Sources Of Contemporary Australian Law

Question 1

What are the 2 types of systems and their definitions? Which one is used in Australia?

Answer 1

The ADVERSARIAL SYSTEM consists of 2 opposing parties arguing in front of a neutral third party ( a judge )

The INQUISITORIAL SYSTEM consists of the judge being actively involved in asking questions calling evidence and determining the case.

In Australia we use the adversarial system.

Question 2

What is common law? Where did common law in Australia derive from?

Answer 2

common law developed in England by judges administering a common set of laws throughout the kingdom. Sets an example that must be followed in future cases.

Australia imported common law from England when the country was settled by British colonists. Over time, Australia has developed its own system of courts.

Question 3

What is equity? Provide an example of the fairness in provided.

Answer 3

Equity is a body of law that supplements the common law. Common law rules were deemed too rigid and equity corrected injustices by applying the principles of fairness. Common law and equity are now merged but treated separately in the NSW Supreme Court.

E.g : The ability to appeal a decision if you believe an injustice has occurred.

Question 4

What is precedent and what are the 2 types of precedent?

Answer 4

Precedent is the basis of Australia’s system of common law. Meaning that when a court decides a case the reason for the decision can become a precedent for future cases. This is also known as judge made law.

• Courts are bound by precedent and lower courts are bound by the higher courts decisions - Known as BINDING PRECEDENT
• When a court is not bound by another court’s judgment it can still be influential - Known as PERSUASIVE PRECENT

Question 5

how many levels does the court hierarchy have?

Answer 5

3 being lower, intermediate and superior

Question 6

List the features of the local court.

Answer 6

• run by magistrates ( not judges )
• deals with minor civil disputes up to $40 000
• deals with minor criminal cases such as stealing-drink driving-assault
• presides over commital hearings
• hears bail applications
• deals with 80% of all cases.

Question 7

List features o the district court.

Answer 7

• deals with more serious criminal matters such as armed robbery
• deals with more serious civil cases up to $750 000
• hears appeals from the local court
• juries may be used to determine guilt and judges determine appropriate sentence.

Question 8

List features of the Supreme Court.

Answer 8

• Highest court in NSW
• deals with appeals from lower courts
• deals with most serious crimes such as murder
• deals with most serious civil cases.

Question 9

List the features of the high court.

Answer 9

• located in Canberra
• deals with appeals from the state or territory supreme courts
• deals with issues regarding the constitution
• highest court in Australia
• decisions are final
• it is a federal court.

Question 10

What is the FEDERAL court hierarchy?

Answer 10

The federal court hierarchy consists of the federal magistrates court, federal court of Australia, family court of Australia, and high court of Australia. ( in order from lowest to highest )

Question 11

List features of the federal magistrates court.

Answer 11

• established in 1999
• hears matters regarding copyright, migration, family law, child support, bankruptcy or human rights. ( laws specific to the commonwealth govt.

Question 12

List features of the federal court.

Answer 12

• deals with civil disputes governed by federal law and some criminal cases
• superior to the magistrates court but equal to the family court

Question 13

List features of the family court of Australia.

Answer 13

• deals with complex and specialized family law matters ( child neglect, divorce )
• can hear appeals from the federal magistrates court

Question 14

What is statute law and its features?

Answer 14

Statute law is law made by parliament and commonly known as legislation or acts. Any parliament has the power to create statute law.
- Statute law overrides common law.

Question 15

Outline the legislative process and its features.

Answer 15

The legislative process refers to the passing of new legislation which is one of the most important functions of parliament.
- A proposed new law is called a bill and it gets read by the 2 Houses of Parliament.
- The process is time consuming and difficult and open to public scrutiny.
- When a bill is passed by parliament, it is signed by the Governor General and becomes an act of parliament.

Question 16

Outline the 2 Houses of Parliament and their features.

