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Legal Studies > Sources Of Contemporary Australian Law > Flashcards

Sources Of Contemporary Australian Law Flashcards

1
Q

What is the history of common law?

A

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.

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2
Q

What is the adversarial system of trial?

A

A system of resolving legal conflicts used in common law countries - representatives for each side who present cases to an impartial decision-maker.

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3
Q

What is inquisitorial system?

A

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.

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4
Q

What is equity?

A

Corrects the judging on each case through applying the principles of fairness.

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5
Q

What is precedent?

A

A judgement that is followed. ‘Stare decisis’ - the decision stands.

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6
Q

How is precedent made? When is it followed?

A

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.

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7
Q

What is a binding precedent?

A

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.

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8
Q

What is a persuasive precedent?

A

Superior courts do not have to follower decisions of the lower court but they can use them to help make their decision.

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9
Q

What is common law?

A
  • A court made law

- Laws developed by the courts of common law

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10
Q

What is an appeal?

A

Application to a higher court to reconsider the lower court’s decision on the error of law.

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11
Q

What is a summary offence?

A

Criminal offences that dealt with a single judge without a jury + no preliminary hearing.

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12
Q

What is an indictable offence?

A

Serious criminal offences with a preliminary hearing, written charge and tried in front of a judge and jury.

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13
Q

What are the 3 state and federal hierarchical court system?

A
  1. Lower courts
  2. Intermediate courts
  3. Superior courts
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14
Q

Local court and Magistrate court

A

Deals with:

  • minor criminal and summary offences
  • civil matters up to $100 000
  • committal hearings
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15
Q

Coroners Court

A

Deals with:

  • unexplained or suspicious deaths
  • fired and explosions
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16
Q

Children’s Court

A

Deals with:

  • civil matters relating to care and protection of children and young people
  • criminal cases of persons under the age of 18
17
Q

District Court

A

Deals with:

  • manslaughter, malicious wounding
  • dangerous driving
  • assaults
  • sexual assaults
  • property: robbery, breaking and entering, larceny and embezzlement
  • prohibited drugs
  • fraud and forgery
18
Q

Supreme Court

A

Deals with:

  • monetary matters no limits
  • hears appeals
  • indictable offences
19
Q

Federal Courts: Magistrates Court

A

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

20
Q

Federal Courts: Family Court

A

Deals with:

  • complex family law matters
  • divorce
  • parenting orders
  • the division of property
  • spousal maintenance
21
Q

Federal Court: High Court

A

Deals with:

  • appeals from the federal court, family court and Supreme Courts
  • interpretation of the Australian constitution
22
Q

What is the role and structure of parliament?

A

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

23
Q

What is the role and structure of legislative process?

A

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.

24
Q

What is the process of passing a bill through Parliament?

A
  1. Need for new law
  2. Draft bill
  3. First reading - title of the bill is read out
  4. Second reading - elaboration of its aims + debate
  5. Committee stage - debate + changes are made
  6. Third reading - a vote is taken
  7. Royal assent - Governor General formal approval
25
Q

What is the function of delegated legislation?

A 
It is made by non-parliamentary bodies. 
Types:
1. Regulations
2. Ordinances
3. Rules
4. By-laws - local council
26
Q

What is the constitution?

A

A set of rules that applies to a large organisation or a nation.

27
Q

What is the difference between division and separation of powers?

A

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

28
Q

What is the role of the High Court in interpreting the constitution?

A

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.

29
Q

What is the characteristics of ATSI customary laws?

A

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
30
Q

What are the issues and benefits of customary law?

A

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

31
Q

What is the source of customary laws?

A

The Dreaming.

32
Q

What is kinship?

A

Family relationships including extended family relationships.

33
Q

What is mediation and sanctions?

A

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.

34
Q

How is the ATSI customary laws been integrated into Australian law?

A

The use of conciliation and mediation in terms of mitigation = making the severity of an offence/sentence milder.

35
Q

What is international law?

A

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)
36
Q

What is the difference between international and domestic law?

A

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.

37
Q

What is the sources of International Law?

A
  1. 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.
  2. Customs - customary international law: not written relies on traditions or common practices over time.
  3. Legal agreement
  4. Legal writings
38
Q

What is the role of the UN?

A

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.

Legal Studies (4 decks)

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