Sources of Contemporary Australian Law

Question 1

Common law can either refer to:

Answer 1

1) Law made by judges hearing disputes in courts.
2) Law made by courts as opposed to law made by parliament.

Question 2

How was common law created?

Answer 2

Common law started during Henry II reign, as he sent out travelling judges to hear cases in his name. They began keeping records and applying the same rules.

Question 3

What is equity?

Answer 3

A body of law which developed in England to provide a remedy in situations where application of the common law would have led to injustice.

Question 4

What is precedent?

Answer 4

A decision in a case is the first of its kind, that establishes a new legal principle, and that is subsequently used to guide decision making later.

Question 5

What are the four main rules of the doctrine of precedent?

Answer 5

1) Decisions of higher courts are binding on lower courts.
2) Courts are generally expected to follow their own decisions.
3) The High Court

Question 6

when does precedent not have to be followed?

Answer 6

1) If the facts of law are significantly different from a previous case.
2) When a higher court upholds an appeal against a lower court’s decision.
3) A court may refuse to follow a decision of another court that is lower or equal level in the hierarchy.

Question 7

What is an adversarial system of trial?

Answer 7

Court within common law countries where two opposite sides present evidence, each side can challenge the other, judge controls proceedings, decisions are made by judge or jury.

Question 8

What is an inquisitorial system of trial?

Answer 8

court in countries that have different legal traditions. Judge’s are more active in questioning the case, purpose is to find truth, judge controls direction.

Question 9

What is ratio decidendi?

Answer 9

The essential legal reason why a judge came to a particular decision

Question 10

What is obiter dicta?

Answer 10

Other remarks made by the judge about the conduct of the trial.

Question 11

What is jurisdiction?

Answer 11

The power or authority of a court to hear and decide a case.

Question 12

What is original jurisdiction?

Answer 12

Courts have power to hear and finalise a case on its first instance.

Question 13

What is appellate jurisdiction?

Answer 13

The power of a court to hear a case on appeal from another court.

Question 14

Outline Local Court

Answer 14

Lowest court in state hierarchy, cannot hear appeals, both civil and criminal cases, limit of $1000 000.

Question 15

Outline the role of district court.

Answer 15

intermediate court, has both original and appellate jurisdiction, judge and sometimes jury, all criminal matters except murder, treason and piracy.

Question 16

Outline the role of the supreme court

Answer 16

highest court in state hierarchy, original and appellate jurisdiction, jury and judge, most serious criminal offences.

Question 17

Outline federal circuit court.

Answer 17

almost the same as jurisdiction as family and federal court, less complex cases, doesn’t hear criminal matters.

Question 18

Outline federal court.

Answer 18

Superior court, complex matters, nine practice areas.

Question 19

Outline family court.

Answer 19

Hears most complex family matters.

Question 20

Outline High Court.

Answer 20

Established in 1901 under section 71 of the Australian Constitution, interpret and apply the law of Australia.

Question 21

What is statute law?

Answer 21

Law made by parliament.

Question 22

What is the process of passing a bill?

Answer 22

1) Needing a law
2) drafting a bill
3) first reading: introduced into lower house
4) Second reading: debate and consideration in detail
5) Third reading: vote
6) passes onto upper house
7) if passed by both houses: to Queen’s representative for royal assent.

Question 23

What are the four main types of delegated legislation?

Answer 23

• By laws: these are generally made by local councils under the local government Act.
• Rules: These are generally made by government departments and concern the matters over which the government department has responsibility.
• Regulations: These are generally made by the Governor-General, state Governor or members of the Executive Council.
• Ordinances: These are made for Australia’s territories usually by the body governing the territory.

Question 24

What is the division of powers?

Answer 24

the principle describing the split of powers in the Australian Constitution to make laws between the state and federal parliaments.

Question 25

What are the three legislative powers?

Answer 25

Concurrent: powers held by both state and federal parliaments.
Exclusive: powers that can be exercised only by the federal parliament.
Residual: those matters on which the states can legislate, as they are not referred to in the AC.

Question 26

Separation of powers refers to

Answer 26

the three main components of government being the legislature, executive and judiciary.

Question 27

What is the legislature?

Answer 27

the law-makers (in Australia this is the parliament: the House of Representatives and the Senate).

Question 28

What is the executive?

Answer 28

the ministers and government departments who administer the laws made by parliament (in Australia the Governor-General and prime minister and Cabinet are members of the executive).

Question 29

What is the judiciary?

Answer 29

the courts which interpret and apply the law

Question 30

Summarise the role of the High Court.

Answer 30

In summary, the High Court has both original jurisdiction and appellate jurisdiction. The High Court is the highest court in Australia and is the ultimate authority regarding what is law in Australia. Its decisions are binding on all other courts in Australia. There are seven High Court judges. As outlined on its website “the function of the High Court is to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave from Federal, State and Territory courts”. The High Court of Australia was established in 1901 under section 71 of the Australian Constitution.

Question 31

What is the main difference between Aboriginal and Torres Strait Islander customary law and British common law?

Answer 31

British legal traditions view an area of land something to own, whereas ATSI people believe people are custodians of land.

Question 32

What spiritual basis consists of stories which form life, culture and law.

Answer 32

Aboriginal Dreamtime.

Question 33

What is mediation?

Answer 33

A form of alternative dispute resolution designed to help two or more parties, with the presence of a neutral third party.

Question 34

What is a sanction?

Answer 34

A penalty imposed on those who break the law, usually in the form of a fine or punishment.

Question 35

How is ASTI customary law relevant today?

Answer 35

• Sustainable development practices form the basis of current environmental laws.
• Conciliation and mediation are increasingly used in criminal, consumer, and employment law disputes.
• Customary laws may be considered when an Aboriginal and Torres Strait Islander person is charged with a crime.
• Evidence of victim’s breaking customary law can be a mitigating factor.
• Elders are often consulted by law enforcement in traditional lifestyle areas.
• Customary law’s role in prosecuting and punishing offenders is debated due to fear of unfairness.

Question 36

what is a declaration?

Answer 36

a formal statement of a party’s position on a particular issue; a declaration is not legally binding under international law.

Question 37

What is a treaty?

Answer 37

an international agreement concluded between states in written form and governed by international law.

Question 38

What are the four main purposes of the UN?

Answer 38

• to keep peace throughout the world.
• to develop friendly relations among nations
• to help nations work together to improve the lives of poor people, to conquer hunger, disease and illiteracy, and to encourage respect for each other’s rights and freedoms.
• to be a centre for harmonising the actions of nations to achieve these goals.

Question 39

What are the five main organs of the UN?

Answer 39

• The general assembly
• The security council
• The economic and social council
• The international court of justice
• the UN secretariat

Question 40

What is the role of the international court of justice?

Answer 40

Its principal activities are to settle disputes submitted to it by states and to settle disputes submitted to it by states and to give advisory opinions on legal questions submitted by the General Assembly, the Security Council and or other bodies.