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legal unit 1 > AOS1 - legal foundations > Flashcards

AOS1 - legal foundations Flashcards

unit one

1
Q

social cohesion

A

the willingness of members of a society to cooperate with each other in order to survive and prosper

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2
Q

why is social cohesion important in society?

A

-people feel a sense of belonging
-people are willing to work together
-members feel unified
-promotes opportunities in work, education and social lives,
-people promote their and others’ wellbeing

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3
Q

fairness

A

all people can participate in the justice system and its processes should be impartial and clear

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4
Q

equality

A

people should be treated in the same way, but if they same treatment creates disadvantages, adequate measures should be implemented to allow all to engage with the justice system without disadvantages

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5
Q

access

A

all people should be able to engage with the justice system and its processes on an informed basis

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6
Q

Victorian Legal Aid (VLA)

A

a government agency that provides free legal advice to all members of the community and low-cost or no-cost legal representation to some people who cannot afford a lawyer

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7
Q

government

A

members of a political party that has a majority of seats in the lower house

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8
Q

C=cabinet

A

made up of the Prime Minister (or premier) and senior ministers
decides what proposed laws should be put to parliament

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9
Q

minister

A

a member of parliament who is in charge of a government portfolio or department

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10
Q

supremacy of parliament

A

the concept that the final law-making power rests with parliament, which can repeal and amend its own statues and pass legislation to override common law

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11
Q

royal assent

A

the formal signing and approval of a bill by the Governor-General or governor
the bill becomes an Act of Parliament

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12
Q

secondary legislation

A

rules and regulations made by secondary authorities (eg local councils, government departments and statutory authorities) that are given the power to do so by parliament

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13
Q

jurisdiction

A

the lawful authority of a court, tribunal, or other dispute resolution body to decide legal cases

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14
Q

appeal

A

an application to have a higher court review a ruling

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15
Q

doctrine of precedent

A

the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

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16
Q

common law

A

laws made by judges through decisions made in case

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17
Q

statute

A

laws made parliament (legislation/Act of Parliament)

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18
Q

statutory interpretation

A

the process by which judges give meaning to the words or phrases in an Act of Parliament so it can be applied to resolve a case before the court

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19
Q

binding precedent

A

the legal reasoning for a decision of a higher court must be followed by a lower court in the same jurisdiction in cases where the material facts are similar

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20
Q

persuasive precedent

A

the legal reasoning behind a decision of a lower (or equal) court within the same jurisdiction, that may be considered (or influence/followed) even though it is not binding

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21
Q

ratio decidendi

A

the legal reasoning behind a judge’s decision
forms the binding part of a precedent

22
Q

stare decisis

A

‘let the decision stand’
the basic principle underlying the doctrine of precedent

23
Q

obiter dictum

A

comments made by the judge in a particular case that may be persuasive in future cases (even though they don’t form a part of the reason for the decision and are not binding)

24
Q

precedent

A

a principle established in a legal case that should be followed by courts in later cases where the material facts are similar

25
Q

codify (codification)

A

to collect all law on one topic together into a single statute.

26
Q

abrogate (abrogation)

A

to abolish or cancel a law (the cancellation of common law by passing an Act of Parliament)

27
Q

structure of the Commonwealth parliament

A

upper house:
-senate (76 members)
-elected for 6 years

lower house:
-house of Representative (151 members)
-elected for 3 years

king’s representative:
-Governor General (David Hurley)

28
Q

structure of the Victorian parliament

A

upper house:
-legislative Council (40 members)
-elected for 4 years

lower house:
-legislative Assembly (88 members)
-elected for 4 years

king’s representative:
-governor (Margaret Gardner)

29
Q

stages of a bill through parliament

A

-introduction and first reading: bill is introduced to the first house (typically lower)

-second reading: the purpose of the bill is explained, debated, and voted on. In Vic, the bill is considered with respect to its compatibility with the Victorian Human Rights Charter.

