chapter 1: the legal system Flashcards
what are the three basic legal concepts?
meaning of law, customs rules & law, and values and ethics
what is meaning of law?
the meaning of law refers to the body of legal rules, which include all members of a community. they are officially recognised & they bind on all people & can be enforced in the courts. those who don’t obey the laws result in penalties. it has 3 CHARACTERISTICS - it has to be acceptable, discoverable & enforceable. the PURPOSE of the law is to protect the general safety of the public & ensure the rights of citizens
what are customs, rules & law?
customs are traditions that are not enforceable by law. they are patterns of behaviour among people within a society/group. overtime, customs might develop into laws
what are rules?
rules are made by individuals/groups to maintain conduct that only apply to certain places/situations & certain people within a group. rules can have consequences for being broken, i.e. wearing black leather shoes to school & consequence for not wearing them is detention
what is the law?
the law is a set of rules imposed on all members of society that are officially recognised & legally enforceable by police & courts.
what are values & ethics?
values are moral standards considered in a society. ethics is doing the right thing, deciding & making judgement on what is the best thing to do within a situation & what the wrong thing to do is. laws are only able to cover ethical values that are common to majority of a community.
what is just law?
just laws should be adjusted for all members of a society & officially recognised & enforced by the legal system. they should protect the benefits of members of society. just law carries characteristics/nature i.e. equality, fairness & equal access.
what is equality under the nature of justice?
all people in the law members of society should be treated the same way with respect to political & social rights
what is fairness under the nature of justice?
the law needs to hold to honesty & integrity. if the laws are not fair they can be changed - hence the constant need for law reform & referendum.
what is access under the nature of justice?
equal access refers to the laws that can affect us & provides us an understanding of what our rights & responsibilities are under those laws i.e. children, non-English speaking backgrounds, disabilities, Aboriginal & Torres Strait Islander peoples.
what is procedural fairness? (principles of natural justice)
for justice to be achieved, there must be fairness in the processes used to resolve disputes. there are 2 essential features of a fair & just process: including the right to be heard & the right to have a decision made by an unbiased decision maker.
what is the rule of law?
the rule of law is a legal tradition in Australian society that NO ONE IS ABOVE THE LAW. therefore, the law is applied equally and fairly. (refer to table)
what is anarchy?
the absence of laws & government - it can break out after major disaster i.e. war. it can be both negative & positive. Positive as there are no restrictions on the different rights & responsibilities of society & negative as there is an absence of leaders & corrupt government
what is tyranny?
ruled by a single leader who is holding the absolute power in a nation. tyranny power usually imposes severe penalties for violations against the law. i.e. Saddam Hussein in Iraq.
what is common law/court made law?
common law developed in England by judges administering a common set of laws throughout the kingdom. courts continue to create it by recording the outcome & reasoning of each judgement, aka. ‘precedent’. it belongs to the Commonwealth
what is equity? (common law)
judges have to apply the principle of fairness
what is a precedent?
the judgement is authority for a legal principal to provide guidance for deciding cases that have similar facts. i.e. if person A committed a crime that has never happened before & when it comes to the court, they will use statue law to decide. this decision will impact other cases with similar facts. this process this known as ‘judge-made law’.
what is the adversarial system of trial?
Australia uses the adversarial system - where the burden of proof lies on the prosecution in criminal cases. however in CIVIL LAW it is the plaintiff.
what is presumption of innocence?
the defendant in a criminal trial doesn’t need to prove anything as the burden of proof lies on the prosecution
which court in AUSTRALIA is the highest?
The Supreme Court
what is statue law?
created by parliament by a group of elective representatives - the law must past the house of representatives & the senate
what is the role & structure of parliament?
to debate pubic policy & pass laws, check in the governments & represent the people
what is the legislative process?
- propose the bill & introduce it to the house of representatives
- the bill is read & discussed, plus amended if necessary
- a vote is taken after the final reading
- is passed, moved to the senate
- process repeats in upper house/senate
- becomes an act of parliament
features of the legislative process
- one of the most important functions of parliament
- a proposed new law is called a BILL
- process can be time-consuming & difficult
- process is open to public scrutiny
- when a bill is passed by parliament, it is signed by the Governor-General & becomes an Act of Parliament
what are the reasons of new law?
