An enforceable universal rule created by a sovereign power.
A person or institution that has the authority to make laws.
Law made by parliament
System of law developed over time by judges. Formed by judge when there is a lack of statute law.
Ways of behaving based on unwritten tradition.
Ensure the smooth operation of society. Apply only to certain people at certain times.
A reflection of the things that society considers important.
The things that society considers to be right and wrong.
Characteristics of Just Laws
Equal, based on widely held values, utilitarian, redress inequalities, minimise delay, not retrospective and known.
A combination of equality, fairness and access.
Procedural fairness/Natural Justice
Fair Treatment under the law.
Examples of Procedural fairness/Natural Justice
The right to participate in legal proceedings in which you are involved, the right to know the accusation made against you, the right to have a hearing, the right to have your case heard before an unbiased court, the right to test evidence and the right to not have previous convictions used against you.
Rule of law
Limitation on the arbitrary use of power.
Examples of Rule of Law
Independent Judiciary, defendant not forced to incriminate themselves, regulated enforcement, not retrospective, Protects Human Rights.
Courts and the judges and magistrates who sit in them.
A system of society without government or law.
A form of government in which the sovereign power uses arbitrary power.
Principles developed to provide fairer remedies than those of common law. Became part of common law in 1873.
A court order that prevents a person from doing something.
A court order that requires a person to fulfil an obligation they undertook as part of a contract.
A decision made by a court that establishes a point of law.
A court must follow this precedent. In Australia this occurs if it is set by a higher court.
May influence a decision but a court is not bound to follow it . E.g. Precedent made in other jurisdictions.
Reason for the decision that creates a precedent.
Other statements made by judges that do not create a precedent but may be persuasive.
The area over which a court has power.
Two opposing sides who argue their case before a court which is presided over by a neutral third party.
The power of a court to hear a case for the first time.
The power of a court to hear a matter on appeal from a lower court.
When a lawyer for one party in a case asks questions of a witness called by the opposing party.
System of law in which there are two opposing sides who argue their case before a court, which is presided over by a neutral third party.
Where two parties in dispute meet to discuss their concerns through mutual negotiation.
Less serious offences. Run by a single magistrate.
Serious offences. Run by a Judge and uses a Jury.
Only summary offences . Can deal with civil claims involving up to 100,000 dollars. Also holds committal hearings.
For the police to demonstrate they have enough evidence to convict someone of an indictable offence in a higher court.
To investigate unexplained deaths and fires.
Deals with any matter involving persons under 18 at the time of the offence. Only exception is murder which is held in the supreme court.
Land and Environment Court
Deals with matters involving environmental planning and land compensation.
Indictable Offences and civil claims from 100,000 to 750,000. Can hear appeals from inferior courts.
Most serious Indictable offences and civil claims with a minimum of 750,000. Appellate jurisdiction over inferior courts.
Deals with family law such as divorce usually only has single judge.
Broad jurisdiction such as trade practices, immigration and tax.
Highest Court in Australia. Matters involving the constitution. Appellate jurisdiction over all inferior courts.
A document that outlines the rules for the governing body of a nation.
Division of Power
Divides power between the federal government and the state government. This is detailed in the Constitution.
Powers granted only to the commonwealth powers such as Trade and Immigration.
Powers which the states have retained. These powers are outlined in the constitution and include Transport and Education.
Powers which the state and Commonwealth governments share. E.g. Healthcare.
Federal Executive Council
Made up of governor general, Prime Minister and Senior Ministers.
Separation of Power
The splitting of power between the parliament the commonwealth executive and the Judicature.
House of Representatives
Lower House. 150 members and the leader of the party with a majority becomes Prime Minister. Makes legislation.
Represents the State and Territories. 12 representatives per state and 2 per territory. Elected for 6 years. Reviews legislation but can also make legislation.
The representative of the Queen in Australia. Approves passed legislation. Has certain powers of the parliament. Part of the Federal Executive Council.
Private Members Bill
Bill created by a member of Parliament.
Government Sponsored Bill
Minister is appointed to develop a bill for the government.
A piece of Proposed legislation.
Minister or Private Member will introduce the bill to the house in which they sit and copies will be distributed.
The bill is debated.
Each individual clause is debated.
The House is asked to vote on the bill. If successful the bill will go to the Senate where the entire process is repeated (except for the first reading if the bill originated in the senate.)
The governor generals approval of the bill and makes it law.
Legislation made by non-parliamentary bodies.
Legislation made by the Governor General or members of the Federal Executive Council
Laws made for the territories of Australia such as the Antarctic Territory
Rules (Delegated Legislation)
Legislation made for government departments often by the government departments
Laws made in accordance with the Local Government Act which allow local councils to make laws that apply within their area.
Australian Law Reform Commission
Permanent, full time body which provides advice on areas of law reform to the Australian Government.
NSW Law Reform Commission
Permanent, full time body which provides advice on areas of law reform to the NSW Government.
Investigate matters of concern to the community and suggest reform. Contains members from all major parties and also includes experts. E.g. Road Safety Committee
Can be set up to investigate specific areas of the law. E.g. Police Corruption
Permanent Advisory Bodies
Monitor particular laws and propose reforms. E.g. Bureau of Crime Statistics
A body of representatives that makes laws for a nation.
Conditions that give rise to law reform
Failure of existing laws, New concepts of Justice, changing composition of Justice, New Technology.
Agencies of Law Reform
Help to initiate law reform. Includes the ALRC, NSWLRC, Parliamentary Committees, Royal Commission, Permanent Advisory Bodies, Parliment, Media and NGO's.
Mechanisms of Law Reform
Reforms the Law. Includes the Courts, Parliament and Intergovernmental Organisations
A system of rules of conduct which is felt obligatory upon them by the members of a definable group of people. This definition is not absolute. Was created by Justice Blackburn.
the relationship between individuals and their extended family/clan and the bonds that tie the group together.
Features of Aboriginal Law
Signifigance of land and water (land collectively owned), Family and Kinship, Rituals/Oral Traditions (law is oral/faces painted at trial). If mediation does not work then conciliation with elders or if serious then punishment.
Revenge, Trial by Ordeal (spear throwing), Inquest (investigate death often in supernatural ways), Ridicule, Isolation and Fighting.
A process by which sentencing is taken to the local indigenous community. The magistrate and Elders sit in a circle with the guilty person and discuss the crime and impose a sentence.
Legal Concept which means "land of no one". Allowed Britain to take possession of this type of land and impose their own legal system.
The recognition by Australian law that some ATSI people have rights and interests to their land that stem from their traditional laws and customs.
Native Title Act
Statute law which helped manage native title.
Native Title Tribunal
A government agency which assists with administration, mediation and organisation regarding Native Title.
Gove Land Rights Case
A case in 1971 which ruled that native title did not occur.
Mabo (No 1)
A case against queensland where Mabo who represented the murrary islanders proved that the Island Declatory Act contravened the Racial Discrimination Act.
Mabo (No 2)
Mabo proved that Native Title Existed and proved that terra nullius was false.
Allowed native title to co-exist with pastoral leasing.
Native Title Amendment Act 1998
Restricted native title by creating tougher criteria and extinguished native title when land was privately owned before 1994 and extinguished Native Title when pastoral leasing occurred before 1994 as well as other reforms.