Sources Of Contemporary Australian Law Flashcards
Define Common Law
These are laws created by judges & magistrates in court i.e. precedent
Why Is Common Law Needed?
This concept gives judges judicial discretion to determine outcomes of a case based on the circumstances of the case
Common Law Is A System Based Off What?
The previous decisions of judges
Define Judicial Discretion
The power given to judges to make some decisions based on their training and expertise
What Decisions That Fall Under Common Law? Give ONE Example
o New specific cases that aren’t already specified under Crimes Act 1900 (NSW)
o When determining specific years on sentence
o When determining alternatives to sentencing
E.g. 10/01/2022 - Novak case that went to the High Court of Australia has set a new precedent as anyone who has views that could cause unrest in the Australian population could be denied visas
Define Courts Of Equity
When the judge uses his/her discretion to determine sentencing and punishment
Define Discretion
The power given to certain legal representatives to carry out the law based on their expert knowledge and training -> given to judges and police
Define Equity
This body of law supplements common law by ensuring fairness as every case is looked at on a case by case basis
Define Precedent
Is a punishment set by a higher court for a specific crime that is expected to be followed or used as a guideline for lower courts
Why Is Precedent Important?
o Precedent is important as it sets a standard for a punishments for the type of crime committed
o Makes sure people are fairly punished for the crime they do with something they can compare with from past cases
Define Binding Precedent
o When court must follow the precedent already set whether they agree or not
o Precedent is binding when set by a higher court
o E.g. District Court must follow Supreme Court but only in their jurisdiction i.e. NSW
Define Persuasive Precedent
May influence a decision but judge is NOT bound to follow it
Define Stare Decisis
“the decision stands” the idea that if precedent is set all lower courts must follow it
Define Ratio Decidendi
The reason why a judge made the decision they did
Define Adversarial System
Where there are 2 opposing parties who argue over the case whilst a 3rd, neutral party presides over the case
What Legal System Does Australia Use And Why?
Adversarial System
o Derived this system from the British system by which much of our legal system is based on
o Both parties can cross-examine (ask questions of) the witnesses
o The judge/magistrate cannot cross-examine a witness or introduce evidence
Define Inquisitorial System
Where the judge is actively involved; asking questions, etc.
What Is The Role Of The Parliment?
To create statute law
Define Statute Law
This is the name for laws created by parliament and written into our registry of legislation
Explain Bicameral System
Meaning we have 2 houses (upper house & lower house)
Define Ministers
Members of government with special responsibilities
Define Executive Council
Governor or Governor General
Explain The Reshuffling The Cabinet
When members of the front bench are changed
Define Bill
(Proposal that is to be heard an voted on before it becomes a law) is heard in this house first
Outline The Legislative Process
- Need for a new law arises
- Draft bill -> Clerks create bill and schedule it to be heard in parliment
- First reading -> Clerk reads title and MP’s get given proposed act
- Second reading -> Minister speaks about the Act and MP’s debate
- Committee Stage -> Bill is examined and debated in detail and changes are made
- Third reading -> Vote on bill, If majority it passes the upper house
- Steps 3-6 repeat in senate
- Royal Assent -> If bill passed in senate, governor general approves bill, it becomes law
Define Delegated Legislation
Small/less important laws made by non-parliamentary bodies
List The Advantages Of Delegated Legislation
o The decision makers have greater knowledge of that area
o Saves parliament time & money to deal with more serious matters
o Easier to change DL if need be
List The Disadvantages Of Delegated Legislation
o MPs don’t always check the delegated legislation
o Higher chance of errors/holes
o Inconsistencies between govt bodies, councils, etc.
o These laws are less accessible as not usually reported by media, etc
What Is The Only Thing That Can Chnage The Constitution
A referendum
There Are 6 Basic Rights Established Under The Constitution What Are They?
o Right to vote
o Freedom of religion
o Prohibition of discrimination on the basis of State of residency
o Right to a trial by jury
o Protection against acquisition of property on unjust terms
o Freedom of speech in debating political issues ONLY (added later)
List The Division Of Powers In The Constitution
Specific Powers
Exclusive Powers
Concurrent Powers
Residual Powers
Explain Specific Powers
o Law making powers that were given to the Commonwealth to make laws
o Under section 51 & 52 of the Constitution
Explain Exclusive Powers
o Powers that only the Commonwealth can make laws for and the States cannot
o States are excluded from legislating on these issues
o E.g. coin money, regulate the mail, declare war, or conduct foreign affairs are all federal govt only
Explain Concurrent Powers
o Both the Commonwealth and the States have the authority to legislate in these areas
o E.g. marriage, divorce and bankruptcy
Explain Residual Powers
o Powers that aren’t found within the Australian constitution
o Retained a set of law making powers that each state can legislate based on the need of their states
o E.g. education, criminal laws and health
What Are The Three Levels Outlined In Separation Of Powers
Judiciary -> Power to make judgements on the law
Legislative -> Power to make and change laws
Executive -> Power to put laws into action
What Does IAs (acronym) Stand For?
