Sources of Law

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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.

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...
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