1. 1 Basic Legal Concepts Flashcards
- Students develop an understanding of the nature and functions of law through the examination of the law-making processes and institutions. Themes and challenges: - the need for law in the operation of society - the importance of the rule of law for society - the relationship between different legal inisititutions and jurisdictions. - the development of law as a reflection of society - influences on the Australian legal system Syllabus dot points: - Meaning of law - custom and
What is the meaning an purpose of Law?
- Laws are formal rules of society made by people or institution(parliament/statue law) with authority to make law them.
- Law create order for people to lve safely within society.
What are the key feature of laws are:
- Are binding on the whole community.
- Are enforced.
- Are officially recognized.
- Are accessible.
- Relate to the public interest
- Reflect rights and duties.
*Parliament is Australia’s sovereign power, having the power to make laws to govern the Australian people, free from external interference.
What are the important feature of the law?
- Universal
- Apply consistently and constantly.
- Always in effect. eg. stop sign
- Apply to everyone, regardless of position, wealth or power individuals do not have authority to decide whether or not to comply with laws society expects compliance.
What are customs?
- Ways of behaving established through long standing traditions.
- Usually oral
What are rules? What is the purpose of rules?
- regulations or principles gpverning procedure or controlling conduct.
- Ensure smooth operation of society
- Apply only to certain people at certain times.
- More enforcable than customs as penalties(fines, detention etc) may apply for non- compliance
- Often written, usually with symbols.
What are values and ethics? What is values?
1/ principles, standards or qualities considered worthwhile or desirable within a society.
- Things that society considers to be right and wrong.
- Reflect things considered important
- Change over time
What is the importance of values and ethics to laws?
- To be effective, laws must be adaptable and dynamic.
- Values will influence the legal system once a significant proportion of the society holds a particular view.
(law reform is very challenging as there are many contentious issues which people’s opinions are divided on eg. same sex marriage and euthanasia, forced marriage)
What are changes in values and ethics prompting law reform?
- Role of women in Australian society.
- Treatment of children.
- Death penalty abolished in Austrailia but not elsewhere.
What are the characteristics of just laws?
- Applies equally to everyone.( but consider fines, hurt an unemployed person than a rich person)
- Reflects widely held values and ethics
- Utilitarian ( Achieving the greatest good for the greatest number of people= the law benefits society as a whole even though it may disadvantage some people)
- Redresses inequalities rather than creating it.(eg. a law whereby women were to be paid less then men for the same job would be unjust.)
- Minimises delays (Aiming to resolve disputes as soon as praticable/ Not always achieved
- Not retrospective (Apply to future actions)
- Must be known( before enforceable eg, changes to traffic laws)
What do these symbols connote the nature of justic through lady justice? Sword? Blindfold? Scales?
Sword :- swiftness and enforceability of the law.
Blindfold:- Impartiality/ Fairness
Scales:- opportunity to be heard
What is fairness?
- Freedom from bias, dishonesty or injustice; a concept commonly related to everyday activities. eg. discriminatory against women minorities.
(Appeal rights are an important aspect of fairness as they correct errors in process or the law)
What is Equality?
- The state or quality of being equal; that is, of having the same rights or status.
- The enforcement of the law must also be equal. a variety of anti-discrimination legislation applies in Australia.
(- Justice is achieved when laws do not dicriminate and apply equally to all people. But sometimes, in order to achieve justice, the law must:
- Take into account differences in people’s capacities. eg: children
- Recognises people’s vulnerabilities and provide protection.)
What is the need of access ?
Need aces to legal information and assistance in order to understand the law. eg. Legal Aid. using plain English in loan contracts and mobile phone plans.
(Eg. Dietrich v the Queen : involved a drug charge, basis of appeal was that accused did not get a fair trial as he was forced to reperesent himself in court after failing to meet criteria for Legal Aid representations( merits test)
- The High Court agreed that everyone is entitled to a fair trail but there is no automatic right to a lawyer.
- This case changed the law relating to Legal Aid access for those facing serious criminal offences.
What is the rule of the law? the hierachy?
- A legal tradition in Australian society, requires that we have laws that are followed an enforced.
- The rule of law is a pyramid demonstrates how different legal principles uphold the rule of law, and how they protect rights, freedoms and stability in our legal system.
- the rule of law institute describes the separation of power as a principle that provides or checks and balances between the arms of government in Australia.
Why is the rule of law important?
The rule of law requires that our legal system and government should provide:
- Just outcomes when a person is brough before a court.
- Consistent fair and impartial decisions about legal matters.
- Protection of individuals rights, freedoms, and ways to settle disputes between parties according to the law.
- Laws that are knowable, able to be followed and fit for purpose.
“ the rule of law is fundamental in maintaining a free, democratic and fair society”
What happens without the rule of law?
- Public gathering banned.
- censorship & punishment criticizing government.
- inaccessible courts no access to legal processes.
- retrospective, unknowable, laws.
- forced confessions or justice ignored.
- presumed guilty or punished without trial.
- unfair trial and biased judges.
- tyranny or laws which allow uncontrolled use of power.
- anarchy.
How is the rule of law in Australia?
- It is the basis of Australia’s system of government.
- Is the key underpinning principle of democratic countries the unrestrained use of powers eliminated.
Means:- Everyone has to obey the law.
- no-one is allowed to exercise powers those powers given to them by law.
- the law applies to not only to citizens, but also the organisations and to people in government, including Prime Minister, the heads of government departments and memebers of the armed forces.
- no- one is a bove the law, including those who make the law, eg. Eddie Obeid MP corruption charges.
What are democracies? what are dictatorships?
- In democracies constitutions outline the powers of governments. they must act within theses powers or the Governor General and the High Court will intervene. this is known as the seperation of powers.
- A dictatorship is a government or a social situation where one person makes all the rules and decisions without input from anyone else.
How to distinguish democracies and dictatorships?
In democracies consititutions outline the powers of government, which they must abide by and act against those constitutions outlined. where as in Dictatorship allows rulers to make any decsion they wish. i.e there is no rule of law.
What is Anarchy?
Anarchy is the break down of law and order, resulting in lawless and widespread criminal activity. Most people obey the law because they fear being caught. When that fear is removed, anarchy can occur
( Absence of an effective legal system) eg:- London riots in 2011. often occurs after natural disasters, eg:- Hrricane Katrina in New Orleans 2005)
What is tyranny?
*almost opposite of anarchy.
- Power of lawmakers and enforcers(courts and police) are centralised rather than being distinct.
- Allow decisions to be arbitrarily( based on random choice, personal whim) and without fear of consequences.
- Is no rule of law- power is taken, rather than democratically being given to officials.
