sources of contemporary australian law Flashcards
sources of australian contemporary law
common, statute, constitution, international law
common law (case law)
law made ny court (british origins)
statute law
law made by parliament, judeges must resolve disputes on the basis of decision made in similar cases (precedent) to help them decide on cases
equity
the quality of being fair and impartial.
precedent
judgement that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar facts. –> consistency, efficiency, fairness, coherent
stare decesis
Latin term ‘the decision stands’ the doctrine that a decision must be followed by all lower courts
ratio decidendi
the essential legal reason why a judge came to a particular decision. A decidendi in a higher court will set a binding precedent on lower courts
obiter dicta
other remarks made by the judge regarding the conduct of the trial, like credibility of witness
rules of precedent
Binding precedent: lower courts are bound to follow decision of higher courts, Persuasive Precedent: superior courts do not have to follow the decisions made in lower courts
adversarial
A system of resolving legal conflicts, used in common law countries (England, Australia, Great Britain, America, Commonwealth), which relies on the skill of representatives for each side (defence and prosecution lawyers) who present their cases to an impartial decision maker.
civil and criminal court proceedings
In a trial 2 sides try to prove their version of the facts and disprove the version of the other side
An impartial judge (and sometimes jury too) will listen to both sides and make a decision as to which side has proved their case
jurisdiction
the powers of a court, depending on its geographic area, the type of matters that it can decide and the type of remedy it can reward
inquisitorial
Inquisitorial system: A legal system where the court or a part of the court (e.g. judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries which have civil legal systems (France, China, Indonesia) rather than common law systems.
Court is actively involved in determining the way in which competing claims are presented
appeal
an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law
appellate jurisdiction
some courts hear from lower courts
original jursidiction
all courts have the power to hear a case for the first time
local court
staet lower court, magistrate, civil: up to 100000, criminal: majority of criminal and summary prosecutions in nsw
coronors court
state lower court, sus deaths
childrens court
staet lower court, magistrate or president of the chidlrens court (judege), under 18s
drug court
staet inferior court, takes referrals from local and district courts
district court
state intermediate court, judge, up to 1.25 mil w 4 jurors, all criminal offences apart from murder, treason and piracy with 12 jurors hears appeals from local court,
supreme court of nsw
state superior courts, 12 jurors, unlimited $1,250,001 and above, most serious criminal matters murder kidnapping
nsw court of criminal appeal
state superior court, 3 judges but can be 5 if serious, person convicted by supremen or district judge can appeeal
land ad environemtnal court
state first speacialist coirt
federal court of aiustrlai
federal, almost all cvil matters some summary and indictable can hear appeals from the judges from fedral court, judgements of supreme court
federal circuit court of australia
federal, inferior, magistrares court, family law, simple matters, not criminal , mostly migration and bankruptcy
federal circuit and family court of asutralia
federal, 2 divs, family law matters exclusively AND family law, migration general law matters
family court of australia
federal, superior, complex lahal family disputes, parenting cases, can hear appeals form federal magistrate or fmaily court judge
high court of australia
highest court, 7 judges, act interpret and apply law of australia, appeals from federal court australia, fmaily court australia and state and terriotry supreme courts
summary offences
generally less serious offences (max 2 years prison)
civil law
deals with the regulation of private conduct between individuals and organisations and government agencies
crimina law
the body of law that deals with conduct considered so harmful to society as a whole that is prohibited by statute, prosecuted and punished by the government
indictable
more serious offences, generally require to be dealt with in District and Supreme court
statute laws
legislation, or acts of parliament, In Australia, state, territory and federal governments all have the right to make laws, legislation can alter common law
parliamentary democracy
Australians elect representatives who in turn make decisions and pass laws in the name of the people. A parliament is a body of elected representatives.
federal lower house
House of Representatives:
150 seats elected every 3 years, make new laws and amend existing ones, Leader is Prime Minister
federal parliament
bicameral (containing 2 chambers or houses of parliament except qld
federl upper house
senate, 76 seats (each state 12 senators, territory 2 senators) elected for 6 years, rotation every 3 years, reveiw legislation proposeed by house of reps
governor general
appointed by the queen/king and her representative in australia, federal executive counvil act lawfully, power to appoint prime minister when hung parliament, dismiss prime minsiter when they have lost confidence or is acting unlawfully, refuse to dissolve house of reps despite req from pm
state houses
lower - legislatve assembly
upper - ligislative council
bill
a drafted law that has not yet been passed by parliament, Usually introduced by ministers, if introduced by member that is not a minister “backbencher” the bill is known as a “private member’s bill”
legislative process
Needs approval from the House of Representatives → Needs approval from the Senate → Needs Royal Assent from Governor General
