Sources Of Contemporary Australian Law Flashcards
What is the history of common law?
The British legal system began from travelling judges in the 11th century who applied a common set laws. People made petitions for unfair rulings in similar cases creating precedent.
What is the adversarial system of trial?
A system of resolving legal conflicts used in common law countries - representatives for each side who present cases to an impartial decision-maker.
What is inquisitorial system?
A legal system of court where the judge is involved in conducting the trial and determine questions to ask used in civil legal systems opposed to common law systems.
What is equity?
Corrects the judging on each case through applying the principles of fairness.
What is precedent?
A judgement that is followed. ‘Stare decisis’ - the decision stands.
How is precedent made? When is it followed?
Precedents are created from from interpretation of legislation. It has to be follower of the case is similar. However a court does not have to follow a decision made by a lower or equal level in the hierarchy.
What is a binding precedent?
Lower courts are bound to follow decisions of superior courts no matter whether the judge believes otherwise. The high court is not bound to its own decision.
What is a persuasive precedent?
Superior courts do not have to follower decisions of the lower court but they can use them to help make their decision.
What is common law?
- A court made law
- Laws developed by the courts of common law
What is an appeal?
Application to a higher court to reconsider the lower court’s decision on the error of law.
What is a summary offence?
Criminal offences that dealt with a single judge without a jury + no preliminary hearing.
What is an indictable offence?
Serious criminal offences with a preliminary hearing, written charge and tried in front of a judge and jury.
What are the 3 state and federal hierarchical court system?
- Lower courts
- Intermediate courts
- Superior courts
Local court and Magistrate court
Deals with:
- minor criminal and summary offences
- civil matters up to $100 000
- committal hearings
Coroners Court
Deals with:
- unexplained or suspicious deaths
- fired and explosions
Children’s Court
Deals with:
- civil matters relating to care and protection of children and young people
- criminal cases of persons under the age of 18
District Court
Deals with:
- manslaughter, malicious wounding
- dangerous driving
- assaults
- sexual assaults
- property: robbery, breaking and entering, larceny and embezzlement
- prohibited drugs
- fraud and forgery
Supreme Court
Deals with:
- monetary matters no limits
- hears appeals
- indictable offences
Federal Courts: Magistrates Court
Deals with:
- family and child support
- administrative law
- bankruptcy
- human rights
- consumer protection
- trade
- privacy
- migration
- copyright
- industrial law
DOES NOT DEAL WITH CRIMINAL MATTERS
Federal Courts: Family Court
Deals with:
- complex family law matters
- divorce
- parenting orders
- the division of property
- spousal maintenance
Federal Court: High Court
Deals with:
- appeals from the federal court, family court and Supreme Courts
- interpretation of the Australian constitution
What is the role and structure of parliament?
It is bicameral- two Houses of Parliament. NSW- It has a lower house called the Legislative Assembly. The upper house is called the Legislative Council.
Federal Parliament - Senate and House of Representatives
What is the role and structure of legislative process?
The passing of laws - Bill. Before the bill is passed and becomes federal law it requires approval of both Houses of Parliament and the Governor General. It then becomes an Act of Parliament.
What is the process of passing a bill through Parliament?
- Need for new law
- Draft bill
- First reading - title of the bill is read out
- Second reading - elaboration of its aims + debate
- Committee stage - debate + changes are made
- Third reading - a vote is taken
- Royal assent - Governor General formal approval
What is the function of delegated legislation?
It is made by non-parliamentary bodies. Types: 1. Regulations 2. Ordinances 3. Rules 4. By-laws - local council
What is the constitution?
A set of rules that applies to a large organisation or a nation.
What is the difference between division and separation of powers?
The division of power is divided between federal government and the states. The separation of powers of government is:
Legislature: law makers
Executive: administer the laws made by parliament
Judiciary: courts interpret and apply the law
What is the role of the High Court in interpreting the constitution?
The high court has both original and appellate jurisdiction. Original - power of a court to hear the case in first instance. Appellate - power of a court to hear appeals.
It’s role is under section 75 + 76.
- treaties
- countries
- between States
- determining whether a particulate body has jurisdiction to exercise judicial power - interpreting disputes concerning the constitution.
- determines each level of government can use its power and outline limits on such powers.
What is the characteristics of ATSI customary laws?
Customary laws is principles that have developed through customs of people. The features are:
- kinship ties
- laws agreed on a whole group
- variations between nations/groups
- based on rituals and traditions
- passed on through dance and song
- passed on by word of mouth
- relationship to the land
What are the issues and benefits of customary law?
Issues:
- can be modified as it’s passed on
- interpretation of the law can change
- laws may be forgotten to be passed on
Benefits:
- flexible and easy to change outdated/unjust laws
What is the source of customary laws?
The Dreaming.
What is kinship?
Family relationships including extended family relationships.
What is mediation and sanctions?
Mediation is a form of alternative dispute resolution to help two parties in the presence of the third party to reach an agreement.
Sanction is a penalty given to those who break the law in the form of fines or punishments.
How is the ATSI customary laws been integrated into Australian law?
The use of conciliation and mediation in terms of mitigation = making the severity of an offence/sentence milder.
What is international law?
International Law:
- linear structure
- state sovereignty: a nation state having jurisdiction over its country, it has the highest authority, answers to no one, territorial integrity (can’t be invaded and can’t use force)
What is the difference between international and domestic law?
Enforceability and Compliance.
IL: compliance relies on goodwill through reciprocity. It is not enforceable due to state sovereignty.
DL: has courts, police and punishments to enforce the law - it has punishments therefore citizens comply to the law.
What is the sources of International Law?
- Treaties: a written international agreement between states. A nation state can choose to ratify the treaty: confirming a nation will be bound by the treaty.
- Customs - customary international law: not written relies on traditions or common practices over time.
- Legal agreement
- Legal writings
What is the role of the UN?
A foreign for all nations to meet, discuss and negotiate international agreements. Guided by the UN Charter - overarching document which sets out the purpose of the UN, the rule and power of the organisation. The general assembly is the representatives of member states.
