chapter 1: the legal system: contemporary Australian law

Question 1

common law/court-made law

Answer 1

is the legal system that Australia follows, inherited by the UK. it is developed by judges on a case by case basis, building on the precedent & interpretation of earlier court decisisons

Question 2

development of common law

Answer 2

developed in England by judges administering a common set of laws throughout the kingdom. courts continue to create it by recording the outcome & reasoning of each judgement, aka. ‘precedent’. it belongs to the Commonwealth

Question 3

equity

Answer 3

judges have to apply the principle of fairness

Question 4

precedent/judge made law

Answer 4

the judgement is authority for a legal principal to provide guidance for deciding cases that have similar facts. i.e. if person A committed a crime that has never happened before & when it comes to the court, they will use statue law to decide. this decision will impact other cases with similar facts.

Question 5

adversarial system of trial

Answer 5

Australia uses the adversarial system - where the burden of proof lies on the prosecution in criminal cases. however in CIVIL LAW it is the plaintiff.

Question 6

presumption of innocence

Answer 6

the burden of proof lies on the prosecution

Question 7

court hierarchy

Answer 7

lowest to highest:
- the local court
- the district court
- the supreme court
- court of appeal/court of criminal appeal
- the high court of Australia

Question 8

jurisdiction of state & federal courts

Answer 8

lower courts = minor cases i.e. Local Court, Coroner’s Court
intermediate courts = serious matters i.e. appeals from lower courts & Distract Court
superior courts = most serious matters i.e. appeals from lower & intermediate courts, Supreme Court & Court of Appeal

Question 9

statute law/legislation/Acts of Parliament

Answer 9

made by parliament, where states, territories & fed. govs. have rights to make laws. statute overrides common law.

Question 10

role of parliament

Answer 10

to debate pubic policy & pass laws, check in the governments & represent the people

Question 11

structure of parliament

Answer 11

has 3 elements:
1. the Queen
2. the Senate
3. the House of Representatives

Question 12

legislative process

Answer 12

propose the bill & introduce it to the house of representatives
the bill is read & discussed, plus amended if necessary
a vote is taken after the final reading
is passed, moved to the senate
process repeats in upper house/senate
becomes an act of parliament

Question 13

delegated legislation

Answer 13

made by non-parliamentary bodies, however still under its authority i.e. environmental laws, industry codes that concerns less important matters

Question 14

the constitution

Answer 14

commenced in 1901. it outlines legal framework & rules that apply to the governance of Australia

Question 15

division of powers

Answer 15

allows for law making powers to be divided by commonwealth levels, states & territory levels & local governments levels

Question 16

separation of powers

Answer 16

the powers are divided into 3 - executive powers i.e. police as they enforce the law
- legislative powers i.e. given to parliament who make & amend the law
- judiciary powers i.e. given to courts who interpret the law

Question 17

role of the High Court

Answer 17

created by Section 71 of the Constitution, it holds both original & appeal jurisdiction

Question 18

the high court & how it was created

Answer 18

deals with the most serious issues - i.e. criminal law, contract, company law. Section 71 of the Constitution

Question 19

Aboriginal & Torres Strait Islander peoples’ customary laws

Answer 19

based on tradition, ritual & socially accepted conduct. the only difference between customary & British law is the concept of ownership (possession of land)

Question 20

diverse nature of customary laws

Answer 20

developed according to the customs of the people of nations/different tribes

Question 21

spiritual basis, significance of land & water of customary laws

Answer 21

Indigenous & Torres Strait Islander people have special connections with this & water. they must look after the water & land for future generations. collective guardianship is that land & water is for everyone

Question 22

family & kinship

Answer 22

Indigenous people hold strong family & kinship - there has been practices by different tribes

Question 23

ritual & oral traditions

Answer 23

passing down of traditions by painting, fires, dreamtime stories

Question 24

mediation & sanctions

Answer 24

as they practice customary law, sanctions can differ & may not be able to adopt by our contemporary Australia law

Question 25

relevance to contemporary Australian law

Answer 25

there has been an increase in recognition of customary law, as seen in the Mabo case - therefore Indigenous land rights have been increased in recognition i.e. circle sentencing for less severe matters

Question 26

terra nullius

Answer 26

land belonging to no one

Question 27

native title

Answer 27

a legal right for Indigenous communities to live & use traditional land with which they have an ongoing association

Question 28

ratio decdidenti

Answer 28

the reasoning in a case that drives the final judgement

Question 29

international law

Answer 29

governs the relationship between countries, as well as regulates trade & commerce between countries & provides laws to maintain peace & security. it aims to promote the stability & resolve conflicts between nations & states, plus covers the fundamental human rights i.e. the UN declaration of human rights. i.e. the UN, international treaties.