- national/international event
- improving existing law
- community interests/lobbying groups
- party policy
- proposal put forward during election
parliament structure
Bicameral → two houses
Lower house → legislative assembly
Upper house → legislative council
Prime Minister → leader of the winning party
Oppositions party → shadow premier/prime minister
federal structure
- Lower House: House of Representative
- Upper House: Senate
what is delegated legislation?
made by non-parliamentary bodies, however still under its authority i.e. environmental laws, industry codes that concerns less important matters
what is the Australian Constitution?
it commenced in 1901. it outlined legal framework & rules that apply to the governance of Australia
what are the division of powers under the constitution?
allows for law making powers to be divided by commonwealth levels, states & territory levels & local governments levels
what are the separation of powers under the constitution?
the powers are divided into 3 - - - executive powers i.e. police as they enforce the law
- legislative powers i.e. given to parliament who make & amend the law
- judiciary powers i.e. given to courts who interpret the law
what is section 51 of the Constitution?
it lists the powers the Commonwealth shares with the states
what is section 52 of the Constitution?
lists some exclusive Commonwealth powers
what are the 3 separate areas the separation of powers split state power into?
- legislature including the law makers (parliament)
- executive including ministers & government departments who administer the law i.e. police officers in criminal/civil law
- judiciary including the judges & courts who interpret & apply the law
what is the role of the High Court?
created by Section 71 of the Constitution, it holds both original & appeal jurisdiction
what are Aboriginal & Torres Strait Islander people’s customary laws?
is based on tradition, ritual & socially accepted conduct. the only difference between customary & British law is the concept of ownership (possession of land)
what is the diverse nature of customary laws?
they are developed according to the customs of the people of nations/different tribes
what are the spiritual basis, significance of land & water of customary laws?
cannot be owned as Indigenous & Torres Strait Islander people have special connections with this & water. they must look after the water & land for future generations. collective guardianship is that land & water is for everyone
what is family & kinship in customary law?
Indigenous people hold strong family & kinship - there has been practices by different tribes
what are ritual & oral traditions in customary law?
they pass down their traditions by painting, fires, dreamtime stories
what are mediation & sanctions in customary law?
as they practice customary law, sanctions can differ & may not be able to adopt by our contemporary Australia law
what is the relevance to contemporary Australia law with customary law?
there has been an increase in recognition of customary law, as seen in the Mabo case - therefore Indigenous land rights have been increased in recognition i.e. circle sentencing for less severe matters
what is the terra nullius?
land belonging to no one.
what is native title?
is a legal right of Aboriginal & Torres Strait Islander communities to live on & use traditional land with which they have an ongoing association
what is international law?
governs the relationship between countries, as well as regulates trade & commerce between countries & provides laws to maintain peace & security. it aims to promote the stability & resolve conflicts between nations & states, plus covers the fundamental human rights i.e. the UN declaration of human rights. i.e. the UN, international treaties.
what are the differences between domestic & international law state sovereignty?
we only have common law, statue law, a constitution & customary law only implied in Australia.
what are the sources of international law?
- international customary law
- instruments (declarations & treaties)
what is international customary law?
coming by 2 different nations who practice the long lasting traditions with their own countries, however it can be difficult to breach the international customary law due to diverse culture & practices. most are not contained in a written document
what are instruments (declarations & treaties)?
UDHR & treaties between nations - treaties can be bilateral or multilateral- they must sign the Charter of the UN 1945
what is the role of the United Nations?
intergovernmental organisation founded in 1945 that aims to maintain international peace & securities & develop friendly relationships between member nations promoting human rights & better nations
what is a court and tribunal?
the ICJ (the international court of justice)
what are some intergovernmental organisations?
European Union, Associations of SouthEast Asian Nations
what are some non-governmental organisations?
Red Cross, Salvations Army - non profit
what is the relevance of international law to contemporary Australian law?
committed to the improvement of living standards, maintaining peace & securities between nations.
