Legislative power of the Commonwealth in a federal parliament consists of
The Queen, a Senate and a House of Representatives
Exclusive powers of the Commonwealth
Customs, excise and bounties
Military forces
Currency
Government of federal territories
NOT exclusive power of the Commonwealth
Banking
Powers are separated in Australia
Judiciary - Executive (Administration)
Legislature - Judiciary
True under the Australian Constitution
The Commonwealth can make valid laws dealing with matters subject to exclusive powers.
The Commonwealth can make valid laws dealing with matters subject to concurrent powers.
The state can make valid laws dealing with matters subject to concurrent powers.
The state can make valid laws dealing with matters subject to residual powers.
s 109 of the Commonwealth of Australia Constitution Act 1900 (amp) states
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
'Milirrpum v Nabalco Pty Ltd'
The indigenous people from the Northern Territory had a subtle and elaborate legal system
Australian Parliament
Bicameral
Comprised of two houses
Has the powers to make laws
Accountable to the people
FALSE statement about the doctrine of separation of powers
The doctrine fully applies to Australia, which has a Westminster system, also referred to as the system of 'responsible government'.
Ratio Decidendi
Statement by a judge which becomes binding law
Golden rule of statutory interpretation
Follows the literal approach unless it leads to absurdity
Used to correct an obvious mistake made by the drafter of the legislation
Allows a court to disregard the literal approach if it leads to an inconsistency
Reaffirmed in Footscray City Council v Ruzicka (2007) 16 VR 498, 505 and Re Sigsworth, Bedford and Bedford (1935) 1 Ch 89
Sources of Australian Law
Legislation
Common Law
Acts of Parliament
Equity
(NOT Bills)
Specialists Courts
The Family Court
The Drug Court
The Indigenous Court
(NOT The Court of Criminal Appeal)
Factors to consider in determining the jurisdiction of the courts in Australia
The value of claims or compensation in the case
The subject matter (criminal or civil) of the case
The geographical locality (local, state or federal) of the offence or civil claim
Origin of the case if it is being appealed
Australian High Court
All of the above
Delegated legislation is statutory law enacted by Parliament
False
The Supreme Court of NSW has
An equitable jurisdiction
Appellate jurisdiction
Original jurisdiction
A court should give words of an act their plain and ordinary meaning when interpreting legislation is an aspect
The literal rule
Res judicata
Matter judged
A person can claim for injury as a result of something that was an obvious risk?
False
An action in negligence must be commenced within three years from the date when the tort was committed?
False
Inherent Risk
A risk that occurs that cannot be avoided by the exercise of reasonable care and skill
Contributory negligence can sometimes operate as a complete defence in negligence?
True
In deciding liability for breach, the plaintiff must establish on the balance of the probabilities that the defendant’s conduct caused the plaintiff’s personal injury
True
Proximity and foreseeability combined are the sole test used by the courts to determine the existence of a duty of care?
Some steps must be followed to establish an action in negligence. Which of the following place the onus of the proof on the defendant?
Whether the plaintiff voluntarily assumed the risk
The question whether a duty of care is owed is a question of law?
True
The scope of liability’ does not involve determining whether the defendant materially increased the risk of injury?
False
Scope of liability or remoteness – requires the court to explain whether or not, and why, responsibility for the harm should be imposed on the defendant?
True
To establish the element of damage, the plaintiff must establish that any actual loss or damage is a of a kind recognised by the law and was suffered as a result of the defendant’s breach of duty
True
To satisfy the first requirement of damage, it is necessary to consider whether the defendant’s negligence was a necessary condition of the occurrence of the harm
True
Need to be considered in determining the existence of a duty of care?
Whether the plaintiff contributed to his or her own injury
Three elements of the tort of negligence
Duty
Breach
Damage
S5B (2) of the Civil Liability Act 2002 ( NSW) deals with
Breach of duty of care
S5D(1) (b) of the Civil Liability Act 2002 ( NSW) deals with
Remoteness
S5D(1) (a) of the Civil Liability Act 2002 ( NSW) deals with
