AI attempt Flashcards
1
Q
What are the key features of the Australian legal system?
A
Modelled on the Westminster system, rule of law, and a bicameral court system.
Its origins trace back to the Norman Conquest in 1066.
2
Q
What does the rule of law entail?
A
Limits on government power and everyone being subject to the law.
It ensures fairness and accountability in the application of laws.
3
Q
When was the birth of common law?
A
1066, the year of the Norman conquest.
The pre-conquest system had issues due to variability in local customs.
4
Q
What principle did the development of common law establish?
A
Stare decisis: ‘to stand by decisions and not disturb the undisturbed’.
This principle provides consistency and predictability in legal decisions.
5
Q
What was the purpose of the writ system?
A
To cope with demands of centralized government through formal, regular processes.
Writs are written commands from the monarch that something be done.
6
Q
What is equity in law?
A
A body of law that is more flexible and focused on fairness.
It developed in response to the complexities and injustices of common law.
7
Q
What was the significance of the Magna Carta?
A
It contained promises for justice and the establishment of fixed legal processes.
Signed in 1215, it marked a significant step towards parliamentary governance.
8
Q
True or False: The Bill of Rights 1689 established the Crown’s power to suspend the operation of law.
A
False.
The Bill of Rights settled that the Crown could not suspend laws without Parliament’s consent.
9
Q
What event led to parliamentary supremacy in England?
A
The English Civil War in the 17th century.
This conflict established an independent judiciary and limited executive power.
10
Q
What is the significance of the Statute of Westminster 1931?
A
It established the independence of the Dominions of the British Empire.
It allowed dominion laws to no longer be voided if inconsistent with English law.
11
Q
Fill in the blank: The _______ is a principle that requires obedience to the law and that public officials exercise power in accordance with the law.
A
rule of law.
It ensures laws are clear, accessible, and that everyone is treated equally.
12
Q
What did the Native Title Act 1993 (Cth) achieve?
A
It simplified the process for native title claims.
This act was passed following the Mabo case, which recognized native title rights.
13
Q
What was the outcome of the Wik case (1996)?
A
Native title to land could coexist with pastoral leases.
This case expanded the geographical area open to native title claims.
14
Q
What was the legal significance of the Yorta Yorta case (2002)?
A
The High Court dismissed their claim due to lack of evidence of maintaining traditional laws/customs.
This case set higher legal thresholds for proving a traditional connection with the land.
15
Q
What is the Doctrine of Terra Nullius?
A
The legal concept that land was considered belonging to no one prior to colonization.
This doctrine was used to justify the dispossession of Indigenous peoples in Australia.
16
Q
What is the role of the National Native Title Tribunal?
A
To mediate disputes regarding native title claims.
It makes recommendations to the government based on these disputes.
17
Q
What is the Native Title Act 1993 (Cth)?
A
Legislation that governs the recognition of native title in Australia.
It establishes the framework for the recognition and protection of Indigenous land rights.
18
Q
What was the outcome of the HC appeal in the Wik case?
A
Dismissed by a 5/2 majority.
The appeal highlighted the need for higher legal thresholds to prove maintaining a ‘traditional’ connection with the land.
19
Q
What did the Akiba case (2009) involve?
A
A claim by the NT for fishing rights.
The case determined that these rights survived despite regulatory legislation prohibiting unlicensed fishing.
20
Q
What was the significance of the Akiba case?
A
Encouraged a broad interpretation of continuity of FN traditions.
The court found that laws and customs can alter and develop after sovereignty and still be considered traditional.
21
Q
List the cases mentioned related to Native Title.
A
- Mabo
- Wik
- Yorta Yorta
- Akiba
These cases are significant in the context of Indigenous land rights and legal recognition.
22
Q
What were the recommendations of the ALRC’s CONNECTION TO COUNTRY REPORT (2013)?
A
- Setting and implementing appropriate sentences
- Consideration of the operation of the NTA
- Acknowledgment of traditional laws/customs continuing since sovereignty should not be required
- Removal of references to a ‘traditional physical connection’ with the land
The report aimed to support long-term economic benefits and development for First Nations.
