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ILR LAW1101 > The Australian Legal System > Flashcards

The Australian Legal System Flashcards

1
Q

What is ceded?

A

agreement is made with land owners/natives combining or overriding their existing legal system

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2
Q

What is settled?

A

land is simple claimed where there is no pre-exisisting legal system

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3
Q

What is conquered?

A

land is taken over by force and the conquering nations laws overrule any previously existing law

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4
Q

Three ways of claiming land?

A

Ceded, settled, conquered

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5
Q

How did the Commonwealth claim Australia?

A

Britain ignored the hundreds of separate Aboriginal legal systems existing in Australian Aboriginal groups and settled without treaty or purchase of the land. They claimed that since the Aboriginals did not have any land used for agricultural purposes, they lacked land ownership laws and therefore lacked a legal system. They believed that this meant Australia was not inhabited by civilised people and could, therefore, be settled

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6
Q

Where does Australia derive its law?

A

Australian law and government derives its legal authority from the British Crown’s claim to sovereignty over Australia

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7
Q

1788? Law?

A
  • First NSW colony

- ‘Carry with them English laws applicable to their own situation and the condition of an infant colony

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8
Q

1828 legislation

A

Australian Courts Act 1828 (Imp)

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9
Q

Australian Courts Act 1828 (Imp)

A

Laws of England only had effect in NSW if directly stated in the law

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10
Q

1865 legislation

A

Colonial Laws Validity Act 1865

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11
Q

Colonial Laws Validity Act 1865

A

Allowed NSW colony to pass their own laws as long as it wasn’t repugnant to British law
Confirmed the ability of colony to amend their own constitutions

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12
Q

1901 legislation

A

Australian Constitution Act 1901 (Imp) passed in Westminster

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13
Q

Australian Constitution Act 1901 (Imp) - states position/power

A

States feared loss of power to the Commonwealth, wording was precise to attempt to refrain from loss of power
States retained more power than Commonwealth for 30-40 years but gradually power has been transferred to Commonwealth

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14
Q

1931 legislation

A

Statute of Westminster 1931 (Imp)

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15
Q

Statute of Westminster 1931 (Imp)

A

Britain could legislate for dominions (former colonies) only by request
British statutes no longer automatically applied
Dominions could appeal any received British statute

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16
Q

1942 legislation

A

The Statute of Westminster Adoption Act 1942 (Cth)

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17
Q

The Statute of Westminster Adoption Act 1942 (Cth)

A

Australian Courts Act 1865 no longer applied to Australia

Australia can make laws repugnant to British law (commonwealth only)

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18
Q

1986 legislation x2

A

Australia Act 1986 (Imp) and Australia Act 1986 (Cth)

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19
Q

Australia Act 1986 (Imp) and Australia Act 1986 (Cth)

A

repealed Colonial Laws Validity Act 1865 for States

States can make law repugnant to British law

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20
Q

1992

A

Mabo

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21
Q

Mabo (1992)

A

Recognised that Australia was not an empty land - without taking away the radical title to all land was vested in the Crown
If a group of Aborigines or Torres Straight Islanders could show that they had exercised traditional rights over land since before British colonialism, the law would recognise those traditional rights

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22
Q

1993 legislation

A

Native Title Act

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23
Q

Native Title Act

A
  • Recognises that Aboriginal people have some rights based on their culture and beliefs. General native title gives way to the rights of others but their rights through custom law are also considered. May include rights to live on the area
    access the area for traditional purposes, like camping or to do ceremonies
    visit and protect important places and sites
    hunt, fish and gather food or traditional resources like water, wood and ochre
    teach law and custom on country.
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24
Q

Exclusive power

A

Commonwealth only

25
Q

Exclusive powers on the constitution

A 
s52
s90
s105
s114
s115
s122
26
Q

Concurrent

A
  • Shared between States and Commonwealth governments
27
Q

Concurrent in the constitution

A

s51 - insurance, banking
s109 - inconsistency between Commonwealth and and States over a concurrent power the Commonwealth law will prevail (Case will be taken to High Court so final decision and interpretation will be put on the Justices of the High Court)

28
Q

Residual

A
  • State only
29
Q

Residual in the constitution

A

Not directly stated in the constitution

Transport, Local Government, Education

30
Q

Common Law - what is it? what does it do?

A
  • evolved through judicial decision and practise
    interpret the law (dispute over meaning etc.)
    create law where law does not previously exist
31
Q

Statute law

A
  • passed by State or Federal parliament
32
Q

International Law - three types?

A

Human Rights, public & private

33
Q

public international law?

