Flashcards in 2. Sources of contemporary Australian law Deck (71):
What is common law?
A set of rules or principles which are borrowed, or shared, by two nations. Common law is a term most associated with England, as they established one of the first known court systems.
How was common law developed?
Initially, the court system of England was derivative of travelling judges, who made rulings based on their own opinion.
This resulted in a great state of discontent within England which led to the rebellion against King John, the head of England. Eventually, King John agreed to their demands and in 1215 signed what would become the first charter of rights, the 'Magna Carta'.
What is equity?
Where common law is considered inapplicable to a situation, equity is reached. Equity allows a fair, non-biased hearing where powers and consequences are divergent from common law.
What is precedent?
A decision or ruling from a higher court which must be followed by a lower court.
What is the adversarial court system?
A court system where two sides present their perspective of a case.
What is the inquisitorial court system?
A court system where a judge or jury is directly involved with the investigation and dispute over a case.
What is jurisdiction?
The right to make a legal decision.
What is the court hierarchy? (List the tiers)
There are six tiers of the court hierarchy:
Top tier: High Court
2nd tier: Family court, federal court
3rd tier: Court of criminal appeal
4th tier: Supreme court
5th tier: District court, drug court
Bottom tier: Coroner's court, local court, children's court, youth koori court.
What is the high court?
The most powerful court in the legal system and the final court of appeal in Australia. The high court has appellate and original jurisdiction.
What is the family court?
Court matters related to family disputes such as divorces and domestic violence.
What is the federal court?
A court which deals with commercial and workplace disputes. The federal court also hears appeals.
What is the court of criminal appeal?
The final court regulated by state law. The court of criminal appeal holds an open panel of three or five judges who review and dispute the appeal of an individual.
What is the supreme court?
A court which reviews cases of murder, serious drug trafficking, rape and terrorist offences.
What is the district court?
A court which reviews serious offences (indictable offences).
What is the drug court?
People who commit serious offences under the influence of drugs. Those who do are in this court follow a contract to avoid using drugs. If someone is caught using drugs under this contract, they are immediately sentenced.
What is the coroners court?
A court which covers mysterious deaths and serious fires. The coroners court operates under the inquisitorial system.
What is the local court?
A court which deals with summary (minor) offences such as robbery and shop lifting.
What is the children's court?
A court for children under 18 years of age.
What is the youth koori court?
An exclusive court for aboriginal youth. Youth koori court operates under circle sentencing, a traditional aboriginal sentencing method in addition to Australian legislation.
What is precedent?
A decision or ruling from a higher court which must be followed by a lower court.
What are the three types of precedent?
1. Distinguishing precedent.
2. Persuasive precedent.
3. Binding precedent.
What is distinguishing precedent
When the matter of a court is inapplicable to precedent, and may be excused from precedent to make a fair judgement.
What is persuasive precedent?
The court trial is not related to precedent and as a result, must use law from a different court system.
What is binding precedent?
The court trial is very similar to precedent and thus precedent is applied.
What is original jurisdiction?
The power of a court to hear a matter for the first time free from bias (with exclusion of the court of criminal appeal and supreme court of appeal).
Outline the five differences between the adversarial and inquisitorial system.
1. The adversarial system operates under common law, whereas the inquisitorial system operates under civil law.
2. In the adversarial system, there is inquiry between two parties, whereas the inquisitorial system has judge inquiry.
3. In the adversarial system, both parties present their arguments and cases, whereas in the inquisitorial system, judges enable cases to be spoken.
4. In the adversarial system evidence is challenged and rebutted, whereas in the inquisitorial system judges see evidence by speaking with eyewitnesses.
5. In the adversarial system lawyers have control over the direction of the court case whereas in the inquisitorial system lawyers have minimal control.
What is statute law?
Law made and enforced by parliament.
Describe the nine process of statute law's enactment.
1. Recognition that a new law is needed.
2. Draft bill.
3. First reading.
4. Second reading.
5. Third reading.
6. Committee stage.
7. Upper house.
8. Voting stage.
9. Royal assent.
What are the two houses of NSW Parliament?
1. Legislative assembly (lower house)
2. Legislative council (upper house)
What are bicameral houses and how are they effective?
Two houses of parliament. Bicameral houses are effective as they reduce the chance of corruption.
What is an appeal?
A decision by the defendant to have another hearing in a higher court.