Answer 16

The two Houses of Parliament are the nsw and federal.
- The nsw house consists of the LEGISLATIVE ASSEMBLY ( lower house ) and the LEGISLATIVE COUNCIL ( upper house ). Acts passed by the nsw house will have ( NSW ) at the end of them.

• The federal house consists of the HOUSE OF REPRESENTATIVES ( lower house ) and the SENATE ( upper house ). Acts passed by them federal house will have ( CTH ) at the end of them - standing for commonwealth.

Question 17

What is the constitution and its features?

Answer 17

The constitution commenced on the 1st of January 1901 to create the Commonwealth of Australia.
- it outlined the legal framework and rules that apply to the governance of Australia
- It created the states, the commonwealth, and the federal parliament
- it outlines the division of powers between the commonwealth and states - specifically says what they can and can’t do.

Question 18

Describe the Division of Powers.

Answer 18

Division of powers refers to how power is divided ( into 2 ) between the commonwealth and states to make laws.

• It is divided into federal and state.
• If there is a clash between federal and state laws, the commonwealth overrides.
• Federal ( executive ) creates laws on things like defense, migration, and taxes.
• State ( residual ) creates laws on things like hospitals, policing, and schooling.

Question 19

Outline the separation of powers and its features.

Answer 19

Separation of powers ensures that the powers of government are not concentrated in one place, with one person or a group of people - if one person or group holds all the power it risks being abused and the rights of citizens are at risk. Separation of power is separated into 3 areas.

• The legislature ( Parliament ) which includes the making of legislation and law makers. Legislation and parliament.
• The executive ( Parliament ) which includes the ministers and government departments who administer the law. Prime minister and government departments.
• The judiciary ( Judges and courts ) which includes the judges and courts who interpret and apply the law. Legislature and executive are not entirely separated but the judiciary is. Judges and courts.

Question 20

List the features of the high court.

Answer 20

• has both original jurisdiction to hear new matters and appellate jurisdiction to hear appeals from other courts
• its decisions are final and cannot be appealed
• hears cases regarding the constitution and is very influential in defining australia

Question 21

What is terra nullius and how does it relate to ATSI customary law?

Answer 21

When the British settled Australia they made a legal claim under international law that the land was terra nullius meaning belonging to no one. They claimed it was unoccupied because the ATSI people used no fences or signs showing ownership that the British were accustomed to - British justification to apply their own laws.

Question 22

List the features of ATSI customary law.

Answer 22

• There were 250 distinct nations
• each community had its own language, culture, traditions and customers.
• There was no single system of law between the groups but there were many common aspects and many groups shared alliances.
• Stayed in particular areas according to seasonal variations in food and climate.
• Based on tradition, ritual and socially accepted conduct ( hence CUSTOM-ary ).
• One difference between customary law and British law was the concept of ownership - possession of land was a key principle in British law whereas indigenous cultures considered the land as sacred that could not be owned by any one person.

Question 23

Which case highlights that there were in fact people in Australia during the British settlement and it was NOT terra nullius?

Answer 23

MARBO ( 1992 ) : Torres Strait islander man who proved in the court of law that they were in fact living there

Question 24

Outline the relevant of ATSI customary law to contemporary Australian law today.

Answer 24

Some elements of indigenous customary law are applied in Australian law today like :
- customary law can be taken into account when an indigenous Australian is charged with a crime
- indigenous elders can sometimes be consulted by those maintaining or enforcing the law.

Parliaments have been reluctant to formally incorporate customary laws into Australian laws the main argument being that everyone is not being treated equally by the law.

Question 25

Outline the diverse nature of customary laws.

Answer 25

• similarities between different tribes include that disputes are not restricted to the individual and everyone in the community can be involved in the resolution.
• Offences between tribes may include insulting an elder or singing sacred songs in public.
• Being a member of a tribe means that a person is able to live on and use the resources of certain lands therefore the land belongs to the group.
• ATSI people also have links with the sea, lakes, rivers and all bodies of water which are not owned by individuals but cared for by the group.
• Failure to follow the traditional laws can be seen as failure to show respect for the land and traditional values.

