LLB101 Revision Notes

LLB101 Exam flashcards in FILL_IN_THE_BLANK style.

Law is __.

an enforceable system of government-sanctioned rules which operates within a society to regulate its conduct.

Australia is a ‘common law’ country with two sources of law, __.

legislation and common/case law.

Legislation is law made by (or with authority of) Parliament. Similar terms include __.

statues and Acts.

Most Bills are ‘__’ Bills - introduced by a government Minister.

Government.

Parts of an Act of Parliament include (act is current as at this date).

Reprint date.

Case law is the body of law that has developed through the recording of the decisions in cases coming before the courts. Also known as ___.

judge-made law, or the unwritten law.

Higher courts (appealing because they’re unsatisfied with the decision made in a lower court) are referred to as __.

appellant v respondent.

Decision - __ delivered at the conclusion of the court hearing (ex tempore), or at some later time.

judgement

__ - ‘stand by things decided’ - adhere to precedent - foundation of the common law system.

Stare decisis

General rule is that the law made by parliament is supreme over judge-made law - Doctrine of __.

parliamentary sovereignty.

__ can be thought of a source of law in a number of senses including the conventions of parliamentary practice in constitutional law.

Custom

implicit in much of the Solicitor-General’s argument… was… an Australian definition of law as the command of a sovereign.

Milirrpum v Nabalco Pty Ltd

_ HCA held that the Crown’s acquisition sovereignty over Australia is unable to be challenged in court.

Mabo v Queensland

In 1787, ___ left England in command of the First Fleet of convicts.

Arthur Phillip

1788 - colony ‘settled’ as understood in international law (as opposed to conquered or ceded). Doctrine of __ - land belonging to no one.

terra nullius

Great Britain granted limited self-government to each colony: __

Colonial Laws Validity Act 1865 (Imp)

__ - A political system in which government power is shared between a central or federal government and regional governments.

Federal system

Federation Movement gained momentum in the 1880s and resulted in the __ assented.

Commonwealth of Australia Constitution Act 1900 (Imp)

The Constitution carries out ___ main tasks.

5

‘__ shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives’ (s 1).

Legislative power of the Commonwealth

Anything not mentioned in the Constitution belongs to the States, also known as ‘__’.

Commonwealth

__ of the Constitution states When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail.

Section 109

Implied rights in the constitution include right to __.

political communication

A __ is a constitutionally-entrenched recognition of stated rights and freedoms.

Bill of Rights

Several failed attempted to introduce a __ ‘Charter’ of Rights (e.g. not entrenched).

statutory

Changing the Constitution Required a __ s 128.

referendum

Changing the Constitution requires a double majority (Majority of Australian voters and a Majority of voters in a majority of states (e.g. __)).

4/6

Gradual acquisition of full legislative independence from Britain. The ___ was Backdated until outbreak of WWII.

Statute of Westminster Adoption Act 1942 (Cth)

1986 saw complete (almost) legal independence: At the request of all State Parliaments, the Commonwealth and the UK Parliaments passed near- identical versions of the __.

Australia Act 1986

Facts in Mabo v Queensland (No 2) (1992) 175 CLR 1 include that _ was a traditional owner within the Meriam people.

Eddie Mabo

Held in Mabo v Queensland (No 2) (1992) 175 CLR 1 include Australia was not __.

terra nullius

__ includes that The exercise of power by government must be shared with the people and cannot be concentrated in the ruler.

The Rule of Law

The ‘__ are the principles relating to legislation [in Qld] that underline a parliamentary democracy based on the rule of law’ (Legislative Standards Act 1992 (Qld) s 4)

fundamental legislative principles

__ occurs If each kind of governmental power is kept in a different set of hands then the opportunity for oppression and injustice is minimised.

Separation of Powers

Queensland Parliament exercises state legislative powers with Power to make laws for the ‘__’ of Queensland (Constitution Act 1867 (Qld) s 2).

peace, welfare and good government

The _ is the Crown’s representative, who is advised by the Federal Executive Council, which consists of government Ministers.

Governor-General

The Governor-General Acts on advice of Federal Executive Council, giving formal effect to decisions of government including ___.

Enact delegated legislation

The Doctrine of __ is a design feature of our inherited ‘Westminster System’ of government.

Responsible Government

It is a feature of our common law system that judges make law through __.

the precedents set by their decisions.

Judges are appointed by the executive and Courts are open to public scrutiny, however MPs may perceive it to be politically beneficial to criticise a particular judgment while judges must remain apolitical and cannot respond. This poses a risk to confidence in the justice system and Legal professional bodies will defend __.

Privy Council

Part of a legal community includes being Admitted as an ‘officer of the court’ and being Committed to the __.

administration of justice

Duties of lawyers can come from a range of sources including ‘Extrinsic’ such as __.

Legal Profession Act 2007 (Qld) (LPA)

Lawyers are subject to disciplinary proceedings, brought by the Legal Services Commission with Two disciplinary categories: __.

unsatisfactory professional conduct or professional misconduct

Admission as a lawyer requires the person to be Eligible for admission and __.

Suitable for admission

In a case Who resolves what? on Civil case: nearly always the judge and Criminal case: nearly always a jury.

the questions of fact

Analysing a case requires an important skill for law students (and lawyers) Like __ ISAACS.

reverse-engineering

A ‘sentence’ __.

is made up of at least one clause and expresses a complete thought

Spelling in Australian English is generally closer to UK than US. If in doubt, consult the __.

