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Flashcards in Week 1 Deck (9)
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1

define law

a rule enacted or customary in a community and recognised as enjoining or prohibiting certain actions and enforced by the imposition of penalties.

2

explain the constitution

Provides the basic rules for the government of Australia
It is the fundamental law of Australia binding everybody including the Commonwealth Parliament and the Parliament of each State.
No law passed by any Parliament can be contrary to the Constitution

3

What steps are taken to resolve disputes?

Resolve without external intervention (negotiation)
Alternative Dispute Resolution
The Courts
The tribunals

4

Alternative Dispute Resolution

Conciliation
Little consensus on meaning
Generally – the process in which the parties to a dispute, with the assistance of a dispute resolution practitioner, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement
Advisory not determinative role
Informal process often preceding mediation

Mediation
The process in which the parties to a dispute, with the assistance of a dispute resolution practitioner, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement
Voluntary process where mediator has no advisory or determinative role with regard to content
May be voluntary, under a court order or subject to an existing contractual arrangement

Arbitration

5

types of tribunals

Tribunals – Government sponsored or private

Administrative – concerned with executive actions of government

Civil – concerned with resolving private disputes

6

explain sources of law

Our common law system has two main sources of law:
Cases / Common Law (law made by judges through judicial decisions)
Legislation (law made by parliament)

Legislation is the most prolific and significant source of law – prevails over case law

This supremacy comes from the doctrine of parliamentary sovereignty and doctrine of the separation of powers

7

Two types of legislation

Statutes (also called ‘Acts’)
Laws made by parliament

Delegated legislation (also called ‘subordinate legislation’)
Laws made by an individual or body other than parliament

8

Three tiers of government regulation in Australia

Federal
State / Territory
Local

9

explain interpreting the law

Although creating legislation rests with parliament, it is the courts’ role to interpret.
In statutory interpretation / construction, the courts are concerned to construe an enactment or, to determine the meaning and scope of a particular statutory provision. That is, courts are more concerned with a particular section not the legal effect of the whole enactment.

There is a two step process to statutory interpretation:
Identifying that ambiguity exists
Resolving the ambiguity so that the meaning is clear

The consequences of statutory interpretation. The court may:
Extend or read down the meaning of words
Read words into a section
Omit words from a section