Topic 2 The Australian Legal System Flashcards
In what countries does common law exist?
Countries colonised by Britain:
Australia
england
canada
USA
India
New Zealand
In what countries does civil law exist?
Countries colonised by:
France
Portugal
Spain
What are the five main elements of the adversarial system
conduct of litigation is left substantially in the hands of the parties as opposed to the judge
evidence is generally elicited by a procedure where each party in turn calls witnesses whom it questions
the role of the judge is to preside and act as an umpire
concentrated into one continuous hearing
compliance with the rules of court is in general enforced only at the request of one of the parties
each party will do its best to present all the facts and legal arguments that will support its case and to find flaws in the opposition’s evidence.
this system works to the disadvantage of migrants, indigenous people, the uneducated, and those who cannot afford the best legal representation.
it also tends to result in lengthy and expensive cases
tribunals adopt some of the features of an inquisitorial system and are more informal and the tribunal members may play a more active role in proceedings.
Equity
Principles of fairness modifying the early Common Law
What does the Australian constitution do?
1: Establishes a federal system of government.
2: It confers power to three separate bodies – legislative, executive, and judicial.
3: It underpins fundamental principles of responsible government such as the fact that the executive is accountable to the judiciary.
It DOESN’T do the following:
- create a position of prime minister
- makes no reference to a cabinet (key decision making body of the government and comprises of the prime minister and other senior ministers).
- We have no bill of rights.
The Commonwealth Government passed legislation which conflicted with Victorian Legislation. According to the Australian Constitution which law prevails?
a.
Section 109 says that when a law of a State is inconsistent with a Commonwealth Law, the former will prevail
b.
Section 109 says that when a law of a State is inconsistent with a Commonwealth Law, the latter will prevail
c.
Section 106 says that the State Parliament can enact laws in and for Victoria and shall not be affected by Commonwealth Laws
d.
Section 51 says that when a law of a State is inconsistent with a Commonwealth Law, the latter will prevail, except if it is a residual power
b.
Section 109 says that when a law of a State is inconsistent with a Commonwealth Law, the latter will prevail
What is Section 51 of the Australian Constitution about?
Section 51 is the part of the Constitution that lets the Australian Parliament make national laws about different matters, like tax, defence and welfare.
Victorian charter of human rights and responsibilities
Came into force on 1 January 2008
Requires courts and tribunals to interpret statutes in a way that is compatible with human rights.
Does not however allow courts to strike out an act or provision of an act if it is found to be incompatible with a human right
Purpose: protect and promote human rights
It sets out a list of human rights that parliament specifically seeks to protect and promote
Confers jurisdiction on the supreme court to declare that a statutory provision cannot be interpreted consistently with a human right
Significance of R v Momcilovic
Drugs found in Ms. Momcilovic’s apartment
s5 of drugs poisons and controlled substances act 1981 required her to prove that she was not in possession of the drugs.
victorian court of appeal held that this infringes the presumption of innocence recognised in the victorian charter of human rights and responsibilities
the validity of the act is not affected purely because it contradicts the charter. it is up to parliament to consider whether the act should be amended.
Stuart is a Government Minister in the Victorian House of Representatives. He wishes to introduce a new Bill into Parliament. What must Stuart do with respect to this Bill?
a.
“Actively consider” whether the Bill is compatible with the Charter of Human Rights
b.
Set out the human rights Parliament is seeking to promote whether or not these are the same as those from the Charter of Human Rights
c.
Confer jurisdiction on the Supreme Court to declare that any future statutory provision is or is not consistent with the Charter of Human Rights
d.
Prepare a statement of compatibility with the Charter of Human Rights
d.
Prepare a statement of compatibility with the Charter of Human Rights
Judge Charlie is considering a case in a Victorian Court where legislation seems to force people between the ages of 17 and 22 to work. Judge Charlie interprets this in light of the Victorian Charter of Human Rights. Which statement is relevant to this interpretation?
a.
The Charter of Human Rights is “statutory” in character so, like a Bill of Rights, it is entrenched and will strike out any laws that are inconsistent
b.
The Charter of Human Rights is “statutory” in character and does not allow Judge Charlie to strike out the law if it is deemed inconsistent
c.
Judge Charlie must consider and follow international decisions to ensure laws are consistent with fundamental human rights
d.
The Charter requires Judge Charlie to ignore human rights where they would be inconsistent with the purpose of the legislation
b.
The Charter of Human Rights is “statutory” in character and does not allow Judge Charlie to strike out the law if it is deemed inconsistent
The Victorian Charter’s list of human rights is based on:
a.
The International Covenant on Civil and Political Rights
b.
The United Nations Convention on the Rights of the Child
c.
The United States Bill of Rights
d.
The Australian Constitution
a.
The International Covenant on Civil and Political Rights
