Law
Law Making
Courts and the Law
Statutory Interpretation
Types of Law
Powers interaction
General Definitions
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Abrogation - the process in which parliament changes statute to erase a court's decision
Case Law - the rulings from a similar previous case apply to the current
Codifying legislation - the process of making common law statute
Consolidating laws - to replace multiple unclear laws with one clear and coherent one
Convention - something that is not upheld by law, but has always been done
The Judiciary:
Resolves disputes about the law
Declares the law
Sets precedent
Considers which laws apply
The Jury:
Decides the facts beyond reasonable doubt
The Judiciary then applies these facts to the law
Types of Cases:
Civil Case
Private dispute between two ore more people (usually natural persons)
The only compensation is civil remedy (financial compensation)
Criminal Case
A public dispute (the prosecutor is usually an artificial person
Often over a breach in contract
Constitutuional Case
Two or more individuals arguing over the meaning of the constitution
Heard in the High Court
Individuals in a case
Prosecution
Defense
Judiciary and Jury
Declaring the law
When a Judge declares the law, they are stating the official interpretation of the law
The Rules of Interpretation
Literal Rule
applied when an act is read in it's literal form (exactly as it is written)
Golden Rule
if the literal meaning of words yields absurd outcomes, the golden rule is applied as all errors, word meaning changes and homonyms are set aside.
Mischief Rule
(if the Literal and Golden Rules yield an absurd result) the act will be interpreted based on parliament's intention for it
Legal Maxims
Ejusdem Generis - "Of the same kind"
applied to a list of words where a general word appears after words of a similar class
Noscitur a sociis - "by the company it keeps"
the meaning of the word is inferred from context
Espressio unis est exclusio alteris - "the express mention of one thing is to exclude all others
if the word is not there, then it was not intended to be
Principles of Common Law
Evidence - the facts presented during a trial
Material facts - the facts crucial to the decision of the court
Decisions of the court must be based on evidence
Binding precedent - has to be followed
Persuasive precedent - influences decisions, but does not have to be followed
Stare decisis - to stand on what has been decided (precedent)
Ratio decidendi - the reason for the decision is published (common law)
Obiter dicta - sayings by the way (the judges other decisions, not law)
Types of Bills
Ordinary annual services bill
'Re-pass' old legislation
Conventionally passed
Appropriation Bill
A bill to authorise spending
The Budget
A collection of appropriation bills
Outlines the expected tax revenue and expenditure
Coalition - an agreement between two or more parties to formally work together and combine their seats to make a majority
Minority Government - if no party gains the majority, parties with more seats attempt to informally join with other parties to gain confidence of more than 50% of the house, getting the Governor-General's approval
The Judiciary's Role
to interpret and aply the law
cannot change a single word
The Executive's Role
to convince the legislative to pass or repeal laws, in order to commit to their promises and be voted in again
The Legislative's Role
To vote and debate on bills that the executive proposes
Executive Dominance - the power that they executive holds to proceed with bills at a different rate (to have their conclusions on their terms)
Avoiding or Changing Precedents
Reversing the decision - a higher court overrides a lower court's decision
Overruling the decision - a higher court can replace a lower court precedent with their own (if they find it unconvincing)
Disapproving the decision - courts at the same level as that which made precedent can choose not to follow it (if it is sufficiently separate to any previous cases)
Distinguishing the decision - a higher court may decide that a case is too dissimilar to follow precedent
Guillotine - to put a time limit on the debate of a bill
Gag - to force a vote of a bill to stop debate ("the motion now be but")
Floodgate - the government attempts to force through multiple bills using gags and guillotines
Constitutional (Superior Law)
Role:
To establish jurisdiction (legal and geographical)
To provide citizens' rights
To outline constitutional change
To establish the separation of powers
Draws authority from God and The Crown
Statute (Ordinary Law)
Parliament functions:
to make law
to represent the people
to be responsible to the people
to debate issues and laws
Common (Ordinary Law)
Provides:
Area of jurisdiction
Checks and balances
Function:
To interpret the law
To apply precedent
To create law and fill in the gaps of statute
Delegated Legislation (Subordinate Law)
Mostly derived from the executive
Other institutions that have been given the authority to make laws by parliament
Examples:
ASIO
The Department of Home Affairs
Needed to ensure that everything is covered, especially if parliament does not have the time to debate it
Double Dissolution - all seats in both houses are held for election. Triggered when the Senate does not pass bills (specifically the Ordinary Annual Services Bill)
Other money bills
To introduce new taxes
To change the law