C3 Legal foundations AOS1

Question 1

Social cohesion

Answer 1

A socially cohesive society is one that works towards the wellbeing of all its members, fights exclusion and marginalization, creates a sense of belonging promotes trust and offers its members the opportunity of upward mobility.

Question 2

Rule of law

Answer 2

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.

Question 3

Legal system

Answer 3

Made up of the institutions, organizations, rules, procedures, and the people tasked with maintaining and implementing order in society. This includes parliaments who create laws, judges who interpret and apply laws, and police, courts, and other organizations such as prisons that enforce the law.

Question 4

Fairness

Answer 4

Treatment or behavior without favoritism or discrimination-free from bias or injustice. This means having fair and impartial processes and a fair hearing, parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events.

Question 5

Equality

Answer 5

The state of being equal, especially in status, rights or opportunities. This means that anyone should be equal before the law and have an equal opportunity to present their case as anyone else without advantage or disadvantage (e.g. allowing both parties legal representation).

Question 6

Access

Answer 6

Access means making legal procedures available to everyone, including having contact with bodies of institutions that provide legal advice, education, information, and assistance. Access is ensuring everyone has access to the law in light of financial, physical, mental, or social disadvantages they may face.

Question 7

Principles of justice

Answer 7

The fundamental or basic ideas and values that try to promote just treatment and outcomes in our legal system. The principles of justice are used to determine whether or not justice has been achieved.

Question 8

Jury

Answer 8

An independent group of people chosen at random to decide on the evidence in a legal case and reach a verdict.

Question 9

List the characteristics of an effective law (RECKS)

Answer 9

Reflect society’s values, be enforceable, be clear and understood, be known, and be stable;

Question 10

Statute law

Answer 10

Laws that are passed through both houses of parliament become legislation.

Question 11

Supremacy of parliament

Answer 11

Also known as the sovereignty of the parliament is the concept that the final law-making power rests with parliament which can repeal and amend its own statutes and pass legislation overriding common law.

Question 12

Royal assent

Answer 12

The formal signing of approval of a bill by the Governor-General (at a commonwealth level) or governor (at a state level) after which the bill becomes an act of parliament or a law.

Question 13

Private member’s bill

Answer 13

A bill introduced into parliament by a member of parliament who is not a government minister.

Question 14

What is the role of individuals in achieving social cohesion?

Answer 14

Once laws are in place that established social cohesion it is the responsibility of individuals to ensure that they are aware of the laws and abide by them.

Question 15

What is the role of the law in achieving social cohesion?

Answer 15

Laws exist to protect both our safety and our rights;

Question 16

What is the role of the legal system is achieving social cohesion?

Answer 16

Applying the law and enforcing it are two of the roles of the legal system to help achieve social cohesion.

Question 17

Common law

Answer 17

The body of law that is made up of all the judgments (or decisions) of superior courts over time, also known as judge-made law for this reason.

Question 18

Statutory interpretation

Answer 18

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.

Question 19

Ratio decindendi

Answer 19

The legal reasoning given by the judge in reaching their decision, which is treated as a binding part of a precedent.

Question 20

Stare decisis

Answer 20

Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.

Question 21

Obiter dictum

Answer 21

Statements made by a judge in the course of giving his reasons for a decision in a particular case that are not necessary elements of the reasons for the decision.

Question 22

Precedent

Answer 22

The rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts. The doctrine of precedent was developed to promote consistency in decision-making by judges, on the basis that like cases should be determined in a like manner.

Question 23

Binding precedent

Answer 23

A precedent that must be followed by all lower courts in the same hierarchy when the facts of the present case are similar to the facts of the case where the precedent was established.

Question 24

Persuasive precedent

Answer 24

Precedent that is not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current case.

Question 25

List four main ways courts can develop or avoid earlier precedents (RODD)

Answer 25

Reversing, overruling, distinguishing, disaproving;

Question 26

Reversing

Answer 26

Precedent can be reversed when the same case is taken to a higher court on appeal, and the decision of the lower court is set aside.

Question 27

Overruling

Answer 27

Overruling occurs when a higher court considers a lower court’s decision to be wrong.

Question 28

Distinguishing

Answer 28

A court decides the holding or legal reasoning of a precedent case will not apply due to materially different facts between the two cases.

Question 29

Disapproving

Answer 29

This occurs when a lower court disagrees with a decision made by a higher court but cannot overrule it due to precedent being binding.

