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Legal > topic 2: sources of contemporary australian law > Flashcards

topic 2: sources of contemporary australian law Flashcards

1
Q

what is common law?

A

law made by the courts based on judicial decisions, following the doctrine of precedent.

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2
Q

what is equity?

A

body of law that supplements common law, correcting injustices based on fairness and individual intentions.

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3
Q

what is a doctrine of precedent?

A

judgement by a court establishing a point of law, enduring consistency in judicial decisions.

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4
Q

what is stare decisis?

A

the principle of standing by a decision; judges must follow precedents set at the same or higher level.

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5
Q

what is ratio decidendi?

A

the reason for a decision made by a court.

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6
Q

what is obiter dicta?

A

the judges opinion or incidental remarks that do not set a precedent.

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7
Q

what is binding precedent?

A

when lower courts must follow decisions of superior courts

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8
Q

what is persuasive precedent?

A

influences decision-making but is not binding, depending on factors like the judge and court.

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9
Q

what is adversarial system of trial?

A

legal dispute resolution system in common law where each side is represented by advocates

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10
Q

what is inquisitorial system?

A

legal systems where the judge actively conducts the trial and investigation.

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11
Q

what is court hierarchy?

A

system that definierst the jurisdiction of state and federal courts, including original and appellate jurisdictions.

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12
Q

what are state courts?

A

courts with jurisdiction over civil and criminal matters, hearing summary and indictable offences.

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13
Q

what are federal courts?

A

courts with jurisdiction over federal matters, including original and appellate jurisdictions.

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14
Q

what is statute law?

A

law made by parliaments, the most powerful type of law that can modify common law

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15
Q

what is parliament?

A

elected body that debates, passes, rejects and amends legislation, with a bicameral system in Australia.

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16
Q

what is the house of representatives?

A

lower house of parliament with members representing electorates, where the Prime Minister belongs.

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17
Q

what is senate?

A

upper house of proposed with members representing states and territories, reviewing legislation proposed by the House of Representatives

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18
Q

what is the legislative process?

A

process of passing legislation, involving identifying the need for a new law, drafting, readings, debates and royal assent

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19
Q

what is delegated legislation?

A

laws made by non-parliamentary bodies for specific issues

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20
Q

what is ultra vires?

A

acting beyond delegated power, improper purpose or unclear

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21
Q

what is regulations?

A

made by governor, governor general, or executive council

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22
Q

what is ordinances?

A

laws for australian territories

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23
Q

what are bylaws?

A

made in accordance with the Local Government Act 1993

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24
Q

what are advantages of delegated legislation?

A

saves time, money, involves experts and is flexible

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25
Q

what are disadvantages of delegated legislation?

A

becoming complex, lacks parliamentary oversight inconsistent, less public input

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26
Q

what is the constitution?

A

set of rules governing a nations institutions.

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27
Q

what is the constitution?

A

set of rules governing a nations institutions.

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28
Q

what is federation?

A

unifying states info a single national government

29
Q

what is a referendum?

A

vote by the people to change the constitution.

30
Q

what is the separation of powers?

A

division of powers among legislature, executive and judiciary

31
Q

what is exclusive powers

A

federal governments powers like trade, defense and foreign relations.

32
Q

what is residual powers?

A

powers exclusively belonging to the states.

33
Q

what is concurrent powers

A

powers held by both state and federal governments

34
Q

what is a high court

A

highest court ensuring government compliance with the constitution

35
Q

what is original jurisdiction?

A

included matters arising under a treaty, between states and under the constitution

36
Q

what is appellate jurisdiction?

A

relates to questions of law, significant matters, and disputes between courts.

37
Q

what is special leave?

A

approval granted by the high court for a case to go before the appellate jurisdiction.

38
Q

what is judicial review?

A

court review of government actions for constitutionality and procedural fairness.

39
Q

what is customary laws?

A

laws based on tradition, ritual and socially accepted conduct developed by a group or nation

40
Q

what is terra nullius

A

concept of land belonging to no one, used to declare ownership is Australia

41
Q

what is the dreamtime

A

basis do aboriginal spiritually passed down through generations via oral traditions

42
Q

what is kinship?

A

family relationships shaping behaviour and customary laws in Indigenous cultures.

43
Q

what is mediation

A

dispute resolution process involving a third-party to help parties reach an agreement

44
Q

what is sanctions?

A

penalties imposed for breaking trial laws, enforced by elders

45
Q

what is revenge

A

right given to a family of a murder victim for retribution, leading to feuds

46
Q

what is trial by ordeal

A

ancient practice where guilt or innocence is determined by surviving a physical test

47
Q

what is an inquest?

A

investigation to determine cause or death, involving elements of magic in some cases

48
Q

what is circle sentencing

A

alternate sentencing method for aboriginal offenders involving community elders and victims

49
Q

what is international law

A

legal rules governing sovereign states and international actors, distinct from domestic law

50
Q

what is domestic australian law

A

laws based on australian and state constitutions, establishing a system of law and universal rights for citizens.

51
Q

what is constitutional basis vs consensual basis

A

constitutional basis is based on constitutions, while consensual basis relies on agreement between nations

52
Q

how are laws made

A

through statute law, common law, delegated legislation, treaties, conventions, declarations, resolutions of Un, customary international law, legal decisions and legal writings

53
Q

what is dispute resolution?

A

resolved through criminal and civil federal and state court systems, international court of justice, diplomatic negotiations, mediation, conciliation using UN as a neutral nation

54
Q

what is enforcement?

A

involves punishments for law-breaking, enforcement through police, private prosecutions, government officials, UN mechanisms like Security Council and economic sanctions.

55
Q

what is state sovereignty

A

allows a country to make its own laws as an autonomous state, requiring defined territory, permanent population, effective government, and capacity for international negotiations.

56
Q

what are customary international laws

A

based on tradition and long term practices accepted by many nations, becoming binding when a long standing behaviour between nations becomes law

57
Q

what are declarations

A

stats and clarify parties positions on issues with our imposing legally binding provisions, considered ‘soft law.’

58
Q

what are treaties

A

international agreements between states in written form, can be bilateral, multilateral, used to make specific laws, conduct cooperation and establish international organisations

59
Q

what are legal decisions

A

decisions made by international court of justice, european court of human rights, based on treaty,custom, general principles or law and writings of justice

60
Q

what are legal decisions

A

decisions made by international court of justice, european court of human rights, based on treaty,custom, general principles or law and writings of justice

61
Q

what are legal writings

A

writings of international lawyers, judges academics that guide decision-making in treaty formation and offer advice on matters of international law

62
Q

what is the role of the united nations

A

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

63
Q

what is the international criminal court (icc)

A

aims to prosecute and bring justice to those responsible for genocide, war crimes, with a maximum penalty of 30 years

64
Q

what is the international war crimes tribunal?

A

trials persons charged with criminal violations of laws and customs of war during armed conflict e.g., International Criminal Tribunal for Rwanda

65
Q

what are intergovernmental organisations (IGOs)

A

organised groups of states pursuing mutual interests, e.g., European Union, World Trade Organisation, NATO

66
Q

what are nongovernmental organisation (NGOs)

A

associations based on common interests, separate from governments, contributing to world peace humans rights through cooperation, lobbying, e,g., red cross, oxfam, greenpeace

67
Q

what is the relevance to contemporary australian law

A

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.

68
Q

what is the treaty process

A

involves adoption, signature, ratification, and enactment to make international agreements legally enforceable within the state concerned

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