23
Q
What are the three components of NTA compensation?
A
- Economic loss
- Interest on economic loss
- Cultural loss
Each component addresses different aspects of compensation for extinguished native title.
24
Q
What was the total compensation in the Timber Creek decision?
A
$1.3M.
This amount included economic loss, interest, and cultural loss.
25
What is the complexity of Native Title claims?
Considered one of the most complex case types, requiring mandatory mediation with NNTT.
## Footnote
The intricacies often involve historical, cultural, and legal factors.
26
What was the focus of the Royal Commission into Aboriginal Deaths in Custody (1991)?
Investigated 99 deaths between 1980 and 1989.
## Footnote
The commission found gross over-representation of Indigenous people in custody.
27
What are some reasons for gross Indigenous imprisonment?
* Social disadvantages
* Poverty
* Despair
* Defiance
## Footnote
These factors contribute to a cycle of imprisonment and social issues.
28
What is the purpose of Indigenous sentencing courts?
* Show respect for FNs
* Improve communication
* Achieve appropriate sentences
* Reduce recidivism
## Footnote
These courts aim to integrate cultural perspectives into the legal process.
29
What did the amendments to the Crimes Act 1914 (Cth) change regarding customary law?
Removed the requirement to consider cultural background at sentencing.
## Footnote
This change has implications for the recognition of Indigenous customary practices in the legal system.
30
What is the difference between formal and substantive equality?
Formal equality refers to equal treatment under the law, while substantive equality considers individual case differences and entrenched disadvantages.
## Footnote
This distinction highlights the complexities of legal equality in relation to race.
31
What was the Northern Territory Intervention?
A 2007 government response to high levels of FN crime that imposed restrictions and controls.
## Footnote
It raised significant human rights concerns and questions about compliance with the Convention.
32
What changes were made to the Constitution regarding the race power?
Section 51 (xxvi) was amended to remove the exclusion of Aboriginal people.
## Footnote
The 1967 Referendum allowed for laws to be made for Aboriginal people.
33
What proposals were included in the Uluru Statement from the Heart?
* Recognition of FN sovereignty
* Acknowledgment of historical injustice
* Establishment of a Makarrata Commission
* A FN voice enshrined in the Constitution
## Footnote
These proposals aim to enhance the relationship between Indigenous peoples and the Australian government.
34
What was the outcome of the Love and Thoms case?
FNs could not be considered ‘aliens’ under the Constitution.
## Footnote
This decision recognized the unique status of First Nations Australians in relation to citizenship.
35
What is the importance of the doctrine of precedent?
Promotes certainty, consistency, and equality in legal decisions.
## Footnote
It ensures that similar cases are treated alike, streamlining judicial processes.
36
What are the difficulties in identifying the ratio of a case?
Determining whether the principle of law was in contention can be complex.
## Footnote
It often requires careful analysis of the case's context and judicial reasoning.
37
What is the role of case law?
Output of courts and tribunals that develops legal principles.
## Footnote
Understanding case law is essential for interpreting legislation and applying legal precedents.
38
What does the doctrine of precedent promote?
Promotes certainty, equality, and efficiency
## Footnote
Certainty by ensuring consistent application of the law, equality by treating like cases alike, and efficiency by avoiding the need for courts to reconsider established precedents.
39
What are the two main functions of court hierarchy in relation to precedent?
Establishes avenues of appeal and determines which precedents are binding
40
What is a ratio decidendi?
The legal principle or rule of law that is the basis for a court's decision
41
What challenges are associated with identifying the ratio?
Difficulty in determining if the principle of law was in contention and distinguishing it from obiter dicta
42
Fill in the blank: A legal principle must have been in ______ to be considered a ratio.
contention
43
What does a low level of generality in a ratio represent?
A specific outcome based on the facts of a case, e.g., 'given these facts, this result follows'
44
What does a high level of generality in a ratio represent?
