topic 2: sources of contemporary australian law Flashcards
what is common law?
law made by the courts based on judicial decisions, following the doctrine of precedent.
what is equity?
body of law that supplements common law, correcting injustices based on fairness and individual intentions.
what is a doctrine of precedent?
judgement by a court establishing a point of law, enduring consistency in judicial decisions.
what is stare decisis?
the principle of standing by a decision; judges must follow precedents set at the same or higher level.
what is ratio decidendi?
the reason for a decision made by a court.
what is obiter dicta?
the judges opinion or incidental remarks that do not set a precedent.
what is binding precedent?
when lower courts must follow decisions of superior courts
what is persuasive precedent?
influences decision-making but is not binding, depending on factors like the judge and court.
what is adversarial system of trial?
legal dispute resolution system in common law where each side is represented by advocates
what is inquisitorial system?
legal systems where the judge actively conducts the trial and investigation.
what is court hierarchy?
system that definierst the jurisdiction of state and federal courts, including original and appellate jurisdictions.
what are state courts?
courts with jurisdiction over civil and criminal matters, hearing summary and indictable offences.
what are federal courts?
courts with jurisdiction over federal matters, including original and appellate jurisdictions.
what is statute law?
law made by parliaments, the most powerful type of law that can modify common law
what is parliament?
elected body that debates, passes, rejects and amends legislation, with a bicameral system in Australia.
what is the house of representatives?
lower house of parliament with members representing electorates, where the Prime Minister belongs.
what is senate?
upper house of proposed with members representing states and territories, reviewing legislation proposed by the House of Representatives
what is the legislative process?
process of passing legislation, involving identifying the need for a new law, drafting, readings, debates and royal assent
what is delegated legislation?
laws made by non-parliamentary bodies for specific issues
what is ultra vires?
acting beyond delegated power, improper purpose or unclear
what is regulations?
made by governor, governor general, or executive council
what is ordinances?
laws for australian territories
what are bylaws?
made in accordance with the Local Government Act 1993
what are advantages of delegated legislation?
saves time, money, involves experts and is flexible
what are disadvantages of delegated legislation?
becoming complex, lacks parliamentary oversight inconsistent, less public input
what is the constitution?
set of rules governing a nations institutions.
what is the constitution?
set of rules governing a nations institutions.
what is federation?
unifying states info a single national government
what is a referendum?
vote by the people to change the constitution.
what is the separation of powers?
division of powers among legislature, executive and judiciary
what is exclusive powers
federal governments powers like trade, defense and foreign relations.
what is residual powers?
powers exclusively belonging to the states.
what is concurrent powers
powers held by both state and federal governments
what is a high court
highest court ensuring government compliance with the constitution
what is original jurisdiction?
included matters arising under a treaty, between states and under the constitution
what is appellate jurisdiction?
relates to questions of law, significant matters, and disputes between courts.
what is special leave?
approval granted by the high court for a case to go before the appellate jurisdiction.
what is judicial review?
court review of government actions for constitutionality and procedural fairness.
what is customary laws?
laws based on tradition, ritual and socially accepted conduct developed by a group or nation
what is terra nullius
concept of land belonging to no one, used to declare ownership is Australia
what is the dreamtime
basis do aboriginal spiritually passed down through generations via oral traditions
what is kinship?
family relationships shaping behaviour and customary laws in Indigenous cultures.
what is mediation
dispute resolution process involving a third-party to help parties reach an agreement
what is sanctions?
penalties imposed for breaking trial laws, enforced by elders
what is revenge
right given to a family of a murder victim for retribution, leading to feuds
what is trial by ordeal
ancient practice where guilt or innocence is determined by surviving a physical test
what is an inquest?
investigation to determine cause or death, involving elements of magic in some cases
what is circle sentencing
alternate sentencing method for aboriginal offenders involving community elders and victims
what is international law
legal rules governing sovereign states and international actors, distinct from domestic law
what is domestic australian law
laws based on australian and state constitutions, establishing a system of law and universal rights for citizens.
what is constitutional basis vs consensual basis
constitutional basis is based on constitutions, while consensual basis relies on agreement between nations
how are laws made
through statute law, common law, delegated legislation, treaties, conventions, declarations, resolutions of Un, customary international law, legal decisions and legal writings
what is dispute resolution?
resolved through criminal and civil federal and state court systems, international court of justice, diplomatic negotiations, mediation, conciliation using UN as a neutral nation
what is enforcement?
involves punishments for law-breaking, enforcement through police, private prosecutions, government officials, UN mechanisms like Security Council and economic sanctions.
what is state sovereignty
allows a country to make its own laws as an autonomous state, requiring defined territory, permanent population, effective government, and capacity for international negotiations.
what are customary international laws
based on tradition and long term practices accepted by many nations, becoming binding when a long standing behaviour between nations becomes law
what are declarations
stats and clarify parties positions on issues with our imposing legally binding provisions, considered ‘soft law.’
what are treaties
international agreements between states in written form, can be bilateral, multilateral, used to make specific laws, conduct cooperation and establish international organisations
what are legal decisions
decisions made by international court of justice, european court of human rights, based on treaty,custom, general principles or law and writings of justice
what are legal decisions
decisions made by international court of justice, european court of human rights, based on treaty,custom, general principles or law and writings of justice
what are legal writings
writings of international lawyers, judges academics that guide decision-making in treaty formation and offer advice on matters of international law
what is the role of the united nations
maintains global peace and security, promotes cooperation to solve international problems, relies on political will of nation-states, with main organs being General Assembly, Security council, international court of justice
what is the international criminal court (icc)
aims to prosecute and bring justice to those responsible for genocide, war crimes, with a maximum penalty of 30 years
what is the international war crimes tribunal?
trials persons charged with criminal violations of laws and customs of war during armed conflict e.g., International Criminal Tribunal for Rwanda
what are intergovernmental organisations (IGOs)
organised groups of states pursuing mutual interests, e.g., European Union, World Trade Organisation, NATO
what are nongovernmental organisation (NGOs)
associations based on common interests, separate from governments, contributing to world peace humans rights through cooperation, lobbying, e,g., red cross, oxfam, greenpeace
what is the relevance to contemporary australian law
ratification of a treaty doesn’t automatically make it part of domestic law, requiring new legislation for implementation, with the federal governor relying on external affairs power to pass statutes.
what is the treaty process
involves adoption, signature, ratification, and enactment to make international agreements legally enforceable within the state concerned
