laws
LO1 The Nature & Function of Law 1. Source of non-legal rules-moral/philosophical, religious, ‘laws’ of nature(realised exp), social values, custom(ritual) 2. Law as behaviour regulator-restricts force usage, punish bad behaviour, permit gov desired behaviour(subsidy, house ownership), rights & duties enforced. 3. Law makers- legislatures(parliament-written), courts 4. Federal > Governor General > State Governor 5. Roman-Civil Law-E Justinian collected law in Digest(with other law-Corpus Iuris Civilis), foundation for European Law. 6. English-Common law becomes complex system of law, colonisation, Australia(Courts & Legislative-parliament)Westminster system 7. Establishment of Cth, States & Territories-1788(1st colony in NSW), 1800(Britain allow local law-making-consistent with British), 1901(Cth of Aus established-provision), States(NSW, Queensland, South Aus, Tasmania, Vic, Western Aus) 8. Cth of Aus Constitution Act 1900-change provision by votes in national referendum, State gov constitution act 1975change without special referendum. 9. 10 territories-7(cth gov), 3(self-Aus Capital Territory(ACT), Northern Territory(NT) & Norfolk Island) 10. Constitutional Monarchy-Head(Queen)>State (Constitution) > Self gov(administrator appointed by cth) 11. Local Gov(Municipal>Regional>District Councils) LO2 Legislation as a Source of Law 1. Cth and state legislatures-legislatures & parliament 2. Self-gov territories-not parliament 3. Law-Legislation, Statutory Law, Act of Parliament/Act 4. Cth has power to make law in specified matters(Exclusive power-section 52), concurrent(shared) powers-section 51 5. For shared power-If conflicts, federal legislation prevails over state legislation in inconsistency(Section 109) 6. Local gov create by-laws(X if inconsistent w state/federal)
10. House of Review-Follow house of origin>If unamended, bill return to HOO and proceed, If not, repeat. 11. Final Stage-Royal Assent(Queen Representative)> Publication(Gov Gazette)>Commencement(Fixed date/28 days after Royal Assent) 12. Interpreting Legislation: Literal Approach(Ordinary Meaning, good dictionary), Golden Rule(Judge modify meaning if literal absurd), Purpose(Refer purpose when act is enacted, Intrinsic-Object sections, titles; structure of act; info in schedules/annecures|Extrinsic-Parliamentary doc, 2nd speech by minister, report of law commissions) LO3 Role of Court in Law-making 1. Civil Litigation-Exchange of written doc(pleading)> Trial(Evidence from witness)>Each side present argument (Relevant Law, cross qs, re-examination), court decide 2. If judge can’t find law, will declare rule as Aus rule; interpret existing rule(meaning); extend rule to new situation 3. Common law & equity combined -> case-law/general law 5. Criminal: Prosecutor & Accused, Magistrate: Informant & Defendant, Appeal: Appealant & Respondent, Civil: Plaintiff/Applicant & Defendant/Response 6. ‘Stare decisis’-Doctrine of precedent(Follow previous superior court’s decision unless can be distinguished) 7. ‘Ratio Decidendi’-Material Facts, legal principles, rule used 8. ‘Obiter Dicta’-Explanatory discussion, judge’s reasoning 9. Lower court follows superior court, outside-persuasive
10. Inferior court(Lower-magistrate/justice of peace by state gov, $40-60k|Intermediate-1 judge by cth gov(federal), by state gov(district/county), Political Process(decision taken by political 12. Domestic agreement do not intend to be legally power)>Bill-parliamentary draftsperson(counsel)PC 8. Bills-Draft(Cabinet settle policy issue then prepare bill), PC enforceable, unless relationship has already broken. (Merritt v Merritt: legal|Balfour v B & Cohen v Cohen: not legal) do explanatory memorandum(summarise & explain each LO4 Creating Legally Binding Contracts provision), Review by minister, parties, gov dept(changes) st 1. Legally enforceable agreement bet. parties. 9. Legislation-House of Origin: Initiation(clerk lists bill for 1 reading)>1st Reading(House grants permission to introduce bill 2. Discharged by voluntary performance. Failure, breach. 3. Adult>18, sound mind, corporation have full contractual and title is read, no debate, printed copy)>2nd R (Relevant capacity; Minors Form committee to consider bill in detail > 3rd drugs bound in lucid(sound) period, not otherwise. R(vote, if ok then title is reread). Financial bills from lower house.
10. House of Review-Follow house of origin>If unamended, bill return to HOO and proceed, If not, repeat. 11. Final Stage-Royal Assent(Queen Representative)> Publication(Gov Gazette)>Commencement(Fixed date/28 days after Royal Assent) 12. Interpreting Legislation: Literal Approach(Ordinary Meaning, good dictionary), Golden Rule(Judge modify meaning if literal absurd), Purpose(Refer purpose when act is enacted, Intrinsic-Object sections, titles; structure of act; info in schedules/annecures|Extrinsic-Parliamentary doc, 2nd speech by minister, report of law commissions) LO3 Role of Court in Law-making 1. Civil Litigation-Exchange of written doc(pleading)> Trial(Evidence from witness)>Each side present argument (Relevant Law, cross qs, re-examination), court decide 2. If judge can’t find law, will declare rule as Aus rule; interpret existing rule(meaning); extend rule to new situation 3. Common law & equity combined -> case-law/general law 5. Criminal: Prosecutor & Accused, Magistrate: Informant & Defendant, Appeal: Appealant & Respondent, Civil: Plaintiff/Applicant & Defendant/Response 6. ‘Stare decisis’-Doctrine of precedent(Follow previous superior court’s decision unless can be distinguished) 7. ‘Ratio Decidendi’-Material Facts, legal principles, rule used 8. ‘Obiter Dicta’-Explanatory discussion, judge’s reasoning 9. Lower court follows superior court, outside-persuasive
10. Inferior court(Lower-magistrate/justice of peace by state gov, $40-60k|Intermediate-1 judge by cth gov(federal), by state gov(district/county), Political Process(decision taken by political 12. Domestic agreement do not intend to be legally power)>Bill-parliamentary draftsperson(counsel)PC 8. Bills-Draft(Cabinet settle policy issue then prepare bill), PC enforceable, unless relationship has already broken. (Merritt v Merritt: legal|Balfour v B & Cohen v Cohen: not legal) do explanatory memorandum(summarise & explain each LO4 Creating Legally Binding Contracts provision), Review by minister, parties, gov dept(changes) st 1. Legally enforceable agreement bet. parties. 9. Legislation-House of Origin: Initiation(clerk lists bill for 1 reading)>1st Reading(House grants permission to introduce bill 2. Discharged by voluntary performance. Failure, breach. 3. Adult>18, sound mind, corporation have full contractual and title is read, no debate, printed copy)>2nd R (Relevant capacity; Minors Form committee to consider bill in detail > 3rd drugs bound in lucid(sound) period, not otherwise. R(vote, if ok then title is reread). Financial bills from lower house.