A broader legal principle applicable to many cases, e.g., Donoghue v Stevenson
45
What is the significance of distinguishing cases?
It helps avoid unwelcome precedents and develop the law
46
What happens when a court is faced with diverging majority judgments?
The court finds common legal principles or reasoning to clarify the precedent
47
True or False: Dissenting judgments are strictly binding.
False
48
What are obiter dicta?
Statements made by a judge that are not essential to the decision and do not have binding authority
49
What is the role of judicial law-making?
Judges may create law when there is ambiguity or gaps in existing legislation
50
What can lead to gaps in the law?
Developments in society, economics, technology, and medicine
51
What is a key example of a case where judges filled a gap in the law?
The Cattanach case
52
What must judges respect when developing the law?
The supremacy of parliament and existing legislation
53
What is the importance of law reporting?
It systematically publishes significant cases that can serve as valuable precedents
54
What are Commonwealth Law Reports (CLR)?
Authorized series of law reports in Australia
55
What is the declaratory theory of law?
The belief that courts merely discover and declare existing law rather than create it
56
What is the retrospectivity problem in law?
The issue of punishing individuals for acts that were not known to be crimes at the time of commission
57
When may the High Court of Australia overrule its past decisions?
When earlier principles did not rest on significant precedents or led to inconvenience
58
What are the four factors considered by the High Court in constitutional cases?
* Error revealed by later cases
* Alignment with a stream of authority
* Isolation of the prior decision
* Importance of the constitutional question
59
What is the appellate court hierarchy?
A structure where higher courts can overturn lower court decisions and set binding principles
60
What can courts do regarding lower court decisions?
The court can overturn lower court decisions
61
What is the more conservative approach regarding precedent?
Prioritising certainty and predictability
62
Who should be responsible for changes in law?
Higher courts or Parliament
63
What does the High Court discourage regarding intermediate appeal courts?
Discourages being too conservative in treatment of precedents
64
What is likely to perpetuate error in the legal system?
Rigid adherence to precedent
65
What should courts do when departing from precedents?
Depart cautiously and only when compelled to believe the earlier decision was wrong
66
What did the Full Court of the Federal Court suggest regarding statutory interpretation?
Intermediate appellate courts should be more cautious in overturning their own precedents
67
When is the doctrine of precedent less strictly applied to?
When legislation is involved
68
How does the doctrine of precedent apply to the Family Court?*
It may apply more weakly to avoid injustice
69
What is a potential issue with the Federal Court's jurisdiction?
Cross-vesting between hierarchies can raise issues under multiple jurisdictions
70
What is prohibited by the Constitution regarding state jurisdiction?
Conferral of state jurisdiction on federal courts
71
What is the significance of the Jurisdiction of Courts Legislation Amendment Act 2000?
It ensured Federal Court could continue its role as the primary forum for reviewing actions/decisions of Cth officers and authorities
72
What are the divisions of Australian criminal jurisdictions?
* Common law jurisdictions (NSW, SA, VIC)
* Traditional codes (QLD, TAS, WA)
* Recently enacted codes (the Cth and their territories)
73
What is the importance of consistency between jurisdictions emphasized by the High Court?
Duty to follow higher courts in different Australian jurisdictions
74
What does 'plainly wrong' mean in the context of precedents?*
A decision made per incuriam due to lack of due regard for the law or facts
75
What does 'comity' refer to in the context of judicial decisions?
Courtesy or civility between courts and judges
76
What is the stance of the High Court regarding its own decisions?
Not self-bound but departs with reluctance
77
What is the status of decisions from the Privy Council in Australian law?
Retain their binding nature until overruled by the High Court
78
What is the role of the House of Lords in relation to Australian courts?
Carry significant weight due to overlap with the Privy Council
79
What was the outcome of the case Papathanasopoulos v Vacopoulos?
The magistrate did not err in law and ordered VP to compensate AV for the cost of the ring
80
In Toh v Su, what was the amount spent on the engagement ring?
