LLB101 - Introduction to Law

Common Law

A common set of legal principles and procedures, displacing the previous differing customary laws.

Doctrine of precedent

Legal principle used to decide a previous case should apply to future cases of similar relevance.

Litigant

Party in a legal dispute.

Form of action

Recognised legal framework.

Petition

Formally ask

Equity

Fairness

Chancellor

In the king’s name, grants remedies and corrects wrongs where the common law courts would not act.

Rules of equity

A parallel legal system with its own rules and procedures, created alongside the common law.

High Court of Justice

Both common law and rules of equity combined.

What is the judge’s authority in hearing cases?

A judge can apply the appropriate legal principle to the case, which can be either common law or rules of equity.

Milirrpum v Nabalco Pty Ltd

Determined the indigenous Australians had ‘a subtle and elaborate system highly adapted to the country’.

Sources of Law

Common Law, Equity, Statute Law, Delegated Legislation, Judge-made Law, International Law

Precedent

Past legal decisions must be followed in future legal cases of similar relevant and presenting similar legal facts.

Terra nullius

Meaning ‘empty land’; when desert and uncultivated land was acquired, laws of the colonising power were set in place.

Cooper v Stuart (1889) 14 App Cas 286

Upheld reception of English law in Australia.

Statute

Written law passed by a legislative body.

New South Wales Act (1823)

Established a council of seven persons to help the governor make laws for the colony.

Australian Courts Act 1828 (UK)

The laws and statutes of England then in force applied to the colony as far as they were applicable.

Intra vires

Within its powers

Parliament

An elected legislative body; considered the superior source of law and can vary or abolish any part of the common law or rules of equity.

R v Bourne (1939) 1 KB 687

Established legal therapeutic abortion; it is not unlawful to perform an abortion where a doctor believed it was necessary to protect the physical or mental health of the mother.

R v Wald (1971) 3 DCR 25

Extended the concept of legal therapeutic abortion; the Court should also consider the social and economic standing of the mother when determining the use of abortion.

International Law

The law that governs the conduct of nations and their relationship with each other, often in the form of written agreements, variously called pacts, treaties, protocols, conventions and numerous other names.

Racial Discrimination Act (1975) (Cth)

Prohibited discrimination on the grounds of race that affected the person’s rights.

Common Law vs Rules of Equity

Rules of Equity

Legislation vs Common Law

Legislation is parliament-made law and common law is judge-made law

Queensland vs Commonwealth

Queensland is a unicameral state level of government and Commonwealth is a bicameral (consisting of the House of Representatives and Senate) national level of government.

House of Representatives vs Senate

Lower vs Upper

Advantages of Legislation

Flexibility to respond to changing circumstances; wide breadth of subject matter; and has the authority of the people.

Delegated Legislation

Legislation made by another authority that was granted to do so by Parliament.

Bill

A proposal for a new law that requires finalising and approval.

Explanatory Notes

Outlines the specifications of a bill

Explanatory Speech

Explains why this bill should be legislated.

Plaintiff

The person who is suing and initiating a lawsuit.

Defendant

The person being sued by the plaintiff.

Appellant

The person who lost the first lawsuit and is appealing to get the decision overturned.

Respondent

The person responding to the appellant and is arguing the judge’s decision was correct.

Stare decisis

‘Stand by things decided’ or adhere to precedent.

Doctrine of ‘parliamentary sovereignty’

Laws made by the parliament are superior to laws made by a judge.

When can a court override a law made by parliament?

Proper procedures were not complied with when enacting that law or parliament does not possess the necessary authority under the relevant constitution to enact that law.

Custom

Long-established, unwritten practices that courts recognise as legally-binding rules.