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Legal Studies > AOS1: Legal Foundations > Flashcards

AOS1: Legal Foundations Flashcards

1
Q

What are the 3 law-making bodies?

A

Parliament, Subordinate Authorities and Courts

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2
Q

Examples of institutions which ENFORCE laws:

A

Victoria Police
Federal Police
Customs

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3
Q

The Rule of Law states:

A

No one is exempt from the law and all are equal under the law.

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4
Q

What is Social Cohesion?

A

The ability of a community to live in a peaceful, orderly and harmonious manner by recognising that all people have rights and responsibilities.

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5
Q

Functions of Law (x5)

A 
Set out what is acceptable/unacceptable
Regulate behaviour
Reflect and protect values of the community
Resolve disputes
Change to protect values
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6
Q

Role of Individuals (in achieving social cohesion)

A
  • Respect human rights
  • Assist police with investigations
  • Reporting crimes
  • Use the legal system to resolve disputes
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7
Q

Role of the Legal system (in achieving social cohesion)

A
  • Enforce the law
  • Arrest individuals
  • Apply the law fairly
  • Resolve disputes
  • Educate people on the law
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8
Q

Role of Law (in achieving social cohesions)

A
  • Establish framework
  • Set boundaries on behaviour
  • Allow individuals to make choices how they live
  • Protect rights of individuals
  • Establish guidelines for sanctions
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9
Q

Fairness Definition:

A

Impartial and just treatment or behaviour without favouratism or discrimination

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10
Q

Examples of Fairness:

A
  • The right to silence when questioned by police
  • The right to trial by jury
  • The ability to appeal
  • Presumption of innocence
  • Right to legal representation
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11
Q

Equality Definition:

A

The state of being equal especially in status, rights or opportunities

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12
Q

Examples of Equality:

A
  • Independent judiciary
  • Impartial jury
  • Equal opportunity to present respective cases
  • Strict rules of evidence and procedure
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13
Q

Access Definition:

A

The means or opportunity to attain dispute settlement

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14
Q

Examples of Access:

A
  • Provision of Legal Aid
  • Existence of court hierarchy
  • Committal proceedings
  • Specialist courts e.g Koori, Drug
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15
Q

Characteristics of an effective law:

A
  • Known
  • Enforceable
  • Reflects society’s values
  • Stable
  • Clear and Understood
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16
Q

Types of Values:

A 
Social
Moral
Political
Economic
Technological
Environmental
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17
Q

Parliament (Role + Laws)

A

Role: To create acts of legislation known as STATUTE law.

Statutes aka Legislation or Acts of Parliament

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18
Q

Courts (Role + Law)

A

Role: To settle disputes by applying the law + Make Laws known as common law.
Common law aka Judge-made law, case law, precedent

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19
Q

What does Bicameral mean?

A

Parliaments consist of two houses

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20
Q

How many senators are there?

A

76

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21
Q

How many members are in the House of Representatives?

A

151 members, representing 151 electorates

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22
Q

Aim of the senate:

A

To ensure each state/territory has equal representation regardless of population.

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23
Q

Roles of the Senate:

A
  • To review bills introduce by H.o.R

- To introduce and pass bills

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24
Q

What is an another name for the Senate:

A

The House of Review

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25
Q

Roles of the House of Representatives:

A
  • To introduce bills
  • To review bills passed by the Senate
  • To hold government
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26
Q

What does it mean to hold government?

A

To hold the majority of seats

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27
Q

What is the Crown?

A

Includes Governor General who is a representative of the Queen.

28
Q

What is the role of the Governor General?

A

To give royal assent

29
Q

Define Royal Assent:

A

Formal approval of the Queen

30
Q

What is meant by a Constitutional Monarchy?

A

Australia has an unelected monarch and an elected parliament.

31
Q

How many members are in the legislative council?

A

40 members

32
Q

What is the role of the Legislative Council?

A

To ensure that rural and metropolitan areas are given equal representation.

33
Q

How many members are in the Legislative Assembly?

A

88 members

34
Q

What is the role of the Legislative Assembly?

A

To represent the majority of voters in Parliament.

35
Q

Who represents the Queen at state level and what is their main role?

A

The Governor.
Primary obligation is to oversee the workings of government to ensure it acts within the boundaries of the Constitution and the Rule of Law.

36
Q

What is meant by ‘Responsible Government’?