What are the two types of appeals?
1. All grounds.
What is delegated legislation?
Law that does not pass through parliament and is, instead, immediately enacted.
Who creates delegated legislation? What is an example of delegated legislation?
Local councils for small matters such as alcohol-free zones.
Why is delegated legislation used?
Delegated legislation is quicker and cheaper to implement than regular law.
What is the constitution?
A set of rules which govern an organisation or power.
What are the five rights under the constitution?
2. A fair trial by jury.
3. Anti-discriminatory behaviour (based on area of residence)
4. Fair reimbursement when land is used.
5. Freedom of religion.
What is the division of powers?
When the state government sacrificed some of its power to the commonwealth government.
What is the difference between state government and commonwealth government?
The commonwealth government caters to coinage and economical matters and state government deals with humanitarian rights such as property and education.
What is customary law?
Law developed over time based on tradition (customary = customs).
What are the 4 primary differences between ATSI law and common law?
1. Common law is recorded, ATSI law is oral.
2. Common law dictates power over land, ATSI law dictates the lands power over the individual.
3. Common law is advocated to sentencing and punishment, ATSI law is about making amends.
4. Common law is based on religious heritage and ATSI law is based on the dreamtime stories.
What are the Fernando principles?
A set of principles which state that socio-economic factors must be considered when determining the sentencing of an individual.
What is LCMID?
- International law
What is BOCSAR?
The Bureau Of Crime Statistics And Research.
What is the United Nations?
An International governmental organisation which discuses peace and humanitarian rights among nations.
When was the United Nations established?
How many members were and are a part of the United Nations?
The UN originally consisted of 51 members which has later grown to 193 countries.
What is the United Nations purpose statement?
1. To maintain worldwide peace and security.
2. To develop country interrelations.
3. To foster co-operations between nations and resolve differences in political, economical and social interaction.
4. To provide an open forum to resolve disputes.
What are the two main organs of the United Nations?
1. The General assembly.
2. Security council.
In total, how many organs are contained in the UN?
What is the general assembly?
The organ of the United Nations which creates and proposes international law. The general assembly contains two representatives of the 193 total partnered nations.
What is the security council?
An organ of the United Nations containing 15 nations, 5 of which are permanent and 10 of which are impermanent. The security council discusses propositions from the general assembly in relation to common law.
What does ratify mean?
The signing of a treaty which introduces a law into parliament.
What is international law? Is it enforceable?
International law is law created by organisations such as the united nations which may be ratified by nations. International law is not enforceable.
What is the separation of powers?
Where powers were divided between legislative, judiciary and enforcement councils.
what is appellate jurisdiction?
A high court with the ability to review and change a ruling made by a lower court.
What is the international court of Justice?
A court established in the Netherlands in 1945, which deal with civil disputes.
Can people be transported to the International Court of justice at will?
No, a nation must first agree to the jurisdiction of the court.
What is the relationship between the International Court of Justice and the United Nations?
The International Court of Justice was created by the United Nations. The International Court of Justice proposes law reform to the United Nations.
What three areas does the International Court of Justice work in?
2. War crimes
3. Crimes against humanity
What is a tribunal?
A court which is set up in crisis areas to prevent further crimes from occurring. Tribunals are set up without requiring the consent of a nation.
What are exclusive powers?
An ability granted from the division of powers.
What is legislation?
What is veto power?
The power within the united states to declare a proposal as unsatisfactory and thus defunct.
What are intergovernmental organisations?
Organisations typically commissioned by the government which work typically in areas of humanitarian crisis such as poverty and war.
What is the main purpose of an intergovernmental organisation?
Intergovernmental organisations work to foster good will within nations and to assure collaboration in times of dire need.
In what ways are intergovernmental organisations effective? (List three reasons)
Intergovernmental organisations are effective because they:
- Encourage state sovereignty.
- Promotes and assists in information sharing and cooperation.
- Raises awareness of the contentment of individuals.
In what ways are Intergovernmental organisations ineffective?
Intergovernmental organisations are somewhat ineffective because:
- State sovereignty.
- Unable to enforce prosecution and the constitution.
- May not be acknowledged or ratified.
- There is no such thing as an international police force.
What is an all grounds appeal?
A request for an entire case to be re-reviewed.
What is a sentencing appeal?
A request for a sentence to be re-reviewed.