The Australian Legal System Notes Flashcards
How can courts make law?
- Courts make law when there no statute or the words in the statute cannot be defined/interpreted for the specific case
- They will need to decide the case and in doing so will create common law.
- Common law is the law developed by judges over time, based on decisions in previous cases.
- These decisions are recorded in special law report books to which lawyers can refer to argue their cases and judges can refer to make their decisions. It is only the decisions of the highest and most important courts that are recorded and referred to in this way
- These laws are binding on lower courts
What are the similarities and differences between statute law and common law?
Common Law
- Judge makes decisions
- Court made law
- Reactionary
- Made in a court
- Individual to the state
- Goes through just a judge
- Quicker
Similarities
- Involved in achieving statute
- Can make laws regarding a case/respond
Statutory Law
- Lots of people make decisions/vote
- Parliamentary Law
- Not always reactionary/proactive
- Made in Parliament
- Federal
- Goes through multiple stages/rigorous process
- Takes a long time
Why is it important that courts can make law?
- For ensuring that the legal system remains flexible, dynamic, and responsive to the changing needs of society
- That justice can be achieved
What is customary law?
- Is the laws and customs performed by Aboriginal people to achieve justice
- Rooted in tradition, culture and spiritual practices
What are some examples of customary law?
- Circle sentencing → a meeting where individuals are invited to sit in a circle with the accused and discuss together which sentences should be imposed
- Tribal punishment → traditional Aboriginal practices used as punishment such as spearing or singing a person (calling on spirits to harm accused)
- Payback → is a form of mostly physical and sometimes deadly punishment carried out by elders or victims to members of their group who broke the law. Restores peace, assists healing and helps both parties move on.
Should customary law be used to regulate behaviour of First Nations peoples? If so, how and when?
- I believe it should be used as it is the traditional practice that has been used functionally for generations however if it is used, I believe that they also should not have to experience the traditional legal system. Therefore, I believe the Koori Court is a possible solution to this issue as indigenous people are able to be tried by other indigenous people in a system that mimics customary law practices.
What is justice?
- Is fairness in protecting individual’s rights
- Also includes punishment of wrongs
- Punishment must match crime
- Cannot be simply defined/complex → hard to define what is ‘fair’ → subjective
- Entirely reliant on where you sit in a particular case/matter
What is the rule of law?
- That all people have been held responsible to the same laws
How are the burden of proof and presumption of innocence linked?
- The burden of proof and the presumption of innocence are linked because they both serve the same overarching purpose: to protect individuals from wrongful conviction and ensure a fair trial.
Why is the right to a fair trial important?
- Protects individuals from wrongful convictions
- Ensures equality before the law
- Maintains public confidence in the legal system
- Prevents the abuse of power.
Why is having legal representation important to achieve justice?
- Important to ensure that the three other concepts used to achieve justice are achieved and the person understands how to navigate their way through a criminal trial
- Helps individual understand their rights and have a fair trial
- Helps protect rule of law
What is the separation of powers?
- Divides the government into three independent branches—executive, legislative, and judicial—that each have distinct powers and responsibilities.
- This system is crucial for preventing abuses of power, ensuring accountability, protecting individual rights, and maintaining the rule of law.
What is common law?
- Court made law
- Is created and developed through judicial decisions and is based on the principle of precedent, where past case law shapes future decisions.
How does the doctrine of precedent operate?
- By applying decisions that judges made before that are examples to follow when judging a case
- Ensures laws are applied consistently
How does the doctrine of precedent operate?
→ Case comes to court
→ No law exists
→ Statute needs clarity
→ Judge makes decision
→In decision they establish a legal ruling principle
→ The principle is binding on all cases that are the same, in lower courts in same hierarchy
→ Can be persuasive if in different hierarchy
