Sources of Contemporary Australian Law Terms Flashcards
Common law
Law made by courts, historically law common to
England
Statute law
Law made by Parliament
Adversarial system
a system of resolving legal conflicts, used in common law countries, which relies on the skills of representatives for each side who present their cases to an impartial decision maker
Inquisitorial system
a legal system where the court or a part of the court is actively involved in conducting the trial and determining what questions to ask, used in some countries which have civil legal systems rather than common law systems
Courts of equity
Historically, Courts whose decisions were more discretionary and based on moral principles, and which served as an antidote to the inflexibility of common law
Equity
the body of law that supplements the common law and corrects in justices by judging each case on it’s merits and applying principles of fairness
Precedent
a judgement that is authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts
Stare Decisis
A Latin term meaning “the decision stands”; the doctorine that a decision must be followed by all lower courts
Ratio Decidendi
(Latin) the legal reason for a judge’s decision, forms precedent
Obiter Dicta
(Latin) comments from a judge in a case that are not directly relevant to the case, and, therefore, not legally binding - may be persuasive
Jurisdiction
the powers of court, depending on its geographic area, the types of matters that it can decide, and the type of remedy that it can reward
Defamation
The act of making untrue statements or suggestions that cause damage to a person’s reputation in the community
Appeal
An application to have a higher Court reconsider a lower courts decision, on the basis of an error of law
Summary offence
Criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing
Indictable offence
A serious criminal offence requires an indictment (a formal written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than non-indictable offences
Committal hearing
Inquiry held by the local or magistrates Court to determine whether there is enough evidence against the defendant to warrant a trial in a higher Court (establishing ‘prima facie’)
Coronial inquest
investigation into a death that has occurred in unusual circumstances, held in the coroners Court and overseen by a magistrate called the coroner
Larceny
Taking another person’s property with the intention of permanently depriving them of it; also known as stealing
Appellate jurisdiction
the ability or power of a court to hear appeals of the decisions of lower courts and to reject, a firm or modify those decisions
Corporations law
legislation that regulates corporations and the securities and futures industry in Australia ; it is administered by the Australian Securities and Investments Commission (ASIC)
Binding Precedent
A court has to follow a previous decision if the following requirements are met:
1) the decision comes from a higher Court
2) the higher court is on the same hierarchy
3) the case has similar facts
Persuasive precedent
Persuasive precedent may be followed in the following circumstances:
1) it comes from a lower Court or court on the same level
2) interstate courts
3) international courts
4) obiter dictum statement
Bicameral
Containing two chambers or houses of Parliament
Bill
A drafted Lord that has not yet been passed by Parliament
Act of parliament
Statute law, resulting from a bill successfully passing through parliament and gaining royal assent
Delegated legislation
Laws made by authorities other than parliament, which are delegated the power do so by an Act of Parliament
Federation
The process of uniting several states to form a single national government
Referendum
The referral of a particular issue to the electorate for a vote
Tariff
Attacks that must be paid on imports or exports
S
Abbreviation for ‘section’ of any legislation
Legislative powers
The legal power or capacity to make laws
Concurrent powers
Existing at the same time: powers held by both state and Federal Parliament
Exclusive powers
Power words that can only be exercised by the Federal Parliament
Ultra Vires
(Latin) beyond the power of authority legally held by a person, institution or statute to perform an act
External affairs power
the power of the Commonwealth to legislate of international matters involving Australia; interpreted by the high courts to mean that when the Commonwealth science and international treaty or convention it has the authority to enact laws to give effect to this international law within Australia
Residual powers
those matters on which the states can legislate, as they are not reffered to within the constitution
Bipartisan
having the support of the two major political parties
Prima Facie
(Latin) ‘on the face’; at first sight, having sufficient evidence established against the defendant to warrant a trial in a higher court of law
What is the role of the Local Court?
Deals with summary offences
Hears status briefs (committal hearings)
Can deal with civil matters with a monetary value of up to $10,000
Operates Coroner’s Court
What is the role of the District Court?
Deals with indictable offences
Hears cases involving issues such as larceny, manslaughter, sexual assault and drug offences
Handles civil cases where the amount claimed is below $750,000
Has appellate jurisdiction
What is the role of the Supreme Court?
Highest court in the state hierarchy
Deals with the most serious indictable offences - murder, attempted murder, piracy & treason
Hears civil cases involving monetary amounts over $750,000
Court of Criminal Appeal - highest state appellate court
What is the role of the Federal Circuit Court?
Established to receive the overflow of Federal & Family Court Cases
Deals with areas such as family law and child support, human rights, bankruptcy & migration
Does not deal with criminal matters
What is the role of the Federal Court?
Deals with civil disputes governed by federal law (apart from family law matters)
Also hears some summary criminal offences
In the Federal Court hierarchy, it is equivalent to the Supreme Court
What is the role of the Family Court?
A superior federal court that deals with the most complex family law matters
Rules on cases such as divorce, parenting orders and the division of property
What is the role of the High Court?
Established in 1901 by Section 71 of the Australian Constitution
The highest court in the Australian judicial system - hears appeals from the Federal, Family and state Supreme Courts
Also deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws
Division of Powers
The powers split between the Commonwealth and the States
Which section of the Australian Constitution outlines the legislative powers of the Federal Parliament?
Section 51
Which section of the Australian Constitution outlines the exclusive powers of the Federal Parliament?
Section 52
What is the Separation of Powers?
that no one person or group should control all the key organs of government, as this can lead to tyranny
What are the three areas of the separation of powers?
Judiciary
Legislature
Executive
Who are the legislature?
The law-makers (in Australia this is the House of Representatives & the Senate)
Who are the executive?
The ministers and government departments who administer the laws made by parliament (in Australia this is the Prime Minister, Cabinet & Governor-General)
Who are the judiciary?
The courts which interpret and apply the law
What is the fundamental role of the High Court?
The interpretation of the Australian Constitution