-committee stage/consideration in detail: the bill is considered in detail, clause by clause. amendments are most likely to occur at this stage

-third reading: the bill is voted on in its final form

-the bill passes the first house
-same procedure in the second house
-the bill passes the second house

-royal assent: the Governor-General or the governor approves the bill before it becomes law

-proclamation: the Act comes into operation

-the Act becomes law

30
Q

role of the House of Representatives

A

-form government
-represent the people in its roles
-introduce and pass proposed laws
-review any bills passed by the Senate

31
Q

role of the Senate

A

-review bills passed by the House of Representatives
-ensure equal representation of the states
-introduce and pass bills

32
Q

role of the Legislative Assembly

A

-form government
-represent the people in its roles
-introduce and pass proposed laws
-review any bills passed by the Legislative Council.

33
Q

role of the Legislative Council

A

-review bills passed by the Legislative Assembly
-introduce and pass bills

34
Q

court hierarchy of Victoria

A

high court
supreme court (appeal)
supreme court (trial division)
county court
magistrate’s court

35
Q

court hierarchy

A

the ranking of courts from lowest to highest according to the seriousness and complexity of the matters they deal with

36
Q

reasons for a court hierarchy

A

-allows for specialisation and expertise
-enables parties to a court case to lodge an appeal
-allows for administrative convenience
-is a necessary part of the doctrine of precedent

37
Q

ways to develop or avoid a precedent

A

distinguishing a precedent: if the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent

overruling a previous precedent: a precedent can be overruled by a higher court in a different case

reversing a previous precedent: a precedent can be reversed when the same case is taken to a higher court of appeal

disapproving a previous precedent: a court may be bound by a precedent but expresses disagreement with it. It doesn’t change a precedent, but a higher court, when deciding a later case, may choose to agree with the court that disapproved and overrule

38
Q

main features of the relationship between parliament and the courts

A

statutory interpretation: when courts interpret the meaning of words in a statute. can happen when statutes are ambiguous or confusing

codification of common law: when parliament passes and Act that reinforces a principle from a court. can happen if parliament agrees with common law

abrogation of common law: when parliament can change or override common law. can happen when courts don’t interpret a statute in a way which reflects parliament’s intended meaning

ability of the courts to influence parliament: when courts can highlight the need for parliament to change the law. can happen when courts can be reluctant to change laws themselves

39
Q

characteristics of an effective law

A

reflects society’s values
-eg laws in Vic about when a person’s criminal history becomes ‘spent’

be enforceable
-it possible to catch, punish or sue the person breaking the law

be known
-individuals responsibility to know laws that affect them, but law-makers need to keep public informed on laws

be clear and understood
-people understand and follow the law (eg neighbourhood tree disputes can be complex)

be stable
-laws need to remain constant (eg amount of sick leave)

40
Q

criminal law

A

an area of law that defines behaviours and conduct that is prohibited and outlines sanction

41
Q

prosecution

A

represents the state or the Crown
institutes criminal proceedings against an accused

42
Q

accused

A

someone who is charged with a criminal offence but has not been found/plead guilty

43
Q

offender

A

a person who has been found guilty of a criminal offence by a court

44
Q

civil law

A

an area of law that defines the rights and responsibilities of individuals, groups, and organisations in society and regulates private disputes

45
Q

plaintiff

A

a party who makes a legal claim against another party

46
Q

defendant

A

a party who is alleged to have breached a civil law and is being sued by a plaintiff

47
Q

tort

A

means wrong
a wrong that interferes with a person’s legally protected interests

48
Q

contract law

A

an area of civil law governing the validity and enforceability of agreements made between two or more parties

49
Q

remedy

A

any order made by a court or tribunal that is designed to address a civil wrong or breach. should provide a legal solution for the plaintiff for a breach of the civil law by the defendant

50
Q

damages

A

an amount of money that one party is ordered to pay to another party for loss or harm suffered.

51
Q

injunction

A

a civil remedy in the form of a court order requiring the defendant to do something or not to do something

52
Q

rule of law

A

the principle that everyone in society is bound by the law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

legal unit 1 (3 decks)

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