Term 1 (Sources of Australian Contemporary Law/Classification Flashcards
What legal system is the Australian legal process based on?
English Common Law System. They colonised us. They introduced this in 1788.
What is the meaning of common law?
Court made law. Developed by the courts of common law as opposed to the courts of equity.
What are the two sources of Australian Contemporary Law?
Legislative law (parliament made law) and common law (the decisions of the courts).
How is common law developed?
Tradition, custom, and precedent.
What is trial by ordeal?
Where the defendant had to attend a special mass and fast for three days followed by a painful task that had to be completed. If you were injured or/and died you were considered guilty. Based on religious views aka “Judgement of God”.
What is precedent?
A judgement made by a court that establishes a point of law. A decision made by higher courts should be considered for latter cases similar in lower courts. It is a doctrine that helps achieve consistency of the law.
What is the adversarial system of trial?
A system of resolving legal conflicts, used in common law countries such as England and Australia, that relies on the skills of representatives for each side who present their cases to an impartial decision maker.
What is equity law and how is it used in the Australian Legal System?
Equity developed in the 13th century as a result of the injustices of common law. Derived from Christian principles. It was decided in the 17th century that where conflict between common law and equity law arose, equity law should prevail. The British Parliament passed the Judicative Act 1873 merging the two courts and allowing judges to apply common law and/or equity in a particular case. The Australian colonies followed with similar legislation.
What are the two parts that make up the reason why a judge gives a decision?
Ratio Decidendi - the legal reason why a judge came to a particular decision. The ratio decidendi of a higher court sets a BINDING PRECEDENT on lower courts.
Obiter Dicta - the other remarks made by the judge regarding the conduct of the trial or tangential legal concepts. They do not form part of the binding precedent but is considered PERSUASIVE PRECEDENT and used to argue for or against issue of law in subsequent cases.
Who is precedent made by?
The High Court of Australia as that is the highest court.
What is the 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.
What does the High Court of Australia do?
Matters arising under the Constitution, conflicts between states and conflicts between Commonwealth and state/territory laws. All decisions are final and binding on all lower court throughout Australia.
What does the Supreme Court do?
Criminal: serious offences e.g. murder.
Civil: Unlimited damages claims, personal injury, defamation and contract.
What does the District Court do?
Criminal: Indictable criminal offences e.g. SA
Civil: Matters up to $750,000 damages and all motor accident matters.
What does the Local Court do?
Criminal: Summary offences e.g. traffic offences
Civil: Matters up to $100,000 damages
What do each of the Specialist Courts do?
The Children’s Court: hears most criminal matters where the offender is aged 10-18 at the time of the matter.
The Coroners Court: investigates unnatural, unexpected, sudden and suspicious deaths, and investigates fires and explosions.
The Drug Court: hears criminal matters for eligible person aged 18+, referred by Local and District Courts with dependency on prohibited drugs.
