Aus Legal System

Front 1

Define Common Law

Back 1

historic system of laws formulated in England between 1066 and 1400.

Front 2

Define Civil Law

Back 2

Civil law systems began in continental Europe and have developed from the Ancient Roman legal system.Codes of law are a common feature of civil law

Front 3

What are the 3 powers that need to be kept separate?

Back 3

legislature

executive

judiciary

Front 4

Define legislature

Back 4

A body which decides on what laws should be passed

Front 5

Define executive body

Back 5

An government body, which makes the decisions that put the laws into action

Front 6

Define judiciary

Back 6

A body which may or may not be elected, that rules on any disputes about laws, whether between the government and the people (criminal law) or between individuals (civil law).

Front 7

What are some sources of international law?

Back 7

• conventions and treaties, for example, double taxation agreements• international custom, for example, aspects of international trade law• the general principles of law recognised by civilised nations

Front 8

What is a conflict of laws?

Back 8

where parties from different nations have a legal dispute, and it is necessary to determine which national law governs the validity of the legal situation.

Front 9

What policy did the the Rome Convention 1980 set out?

Back 9

Choice of law. if the parties have a written contract and have expressed preference for a particular law in that written contract, that law should govern the contract.

Front 10

What is balance of probability and what legal system is it relevant to?

Back 10

Civil law

to convince the court that it is more probable than not that the assertions are true.

Front 11

What are the two key principals of civil law?

Back 11

Two key principles in civil law are comprehensibility and certainty.

Front 12

What lines are laws usually organised by?

Back 12

National lines

Front 13

Why is it called common law?

Back 13

one distinctive source of law within itself is called that, but the system comprises several sources

Front 14

Is France a civil or common law country?

Back 14

Civil

Front 15

What encompasses a legal system?

Back 15

laws, the legislature, the judiciary (or judicature), the prosecution system, police and prisons.

Front 16

What is public international law?

Back 16

The system of law regulating the interrelationship of sovereign states and their rights and duties with regard to one another.

Front 17

What is private internal law?

Back 17

Private international law regulates cases where there is a conflict of national laws.

Front 18

What are the Sources of international law?

Back 18

treaties, custom and general legal principles.

Front 19

What is the legal doctrine of consideration?

Back 19

Under this doctrine parties have to exchange promises, acts or forfeitures of value to create a contract.

Front 20

What is a conflict of law?

Back 20

parties from different nations have a legal dispute, and it is necessary to determine which national law governs the validity of the legal situation.

Front 21

How is a crime defined?

Back 21

A crime is conduct prohibited by the and is usually punished by the state, which prosecutes the case, by means of fines or imprisonment. There is usually a heavy burden of proof.

Front 22

What is the literal rule?

Back 22

literal rule means that words in the Act should be given their literal and grammatical meaning

Front 23

What is the Gold rule

Back 23

golden rule which states that words should be given their plain, ordinary or literal meaning unless this would give rise to manifest absurdity

Front 24

What is the mischief rule?

Back 24

Under the mischief rule a judge considers what ‘mischief’ the Act was intended to prevent.

Front 25

What is the contextual rule?

Back 25

contextual rule means that a word should be construed in its context: it is permissible to look at the statute as a whole to discover the meaning of a word in it.

Front 26

What is the purposive model?

Back 26

the purposive model to statutory interpretation, the words of a statute are interpreted not only in their ordinary, literal and grammatical sense, but also with reference to the context and purpose of the legislation

Front 27

EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS

Back 27

To express one thing is by implication to exclude anything else.

Front 28

What is the EJUSDEM GENERIS RULE

Back 28

Statutes often list a number of specific things and end the list with more general words. In that case the general words are to be limited in their meaning to other things of the same kind

Front 29

What are the 2 types of common law with regards to relative power of the legislature and the judiciary? Hint: judiciary with what

Back 29

jurisdictions with legislative supremacy and jurisdictions with judicial review.

Front 30

What is Legislative supremacy also known as?

Back 30

parliamentary sovereignty

Front 31

What is parliamentary sovereignty another name for?

Back 31

Legislative supremacy

Front 32

What does Legislative supremacy mean?

Back 32

a country’s constitution provides that its legislature is supreme to all other government institutions, including the executive and judiciary.

Front 33

How is law mostly made in Australia?

Back 33

by parliament through legislation, or the executive through subordinate legislation

Front 34

Which court has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of all of the States?

Back 34

the High Court of Australia

Front 35

What does the High Court of Australia do?

Back 35

It interprets the Constitution of Australia. The power of judicial review over laws passed by the Parliament of Australia and the parliaments of all of the States

Front 36

How can the legislature make the law clearer?

Back 36

by passing a codifying statute putting case law on a statutory basis.

Front 37

How can legislature be categories? (3)

Back 37

Public Acts, Private Acts and enabling legislation.

Front 38

What are Public Acts legislation?

Back 38

Legislation that affects specific individuals and groups

Front 39

What are Private Acts legislation?

Back 39

legislation that affects specific individuals and groups

Front 40

What is enabling legislation?

Back 40

legislation that empowers a specific individual or body to produce the detail required by a parent Act in subordinate legislation

Front 41

What is Australias process for passing legislation?

Back 41

1)it is read and debated in both houses of parliament

(or the single house of parliament, in the case of a state such as Queensland which has only one)

2) it is either rejected, changed, or approved.

3)An approved Bill must then receive the assent of either the Governor (if it is state legislation) or the Governor-General (if it is federal legislation).