Question 30

List the four main features of the relationship between the courts and parliament

Answer 30

The interpretation of statutes by courts, the codification of common law, the abrogation of common law, and the ability of the courts to influence parliament

Question 31

Abrogate

Answer 31

To cancel or abolish a court-made law by passing legislation.

Question 32

Parliament

Answer 32

The official gathering of all the elected representatives who together have the power to change laws.

Question 33

Criminal law

Answer 33

An area of law that defines behaviors and conduct that is prohibited and outlines sanctions for people who commit them, and the laws that are concerned with the punishment of offenders.

Question 34

Crime

Answer 34

An act or omission that is against existing law, harmful to an individual or to society as a whole, and punishable by law.

Question 35

Sanction

Answer 35

A penalty (e.g. A fine or a sentence) imposed by a court on a person guilty of a criminal offence.

Question 36

Civil law

Answer 36

An area of law that defines the rights and responsibilities of individuals, groups and organizations in society and regulates private disputes.

Question 37

Tort

Answer 37

A tort is a legal wrong that one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is damaged (money or compensation).

Question 38

Plaintiff

Answer 38

A party who makes a legal claim against another party in court.

Question 39

Defendant

Answer 39

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

Question 40

Remedy

Answer 40

An order made by a court that is designed to address a civil wrong through the provision of a remedy to restore the plaintiff back to their original position before they were wronged or their rights were breached.

Question 41

Injunction

Answer 41

When the court orders you to do something or not to do something.

Question 42

Specific performance

Answer 42

When a party defaults on its contractual obligation and is ordered by the court to fulfil said obligations, there is enforcement of the exact terms of the contract.

Question 43

Jurisdiction

Answer 43

A court’s power to hear and decide certain legal disputes.

Question 44

Appeal

Answer 44

An application to have a higher court review a ruling made by a lower court.

Question 45

List the reasons for a court hierarchy

Answer 45

Specialisation or expertise, appeal, the doctrine of precedent, and administrative convenience;

Question 46

Original jurisdiction

Answer 46

The power the court has to hear a case for the first time or in the first instance.

Question 47

Appellate jurisdiction

Answer 47

The authority of a court to hear a cause on appeal, or for another time.

Question 48

List the three types of powers

Answer 48

Exclusive, residual, and concurrent powers;

Question 49

Exclusive powers

Answer 49

Exclusive powers are law-making powers granted to the Commonwealth alone.

E.g. Immigration, defence, coinage (printing of money), imports and exports;

Question 50

Concurrent powers

Answer 50

These are law-making powers shared by the Commonwealth and the states.

E.g. Health, taxation, marriage;

Question 51

Residual powers

Answer 51

Residual powers are laws that are left over for the states.

E.g. Health, roads, school;

Question 52

Cabinet

Answer 52

A collection of ministers.

Question 53

Lobby

Answer 53

A person or group/ organisation that puts pressure on the government to push through certain legislation.

Question 54

Portfolio

Answer 54

An area of responsibility given to a parliamentarian.

Question 55

Ministry

Answer 55

A parliamentarian given a portfolio to look after a particular area (e.g. Ministry of education, defence, immigration).

Question 56

Distinguish between the governor and the governor-general

Answer 56

The governor-general represents the queen in federal parliament while the governor provides the same role in state parliament.

Question 57

List the types of subordinate authorities

Answer 57

Council, executive powers, government departments, statutory authorities;

Question 58

Local councils

Answer 58

Local councils were created to provide goods and services to benefit whole communities and deal with issues such as building development, childcare centres, aged care housing, rubbish collection.

Question 59

Statutory authorities

Answer 59

Statutory authorities carry out services that benefit the public such as legislation involving the Australian post, and VicRoads.

Question 60

Government departments

Answer 60

Government departments are responsible for the administration of a particular area of government (a portfolio) this includes areas such as education and taxation.

Question 61

Executive council

Answer 61

Executive council is made up of the governor or governor-general and relevant ministers and function to approve regulations that have been made by government departments and statutory authorities.

Question 62

Legal v non-legal rules

Answer 62

Legal rules apply to a society as a whole, made by law making bodies (e.g. parliament, courts or delegates bodies) and are enforced (e.g. by the police). A punishment may be issues by courts for breaking legal rules whereas non-legal rules only apply to a select group of individuals (e.g. in sporting clubs).