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
delegated legislation
Laws made by authorities other than parliament, which are delegated the power to do this by an Act of Parliament, legislations made by non-parliamentary bodies, less importtn laws, act that authorises is called enabling act
regulations
laws made by the Governor General, state ministers or members of the Executive Council
ordinances
laws made by Australian territories
minister
charge of a portfolio, council or shire, local governemnt area lga are examples of delegated legislatios
rules
legislation made for government departments
by-laws
laws made by local councils, which are restricted to the area governed by that council - in accordance with Local Government Act 1993 (NSW)
bicameral parliament const
qld act nt
high court const
s 73
division and seperation const
s51
altering const through referndum
s128
nt and act const
1978 1988 gainst self governemtn
legislative power
the legal power or capacity to make laws
concurrent power
existing at the same time, powers held by both state and federal parliament (education)
exclusive power
powers that are only granted to the Federal Parliament (international trade, taxation)
residual power
are those powers that the state retains after federation (criminal activity related to theft)
division of power
exclusive, concurrent residual
federal parliament div of powers
exclusive powers, trade 51, foreign relations 51, defence51, customs
state div of powers
residual powers, de facto relationships, crime, hospitals, public transport , environmnetal protection
concurrent power
commonwelath/federl and state, but if inconsistent commonwealth will prevail healthcare where state is funding nsw v commonweath 2006
changin ocnstitution
s 128 changing though referendum, pass both houses 2-6motnhs , double majority (australia wide adn 4 out of 6 states), royal assent, 45 referendums on 8 changed have been agreed to
1967 repreal s 127 of const which exlcuded Indigidenous aistralians form being counted in census
seperations of power
legislature, executive, judiciary
legislature
lawamkers, parliament
executive
the ministers and government departments who administer the laws and puts law into action (Governor General, Prime Minister, Ministers)
judiciary
makes judgements about the law (made up of the High Court and other federal courts
original jurisdiction
nterpret constitution and decide cases of special federal significance including challenges the constitutional validity of laws
appellate jurisdiction
hears appeals from federal, state and territory
high court functions
1902 seciton 71 of const, interpret and apply law, decide cases, hear appeals, make statements of how each level of governemnt can use its poer, tasmania dam case
britains privy council
Highest court of appeal for certain British territories and commonwealth countries, up until 1986 coudl hear appeals from australia
plebiscite
A compulsory vote by citizens on an issue of significance, but one that does not affect the Constitution of Australia and has no legal force, use to guage peoples uspport but not bound by outcome, 1977 national anthem of australia,
uluru statement from the heart
written documetn endorsed by hundres of indigenous leaders, calls fro firstion nations voice ot parliament, agreement making, makarrata commission
atsi in high court
Under the Constitution s.51 (xxvii)(Exclusive powers) grants the Commonwealth Parliament to make laws with respect to “immigration and emigration”, Under the Migration Act 1958 (Cth) Minister for Immigration has authority to deport “aliens”, Love (Papua New Guinea) and Thoms (NZ) were citizens of their respective countries and lived in Australia on non-permanent visas
Both identified as Aboriginal Australians and therefore no “aliens”
Love v Commonwealth 2020 (HCA)
Thoms v Commonwealth 2020 (HCA), In a 4:3 majority, HC justices determined that Aboriginal Australians could not be considered as “aliens” , mabo v queensland no 2 1992
customary law
s the traditional law of Indigenous peoples, generally oral, sometimes narrative or based on established performative practice, including song and dance, difficult bc its not written down some, milirrpum v nabalco pty ltd 1971
spirituality and customary law
dreamtime, how they laid out law, society, rituals, behaviour,
sig of land
land ownershop, sacre, collectively owned, european right ot possesslardil peoples v state of queensland 2004
kinship
family relationships, including all extended family relationships; an important part of Indigenous cultures and values, indicating how all people in the group behave towards each other
sig of water
similar to land, not individually owned by cared for by group lardil peoples v state of queensland 2004
native title
Recognition that Aboriginal and Torres Strait Islander people have rights and interests to land and water according to their traditional law and customs set out in Australian law
Governed by Native Title Act 1993 (Cth)
mabo v queensland 1992 no 2
aboriginal public wrong
Breaches of sacred law, incest, sacrilege, murder by magic
