AOS1: Legal Foundations Flashcards
What are the 3 law-making bodies?
Parliament, Subordinate Authorities and Courts
Examples of institutions which ENFORCE laws:
Victoria Police
Federal Police
Customs
The Rule of Law states:
No one is exempt from the law and all are equal under the law.
What is Social Cohesion?
The ability of a community to live in a peaceful, orderly and harmonious manner by recognising that all people have rights and responsibilities.
Functions of Law (x5)
Set out what is acceptable/unacceptable Regulate behaviour Reflect and protect values of the community Resolve disputes Change to protect values
Role of Individuals (in achieving social cohesion)
- Respect human rights
- Assist police with investigations
- Reporting crimes
- Use the legal system to resolve disputes
Role of the Legal system (in achieving social cohesion)
- Enforce the law
- Arrest individuals
- Apply the law fairly
- Resolve disputes
- Educate people on the law
Role of Law (in achieving social cohesions)
- Establish framework
- Set boundaries on behaviour
- Allow individuals to make choices how they live
- Protect rights of individuals
- Establish guidelines for sanctions
Fairness Definition:
Impartial and just treatment or behaviour without favouratism or discrimination
Examples of Fairness:
- 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
Equality Definition:
The state of being equal especially in status, rights or opportunities
Examples of Equality:
- Independent judiciary
- Impartial jury
- Equal opportunity to present respective cases
- Strict rules of evidence and procedure
Access Definition:
The means or opportunity to attain dispute settlement
Examples of Access:
- Provision of Legal Aid
- Existence of court hierarchy
- Committal proceedings
- Specialist courts e.g Koori, Drug
Characteristics of an effective law:
- Known
- Enforceable
- Reflects society’s values
- Stable
- Clear and Understood
Types of Values:
Social Moral Political Economic Technological Environmental
Parliament (Role + Laws)
Role: To create acts of legislation known as STATUTE law.
Statutes aka Legislation or Acts of Parliament
Courts (Role + Law)
Role: To settle disputes by applying the law + Make Laws known as common law.
Common law aka Judge-made law, case law, precedent
What does Bicameral mean?
Parliaments consist of two houses
How many senators are there?
76
How many members are in the House of Representatives?
151 members, representing 151 electorates
Aim of the senate:
To ensure each state/territory has equal representation regardless of population.
Roles of the Senate:
- To review bills introduce by H.o.R
- To introduce and pass bills
What is an another name for the Senate:
The House of Review
Roles of the House of Representatives:
- To introduce bills
- To review bills passed by the Senate
- To hold government
What does it mean to hold government?
To hold the majority of seats
What is the Crown?
Includes Governor General who is a representative of the Queen.
What is the role of the Governor General?
To give royal assent
Define Royal Assent:
Formal approval of the Queen
What is meant by a Constitutional Monarchy?
Australia has an unelected monarch and an elected parliament.
How many members are in the legislative council?
40 members
What is the role of the Legislative Council?
To ensure that rural and metropolitan areas are given equal representation.
How many members are in the Legislative Assembly?
88 members
What is the role of the Legislative Assembly?
To represent the majority of voters in Parliament.
Who represents the Queen at state level and what is their main role?
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.
What is meant by ‘Responsible Government’?
Where the government is responsible to Parliament and must present its policies for parliamentary scrutiny.
Specific Powers:
The power of the Commonwealth Parliament to make laws (for the peace, order and good government of the Commonwealth)
- Section 51
Exclusive Powers:
States that the Commonwealth Parliament has exclusive powers to legislate in certain areas e.g defence, immigration
- Section 52
Concurrent Powers:
Powers shared by both the Commonwealth and State parliaments e.g education, taxation, health
- Section 107
Residual Powers:
Any power not specifically mentioned in the Constitution which becomes a state power.
e.g crime, health, education
Inconsistent Laws:
States in section 109 that where a state laws conflicts with a Federal law, the Federal/Commonwealth law prevails.
Define precedent:
A legal principle developed by a court which all lower courts in a hierarchy must follow.
Ratio Decidendi:
The reasoning behind a decision (forms precedent)
Obiter Dictum:
A comment made ‘by the way’ which can influence future cases, but does not form precedent.
When is Common Law formed?
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
Statutory Interpretation:
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)
Binding Precedent:
A precedent which must be followed by lower courts in the same hierarchy, in cases where there are similar material facts.
Persuasive Precedent:
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
What is Original Jurisdiction?
The ability of a case to be heard for the first time.
What is appellate jurisdiction?
The ability of a case to be heard on appeal/reviewed from a lower court.
Reasons for Court Hierarchy (Precedent)
Allows doctrine of precedent to function
Reasons for court hierarchy (Appeal)
Allows decisions to be reviewed by higher courts
Reasons for a court hierarchy (Specialisation)
Promotes consistency and fairness in decision-making as judges develop expertise in certain areas of law.
Reasons for a court hierarchy (Time + Money)
Simpler cases heard quicker and more cheaply in lower courts while more complex cases are heard in specialized superior courts
Reasons for a court hierarchy (Administrative convenience)
More efficient to have cases of similar nature to be heard by a specific court. It is also a better use of resources
What is meant by Parliamentary Sovereignty?
Laws of parliament override the laws of all other law-making bodies
Parliament is the ULTIMATE law-making body.
Four relationships between Parliament and Courts as law-makers:
1) Statutory Interpretation
2) Abrogation
3) Codification
4) Ability of courts to influence parliament (obiter dictum)
Outline Abrogation:
Where parliament may choose to amend (change) the law so its intention is clearer
e.g Trigwell case
Outline Codification:
Where parliament may choose to codify (confirm) the precedent by making it legislation
e.g Mabo case
Why does a judge make an obiter dictum?
- To indicate a law should be changed by parliament
- They think parliament is in a better position to change the law
What is a crime?
An act or omission which is against an existing law, is harmful to an individual or society and is punishable by law
Purposes of Punishment?
Punish Fairly (Retribution) Deterrence Rehabilitation Denunciation Protection of community
Actus Reus
The actions/inactions which a person needs to be found guilty of an offence
Mens Rea
The person’s guilty state of mind when they engaged in the actus reus
Strict Liability Crimes
Mens rea is not required
e.g speeding, selling prohibited items to minors
Doctrine of Doli Incapax
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