$15,500
81
What principle did the court apply in P v V regarding gifts and rejection?
If a party rejects a gift, they cannot later claim it as a gift if they assert they do not want it
82
What does the doctrine of precedent say about inferior courts?
Doesn’t apply to lower courts due to large/intense caseload
83
What is the significance of the Speluncean Explorers case?
It raises questions about legal positivism and the application of law in unique situations
84
What was the value of the bedroom suite purchased in February 2016 in Toh v Su?
$2,640
85
What refund did the defendant receive after the bedroom suite purchase in Toh v Su?
$1,000 personal refund
86
What was the remaining amount refunded to the joint account after the bedroom suite purchase in Toh v Su?
$1,640
87
On what date did the plaintiff express that he no longer wished to marry the defendant in ...?
5 March 2016
88
What was the basis for the plaintiff suing for the engagement ring ...?
It was a conditional gift, conditional on marriage proceeding
89
What was the plaintiff's claim regarding the wedding rings?
They are his property and the defendant was a bailee
90
What was the basis for suing for the return of five gifts ... ?
A verbal agreement to return everything belonging to each party
91
What amount did the plaintiff claim was in the joint account?
$1,640
92
What was the defendant's counterclaim regarding her own financial loss?
$5,000 out of pocket from dealings with the joint account
93
What was the plaintiff's response to the defendant's claim?
$10,000 out of pocket in the joint account dealings
94
What did the court decide regarding the wedding bands?
Defendant to deliver only the 2 wedding bands to the plaintiff
95
What amount was the defendant ordered to pay the plaintiff?
$1,000
96
What legal case was considered regarding the engagement ring?
Cohen v Sellar
97
What did section 111A(1) of the Marriage Act 1961 (Cth) abolish?
The right to recover damages for breach of promise to marry
98
In Ikeuchi v Liu, what was held regarding gifts given in contemplation of marriage?
Generally conditional and returnable if the engagement is called off
99
What is required for an engagement ring to be returned according to the court's decision?
Termination initiated by the donee or by mutual consent
100
What was the court's ruling regarding the $2,640 furniture purchase?
Insufficient evidence to analyze the transactions
101
What is the general rule for the return of gifts in a verbal agreement?
Items unconditionally gifted do not belong to the person who purchased them
102
In Langridge v Levy, what was the product sold to the plaintiff?
A gun
103
What was the jury's verdict in Langridge v Levy?
A general verdict for the plaintiff, damages £400
104
What year did the Australian Constitution pass?
1900
105
What system of government was established by the Constitution?
Federal system of government
106
What does section 51 of the Constitution outline?
Concurrent powers
107
What is the role of the Queen in the Australian Parliament?
Constitutional, statutory, and ceremonial duties
108
How many members are in the House of Representatives?
151 members
109
What is the main function of the Senate?
House of review with equal lawmaking power
110
What does the Cabinet consist of?
Senior Ministers and the Prime Minister
111
What is the main political party that does not win a majority of seats in the House of Representatives called?
The opposition
112
What is the legislative process for making laws?
Proposal → Cabinet approval → Drafting → Passage through Parliament → Royal assent
113
What is Subordinate or Delegated legislation?
Laws made by a person/body authorized by Parliament
114
What is a 'sunset clause' in legislation?
Cease to operate after a specified period
115
What is required for delegated legislation to be registered?
Must be lodged with the Office of Parliamentary Counsel
116
What is the purpose of the Administrative Appeals Tribunal?
Review decisions made by government agencies
117
What is the role of lobby groups in the legislative process?
Advocate for specific issues and influence legislation
118
What is the significance of the Marriage Amendment (Definition and Religious Freedoms) Act 2017?
Legislation passed after the voluntary postal survey on same-sex marriage
119
What happens if an Act is repealed or amended?
Rights and liabilities accrued or incurred under the repealed Act generally continue to exist
120
What does the term 'ultra vires' refer to in the context of delegated legislation?