Front 42

What does NOSCITUR A SOCIIS mean?

Back 42

presumption that words draw meaning from the other words around them.

Front 43

What does IN PARI MATERIA mean?

Back 43

If the statute forms part of a series which deals with similar subject matter, the court may look to the interpretation of previous statutes on the assumption that the legislature intended the same thing

Front 44

What are the PRESUMPTIONS OF STATUTORY INTERPRETATION

Back 44

• A statute does not alter the existing common law

• A statute is not intended to deprive a person of their liberty.

• If a statute deprives a person of their property they are to be compensated for its value.

• A statute does not have retrospective effect

• A statute cannot impose criminal liability without proof of guilty intention.

• A statute does not repeal other statutes

Front 45

What are Extrinsic aids to interpretation?

Back 45

Extrinsic aids to interpretation are found outside the Act and the models/rules/presumptions listed above. Intrinsic aids are found within the Act in some form.

Front 46

What year was "The Acts Interpretation" Act inacted?

Back 46

1901

Front 47

What are Intrinsic aids?

Back 47

Anything that does not actually form part of the Act but that is set out in the document containing the text of the Act as printed by the Government Printer

Front 48

Define Common law

Back 48

the body of legal rules common to the whole jurisdiction which is embodied in judicial decisions

Front 49

Define equity in common law

Back 49

iterm that applies to a specific set of legal principles which supplement, but do not replace, the common law. It is based on fair dealings between the parties. It adds to and improves on the common law by applying the concept of fairness

Front 50

What are the 3 parts of equity?

Back 50

1. Equitable rights. 2. Better procedure. 3. Better remedies

Front 51

What are the 4 parts of Better remedies?

Back 51

- Specific performance

- Injunction

- Rectification

- Rescission in relation to contract

Front 52

Define Equitable rights.

Back 52

Equity recognises and protects rights for which the common law provides no safeguards.

Front 53

Define Better procedure

Back 53

Equity may be more effective than common law in resolving a disputed matter.

Front 54

Where equitable rules conflict with common law rules what happens?

Back 54

equitable rules prevail

Front 55

What is binding precedent?

Back 55

Lower courts are bound to follow decisions in superior courts within the same court hierarchy.

Front 56

What is persuasive precedent

Back 56

Superior courts do not have to follow decisions made in lower courts, though they may use them to help make a decision.

Front 57

What does ratio decidendi mean?

Back 57

reason for deciding

Front 58

What does obiter dicta (mean?

Back 58

something said ‘by the way’

Front 59

What are the two types of obiter dicta?

Back 59

• A judge’s statements of legal principle that do not form the basis of the decision.• A judge’s statements that are not based on the material facts, but on hypothetical facts.

Front 60

Are Obiter dicta persuasive or binding?

Back 60

They are not binding on future cases, but they may be persuasive

Front 61

What are the four ways to avoid precedent?

Back 61

1. Distinguishing

2. Reversing

3. Overruling

4. Disapproving

Front 62

What is a court of first instance?

Back 62

A court where a case is heard for the first time.

Front 63

What's is ADR?

Back 63

Alternative dispute resolution

any type of procedure or combination of procedures voluntarily used to resolve differences, other than court-based adjudication

Front 64

What is IDR

Back 64

Internal Dispute Resolution. corporations must have in place under the Corporations Law 2001.

Front 65

If negotiation between the parties fails, what is the next step?

Back 65

either mediation or conciliation.

Front 66

What is Mediation?

Back 66

is a facilitative process that helps parties to reach an agreement and conciliation is an advisory process which provides advice to the parties as to their best course of action.

Front 67

What is conciliation?

Back 67

an advisory process which provides advice to the parties as to their best course of action

Front 68

Are Mediation and conciliation legally binding?

Back 68

Not until they execute a formal settlement agreement.

Front 69

What do Community Justice Centres do?

Back 69

mediate in small disputes between individuals who really want the dispute resolved, such as employer/employee disputes or simple commercial disputes

Front 70

If negotiation and mediation/conciliation fails what is the next step?

Back 70

arbitration

Front 71

What is Arbitration?

Back 71

Settlement of a dispute or ‘determination’ by an independent person, usually chosen by the parties themselves.

Front 72

How is Arbitration different the solutions from court-based adjudication?

Back 72

it could produce the following results:• a change in the way a person or organisation behaves• a promise that a person or company won’t do something• an apology• an explanation for what happened• a mistake corrected• compensation.

Front 73

Is arbitration a contract?

Back 73

Yes

Front 74

What principles is Arbitration founded on?

Back 74

• the need to obtain a fair resolution by means of an independent tribunal without unnecessary delay or expense

• the fact that parties are free to agree how arbitration should work, subject to such safeguards as are necessary to protect the public

• the fact that courts should not intervene except as necessary to protect the public interest.

Front 75

What is EDR

Back 75

External Dispute Resolution schemes

Front 76

What is Arbitration in Sharia legal systems is known as?

Back 76

Tahkim

Front 77

Arbitration is international if what?

Back 77

-the businesses are in different countries

-The designated arbitrator is in a different country

Front 78

What is the ICA

Back 78

International Court of Arbitration

Front 79

What does the ICA do?

Back 79

a body composed of members from every continent in the world. It has been instrumental in developing the use of international commercial arbitration, which is a useful tool for settling international commercial disputes when parties trade in states where the legal system is very different from their own and legal decisions may not seem fair.