A

two countries dealing with each other (e.g. Australia takes Japan to court for whaling)

34
Q

private international law

A

regulates how to deal with a situation between individuals from different countries

35
Q

Human rights

A

regulates what you can do to people within your jurisdiction

36
Q

Equity

A

Body of law (similar to tort, contract, criminal etc.)
Judge made
Separate to common law
Developed alongside common law to ensure fairness

37
Q

Common law system (7)

A

uses statutes and common law

Judge made law and legislation
Legal principles develop from individual cases
Usually one continuous hearing
Rights for the accused (innocent until proven guilty)
Community values
Precedent
Adversarial
-Conduct run by parties, not judge
-Evidence elicited by calling witnesses
-Judge as unbiased ‘umpire’
-Parties role to object if rules aren’t followed
-Wrong against the community
-Beyond reasonable doubt
Individual v State (unequal parties)
Punishes wrongdoing

38
Q

Civil law system (8)

A

uses statute only

Evolved from rediscovery of Roman texts
Codification of law
Accessibility of law (due to codification)
Inquisitorial judge
Bureaucratic status of judge (less prestigious role)
Values universality
Aims to deliver justice
Hearing held at different stages
Enforcing of the rights of individuals
Balance of probabilities
Individual v Individual (equal parties)
Aims to return a situation to before (not to punish)
- e.g. pay damages to fix
39
Q

Rule of law

A

No man or women is above the law
Government must act in accordance with the law
Magna Carta - 1215 law forced upon King of England by subjects - beginnings of the development of rule of law

40
Q

Parliamentary Sovereignty

A

Parliament has final rules over executive and judicial branches
Existent but limited in Australia
Statute law trumps judge-made law
But judges must interpret statute law, High Court ensures legislation is constitutional

41
Q

Separation of Powers - prevalence in Australia?

A

3 separate branches of government : legislative, executive, judiciary
Blurred
executive sits in legislative branch
judiciary appointed by executive

42
Q

Responsible government

A

Executive are responsible to the parliament
Parliament are responsible to the people

Parliament hold the executive accountable
People hold the parliament accountable (through elections etc.)

43
Q

Two branches of the legal proffession

A

solicitor, barrister

44
Q

requirements to become barrister

A

Must ‘read’ for 9 months in the chambers to become a member of the Bar

45
Q

Application for practise

A
  1. Apply to the Supreme Court
    Must be satisfied the person is of good reputation and character and a fit and proper person (take recommendations from the board of examiners)
  2. Application to the Law Institute of Victoria
    Must be 18
    Practical education (LLB or JD) and completion of compulsory 11 units
    12 month Supervised Workplace Training (working under supervision of qualified legal practitioner) or Practise Legal Training
    Take oath or affirmation of office
46
Q

Fit and proper person

A

Insolvency
Previous offences
Mental infirmity
Legal practise - unauthorised legal practise, subject to complaint or disciplinary proceedings, suspended or disqualified from practise

47
Q

OG [2007] VSC 520

A

Two students colluded in business assessment
Work disallowed by no disciplinary measures
Student one: disclosed incident - to admitted to legal practise
Student two: did not disclose, was admitted then discovered; name removed from the roll of practitioners

48
Q

Completing legal work or giving advice without qualifications

A

is an offence and punishable for 2 years imprisonment. Legal Professions Act 2004, Legal Profession Regulations 2005

49
Q

Appointment and Dismissal of Judges

  • constitutional section?
  • procedure?
A

Constitution s72
Appointed by Governor-General in council
Not be removed except by Governor-General in Council, on address from both Houses of Parliament in the same session, asking for removal on the grounds of proved misbehaviour or incapacity
Cannot be a High Court Justice if above 70 years old

50
Q

s106

A

State Constitutions preserved

51
Q

s109

A

When an inconstancy between state and Commonwealth law occurs the Commonwealth law will prevails.

52
Q

Changing the Constitution

  • section
  • procedure/requirements
A 
Referendum requiring:
Vote of absolute majority of both the House of Representatives and the Senate
Majority of voters
Majority of states
Consent of Governor General
53
Q

Recent example of constitutional change?

A

Aboriginal and Torres Straight Islander Peoples Recognition Bill 2012

54
Q

Aboriginal and Torres Straight Islander Peoples Recognition Bill 2012

A

Expert Panel on Constitutional Recognition of Aboriginal and Torres Strait Islander peoples research and proposed recommendations
13 February 2013: House of Representatives passed Bill.
Aims to recognise Aboriginal and Torres Straight Islanders in the constitution
Includes Recognition of unique and special place of Aboriginal and Torres Strait Islanders
Sunset clause: two years

55
Q

Arguements for Bill of Rights

A

Founding fathers took it for granted that individual rights were secure under common law, but other countries examples show this perhaps isn’t the case?
Makes rights clear and concise
Cannot be easily altered - protection increased

56
Q

Arguments against

A

If society is tolerant and rational, it does not need a Bill of Rights. If it is not, no Bill of Rights will preserve it.
Cannot be easily altered - can be stuck with outdated ideas

57
Q

Charter of Human Rights and Responsibilities Act 2006 (VIC) - what effects it can have?

A

Requires courts and tribunals to interpret legislation in a way that is compatible with Human Rights
Cannot eliminate an Act or provision if found to violate Human Rights (parliamentary sovereignty
Puts obligation on public authorities to act in a way which is compatible to human rights
Requires statements of compatibility for Bills introduced into Parliament
Forces Victorian parliament and Courts to consider Human Rights but does not force them to abide by Human Rights

58
Q

Momcilovic v The Queen (2011) 245 CLR 1

A

High Court has upheld the constitutional validity of the Victorian Supreme Court’s power to make declarations of inconsistent interpretation where a law cannot be interpreted consistently with human rights. 


ILR LAW1101 (4 decks)

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