Sources of Law Essay

What are the sources of law in Australia? There are two main sources of law in Australia, case law or common law. This is based on the decisions of judges in the superior courts, and legislation, the law made by Parliament. How did English Law come to Australia? English Law became the legal foundation of Australia because it was treated as a settled colony. When was the Commonwealth of Australia established? The Commonwealth of Australia was established and it became a dominion of the British Empire in 1907 What is the meaning of terra nullis?

The concept of unowned land: in Australia, the idea and legal concept that when the first Europeans arrived in Australia the land was owned by no one and therefore open to settlement. It has been judged not to be legally valid. Explain fact and decision of Mabo v State of Qld (1992) This case is generally regarded as a landmark case. The High Court case, Mabo v. Queensland (no. 2) on 3 June 1992 overturned the concept of terra nullius. Derived from a Latin expression meaning “land belonging to no one”, it signified the dispossession of Indigenous peoples of their land and property rights since 1770.

We will write a custom essay sample on
Sources of Law Essay
or any similar topic only for you
Order now

Proceedings began in 1982 when Eddie Mabo, David Passai and James Rice, from Mer (Murray) Island challenged the Queensland Amendment Act, which established a system to grant in-trust land for mainlanders and Torres Strait Islanders. The Queensland Coast Islands Declaratory Act 1985 circumvented a test case by the Merian people from Mer, Dauar and Waier Islands, originally annexed by Queensland in 1879. In Mabo v. Queensland (no. 1) during 1988, the High Court determined that this Act contravened the Racial Discrimination Act 1975.

The second court lawsuit in 1992 achieved victory as Queensland’s first successful land rights case. This was followed by the federal Native Title Act 1993 which ensured the land rights of those on unalienated land. The Wik decision in 1996 subsequently allowed for the coexistence of native title alongside pastoral leases on Crown land. What are the 2 systems of law? Explain the difference. Common Law – is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action.

A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The term common law can also refer to the precedent-based element within the legal system, as opposed to statutory law and legislation. The reasoning used to interpret common law is known as casuistry. It is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable.

Civil Law – A body of law derived and evolved directly from Roman Law, the primary feature of which is that laws are struck in writing; codified, and not determined, as is common law, by the opinions of judges based on historic customs. Explain the meaning of precedent, ratio, stare deisis, obiter dicta, persuasive precedent Precedent – In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.

Ratio Decidendi – legal rule derived from, and consistent with, those parts of legal reasoning within a judgement on which the outcome of the case depends Stare decisis – The policy of courts to abide by or adhere to principles established by decisions in earlier cases. Obiter Dicta – is a remark or observation made by a judge that, although included in the body of the court’s opinion, does not form a necessary part of the court’s decision. In a court opinion, obiter dicta include, but are not limited to, words “introduced by way of illustration, or analogy or argument.

Persuasive Precedent – A precedent set in a court that has no precedence over another but whose decisions are considered to be sufficiently useful that they may be used, although they are not binding until used by a superior court. Explain reverse, overrule, distinguish, and disapprove Reverse – An action of a higher court in setting aside or revoking a lower court decision. Overrule – The refusal by a judge to sustain an objection set forth by an attorney during a trial, such as an objection to a particular question posed to a witness.

To make void, annul, supersede, or reject through a subsequent decision or action. Distinguish – In law, to distinguish a case means to contrast the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited. Whether a case is successfully distinguished often looks to whether the distinguished facts are material to the matter. Disapprove – the act of condemning

Explain the difference between adversarial/inquisitorial systems The adversarial system (or adversary system) of law is the system of law that relies on the contest between each advocate representing his or her party’s positions and involves an impartial person or group of people, usually a jury or judge, trying to determine the truth of the case. As opposed to that, the inquisitorial system has a judge (or a group of judges who work together) whose task is to investigate the case. What is the meaning of hierarchy of courts? Why is this important?

The ascending levels of the courts providing a series of higher tribunals to which appeals from lower courts can be taken. The more serious and complicated the case, the higher up in the court hierarchy it goes for primary hearing. The importance is the distinction State the court at state level/Federal level – their jurisdiction and function Each state and territory has a court hierarchy of its own, with the jurisdictions of each court varying from state to state and territory to territory. However, all states and territories have a Supreme Court, which is a superior court of record and is the highest court within that state or erritory. These courts also have appeal divisions, known as the Full Court or Court of Appeal of the Supreme Court (in civil matters), or the Court of Criminal Appeal (in criminal matters. ) Decisions of the High Court are binding on all Australian courts, including state and territory Supreme Courts. Federal Courts These courts among them have jurisdiction over Commonwealth law, that is, law made by the Federal parliament of Australia. High Court of Australia – The High Court is the highest court in Australia. It was created by section 71 of the Constitution.

It has appellate jurisdiction over all other courts. It also has some original jurisdiction, and has the power of constitutional review. The High Court of Australia is the superior court to all federal courts, and is also the final route of appeal from all state superior courts. Appeals to the High Court are by special leave only, which is rarely granted. Therefore for most cases, the appellate divisions of the Supreme Courts of each state and territory and the Federal Court are the ultimate appellate courts. The Full Court of the High Court is the ultimate appeal court for Australia.

Federal Court of Australia – The Federal Court primarily hears matters relating to corporations, trade practices, industrial relations, bankruptcy, customs, immigration and other areas of federal law. The court has original jurisdiction in these areas, and also has the power to hear appeals from a number of tribunals and other bodies (and, in cases not involving family law, from the Federal Magistrates’ Court of Australia. ) The court is a superior court of limited jurisdiction, but below the High Court of Australia in the hierarchy of federal courts, and was created by the Federal Court of Australia Act in 1976.

Family Court of Australia – The Family Court has jurisdiction over family law matters. It is a superior court of limited jurisdiction and was established in 1975 by the Family Law Act 1975 by the federal parliament. The Commonwealth has power over marriage and divorce under the Constitution. In the 1990s the states referred many of their powers over children of non-married couples to the Commonwealth, which added this power to the Family Court. Federal Magistrates Court of Australia – The Federal Magistrates’ Court of Australia was established in 1999 by the Federal Magistrates Service Act 1999 (but now nown as the Federal Magistrates Court Act 1999). The court was formerly known as the Federal Magistrates Service. It was established to ease the large caseload of the Federal Court of Australia and Family Court of Australia. The Court is an inferior court as well as a court of record. In areas in which it shares jurisdiction with the Federal Court or the Family, its decisions are as valid as decisions of the other higher courts. However, appeals from the Federal Magistrates Court must go to either of these courts, dependent on the area of law


Hi there, would you like to get such a paper? How about receiving a customized one? Check it out