Foundations of Australian Law
A set of rules that are officially recognised, binding and enforceable throughout society.
What is law?
The three fundamental elements of justice are fairness, equality and this.
What is access?
This is Australia's fundamental legal document that establishes and limits the powers of government.
What is the Australian Constitution?
These laws are based on Indigenous traditions, rituals, socially accepted conduct and strong connections to Country.
What are Aboriginal and Torres Strait Islander customary laws?
This is the process of examining and changing existing laws to ensure they remain fair, modern and responsive to society.
What is law reform?
These are principles or standards that a society considers valuable.
What are values?
This principle requires that everyone is subject to the law and that no person or government is above it.
What is rule of law?
Defence, foreign affairs and currency are examples of these powers that can only be exercised by the Commonwealth.
What are exclusive powers?
This High Court case rejected terra nullius and recognised the existence of native title in Australian common law.
What is Mabo v Queensland (No 2)?
This law reform agency researches legal issues, consults the community and makes recommendations to government.
What is a Law Reform Commission?
These are practices that are so commonly followed within society that people generally conform to them.
What are customs?
This principle requires a defendant to know the accusations against them, respond to them and have an unbiased decision-maker.
What is procedural fairness?
This section of the Constitution provides that a Commonwealth law prevails over a state law to the extent that the two laws are inconsistent.
What is section 109?
This 1993 Commonwealth legislation formally recognised native title rights arising from traditional Indigenous laws and customs.
What is the Native Title Act 1993 (Cth)?
These dispute-resolution methods include negotiation, mediation, conciliation and arbitration.
What is alternative dispute resolution?
This body of law developed to correct the rigidity and unfairness of common law by applying principles of fairness.
What is equity?
Under this doctrine, lower courts must follow relevant decisions made by higher courts.
What is the doctrine of precedent?
Education and transport generally fall into this category because powers not allocated to the Commonwealth by the Constitution remain with the states.
What are residual powers?
This principle explains why signing or ratifying an international treaty does not automatically make its obligations enforceable as Australian domestic law.
What is Australia's dualist approach to international law?
This mechanism of law reform can respond rapidly to changing community values but may produce poorly considered legislation when political or media pressure is intense.
What is Parliament?
It was necessary this was created because different areas had different local customs and laws, creating inconsistency and uncertainty. Judges began recording their decisions and reasoning, creating precedents that could be followed in future cases.
Why was common law created
This is crucial to democracy because it is the final interpreter of the Constitution, ensuring that governments do not exceed their constitutional powers and maintaining the balance of power between the Commonwealth and the states.
Why is the High Court of Australia crucial to preserving democracy?
This constitutional mechanism requires a proposed constitutional change to be approved by voters through a referendum involving a majority of voters nationally and a majority of states.
What is a double majority?
A dispute concerns whether an Australian government's decision was made according to law and through a fair process. The reviewing body does not simply substitute its preferred decision; instead, it examines the legality of the decision-making process.
What is judicial review?
This 2011 case demonstrated that Parliament's rapid response to bikie-related crime could still be subject to constitutional scrutiny by the courts.
What is Wainohu v NSW?