To save space sometimes we’ll use the acronym IA instead of using the whole word
- Indigenous Australians
Define First Australians
Aboriginal and Torres Strait Islander peoples; the original inhabitants of Australia
Define Customary Law
Principles developed by a people or nation that are treated as obligatory
List Common Similarities For Customary Law In The ATSI Community
o Resolution of disputes - negotiation, mediation & conciliation
o Insulting an elder
o Singing of sacred songs in public
Define Terra nullius (Latin)
Terra nullius - (Latin) ‘land belonging to no one’; the idea and legal concept that when the first Europeans came to Australia the land was owned by no one and thus was open to settlement. It has been judged legally invalid
Define Elders
Older men/women keepers of traditional knowledge, responsibility and handing down punishments
Explain The Dreaming/Dream Time And Its Significance
o Source of Indigenous customary law
o Is the history of Aboriginal peoples – their creation & teaching stories
o Explains how land, animals, plants and sky was created but imparts lots of religious knowledge
o There is a lot of secrecy about The Dreaming
Explain The Lifestyle of ATSI People
o Traditionally lived hunter-gatherer lifestyle with roles divided by gender
o Women collected berries, fruit, plants & small animals
o Men hunted for large animals, fish, etc
Who Resolves Disputes In ATSI Society
o Disputes are resolved by the community in IA societies
o A meeting is held, and elders run the meeting and try to help reach a resolution
o This is a less formal method than the civil courts
Define Mediation
Dispute resolution strategy where a neutral 3rd party helps the other parties reach an agreement
List Punishments Present In ATSI Customary Law
Punishments include:
o Ridicule
o Shaming
o Exile
o Spearing
o Death
Define Domestic Law
Laws that belong to a state or country
Define International Law
Laws that apply to all nations e.g. Universal Declaration of Human Rights
What Is The Difference Between Domestic Laws And International Laws
Domestic laws are laws that belong to a state or country while international law applies to all nations
Define Sovereignty
The authority to rule by itself
Define State
Independent entity that is recognised as such internationallyI
Define State Sovereignty
That states are in complete and exclusive control of all the people and property within their territory
For A Country To Be Recognised As A State It Must Have What?
o Permanently living population
o Effective government
o Defined territory
o Ability to enter into international negotiations
Give ONE Reason Why State State Sovereignty Can Be Both Good And Bad
State sovereignty gives nations the legal backing to do whatever they want in their country with minimal or no accountability
Outline The International Covenant on Civil and Political Rights (ICCPR)
o Outlines how states should interact with each other
o Enables states to trade, engage in commerce
o Helps maintain peace & security
o Covers fundamental human rights
Give An Example Of International Laws
o Hague (1989) – laws on child abduction
o Geneva Conventions (1864) - rules of war
o Universal Declaration of Human Rights (UDHR) – basic human rights for all
o International Covenant on Civil and Political Rights (ICCPR) – focuses on govt and protection around leadership e.g. right to vote & right to fair trial
o International Covenant on Economic, Social and Cultural Rights (ICESCR) – focused on rights to do with standard of living e.g. right to water and shelter
List The TWO Categories Of International Crimes
o Crimes Against the International Community
o Transnational Crimes
Explain Crimes Against the International Community (CAIC)
Crimes we recognise as being those that are of universal concern, they are so serious that the whole world condemns them and punishes it internationally if the country responsible doesn’t punish the people who did these crimes
There Are Four Categories Crimes Are Considered So Heinous That They Can Be Heard At The International Criminal Court (ICC) What Are They?
o Genocide
o War crimes
o Crimes against humanity
o Crimes of aggression
Explain Genocide
Acts intent on destroying all or part of a national, ethnic, racial or religious group
Explain War Crimes
Actions carried out during a time of war that violate accepted international rules of war
Explain Crimes Against Humanity
Acts of a sanctioned widespread or systematic attack against any civilian population
Explain Crimes Of Aggression
Acts of war committed by leaders whereby they direct military, etc to act, directed at nation leaders
List Crimes Heard In The International Court Of Justice (Can Not Be Heard At The ICC)
o Piracy (at sea)
o Hijacking of aircraft
o Slave trading
Explain Piracy (at sea)
Any criminal acts of violence, detention, sexual assault, or depredation committed for private ends by the crew or the passengers of a private ship
Explain Hijacking Of Aircraft
Unlawful seizure of an aircraft by an individual or a group
Explain Slave Trading
The kidnapping and selling of people in exchange for unpaid services
e.g. prostitution, labour, militia, etc.
