Flashcards in Sources Of Contemporary Australian Law Deck (38)
What is the history of common law?
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.
What is the adversarial system of trial?
A system of resolving legal conflicts used in common law countries - representatives for each side who present cases to an impartial decision-maker.
What is inquisitorial system?
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.
What is equity?
Corrects the judging on each case through applying the principles of fairness.
What is precedent?
A judgement that is followed. 'Stare decisis' - the decision stands.
How is precedent made? When is it followed?
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.
What is a binding precedent?
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.
What is a persuasive precedent?
Superior courts do not have to follower decisions of the lower court but they can use them to help make their decision.
What is common law?
- A court made law
- Laws developed by the courts of common law
What is an appeal?
Application to a higher court to reconsider the lower court's decision on the error of law.
What is a summary offence?
Criminal offences that dealt with a single judge without a jury + no preliminary hearing.
What is an indictable offence?
Serious criminal offences with a preliminary hearing, written charge and tried in front of a judge and jury.
What are the 3 state and federal hierarchical court system?
1. Lower courts
2. Intermediate courts
3. Superior courts
Local court and Magistrate court
- minor criminal and summary offences
- civil matters up to $100 000
- committal hearings
- unexplained or suspicious deaths
- fired and explosions
- civil matters relating to care and protection of children and young people
- criminal cases of persons under the age of 18
- manslaughter, malicious wounding
- dangerous driving
- sexual assaults
- property: robbery, breaking and entering, larceny and embezzlement
- prohibited drugs
- fraud and forgery
- monetary matters no limits
- hears appeals
- indictable offences
Federal Courts: Magistrates Court
- family and child support
- administrative law
- human rights
- consumer protection
- industrial law
DOES NOT DEAL WITH CRIMINAL MATTERS
Federal Courts: Family Court
- complex family law matters
- parenting orders
- the division of property
- spousal maintenance
Federal Court: High Court
- appeals from the federal court, family court and Supreme Courts
- interpretation of the Australian constitution
What is the role and structure of parliament?
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
What is the role and structure of legislative process?
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.
What is the process of passing a bill through Parliament?
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
What is the function of delegated legislation?
It is made by non-parliamentary bodies.
4. By-laws - local council
What is the constitution?
A set of rules that applies to a large organisation or a nation.
What is the difference between division and separation of powers?
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
What is the role of the High Court in interpreting the constitution?
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.
- 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.
What is the characteristics of ATSI customary laws?
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