Sources And Types Of Law

Question 0

Why is there no National piece of legislation in relation to the mental health or criminal law in Australia?

Answer 0

Due to the constitution’s division of power.

Question 1

What Australian system divides power between the commonwealth and the state?

Answer 1

The constitution

Question 2

Doctrine of Separation of Powers

Answer 2

Power separated even at state level between executive (the government ie Rudd or Newman), legislature/parliament (house of reps and senate), & judiciary (courts).

This can happen both federally and state.

Question 3

Why is there separation of power (ie doctrine of separation of power)?

Answer 3

So that one arm of the government cannot get too powerful.

Question 4

Does Australia have true separation of power between executive and legislature?

Answer 4

No, as government is drawn from House of Representatives rather than elected separately.

Question 5

What are the 2 sources of law in Australia?

Answer 5

1. Legislation (aka Acts or Statutes)

2. Common Law (aka Case Law)

Question 6

What are the major legislations used by mental health professionals in Qld?

Answer 6

1. The Mental Health Act 2000 (Qld)

2. The Criminal Code 1899 (Qld)

Question 7

What is Case/Common Law?

Answer 7

Law that has developed in the courts over a long period of time which is developed and governed by precedent - ensures consistency in a court hierarchy and application of the rules.

Question 8

Precedent

Answer 8

A principle/rule established is previous legal cases that is either binding on or persuasive for a court in relation to subsequent cases with similar facts.

Question 9

Federalism

Answer 9

Political conception in which a group of members are bound together by covenant (Latin: foedus) with a governing representative head.

Sovereignty is constitutionally divided between central governing authority and states.

In Australia –> 01/01/1901

Question 10

Executive level

Answer 10

Puts the law into action –> Prime Minister and ministers

Question 11

Parliamentary level

Answer 11

Makes and amends the law –> the Queen/Governor-General, Senate, & House of Reps

Question 12

Judiciary Level

Answer 12

Makes judgements about the law –> High Court & other federal courts

Question 13

What are the advantages and disadvantages of legislation?

Answer 13

Regulation ensures everyone is subject to the same rules (level playing field). It reduces risk of liability for the company (since much regulation is safety related) and protects consumers by reducing risk of harm. On the other hand it has a cost both to industry (for compliance) and the regulator (for monitoring and enforcement), and in some cases can stifle innovation.

Question 14

Magistrate

Answer 14

Presiding judicial officer of a local court - has legal quals but not strictly a judge (i.e. not called a judge)

Question 15

Summary Offence

Answer 15

A less serious offence that is dealt with only by a magistrate. Penalty is generally a fine or jail sentence not exceeding 2yrs. Statues that create criminal offences often specify.

Question 16

Local Court Criminal Jurisdiction

Answer 16

Summary offences only.

Question 17

Indictable offences

Answer 17

More serious criminal offences. Go to District/Supreme Courts before judge and jury.

Question 18

Civil Jurisdiction of Local Court

Answer 18

Extends to matters where value of the property or the amount claimed does not exceed $60K

Question 19

Civil jurisdiction of District Court

Answer 19

limited to amounts that do not exceed $750K with an unlimited jurisdiction in motor accident cases.

Question 20

de novo appeals

Answer 20

Appeals heard at the District Court level from decisions made from the Local Court.

Question 21

Supreme Court levels

Answer 21

Divisional and Appellate level

Question 22

Divisional Supreme Court level

Answer 22

Consists of ordinary judges of the Supreme Court who deal with civil, criminal, and other matters. These judges may sit alone or with a jury.

Question 23

Supreme Court specialty division examples

Answer 23

Admiralty, Probate, & Commercial Causes

Question 24

Appellate level of Supreme Court

Answer 24

Consists of Court of Appeal and Court of Criminal Appeal. Normally sits as full court of 3 judges or in important cases a full bench of 5+ judges.

Question 25

Stare Decisis

Answer 25

Doctrine of Binding Precedent

Limitations - unjust with current social conditions

Question 26

Ratio Decidendi

Answer 26

“The reason for the decision”
Not always straightforward:
* it may be difficult to identify the ratio in the strict legal sense;
* it may be possible to state the ratio at a higher/lower level of generality;
* there may be no majority in favour of a particular ratio; and
* it may be difficult to distinguish the ratio from the obiter dicta in the case.

Question 27

Obiter Dicta

Answer 27

“Remarks in Passing”

A legal principle expounded by a judge which is not necessary for the judge’s decision in the case

Question 28

Issue Estopple or Res Judicata

Answer 28

“the fact has been decided”

Expresses a general public interest that that same issue should not be litigated more than once even when the parties are different.