Australian Legal System - Sources of Law & Key Concepts

Comprehensive question-and-answer flashcards covering sources of law, common law & precedent, court hierarchy, adversarial vs inquisitorial systems, statute law and legislative process, delegated legislation, constitutional principles, and Indigenous customary law.

What are the five contemporary sources of Australian law?

Common law, Statute law, The Constitution, Indigenous customary law, and International law.

Which source of law consists of judge-made decisions that accumulate over time?

Common law.

Which 1901 document sets out Australia’s limited foundational laws?

The Commonwealth of Australia Constitution.

What doctrine allowed British law to be applied in Australia in 1788?

Doctrine of reception.

Define ‘statute law’.

Legislation (Acts) created by Commonwealth, State or Territory parliaments.

How does common law differ from statute law?

Common law is judge-made through precedent; statute law is parliament-made and codified.

What is a legal ‘precedent’?

A court judgment that establishes a point of law to be followed in future similar cases.

Latin term meaning ‘that which came before’, often used to describe precedent.

Precedent originates from the Latin word "praecedere,” but the concept is often summarised as "that which came before."

List the two circumstances in which courts create precedent.

1) No existing law covers the issue; 2) They interpret words in legislation or the Constitution.

What is the binding part of a judgment called?

Ratio decidendi.

What are judge’s remarks not essential to the decision, and only persuasive, called?

Obiter dicta.

Define ‘binding precedent’.

A precedent that lower courts in the same jurisdiction must follow.

Define ‘persuasive precedent’.

A precedent that courts may consider but are not obliged to follow, often from other jurisdictions.

What Latin phrase means ‘to stand by what has been decided’?

Stare decisis.

Name two techniques judges use to avoid following precedent.

Overruling/overturning and distinguishing.

Why did equity develop alongside common law?

To provide flexible, conscience-based remedies where common law was too rigid or unjust.

Give three factors that determine which court hears a case.

Type of matter, seriousness/value, and original vs appellate jurisdiction (others include type of offender and geographical location).

What is ‘jurisdiction’?

A court’s legal power to hear and decide cases (geographical or subject-matter limits).

Differentiate ‘original’ and ‘appellate’ jurisdiction.

Original = first instance hearing; Appellate = reviewing decisions of lower courts.

What is a ‘summary offence’?

A less serious criminal offence heard in a Local Court without a jury.

What is an ‘indictable offence’?

A serious criminal offence (e.g., armed robbery) usually tried before a judge and jury in higher courts.

Which legal system—adversarial or inquisitorial—does Australia mainly use in its courts?

Adversarial system.

In the inquisitorial system, what role does the judge take?

An active investigative role, asking questions and seeking evidence to find the truth.

Name two Australian proceedings that adopt an inquisitorial style.

Coronial inquests and Royal/other Commissions of inquiry.

What are the two houses of the Federal Parliament called?

Senate (Upper House) and House of Representatives (Lower House).

What majority is needed in each house before a Bill proceeds?

A simple majority vote of members present.

After passing both houses, whose assent turns a Bill into an Act?

The Governor-General’s assent.

Why is delegated legislation used?

Parliament lacks time/expertise; it delegates detailed law-making to specialised bodies via enabling Acts.

Give two examples of delegated legislation types.

Regulations and by-laws (others include rules and ordinances).

List one advantage and one disadvantage of delegated legislation.

Advantage: Saves parliamentary time & uses expert knowledge. Disadvantage: Can lack transparency and concentrate power in departments.

What major change occurred on 1 January 1901?

Federation: six colonies united to form the Commonwealth of Australia under the Constitution.

What are ‘exclusive powers’?

Law-making powers only the Commonwealth Parliament may exercise (e.g., defence).

What are ‘concurrent powers’?

Powers shared by Commonwealth and States; if conflict arises, Commonwealth prevails (s109).

Define ‘residual powers’.

Law-making powers retained by the States and not listed in the Constitution.

Explain the principle of ‘separation of powers’.

Division of governmental functions into legislative, executive, and judicial branches to provide checks and balances.

How can Parliament ‘check’ the Judiciary?

By legislating to override or clarify common law or court interpretations, within constitutional limits.

What two jurisdictions does the High Court possess?

Original (ss75-76) and Appellate (s73).

Give one example of a matter within the High Court’s original jurisdiction.

Interpretation of the Constitution or disputes between States.

List three key features of Indigenous customary law.

Spiritual basis, oral transmission & ritual, and significance of land/kinship (others: diversity, mediation focus).

What was the constitutional effect of the 1967 Referendum?

Removed exclusions of Aboriginal people (deleted s127 and discriminatory words in s51) allowing Commonwealth to legislate for them and include them in the census.

Which Act was the first to create a land-claim process for traditional owners?

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).

Which landmark case in 1992 recognised native title and overturned terra nullius?

Mabo v Queensland (No. 2) [1992] HCA.

What legislation codified the doctrine of native title after Mabo?

Native Title Act 1993 (Cth).

How has Indigenous restorative justice influenced modern Australian sentencing?

Introduction of circle sentencing involving community elders and victims.

What is ‘prima facie’ case?

Evidence that, on first appearance, is sufficient to support a conviction unless rebutted.

Who represents Australia’s head of state and gives royal assent to federal laws?

The Governor-General.

What is the main goal in the adversarial system?

To win the case against the opposing side within set rules of evidence.

Name three advantages of statute law over common law.

Can be updated quickly for societal change, reflects democratic will, and can act proactively.

Name one disadvantage of statute law.

May reflect political agendas leading to knee-jerk or majority-biased legislation.

What does ‘stare decisis’ ensure within the common law?

Predictability and consistency in legal decisions by following precedent.

Who can create ‘regulations’ under delegated legislation?

Government ministers or departments to detail primary legislation.

What body can override Territory laws under s122 of the Constitution?

The Federal Parliament.

Which doctrine states Commonwealth law prevails over inconsistent State law?

Section 109 inconsistency rule.

What is ‘equity’ primarily concerned with?

Achieving outcomes in good conscience through flexible remedies.