The Australian Legal System Flashcards
What are the two main types of law that form part of the Australian Common Law System?
Parliment Made Law (legislation, acts, statutes)
Judge made law (Case law)
What are the main differences between legislation & common law?
LEGISLATION:
- Made by parliament
- Operate prospectively (applies to the future, can back date but not usually)
- Written in one text
- Can be very broad (wide interpretation)
- Responsive to community (takes initiative)
- Easier to change
- Democratic but political
COMMON/CASE LAW
- Made by judges
- Operates reactively (retrospective)
- Precedent
- Dispersed
- Directed at particular issues (specific to the question)
- Not as responsive (litigation)
- Harder to change (often slow)
What is delegated legislation?
Act of making power of parliament can be delegated (to the ACCC)
What are 4 examples of delegated legislation?
Regulations (practical legal guidelines)
Legal Rules (admin procedures to support legislation)
By-Laws (geo areas)
Ordinances (territorial)
What are the 3 common rules of statutory interpretation?
Literal rule
Golden rule
Mischief rule
How is legislation interpreted?
By judges.
What is the literal rule?
Take the statute for it’s plain meaning - the ordinary meaning given to the words even if it leads to an absurd result
What is the golden rule?
If a literal interpretation would lead to an absurd result, words are given to provide meaning that would avoid absurdity
Mischief rule
the “purposive approach” - search for the mischief defect which a statute was intended to remedy.
What does the term “ratio decidendi” mean?
The reason for the decision.
What is a solicitor?
Legal practitioners. Most of their work is non-litigious (drafting up documents, preparation of wills, commercial, family law matters etc.)
What is a barrister?
SC Senior Council - Skills are smooth. They will give letters of advice. Generally do not deal with the public directly - main roles are preparation of legal opinions & court appearances.
What is a judge?
Usually a barrister appointed from the bar (former barristers)
What is a magistrate?
Lower courts - usually a full time public servant who has been promoted over the years.
What is a justice of the peace?
Honorary positions - bulk of work involved in witnessing documents
The Jury
Group of the accused’s peers
What is an “original” jurisdiction?
The authority to hear a case when it is first brought before a court
What is an “appellate” jurisdiction?
The authority of a court to hear appeals from decisions of courts of a lower level in the SAME hierarchy
Who has the onus of proof in a civil claim?
The Plaintiff
To what standard must a plaintiff prove their civil case?
On the balance of probabilities
Who has the onus of proof in a criminal claim?
The crown - the person bringing the claim to court (either the 1st time or on appeal)
To what standard must The Crown prove their criminal case?
Beyond reasonable doubt.
What are 3 alternative methods to courts?
Ombudsman
Tribunals
Alternative dispute resolution
What does the term “Stare decisis” mean?
To let the decision stand.
In what instances is precedent binding?
When the decision from a higher court in the same heirachy is based on similar facts to the current case
Decisions made from the High court (decisions are binding on all courts in Australia)
When is precedent persuasive?
When decisions are made based on similar facts but from a lower court in the same hierarchy or from any other court in a different hierarchy (usually a higher one)
If there is a case where there is no precedent in Australia, where till the courts look?
Britain or other common law systems however this is persuasive only - not binding in any way. Usually judges will create their own law.
What is meant by the term” Obiter dictum”?
“Oh by the way” - Comments of the case that may explain things on the way but is not the final decision. Remarks made in passing that are NEVER binding but may be persuasive or influential if based on similar facts.