Question 26

Outline the importance of kinship in regards to ATSI customary law

Answer 26

• Kinship is a reference to family relationships and extended family ties which is an essential feature of indigenous Australian societies.
• This feature is significant when making laws and enforcing them
• helps non-indigenous Australians to understand the importance of communities to ATSI people.

Question 27

Outline ritual and oral traditions in relation to ATSI customary law.

Answer 27

• been passed through generations through word of mouth and ritual.
• Songs and dances are used to help people remember the laws of their group.
• Different people in the tribe know different laws.
• During ceremonial meetings at communal gathering places laws are passed on by and to the appropriate people through dance and storytelling.
• People from the outside are not permitted to participate or watch such meetings
• These stories explain things such as the creation of all things, why things happen, tribal boundaries, family relationships, cultural practices, and forbidden acts.

Question 28

Outline mediation and sanctions in regards to ATSI customary law.

Answer 28

• when customary laws are broken or disputes arise discussions / meetings are held instead of formal judicial proceedings. They would be held during ceremonial times and elders / influential members of the tribe would use discussion and dialogue in an attempt to settle the dispute.
• Mediation has an important role in dispute resolution.
• When sacred law has been broken elders are often directly involved in apply sanctions which vary from place to place.
• The relatives of wronged parties, ceremonial leaders may be involved in the punishment which is determined through negotiations or kinship relationships.
• Punishments range from ridicule and shaming to exile, spearing or death.
• The justification for physical punishments is sometimes expressed as to ‘ restore balance ‘ for the parties and their families.

Question 29

Describe international law and customary international law.

Answer 29

International law governs the relationship between countries, it regulates trade and commerce between countries and provides laws to maintain peace and security. One of the main criticisms of international law is that it lacks enforcement because it relies on countries’ consent to its jurisdiction.

Customary international law is not a written document but it is instead based on traditions and customs which are seen to be fair and right by the international community.

Question 30

Outline the 2 main instruments of international law.

Answer 30

TREATIES AND DECLARATIONS
- Treaties are international agreements that are written and binding on the countries that sign and ratify them - they can be bilateral or multilateral.

• Declarations are written international instruments which state and clarify the parties’ position on a particular matter but are not binding.

Question 31

Describe the relevance of international law to Australian law.

Answer 31

In Australia, signing and ratifying a treaty does not automatically make it part of domestic law and for international law to become Australian law, new legislation is usually required.

• International treaties have a profound influence on the development of modern Australian law.

Question 32

Outline the United Nations 3 main objectives.

Answer 32

The chief organization involved in international law. Established in 1945 and its 3 main objectives are to :

• maintain global peace and security
• support nation states right to govern its own social, economic and political development
• promote cooperation in resolving international problems.

Question 33

Provide the definition and function of the international court of justice.

Answer 33

The principal judicial organ or the UN.

Its function is to settle disputes submitted by the states and to give advisory opinions on legal questions submitted by the General assembly, security council or other permitted bodies.

Question 34

Provide the definition and function of the international criminal court.

Answer 34

Principal body that deals with cases of serious international crimes committed by individuals.

Its function refers to it being a permanent court that deals with cases against individuals who have been accused of the most serious international crimes.

Question 35

Provide the definition and function of the war crimes tribunal.

Answer 35

Specialist international courts establish ad hoc ( when needed ).

Its function is to put on trial individuals accused of war crimes and crimes against humanity

Question 36

Provide the definition and function of intergovernmental organisations

Answer 36

Organized groups of nations.

Function includes being organized to pursue mutual interest in a wide variety of areas.

Question 37

Provide the definition and function of non governmental organisations

Answer 37

Associations based on common interests that have no direct connections to governments.

Function is to lobby government to take action on a wide range of important issues.