Sources of contemporary Australian law Flashcards
What is common law and its origins?
Equity is the doctrine that supplements common law. It aims to ensure all citizens are treated fairly in court and consistency is maintained between cases through the doctrine of precedent.
It originated in eleventh century Britain who had travelling judges who aimed to treat each case they heard equally between towns. Since Australia was originally a colony of Great Britain, the country adopted it.
What is equity?
Equity judges each case on its merits and applies principles of fairness. It was introduced to correct the failures of the medieval common law system, which was heavily based on Christian values and did not take people’s needs, circumstances, beliefs or abilities/disabilities into consideration.
What are the two types of precedents?
Binding precedent must be adhered to by a magistrate to ensure equality. Lower courts must follow the rulings of higher courts and judges must give sentences in cases that are similar to previous ones.
Persuasive precedents do not need to be adhered to but can act as a guideline for a judge. They come from courts outside one’s own jurisdiction (lower courts or other countries).
What is the process of parliament is the legislative process?
The role of parliament in Australia, which is made up of two houses (bicameral; Senate and House of Representatives) is to create statutes; or Acts of Parliament. These laws attempt to maintain order and fairness in society and to keep people safe.
1. Need for new law is identified.
2. The bill is drafted.
3. First reading.
4. Second reading.
5. Committee stage.
6. Third reading.
7. Upper house.
8. Royal assent.
Outline the court hierarchy and why it exists.
NSW local court (+coroner’s and children’s court) –> NSW district court (+drug court and administrative tribunal) –> NSW supreme court w/ single judge –> NSW supreme court –> High court of Australia.
The hierarchy exists so courts can hear cases within their jurisdiction and expertise.
Name some differences between the Adversarial and Inquisitorial systems of court.
The Adversarial system is a legal system where two advocates represent their parties’ case. It is derived from and used in common law countries such as England and Australia. It relies on the skill of representatives for each side (lawyers) and features an impartial decision-maker (judge or magistrate).
The Inquisitorial system that involves the court (the magistrate) is actively involved in conducting the trial by determining what questions to ask and leading the processes. Judges can be present, but have a less significant role. It is derives from Roman codes; used in countries that have civil legal systems rather than common law systems (e.g. France, Italy).
Describe the functional of delegated legislation.
Delegated legislation is law made by non-parliamentary bodies, given the power to do so by acts of Parliament. It can include:
* ordinances: laws made for external bodies, such as the Norfolk islands or Australian Antarctic territory.
* by-laws: laws made by local councils, such as rules at local parks.
* regulations: laws made by different government departments/govenor-general.
Outline the separation of powers.
The division of powers divides government into three branches to ensure not any one body gains too much power and civil liberties are protected.
* Legislature: bicameral parliament.
* Executive: the power to enforce and apply laws. Controls government departments, statutory bodies and defence.
* Judiciary: courts and judges independent of government to interpret law and apply in court.
It is not completely accurate however since the Prime Minister is a part of the legislature and executive.
What is the House of Representatives and Senate made up of?
The House of Representatives (lower house) has 151 seats, one for each electorate in Australia. The Senate (higher house) has 12 members from each state and two from each territory.
What is the division of powers and what does it seek to achieve?
The division powers works to seperate the legislative powers of states and the Commonwealth between:
* exclusive: matters dealt with by Commonwealth (defence, citizenship)
* concurrent: matters dealt with by Commonwealth and state powers (taxes, education)
* residual: matters dealt with individual states of Australia (public transport, postcodes).
Residual powers are not listed in S51/S52 of the Australian Constitution, thus leaving them for the states.
These divisions allow for greater specialisation and efficiency in the legislative process as well as ensuring the States would keep an element of power and sovereignty in specific matters
What is the role of the High Court?
The High court as appellate and original jurisdiction on all matters. It has the power to interpret the constitution as it may be seen differently by individuals and evaluate the validity of laws in relation to the constitution. S71 of the Constitution gave the High Court its power.
What is a customary law?
Customary law includes principles and procedures that have developed through general usage according to the customs of a people or nation and are treated as obligatory. Customary laws are not singular as they represent the laws of indigenous Australia with a range of peoples and customs.
Describe the characteristics of customary law.
- Diversity: a vast number of different tribal groups of ATSI people exist in Australia with similar traditions yet many differences. Thus, there are differences between cultural groups.
- Spiritual basis: they have very strong spiritual, physical, cultural and social links to the land which is considered sacred.
- Ritual & Oral Traditions: customary laws are passed on from generation to generation through the telling of stories and through ritual and ceremony
Based on oral tradition rather than a written set of laws - Family & Kinship: a complex system that determines how people relate to each other and their roles, and responsibilities. Dictates their obligations in relation to one another, ceremonial business, and land.
How have customary Aboriginal laws been integrated into contemporary Australian law>
Mediation is a means of dispute resolution with a third party. Elders meet with the offender to find a suitable remedy to maintain relationships and kinship.
Customary laws cannot be enforced in Australian courts and as such are not officially “recognised” in a legal sense, thus they have either been taken into account or integrated into the application of Australian law.
Courts have taken ATSI customary laws into account when considering factors that can mitigate (lessen) a sentence. If an offender is likely to be subject to a tribal punishment, the court may decide on a lesser sentence.
* Circle sentencing: magistrate, community members and offender sit in a circle to discuss the offence and determine an appropriate punishment (NSW)
What is domestic law?
Domestic law is made by governments and courts in a nation state and are binding solely on citizens of that nation. It can differ greatly between countries.
