SOURCES OF CONTEMPORARY AUSTRALIAN LAW

Legal studies topic 2

What is common law?

Common law refers to laws made by judges, which were imported from England when Australia was colonized by the British.

How did the common law system develop in Australia?

Over time, Australia developed its own legal system of courts that became independent from Britain, while still adhering to the common law tradition.

What is the significance of precedent in common law?

Precedent is the principle that the outcomes and reasoning of prior judgments are recorded to be used as guidance for future cases.

What are the three main historical tasks given to judges after the Norman invasion in the 11th century?

1. Administer a uniform set of laws throughout the country.

2. Report any threats to the throne to the king.

3. Assess the wealth of the country to determine tax levies.

What is equity law?

Equity law is a body of private law addressing disputes between individuals, providing a wider range of remedies beyond monetary compensation, such as injunctions and specific performances.

What is the adversarial system of trial?

The doctrine of precedent obligates courts to follow historical cases when making rulings on similar cases, ensuring consistency and stability in the law.

What is the doctrine of precedent?

The doctrine of precedent obligates courts to follow historical cases when making rulings on similar cases, ensuring consistency and stability in the law.

What are the differences between ratio decidendi and obiter dictum?

Ratio decidendi is the binding reason for a judicial decision that must be followed in future cases, whereas obiter dictum refers to persuasive comments made by a judge that are not binding.

What does 'stare decisis' mean?

Stare decisis is a legal doctrine that obligates courts to adhere to precedents established in prior cases when making decisions.

What is the role of the High Court in Australia?

The High Court is the highest court in Australia, dealing with appeals from federal and state supreme courts and matters related to constitutional interpretation.

What is 'delegated legislation'?

Delegated legislation refers to laws made by non-parliamentary bodies, allowing government departments or local councils to regulate minor issues, as authorized by an enabling act.

What is the significance of the 'separation of powers' in Australian governance?

The separation of powers is a constitutional principle designed to prevent the concentration of power in one branch of government by dividing responsibilities across the legislature, executive, and judiciary.

What are 'exclusive powers' in the context of the Australian Constitution?

Exclusive powers are those powers granted solely to the federal government, such as military and defense.

How can customary law be relevant today in Australia?

Customary law can be considered in legal proceedings involving Aboriginal and Torres Strait Islander peoples, particularly when they are charged with crimes.

What is the impact of common law on Australian legal heritage?

Common law has shaped Australia's legal system, establishing a framework of judge-made law that continues to evolve through the application of precedents as new cases arise.

What are 'summary offences'?

Summary offences are less serious legal violations generally heard in magistrates' courts, such as road traffic offences and minor assaults.

What distinguishes the NSW court hierarchy?

The NSW court hierarchy consists of three tiers: Lower Courts (magistrates), Intermediate Courts (District Court), and Superior Courts (Supreme Court), with each tier handling varying levels of case seriousness.

What is domestic law?

Domestic law refers to the laws of a nation, governing matters within its own borders.

What is international law?

International law is a body of law governing relationships between countries (known as states) and regulates trade and commerce between them, providing laws to maintain peace and security.

What is the main criticism of international law?

it lacks enforcement because it relies on the consent of countries to its jurisdiction.

How does international law apply to nations?

International law applies only to nations that agree to be bound by its terms.

What complexities exist in the enforcement of international law?

Complex legal tribunals exist, but countries can exempt themselves from cases, leading to challenges in enforcement.

How is international law created?

International law is created through negotiations between nations, through parliament or rulings of judges.

What is the process of ratification of international law?

Ratification requires the national government to enact domestic law accepting the terms and conditions of the international law; only then is the nation obliged to follow it.

How does Australia’s dualist system affect international law?

In Australia’s dualist system of government, international law does not become domestic law automatically; it must be signed and enacted through the normal legislative process.

the main sources of international law?

• Declarations and treaties

• Customs

• Legal Writings

• Legal Decisions

What are treaties in international law?

Treaties are international agreements that are written and binding on countries that sign and ratify them. They can be bilateral (between two countries) or multilateral (involving multiple countries).

What are declarations in international law?

Declarations are written internal instruments that clarify parties' positions on issues but are not legally binding, such as the Universal Declaration of Human Rights (UDHR).

What role does the International Court of Justice (ICJ) play in international law?

The ICJ deals with disputes between states and makes legal decisions that only bind the parties in that particular case; stare decisis is not applied.

What impact do legal writings have on international law?

Legal writings by respected international lawyers, judges, and academics guide decision-making and treaty formation in international law.

Legal Decisions:

Made by international court of Justice (ICJ), organ of UN

• Deals with disputes b/w states

• Stare decisis not applied, only binds parties int hat particular case

Customary internation Law

Not contained within document (based on trads and customs seen to be right and fair by the international community). Takes a long time as it must be constant and unifomrally applied, if found to exist it is binding on all states (SAVING DRIFTERS)

What is state sovereignty?

State sovereignty is the principle that states have the ultimate authority over their territory and the right to govern themselves without external interference.

What is the Montevideo Convention of 1933?

The Montevideo Convention defines a state in a legal sense as an independent entity with the ability to enter into relations with other states and to be recognized internationally. To be considered a state, one must have:

1. A permanent population

2. A defined territory over which it exercises authority

3. An effective government

4. The capability of entering into international negotiations

What are the impacts of state sovereignty on international laws?

State sovereignty can lead to nations refusing to participate in international laws, including:

• The ability to refuse participation in hearings of international courts and tribunals, which is a fundamental weakness of international law.

• Nations can disregard global interests and follow their own agendas without fear of consequences, as seen in issues such as piracy in Somali waters, the treatment of civilians in Tibet, the torture of protestors in Myanmar, and juvenile executions in the US.
  Treaties are only binding on those nations that ratify them, allowing non-ratifying nations to evade accountability.

How do nations justify actions that violate international treaties?

Nations often argue that interference from international bodies, like the UN, in their domestic policies would breach their sovereign rights, thus justifying their actions that may violate international treaties.