Chap 3: Legal Foundations Flashcards
What is the purpose and roles of laws?
We need laws to:
- set boundaries
- have a functioning society (social cohesion)
- protect individuals and their rights
The roles of laws are:
- to provide guidelines on what is acceptable behaviour, and what is not.
- set expectations about the way individuals should behave.
What is social cohesion?
is when individuals can cooperate together and maintain a fully functioning society
(a term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper)
What are the benefits of social cohesion?
- to provide opportunities in work, education and in their social life.
- help feel a sense of belonging
- individuals work together to challenge disharmony and to promote theirs and others’ wellbeing.
What is the court and law’s role in individuals rights
court:
- enforces the law when a dispute arises
- helps settle disputes without further conflict
law:
- prevents disputes from arising
- gives us basic freedoms (eg. speech, work, education etc)
Principles of Justice: fairness
- impartial and just treatment or behaviour without bias
- fair legal processes in place, all parties receive a fair hearing
- keyword: bias
Principles of Justice: equality
- the state of being equal, especially in status, rights or opportunities
- all people are treated the same before the law, no matter characteristics, status, religion, marital status or culture
- laws should not be discriminatory
Principles of Justice: access
- the approach to make use of something
- all of society has access to education, health, food and shelter
- laws and the legal system should give people the ability to use procedures, methods and institutions that come with a case.
What are the characteristics of an effective law?
Reflect society’s values:
- inline with society’s current values then members are more likely to follow
- laws must change when values change
- eg. adoptions laws, couples can adopt no matter what
Be enforceable:
- if the law is broken, it must be possible to catch and punish the individual who broke it
- eg. law against dreaming would be ineffective
Be known:
- if people don’t know the law, they can’t follow it
- new laws reported in media, an individual must know the law
- eg. “no jab, no play” was widely debated
Be clear:
- if a law is ambiguous or written in jargon and people don’t understand, they may not be able to follow the law
- eg. abortion laws in Queensland have been asked to be re-written as they are unclear
Be stable:
- if a law was constantly changing, nobody would be certain what the law was (refer to clear)
- eg. law against theft in Australia has received some changes
Sources of law: Parliament
Parliament consists of:
- the house of representatives: lower house, represents people, introduces and passes bills, reviews bills by Senate, forms the government
- the Senate: upper house, house of review, represents interests of states and territories, introduces and passes bills, reviews bills
Parliament makes statues
Sources of law: Court
Courts occasionally make laws:
- interpreting the meaning of words in a statute
- deciding on a new issue that is brought with no legislation
- in each case, the judge will decide and provide reasons why (ratio decidendi)
Courts make common law
How are statutes made?
- introduces the proposed law/bill
- debated and amended (in both houses)
- if passed, Governor General gives Royal Assent
- Act of Parliament becomes a statute
What are the precedents in common law?
precedent: principle made in a legal case followed by courts lower in the court hierarchy
binding precedent: must be followed by courts lower in the court hierarchy
persuasive precedent: the court is not bound by it but can choose to follow it
Features of the relationship between Parliament and the courts
Statutory interpretation: parliament creates laws and courts interpret them. Decisions by courts about the meaning of words form precedents that become part of the law (to be followed in the future).
Codification of common law: parliament can make law that confirms a precedent set in court by passing an Act of Parliament that reinforces the principles established by the court. Common law is now ‘codified’
Abrogation of common law: parliament is able to change or override (abrogate) common law. This means they cancel or abolish a court-made law by passing an Act of Parliament.
The ability of courts to influence parliament: Courts can influence changes in the law by parliament through their comments made during court cases. They can make the need for a change in the law known to parliament through their decisions.
What is the difference between parliament and government?
Parliament: supreme lawmaking body, represents people
Government: a group of ministers, led by Prime Minister
What is criminal law?
- body of law that protects the community by establishing crimes and setting down sanctions.
- in a criminal law case, there are two parties: the state (bringing action towards the accused) and the prosecution (representing the accusing).
