Studied by 3 people
Second syllabus dot point within 'The Legal System'.
Origin of common law
The Normans invaded England and implemented a system of law of judges that traveled around sentencing in courts. This meant they were able to sentence equally and decisions made in past cases were used as precedents in future cases.
Doctrine of precedent
a judgement that serves to provide guidance for deciding similar future cases
Rules of equity
Adversial system of trial
Two sides try to prove their version of facts and disprove the other sides version. This system also allows for each person to attempt to disprove each others argument.
Nature of justice
equality + fairness = justice
Hierarchy
Jurisdiction
The powers of a court dependent on their location, the type of matters it can decide and different remedies that can be sought.
Structure of NSW Courts
It operates as: lower courts, intermediate courts and superior courts.
Structure of Federal Courts
It operates as: federal circuit court, family court, federal court and the high court.
What is the role of parliament?
It debates proposed legislation, passes or rejects it and amends legislation.
What is the structure of parliament? (Ask sir which parliament should I learn the structure of? eg.federal, state etc)
All parliaments a bicameral, meaning they have two houses, an upper and a lower. In Federal parliament the upper house is the senate and the lower house is the house of reps.
What is the legislative process?
Need for new law, draft bill, first reading, second reading committee stage, third reading, upper house and royal assent.
What is the function of delegated legislation?
Laws made by authorities other than parliament, which are delegated the power to do this by an act of parliament.
How does the division of powers affect laws made?
How does the separation of powers affects laws made?
By having each arm of the government controlled independently it helps a country not become a dictatorship. It ensures no branch has absolute power.
What is the difference between the division and separation of powers?
Division of powers is the the power distributed between the exclusive powers (the whole of Aus) and residual powers (state government). Separation of powers is the judiciary, legislature and executive which holds the power to change and make laws.
What are the reasons for the High Courts ability to interpret the Constitution?
What is a case that reflects the High Courts ability to interpret the constitution?
R v Brislan [1935] HCA 78
Why are customary laws said to be ‘diverse’?
There are 1000s of different Aboriginal communities throughout Australian meaning the customary laws vary between each and are diverse.
What’s the spiritual basis of customary law?
The Dreaming forms the basis of customary laws.
What are family and kinship obligations?
Define rituals
Rituals within Indigenous communities are often dancing, singing and story-telling.
Oral Traditions
Mediation
Alternative dispute resolution between two people in which there is a neutral third party to assist in reaching a decision.
Sanctions
a punishment imposed on someone as a result of breaking the law, usually in the form of a fine.
What is the difference between mediation and sanction?
Sanctions often result in prison time or fines whereas mediation results in the two parties coming to an agreement without a legal consequence.
Why is mediation and sanction important in ATSI Customary law?
It assists in incorporating Indigenous customary law to provide justice for Indigenous people but still abides by Australian law.
What is the extent to in which ATSI Customary Laws have been incorporated into Australian law?
Many customary laws have been incorporated into Australian law. Sustainable development is seen in our current environmental laws. Mediation and conciliation is incorporated in employment, criminal and consumer law.
Domestic law
The law of a country
International law
It governs the relationships between nation states.
Distinguish between domestic and interactional law.
A domestic law applies only to an independent country and international law applies to all countries.
State sovereignty
The authority to rule themselves independently
How does state sovereignty affect international law and justice?
It often means international law does not have to be applied to a country if they choose not too.
International customary law
It is not written and is based on long standing traditions which are common amongst many states.
Instruments
Declarations and treaties.
Declarations
Countries get together and say how they think things should happen. This is non-binding and typically made before a binding treaty. eg. The universal declaration of human rights (1948).
Treaties
Agreements between countries must be passed through Australia to make it enforceable. eg. The Convention of the Rights of the Child (1990).
Legal decisions
Decisions made by the International court of justice. Decisions from past cases are non-binding and only referred to as advisory opinions.
Why are legal writings important as a source of international law?
Legal writings provide clarity of words within treaties therefore they’re important as they help clearly define what is required of a country within a treaty.
What is the role of United Nations?
Maintaining world peace and security, promoting social progress and creating better living standards and human rights.
What is the role of an international court?
To settle legal disputes submitted by member nations and provide advisory opinions on legal questions.
What is the role of an interaction tribunal?
What is the role of IGOs?
They encourage cooperation between states, provide a forum for countries to resolve disputes and creates consistency between countries in law reform.
What is the role of NGOs?
They represent the interests of certain groups, assists in establishing political/social change by influencing governments to change laws.
How is international law incorporated into Australian law?
In order to establish international law within Australian law the government must past a statute law.
What case reflects how international law can affect Australian legal decisions?
The Queen v Tang (2008) - Sex workers brought from Thailand were held against their will due to ‘debt’ they owed. The accused was charged for slavery under International law.
How can international law affect Australian legal decisions?
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