Sources Of Contemporary Australian Law

Question 1

What is the history of common law?

Answer 1

The British legal system began from travelling judges in the 11th century who applied a common set laws. People made petitions for unfair rulings in similar cases creating precedent.

Question 2

What is the adversarial system of trial?

Answer 2

A system of resolving legal conflicts used in common law countries - representatives for each side who present cases to an impartial decision-maker.

Question 3

What is inquisitorial system?

Answer 3

A legal system of court where the judge is involved in conducting the trial and determine questions to ask used in civil legal systems opposed to common law systems.

Question 4

What is equity?

Answer 4

Corrects the judging on each case through applying the principles of fairness.

Question 5

What is precedent?

Answer 5

A judgement that is followed. ‘Stare decisis’ - the decision stands.

Question 6

How is precedent made? When is it followed?

Answer 6

Precedents are created from from interpretation of legislation. It has to be follower of the case is similar. However a court does not have to follow a decision made by a lower or equal level in the hierarchy.

Question 7

What is a binding precedent?

Answer 7

Lower courts are bound to follow decisions of superior courts no matter whether the judge believes otherwise. The high court is not bound to its own decision.

Question 8

What is a persuasive precedent?

Answer 8

Superior courts do not have to follower decisions of the lower court but they can use them to help make their decision.

Question 9

What is common law?

Answer 9

• A court made law

- Laws developed by the courts of common law

Question 10

What is an appeal?

Answer 10

Application to a higher court to reconsider the lower court’s decision on the error of law.

Question 11

What is a summary offence?

Answer 11

Criminal offences that dealt with a single judge without a jury + no preliminary hearing.

Question 12

What is an indictable offence?

Answer 12

Serious criminal offences with a preliminary hearing, written charge and tried in front of a judge and jury.

Question 13

What are the 3 state and federal hierarchical court system?

Answer 13

1. Lower courts
2. Intermediate courts
3. Superior courts

Question 14

Local court and Magistrate court

Answer 14

Deals with:

• minor criminal and summary offences
• civil matters up to $100 000
• committal hearings

Question 15

Coroners Court

Answer 15

Deals with:

• unexplained or suspicious deaths
• fired and explosions

Question 16

Children’s Court

Answer 16

Deals with:

• civil matters relating to care and protection of children and young people
• criminal cases of persons under the age of 18

Question 17

District Court

Answer 17

Deals with:

• manslaughter, malicious wounding
• dangerous driving
• assaults
• sexual assaults
• property: robbery, breaking and entering, larceny and embezzlement
• prohibited drugs
• fraud and forgery

Question 18

Supreme Court

Answer 18

Deals with:

• monetary matters no limits
• hears appeals
• indictable offences

Question 19

Federal Courts: Magistrates Court

Answer 19

Deals with:

• family and child support
• administrative law
• bankruptcy
• human rights
• consumer protection
• trade
• privacy
• migration
• copyright
• industrial law

DOES NOT DEAL WITH CRIMINAL MATTERS

Question 20

Federal Courts: Family Court

Answer 20

Deals with:

• complex family law matters
• divorce
• parenting orders
• the division of property
• spousal maintenance

Question 21

Federal Court: High Court

Answer 21

Deals with:

• appeals from the federal court, family court and Supreme Courts
• interpretation of the Australian constitution

Question 22

What is the role and structure of parliament?

Answer 22

It is bicameral- two Houses of Parliament. NSW- It has a lower house called the Legislative Assembly. The upper house is called the Legislative Council.
Federal Parliament - Senate and House of Representatives

Question 23

What is the role and structure of legislative process?

Answer 23

The passing of laws - Bill. Before the bill is passed and becomes federal law it requires approval of both Houses of Parliament and the Governor General. It then becomes an Act of Parliament.

Question 24

What is the process of passing a bill through Parliament?

Answer 24

1. Need for new law
2. Draft bill
3. First reading - title of the bill is read out
4. Second reading - elaboration of its aims + debate
5. Committee stage - debate + changes are made
6. Third reading - a vote is taken
7. Royal assent - Governor General formal approval

Question 25

What is the function of delegated legislation?

Answer 25

``` It is made by non-parliamentary bodies. Types: 1. Regulations 2. Ordinances 3. Rules 4. By-laws - local council ```

Question 26

What is the constitution?

Answer 26

A set of rules that applies to a large organisation or a nation.

Question 27

What is the difference between division and separation of powers?

Answer 27

The division of power is divided between federal government and the states. The separation of powers of government is: Legislature: law makers Executive: administer the laws made by parliament Judiciary: courts interpret and apply the law

Question 28

What is the role of the High Court in interpreting the constitution?

Answer 28

The high court has both original and appellate jurisdiction. Original - power of a court to hear the case in first instance. Appellate - power of a court to hear appeals. It's role is under section 75 + 76. - treaties - countries - between States - determining whether a particulate body has jurisdiction to exercise judicial power - interpreting disputes concerning the constitution. - determines each level of government can use its power and outline limits on such powers.

Question 29

What is the characteristics of ATSI customary laws?

Answer 29

Customary laws is principles that have developed through customs of people. The features are: - kinship ties - laws agreed on a whole group - variations between nations/groups - based on rituals and traditions - passed on through dance and song - passed on by word of mouth - relationship to the land

Question 30

What are the issues and benefits of customary law?

Answer 30

Issues: - can be modified as it's passed on - interpretation of the law can change - laws may be forgotten to be passed on Benefits: - flexible and easy to change outdated/unjust laws

Question 31

What is the source of customary laws?

Answer 31

The Dreaming.

Question 32

What is kinship?

Answer 32

Family relationships including extended family relationships.

Question 33

What is mediation and sanctions?

Answer 33

Mediation is a form of alternative dispute resolution to help two parties in the presence of the third party to reach an agreement. Sanction is a penalty given to those who break the law in the form of fines or punishments.

Question 34

How is the ATSI customary laws been integrated into Australian law?

Answer 34

The use of conciliation and mediation in terms of mitigation = making the severity of an offence/sentence milder.

Question 35

What is international law?

Answer 35

International Law: - linear structure - state sovereignty: a nation state having jurisdiction over its country, it has the highest authority, answers to no one, territorial integrity (can't be invaded and can't use force)

Question 36

What is the difference between international and domestic law?

Answer 36

Enforceability and Compliance. IL: compliance relies on goodwill through reciprocity. It is not enforceable due to state sovereignty. DL: has courts, police and punishments to enforce the law - it has punishments therefore citizens comply to the law.

Question 37

What is the sources of International Law?

Answer 37

1. Treaties: a written international agreement between states. A nation state can choose to ratify the treaty: confirming a nation will be bound by the treaty. 2. Customs - customary international law: not written relies on traditions or common practices over time. 3. Legal agreement 4. Legal writings

Question 38

What is the role of the UN?

Answer 38

A foreign for all nations to meet, discuss and negotiate international agreements. Guided by the UN Charter - overarching document which sets out the purpose of the UN, the rule and power of the organisation. The general assembly is the representatives of member states.