2. Sources of contemporary Australian law Flashcards Preview

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Flashcards in 2. Sources of contemporary Australian law Deck (71)
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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.