Macquarie Dictionary

Judges must remain a__ and cannot respond when MPs, whether in government or opposition, perceive it to be politically beneficial to criticise a particular judgment, or courts as a whole.

political

Following cases requires identifying the __ - ‘reason for deciding’ → of the case is the part that binds later courts.

ratio decidendi

Following cases requires identifying comments made ‘by the way’ aka __ - comments made ‘by the way’.

obiter dicta

Avoiding a similar case requires the court, in response to a ‘similar’ previous case, to __ it from the current case.

Distinguishing

Can a court depart from a directly-relevant previous case? - Especially in a way that will change ‘the law’ which is referred to as __?

Overruling

A case might be considered ‘’ - it had overlooked a relevant legal rule in a way that affected the outcome.

Per incuriam

An ‘old’ case may no longer be an authority, but it may be that changes to __ values make such a case no longer right to follow.

social

_ is the scope of a court’s power to examine and determine facts, interpret and apply the law, make orders and declare judgment.

Jurisdiction

An __ is ‘an application to a higher court to reconsider the decision of a lower court, on the ground that there has been an error in the decision of the lower court.

Appeal

Federal courts include the High Court of Australia (HCA) and it is Mentioned in the Commonwealth __ - see Chapter III The Judicature.

Constitution

The High Court of Australia (HCA)’s Original jurisdiction is governed by Constitution ss 75 and 76 and Judiciary Act 1903 (Cth) ss 30 and 38 - In practice, most original jurisdiction cases are constitutional law matters and include Arising under any __.

treaty

_ of Australia (FCA) was Created by Federal Court of Australia Act 1976 (Cth) and has Extensive civil jurisdiction, conferred by Judiciary Act 1903 (Cth) s 39B, especially.

Federal Court

Federal tribunals include the __reviews decisions made by Commonwealth government agencies, departments and ministers.

Administrative Review Tribunal

State courts include the __ of Queensland (SCQ) which Existed since 1861.

Supreme Court

State courts include the __ of Queenslandwhich Also serves as the Planning & Environment Court.

District Court

Magistrates Court of Queensland Appeals depend if the original judgment was ‘in an action in which the amount, value or damage involved is more than __ ‘ - s 45(1).

the minor civil dispute limit

Appealing from DCQ is available to the as per District Court of Queensland Act 1967 (Qld) s 118..

Queensland Court of Appeal

Appeal from QCA Appeal available to the Full Court of the High Court of Australia by the __.

Judiciary Act 1903 (Cth) s 35

Starting point for determining original jurisdiction in a criminal cases is Read the criminal offence provision and note what type of offence it is and note that Criminal law is sourced from __.

legislation

Two ways a criminal case might be heard: __.

on indictment or summarily

MCQ has jurisdiction to hear simple and regulatory offences in a summary way - CC s 3(4) and __.

Justices Act 1903 (Cth) s 19

MCQ may also conduct a __’ which is a Preliminary hearing when a person is charged with an indictable offence, to determine whether the Crown has sufficient evidence to justify proceeding to trial.

committal hearing

As an exception an indictable offence is with the jurisdiction of the DC or SC , whereby some indictable offences may be heard summarily by a MC and the __ outlines three situations.

Criminal Code chapter 58A

If the MCQ was hearing an indictable offence summarily then the right of a complainant is limited to only appealing against __ (s 222(2)(b)).

sentence or costs

From DCQ in its original jurisdiction which The DCQ hears matters on indictment the appeal rights are governed by __.

Criminal Code Ch 67

What is stare decisis / the Doctrine of Precedent? a __.

principle that like cases should be decided alike, and according to the law.

Two assumptions when using a previous case when judges rely upon the DoP to help reach a decision in the case before them include __ and Law is similar.

Facts are similar

The basic rule of the doctrine of precedent A court will be bound by the decision of a superior court in the same hierarchy supported by __.

Broome v Cassell & Co Ltd [1971] 2 QB 354 or R v Casey; R v Smythe [1977] Qd R 132

Cases which is a (Probable) Exception: District Court does NOT bind Magistrates Courts, even though they are part of the same appellate hierarchy (Such decisions would be persuasive) are supported by __.

Valentine v Eid (1992) 27 NSWLR 615

A majority decision will create a binding precedent, if the majority agree on the outcome for the same reasons which is supported by __.

Lake v Quinton [1973] 1 NSWLR 111

The basic rule is If a case is not binding, it is because the a court is / is not bound by decisions of a __.

superior court in the same hierarchy

Narrow category intermediate appellate courts (and courts below) should not depart from the decisions of other intermediate appellate courts when interpreting commonwealth legislation, national uniform legislation or the common law are considered de facto binding as per __.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd

Privy council decisions may have been binding on certain Australian courts at the time of the decision, depending on where they fall in the timeline as it used to be at the apex of our court hierarchy, but it no longer is an appeals to it began to be removed beginning with __.

Privy Council (Limitation of Appeals) Act 1968 (Cth)

What should you say about whether a state court is still bound by old PC cases today is that not binding on any state court as supported by __.

R v Judge Bland; Ex parte Director of Public Prosecutions [1987] VR 225

What should you say about whether a state court is still bound by old PC cases today is that they are still binding on all state courts as per __.

Rockwell Graphic Systems Ltd v Freemantle Terminals Ltd (1991) 106 FLR 294

Old specific rules (ratios) may have to give way to a legal principle or that new principle may change certain __ especially due to morality.

earlier legal cases