Handled by elders and are actively involved
traditional forms of punishment
Death Spearing
Individual ‘duelling’ with
spears,boomerangs, fighting sticks, Collective duelling
Shaming or public ridicule, Certain arrangements for compensation, (adoption/marriage), Exclusion from community
aboriginal private wrong
Activities which include homicide, wounding and adultery
The person who has been harmed (and their relevant kin) generally determines appropriate response
mabo v queensland
Eddie Mabo (with others) began their legal claim for ownership of their lands on the island Mer in the Torres Strait
Mabo v Queensland (No. 1) found that the Queensland Coast Islands Declaratory Act 1985 attempted to retrospectively abolish native title rights was not valid according to the Racial Discrimination Act 1975 (Cth)
Mabo v Queensland (1992) (No. 2) agreed that the Meriam people did have traditional ownership fo their land
Overturned the doctrine of Terra Nullius
Inserted the legal doctrine of native title into Australian law
Followed by the Native Title Act 1993 (Cth)
issues with native title
inherent right to inhabit and be on the land as they were there first but not always ownership most were ‘non-exclusive rights’
rituals
Is the performance of ceremonial acts prescribed by traditional and mythology
oral tradition
a community’s cultural and historical traditions passed down by word of mouth or example from one generation to another without written instruction
methods of dispute resolution
mediation (talk, mediator does not deCIDE), conciliation (thrid part doe splay a srole), arbitrationa (arbitrators determine outcoem), mediation,
traditional punishments
mediation (family and comunity), sanctions (elders), revente, inquest, trial by ordeal, duelling, insulting, social ridicule, isolation, sing ing a person
internarional law
is a system of treaties and agreements between nations that governs how nations interact with other nations, citizens of other nations and businesses of other nations
international law
Applies to only those nations that agree to be bound by the law, State sovereignty applies
Complex legal tribunals, but states are permitted to exempt themselves
Made through negotiations between nations
internationaal law features and problems
trafde commerce, maintina peace, reduce conflict, protects human righst,
lacks power to be enforced, breached of human rights rwanda genocide 1990s , not all cultures and calues considered
domestic law
to be state –> defined territory, permanante polutation ,effectyiv egovernemnt, enter international negotistions, pokice, made by parliaemtn or judges
declaration
a formal statement of a party’s position one’s particular issue, or declaration is not legally binding under international law (usually come with conventions)
universal dlcaration of human right 1948
state soveringty
principle allowing nations to decide the law by which they will agree to be bound
treaties
convention, protocol, covenant) is a formally concluded and ratified agreement between states, states enter voluntarily, in weirign, governed by international law, binding agreement between states
how are treaties formed,
negtotioation of nations, consent to be bound, ratification (gives consent to acrt), reservation, eneactedmetn (create domestic legislation)
tyoes of tereatues
hbihalteral ( 2 countreis) multilateral treaties (multiple)
legal decisions
Article 59 of Statue of the International Court of Justice states a decision of this court only binds the parties to the particular dispute, ad hoc tribunals
legal writings
Writing of respected international lawyers, judges and academics have an important part to play in guiding decision making and treaty formation
untied nations
international law, 1945 Charter of United Nations, 53 countries, 193 member states,
genral assembly (representative from all states and discuss main body of un),
security council (world peace, 5 perm members (UK, USA, Russia, CHina, France) 10 non perm on 2 yr basis
other organs, economice and social council, trusteeship, secretariat, icj
international court of justice
primary judicial body, sttele disputes by states, advisory opionoions, rule of 2 seperate types of cases - legal disputes australia and japan with whaling, adivsory opioino, where general assembly or security council requests opinion on legal quesion
unilateral decisions
nation agrees to accept the jurisdiction of the ICJ in all matters, only 63 nations have made this, however sig reduces effetciveness of international law disputes (little to enforece ruling, australia v france nz v france cease nuclear testing 1974,
intrernational criminal court,
rome statute 2002 124 raTified investigaed genocide, war crims, crimes agasint humanity, crime of aggression 18 judges 4 convictions isince 2002, sperated from un
intergovernmental organisations
Organisations representing the government of member nations, mutual interests, UN,
European Union, NATO
non government organisations
common interests and aims, Contributions to the world, Red Cross, greenpeace, World Vision, Amnesty International, Anti slavery international