Define Ad Hoc Tribunal. Give ONE Example
Where a court is established for the sole purpose of prosecuting people involved in a specific incident
E.g. Nazi regime
Define Transnational Crimes. Give An Example
Those that are committed over 2 or more country’s borders
E.g. a person in Nigeria scams a person in Australia or a person creating drugs in Fiji and trafficking them by boat going through Malaysian waters and then selling them in Australia
List Transnational Crimes
o Human trafficking
o International fraud & white-collar crime – e.g. tax evasion & money laundering
o International internet crimes – e.g. data theft, internet fraud, copyright infringements, spam networks
o Organised crime rings
o Creation & trafficking of pornography
o International terrorism – e.g. cyber-terrorism of electrical systems, etc.
o International trade of illegal substances
List Limitations Of International Law
o Lacks power to enforce these laws (unless crimes against international community – even that is difficult)
o Differences of opinion on what should be law
o Very expensive – who fronts the cost?
- ad hoc tribunals cost approx. $150mil to run, ICC costs $140mil/year
o Who enforces and by whose punishment system?
o The UN has no international police force
o Countries get touchy about state sovereignty and others coming into their countries to investigate
o More a punishment system rather than preventative system
List International Sources
o Customs
o Declarations
o Treaties
o Legal decisions
o Legal writings
Define Customary International Law
Those laws that aren’t necessarily written anywhere but are expectations that have been held for a long time
Outline The Role Of Declarations In International Law
o Intl instruments that outline countries, NGOs or other organisations’ position on an issue
o They are NOT legally binding – merely formal documents of intention
o The most well known one is the Universal Declaration of Human Rights (1948)
o Defined human rights
- Outlined what behaviour constituted human rights
- Ratified by UN in 1948 by 48/56 countries now we have 192 countries who have signed
- The UDHR led to the establishment of the International Covenant on Economic, Social and Cultural o
o Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR) which ARE LEGALLY BINDING
Define Treaties
A written agreement between nation states
Outline The Role Of Treaties In International Law
o Establish an international organisation e.g. Rome Statute est. ICC (2002)
o Set legal decisions which nations have agreed to follow e.g. ICCPR
List The TWO Types Of Treaties
o Bilateral – between 2 nations
o Multilateral – between many nations
Define Bilateral
Between 2 nations
Define Multilateral
Between many nations
How Many Countries Make Up The UN?
Made up of 193 countries/states/nation state
What Is The UN Responsible For?
Responsible for most international matters
What Are The Five Principle Bodies Under The UN
o UN General Assembly (UNGA)
- UN Human Rights Council (UNHRC)
o UN Security Council (UNSC)
- Office of the High Commissioner for HR (OHCHR)
o Economic & Social Council (ECOSOC)
o UN Secretariat
o International Court of Justice (ICJ)
What Is The Role Of International Court of Justice (ICJ)
o Judicial body of UN deals with legal disputes between nations
o Precedent DOES NOT apply in ICJ but past rulings can be considered
Outline The Role Of The International Criminal Court (ICC)
Deals with crimes against the international community
(genocide, war crimes, crimes of aggression & CAH)
Outline The Role Of European Court of Human Rights (ECHR)
Deals with breaches of HR in the European region
Outline Intergovernmental Organisations
o These are organisations that are made up of multiple national states
o Many of them are derived from the UN
o They get together to make decisions that impact all/many of them
Define NGO’s
Groups of people that have a common agenda, interest or aim
What Are The Roles Of NGO’s?
o They can provide assistance for a range of issues
o They pressure govt. to change policy
o Can provide expert knowledge and make recommendations when policies are being implemented
Who Are Amnesty International
They are a human rights focused NGO that operates worldwide
Define Monist. Give An Example Of A Country That Follows This System
A type of legal system whereby any time a country signs an international agreement it automatically becomes part of that country’s domestic law
- E.g. France
Define Dualist
A type of legal system whereby any time a country signs an international agreement it doesn’t become part of domestic law.