A

Where the government is responsible to Parliament and must present its policies for parliamentary scrutiny.

37
Q

Specific Powers:

A

The power of the Commonwealth Parliament to make laws (for the peace, order and good government of the Commonwealth)
- Section 51

38
Q

Exclusive Powers:

A

States that the Commonwealth Parliament has exclusive powers to legislate in certain areas e.g defence, immigration
- Section 52

39
Q

Concurrent Powers:

A

Powers shared by both the Commonwealth and State parliaments e.g education, taxation, health
- Section 107

40
Q

Residual Powers:

A

Any power not specifically mentioned in the Constitution which becomes a state power.
e.g crime, health, education

41
Q

Inconsistent Laws:

A

States in section 109 that where a state laws conflicts with a Federal law, the Federal/Commonwealth law prevails.

42
Q

Define precedent:

A

A legal principle developed by a court which all lower courts in a hierarchy must follow.

43
Q

Ratio Decidendi:

A

The reasoning behind a decision (forms precedent)

44
Q

Obiter Dictum:

A

A comment made ‘by the way’ which can influence future cases, but does not form precedent.

45
Q

When is Common Law formed?

A

Common law is formed when there is a case for which there is no relevant existing law. A court decision then forms precedent.
e.g Donoghue v Stevenson

46
Q

Statutory Interpretation:

A

When there is existing legislation and the court must interpret the meaning of the law by determining the intent of parliament.
e.g ‘Studded Belt’ case (Deing v Tarola)

47
Q

Binding Precedent:

A

A precedent which must be followed by lower courts in the same hierarchy, in cases where there are similar material facts.

48
Q

Persuasive Precedent:

A

Precedent that doesn’t need to be followed b/c:

  • Decision was made in a lower/equal level court
  • Decision was made in another jurisdiction/hierarchy
  • The cases have different material facts
49
Q

What is Original Jurisdiction?

A

The ability of a case to be heard for the first time.

50
Q

What is appellate jurisdiction?

A

The ability of a case to be heard on appeal/reviewed from a lower court.

51
Q

Reasons for Court Hierarchy (Precedent)

A

Allows doctrine of precedent to function

52
Q

Reasons for court hierarchy (Appeal)

A

Allows decisions to be reviewed by higher courts

53
Q

Reasons for a court hierarchy (Specialisation)

A

Promotes consistency and fairness in decision-making as judges develop expertise in certain areas of law.

54
Q

Reasons for a court hierarchy (Time + Money)

A

Simpler cases heard quicker and more cheaply in lower courts while more complex cases are heard in specialized superior courts

55
Q

Reasons for a court hierarchy (Administrative convenience)

A

More efficient to have cases of similar nature to be heard by a specific court. It is also a better use of resources

56
Q

What is meant by Parliamentary Sovereignty?

A

Laws of parliament override the laws of all other law-making bodies
Parliament is the ULTIMATE law-making body.

57
Q

Four relationships between Parliament and Courts as law-makers:

A

1) Statutory Interpretation
2) Abrogation
3) Codification
4) Ability of courts to influence parliament (obiter dictum)

58
Q

Outline Abrogation:

A

Where parliament may choose to amend (change) the law so its intention is clearer
e.g Trigwell case

59
Q

Outline Codification:

A

Where parliament may choose to codify (confirm) the precedent by making it legislation
e.g Mabo case

60
Q

Why does a judge make an obiter dictum?

A
  • To indicate a law should be changed by parliament

- They think parliament is in a better position to change the law

61
Q

What is a crime?

A

An act or omission which is against an existing law, is harmful to an individual or society and is punishable by law

62
Q

Purposes of Punishment?

A 
Punish Fairly (Retribution)
Deterrence
Rehabilitation
Denunciation
Protection of community
63
Q

Actus Reus

A

The actions/inactions which a person needs to be found guilty of an offence

64
Q

Mens Rea

A

The person’s guilty state of mind when they engaged in the actus reus

65
Q

Strict Liability Crimes

A

Mens rea is not required

e.g speeding, selling prohibited items to minors

66
Q

Doctrine of Doli Incapax

A

Under 10: Cannot be charged with a crime
10-14: Typically no but Doctrine of Doli incapax applies, if the prosecution can prove the child knew their actions were wrong at the time of the offence, yes.
14+: Can be charged with a crime

Legal Studies (3 decks)

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