Common Law

What is precedent? (3)

When a court’s reason for its decision is used for future cases.

This develops a body of case law applied in future judgements.

Common law.

What is binding and persuasive precedent? (2)

Binding precedent (Ratio decidendi): lower courts must follow the decisions of higher courts. Persuasive Precedent: higher courts may follow the decisions of lower courts.

Development of Common Law (2)

Australia imported common law from England when the country was settled by British colonists. Since, Australia developed its own court system and became independent from Britain.

How was equity developed? (4)

Common law was seen as too rigid and unjust. Equity corrected injustices by judging each case on its merits. Equity overrides common law in cases of conflict. It was developed from a court of chancellery (judges were religious figures).

What is an adversarial system? (3)

Australia has an Adversarial system. Two lawyers argue their case in front of an impartial judge or jury. The judge is an impartial observer who makes the final decision.

Advantages and disadvantages of the adversarial system (2)

Advantages: procedural law is strictly followed, lawyers on both sides, preserving the right to privacy, ensuring fairness and the defender has the right to silence. Disadvantages: unfavourable evidence may be omitted, high and democratic right to defend oneself is diminished.

What is an Inquisitorial system? (2)

The judge can participate in court proceedings. Judge is actively involved in asking questions and calling for evidence.

Advantages and disadvantages of Inquisitorial system (2)

Advantages: evidence is presented that may be inadmissible in an adversarial trial, court plays a substantive role to secure justice and decision maker has a more active role. Disadvantages: Chance of bias, longer trial time and the accused has the right to silence.

Name and explain the State Court System with examples

Lower Courts: Hear minor matters by a magistrate, no jury. (Local, Coroner’s, Children’s and Land and Environment Court). State Intermediate Courts: Hear serious matters and some appeals from lower courts. (District Court). State Superior Courts: Hear most serious matters, appeals from lower and intermediate courts, (Supreme Court and Court of Appeal).

Name and explain the Federal Court System (3)

Federal Circuit and Family Court of Australia: Hears matters including copyright, migration, family law, child support, bankruptcy and human rights. Federal Court of Australia: Civil disputes governed by federal law and some criminal cases. High Court of Australia: Appeals from federal and state supreme courts and also presides over constitutional matters.