Sources of contemporary law Flashcards Preview

Legal Studies 2020 > Sources of contemporary law > Flashcards

Flashcards in Sources of contemporary law Deck (58)
Loading flashcards...
1

What does common law refer to?

Refers to laws created in court- this is, decisions made by judges.

2

What does statute law refer to?

Refers to laws made by parliament.

3

What is the origin of the Australian legal system?

The legal processes and practices used in Australia today are based on the model in 1788, they brought with them the law that applied in Britain, known as common law. The way that court cases are conducted here in Australia has been heavily influenced by the English system of law.

4

What is the adversarial system of trial?

Australia's legal system is based on an adversarial system of trial. In an adversarial system, the parties to a court case are opponents who must prove their vision of events to 'win' the case- The judge is only an impartial observer. In this system, an impartial judge and sometimes a jury will listen to the evidence presented by both parties and make a decision as to which side has proved their case

5

What is the inquisitorial system of trial?

In an inquisitorial system, the judge is actively involved in asking questions calling evidence and determining the case

6

What is the doctrine of precedent?

"Precedent is the basis of Australia's system of common law*When a court decides a case, the reason for the decision can become a precedent for future cases*in this way the law develops a body of case law that is applied in future judgements * This is sometimes known as 'judge-made law'ensures that people are treated fairly

7

What is one way the doctrine of precedent is created?

Another way in which precedents are created is in the interpretation of legislation (Disputes about the meaning or application of a section of an act of parliament)

8

What are the two parts of a judges decision?

1. The ratio decidendi-i.e The legal reason for a judges decision

2. The 'obiter dicta'- I.e other remarks made by the judge regarding the conduct of the trial (e.g The credibility of a witness)- Such remarks are not part of the decision nor set a precedent

9

What is meant by Binding precedent?

Courts are bound by precedents, and lower courts will be bound by the decisions of higher courts 

10

What is meant by persuasive precedent?

When a court is not bound by another courts judment is can still be influential. (I.e Superior courts do not have to follow decisions made in lower courts but these can help them make a decision)

11

What are the two jurisdictions of law in Australia?

State and federal

12

What is the Hierarchy of courts in Australia?

1. State lower levels (Local Court of NSW, Coroners Court of NSW, Children's court)

2.State Intermediate courts (District Court of NSW)

3.State and Territory superior courts (Land and environmental court NSW, NSW Supreme court, Court of criminal appeal and court of Appeal)

4. Federal Lower Courts (Federal circuit court of Australia)

5.Federal specialist court (Family court Australia)

6. Federal superior courts (Federal Court of Australia) 

7. High Court of Australia

 

 

13

What is meant by Summary Offecne?

A criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing

14

What is mean by indictable offence?

A serious criminal offence that requires an indictment ( a formal written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to a greater penalty  

15

What is a committal hearing?

Inquiry held in the local or magistrates court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court (This is called establishing a prima facie case)

16

What is meant by the term appellate jurisdiction?

The ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions.

17

What do lower courts hear?

  • Hear more minor matters usually by a magistrate
  • can be criminal or civil matters
  • cases heard without a judge or jury
  • Local courts include The local court, Coroners court, Children's court and land and environment 

18

What do Local courts hear?

  • Minor offences e.g loitering, obstruction traffic etc These are called Summary offences and are heard in the lower courts
  • Sentences for crimes that can be no more than 2 years or 5 if multiple offences
  • Civil matters with a monetary value of up to $100,000

19

What is the Coroners Courts role?

The coroner's courts role is to ensure that unexplained or suspicious deaths, fires and explosions are properly investigated. 

20

What is the role of the children's court?

Deals with civil matters related to care and protection of children. Also deals with criminal cases for people under 18

21

What is the role of the land and environment court?

The land and environment court interprets and enforces environmental law (zoning and environment offences)

22

What does the district court hear?

The district court hears more serious criminal matters e.g theft, manslaughter, malicious woundering, sexual assault and large-scale drug importation. Cannot deal with murder, treason and piracy. 

Handles civil cases where the amount claimed is between $100,000 and $750,000

Hears some appeals from lower courts (appellate jurisdiction)

23

What do the superior courts hear? (Supreme court or court of appeal)

Hear most serious criminal matters (criminal and civil)

Criminal cases- hears the most serious indictable offences such as murder and manslaughter, attempted murder etc.

In civil cases, no upper limit to monetary damages

Hears appeals from lowers court- called the court of appeal for civil cases or court of criminal appeal for criminal cases 

 

24

What is the highest court in Australia 

The High court

25

What is the definition of treason?

The crime of betraying one's country

26

What is the definition of Sedition?

A seditionist encourages rebellion but does not take overt actions in his/her attempt to interfere with or overthrow the government.

27

What does the federal court hear?

Deals with civil disputes governed by federal law and some criminal cases (some summary and indictable criminal matters arising under Australia federal law).

The court is able to hear cases in relation to bankruptcy, competition, consumer protection, corporations, fair work, human rights, intellectual property and native title.

It is superior to the federal circuit court but equal to the family court

 

28

What does the family court deal with?

Deals with complex and specialised family law matters

can hear appeals from the Federal Circuit court of Australia

29

What does the High Court deal with?

The highest court in the Australian Judicial system. It deals with appeals from the state and territory Supreme Courts and from the federal court of Australia and the family court of Australia. Its 'Original jurisdiction' is presiding over constitutional matters.

30

What is meant by jurisdiction?

The powers of a court, depending on its geographic area, the type of matters that can be decided, and the type of remedies that can be sought