Sources of Contemporary Australian Law Flashcards
The role of a tribunal
To hear specific matters, in an informal and inexpensive manner
Types of court jurisdiction
Geographic, monetary and law classification
What is the purpose of precedent?
To establish ‘common law’ across a jurisdiction, creating consistency.
What are the three ways in which courts make law?
Interpreting legislation, filling gaps in legislation and creating common law in the absence of legislation.
Interpretation of legislation - Example
Tasmanian Damming Case (External Affairs Power)
Filling gaps in legislation - example
Criteria for separation
Creating common law - example
Mabo case - recognising native title
Precedent
Benchmarks set by higher courts which apply to lower and equal courts (except the High Court)
Adversarial system of trial
Two opposing sides present their case to an impartial decision maker
Inquisitorial system of trial
The court engages in a ‘fact-finding’ mission, asking questions and finding witnesses etc.
Give the three definitions of Common Law
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)
What was the purpose of the travelling judges in England?
To unify the application of the King’s Law
Equity
Treating everyone fairly according to their circumstances
Ratio decendi
The legal rationale behind a decision
Obiter dicta
Other remarks by a judge about the conduct of a trial which do not set legally binding precedent.
When does precedent not have to be followed?
When it persuasive (ie. international precedent, obiter dicta)
Court of equity
Hears matters related to monetary compensation
Traditional court of equity
Heard appeals that decisions by the common law system were unfair
Court of common law
Hears any matters not related to monetary compensation
The Roles of the Federal Court
Anything that breaches federal law, ie. copyright, human rights
Complex matters relating to industrial and administrative law
Civil disputes governed by federal law
The Roles of the Family Court
A specialist court
Deals with complex family law matters, ie. divorce cases parenting orders
Has an appeals division
The Roles of the Local Court
Summary offences Committal hearings Magistrate presiding 95% of all cases Civil disputes up to $100K
The Roles of the District Court
More serious criminal matters
Appeals from the Local Court
Civil cases less than $750K
Claims for damages arising out of motor accidents
The Roles of the Supreme Court
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
Land & Environment Court
Interprets and enforces environmental law
Environmental planning matters
Appeals of council rulings
The Roles of the Coroner’s Court
Investigates unexplained or suspicious deaths
Ensures fires & explosions are properly investigated
Coronial inquest
A court of INQUIRY
The Roles of the Children’s Court
Criminal cases involving children
Matters concerning the protection & welfare of children
Delegated legislation
Law made by subordinate bodies given power by parliaments
Regulations
Delegated legislation created by the executive council and government departments
Bylaws
Delegated legislation created by local councils
Statutory bodies which can create delegated legislation
ABC, ATO etc.
Advantages of Delegated Legislation
Flexibility & Expertise
Disadvantages of Delegated Legislation
Undemocratic & inconsistent
How many NSW state electorates are there?
93 seats with 53, 000 electors
How many federal electorates are there?
151 seats with 98, 000 electors
How many senate seats are there?
76 (12/State, 2/Territory)
How many MLCs are there in NSW?
42 (elected statewide)
Legislative Process
First Reading Second Reading Committee Stage Third Reading To the upper house (same process) Royal Assent
How are uniform laws achieved?
Through harmonisation and referral.
What is harmonisation?
Where states and territories pass identical legislation
What is referral?
When legislative power is given by states and territories to the Commonwealth parliament.
Division of Powers
How power is divided between states and the commonwealth.
Specific powers
Set out in the constitution, ie. trade and commerce
Exclusive powers
Commonwealth only powers, ie. Immigration
Residual powers
Powers left to the states, ie. Criminal law
Concurrent powers
Powers held by both the Commonwealth and States in which Commonwealth legislation overrides State legislation.
Section 51
Limits the ability of the Commonwealth to legislate only on certain issues
Section 109
Commonwealth law prevails over state law, ie. Tasmanian Dams case
The Separation of Powers
The distribution of power between the branches of federal government.
Legislative Branch
Elected representatives debate and pass laws, including members, senators, the monarch and Governor-General.
Executive Branch
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.
Judiciary
Judges establish common law and make decisions based on statute law
The Importance of the Separation of Powers
To uphold our rights and create checks & balances.
The Referendum Process
Bill passes in both houses before being approved by a double majority of voters for success.
Roles of the High Court
- Appellate jurisdiction
- Constitutional validity of laws
- Disputes between States & Commonwealth
Sections 71 & 72
Establishes the High Court, the process for appointing judges and the retirement age of seventy.
How many justices of the High Court are there?
Seven
Fraser Island Case
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.
Appellate Jurisdiction of the High Court
- State & Territory Supreme Courts
- Federal Courts considering Federal matters
- The High Court exercising original jurisdiction
Sources of ATSI customary law
- Tradition
- Ritual
- Socially accepted conduct
- The Dreaming
- Responsibility for Land & Water
Common features of ATSI customary law
- 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
Diversity of ATSI customary law
Due to a breadth of language groups
Ritual & Oral tradition
- Laws were passed down at meetings and reinforced by storytelling & dance
- Different people know different laws
- Laws relate to rituals
Mediation & Sanctions
- 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’
Circle Sentencing
- Elders sentence ATSI people in conjunction with a magistrate
- Dialogue focused
- Reduces recidivism and ATSI incarceration