Acts beyond the powers granted by Parliament
121
What must happen to all delegated legislation at the Commonwealth level?
All delegated legislation must be tabled in Parliament
## Footnote
This ensures oversight and accountability of the legislation made by delegated authorities.
122
What can either House of Parliament do regarding delegated legislation?
Either House can disallow it
## Footnote
This provides a check on the powers of delegated authorities.
123
What does the Standing Committee on Regulations and Ordinances review?
It reviews whether it’s in accordance with enabling Acts, complies with legislative requirements, constitutional validity, drafting clarity, and rights compliance
## Footnote
This ensures that the delegated legislation meets all necessary legal standards.
124
When does delegated legislation commence?
The day after the instrument is registered or on another specified date
## Footnote
This is important for determining the effective date of the legislation.
125
How can delegated legislation be repealed or invalidated?
It can be repealed or amended by later delegated legislation or statutes
## Footnote
Repeals can be express or implied.
126
What is a 'sunset clause'?
A provision that allows legislation to cease automatically if not reviewed regularly
## Footnote
This ensures that laws remain relevant and up-to-date.
127
What are grounds for invalidity of delegated legislation?
Formal requirements not followed, power exercised for unintended purposes, unreasonable effects, not dealing with empowered matters
## Footnote
These grounds help maintain the integrity of the legislative process.
128
What was the significance of the Federation and the Constitution in 1901 for Australian law?
Laws could be passed for the whole of Australia
## Footnote
This marked a shift towards a more unified legal system across the states.
129
How has the significance of legislation changed over time?
Legislation has become more significant than case law due to the need for quick amendment and radical change
## Footnote
This reflects the evolving nature of law in response to societal needs.
130
What is the difference between statutes and delegated legislation?
Statutes are made by Parliament; delegated legislation is made by office holders or bodies given lawmaking powers from Parliament
## Footnote
This distinction is crucial for understanding the sources of law.
131
What is a 'Henry VIII' clause?
A clause that allows a later Act to amend or repeal earlier legislation without the need for further parliamentary approval
## Footnote
This clause can create significant legal implications.
132
What is the relationship between Commonwealth law and state law according to Section 109 of the Constitution?
Commonwealth law prevails over state law in cases of inconsistency
## Footnote
This establishes the supremacy of federal law in Australia.
133
What is the legislative process starting point?
The proposal for a bill is given to the relevant Minister
## Footnote
This initiates the formal process of drafting and debating legislation.
134
What is the role of the Parliamentary Budget Office (PBO)?
It analyzes and costs policy proposals, budgets, and election promises
## Footnote
This supports transparency and informed decision-making in government.
135
How long does Commonwealth legislation generally commence after royal assent?
28 days after royal assent, unless otherwise stated
## Footnote
There are exceptions for certain types of legislation.
136
What is an express repeal?
A clear and direct repeal stated in the title or content of the legislation
## Footnote
This contrasts with implied repeal, which is less explicit.
137
What is the purpose of a purpose or objects clause in an Act?
To clearly state why the Act was passed
## Footnote
This aids in statutory interpretation and understanding legislative intent.
138
What are declaratory and validating Acts used for?
To clarify meaning, scope, validity, and intentions of legislation
## Footnote
These Acts help resolve ambiguities and affirm the legitimacy of past actions.
139
What is the importance of drafting statutes in plain English?
To ensure clarity, precision, and accessibility to the general public
## Footnote
This approach enhances understanding and compliance with the law.
140
What is a uniform law?
A law enacted nationally for specific areas, such as legal or medical professions
## Footnote
This promotes consistency across jurisdictions.
141
What is the difference between consolidation and reprinted Acts?
Consolidation brings together original statute law and amendments into a single statute; reprinted Acts include current amendments but are not formally consolidated
## Footnote
This distinction affects how the law is applied and interpreted.
142
What is an omnibus Act?
An Act that incorporates amendments to multiple Acts
## Footnote
Typically, these amendments are minor or housekeeping in nature.
