up to $100K
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23
Q

The Roles of the District Court

A

More serious criminal matters
Appeals from the Local Court
Civil cases less than $750K
Claims for damages arising out of motor accidents

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24
Q

The Roles of the Supreme Court

A 
Most serious criminal matters
Appeals from the District Court
Commonwealth prosecutions for major breaches of corporations law
Has an appeals section:
- Court of Appeal (Civil)
- Court of Criminal Appeal (Criminal)
No limit for civil sums
Judge alone for civil matters
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25
Q

Land & Environment Court

A

Interprets and enforces environmental law
Environmental planning matters
Appeals of council rulings

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26
Q

The Roles of the Coroner’s Court

A

Investigates unexplained or suspicious deaths
Ensures fires & explosions are properly investigated
Coronial inquest
A court of INQUIRY

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27
Q

The Roles of the Children’s Court

A

Criminal cases involving children

Matters concerning the protection & welfare of children

28
Q

Delegated legislation

A

Law made by subordinate bodies given power by parliaments

29
Q

Regulations

A

Delegated legislation created by the executive council and government departments

30
Q

Bylaws

A

Delegated legislation created by local councils

31
Q

Statutory bodies which can create delegated legislation

A

ABC, ATO etc.

32
Q

Advantages of Delegated Legislation

A

Flexibility & Expertise

33
Q

Disadvantages of Delegated Legislation

A

Undemocratic & inconsistent

34
Q

How many NSW state electorates are there?

A

93 seats with 53, 000 electors

35
Q

How many federal electorates are there?

A

151 seats with 98, 000 electors

36
Q

How many senate seats are there?

A

76 (12/State, 2/Territory)

37
Q

How many MLCs are there in NSW?

A

42 (elected statewide)

38
Q

Legislative Process

A 
First Reading
Second Reading
Committee Stage 
Third Reading
To the upper house (same process)
Royal Assent
39
Q

How are uniform laws achieved?

A

Through harmonisation and referral.

40
Q

What is harmonisation?

A

Where states and territories pass identical legislation

41
Q

What is referral?

A

When legislative power is given by states and territories to the Commonwealth parliament.

42
Q

Division of Powers

A

How power is divided between states and the commonwealth.

43
Q

Specific powers

A

Set out in the constitution, ie. trade and commerce

44
Q

Exclusive powers

A

Commonwealth only powers, ie. Immigration

45
Q

Residual powers

A

Powers left to the states, ie. Criminal law

46
Q

Concurrent powers

A

Powers held by both the Commonwealth and States in which Commonwealth legislation overrides State legislation.

47
Q

Section 51

A

Limits the ability of the Commonwealth to legislate only on certain issues

48
Q

Section 109

A

Commonwealth law prevails over state law, ie. Tasmanian Dams case

49
Q

The Separation of Powers

A

The distribution of power between the branches of federal government.

50
Q

Legislative Branch

A

Elected representatives debate and pass laws, including members, senators, the monarch and Governor-General.

51
Q

Executive Branch

A

Makes decisions about the running of the country and the exercise of ministerial powers, comprised of all ministers, the Monarch & Governor-General. The Senate acts as a body of oversight.

52
Q

Judiciary

A

Judges establish common law and make decisions based on statute law

53
Q

The Importance of the Separation of Powers

A

To uphold our rights and create checks & balances.

54
Q

The Referendum Process

A

Bill passes in both houses before being approved by a double majority of voters for success.

55
Q

Roles of the High Court

A
  • Appellate jurisdiction
  • Constitutional validity of laws
  • Disputes between States & Commonwealth
56
Q

Sections 71 & 72

A

Establishes the High Court, the process for appointing judges and the retirement age of seventy.

57
Q

How many justices of the High Court are there?

A

Seven

58
Q

Fraser Island Case

A

The High Court had to interpret the constitution to determine if the Commonwealth could prevent mining on Fraser Island by preventing the export of minerals being mined there, under the Trade & Commerce powers.

59
Q

Appellate Jurisdiction of the High Court

A
  • State & Territory Supreme Courts
  • Federal Courts considering Federal matters
  • The High Court exercising original jurisdiction
60
Q

Sources of ATSI customary law

A
  • Tradition
  • Ritual
  • Socially accepted conduct
  • The Dreaming
  • Responsibility for Land & Water
61
Q

Common features of ATSI customary law

A
  • Collective guardianship of the land (thus terra nullis was invalid)
  • Disputes not restricted to individuals
  • Resolution involves the whole community
  • Some offences are not recognised by other sources of law
  • Focus on family and kinship
62
Q

Diversity of ATSI customary law

A

Due to a breadth of language groups

63
Q

Ritual & Oral tradition

A
  • Laws were passed down at meetings and reinforced by storytelling & dance
  • Different people know different laws
  • Laws relate to rituals
64
Q

Mediation & Sanctions

A
  • Family, community and elders are involved through discussion
  • Self regulation and consensus is used to maintain order
  • Sanctions are applied by the elders for breaches of the law, and could be physical to ‘restore balance’
65
Q

Circle Sentencing

A
  • Elders sentence ATSI people in conjunction with a magistrate
  • Dialogue focused
  • Reduces recidivism and ATSI incarceration

Legal Studies (3 decks)

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