Core part I: the legal system Flashcards
laws
statutes or acts of Parliament
cases
matters that are handled in the court system. The two categories include criminal (individual v state) and civil (individual v individual)
media
news articles from major news outlets that provide updates and info about case outcomes, social issues and opinion pieces of legal matters
structure of media articles
title in single brackets, news agency, year of publication
bill
a law that hasn’t passed yet but is currently in debate
DDP
Director of Public Prosecutions
precedent
when a judge makes a decision that could influence future cases, either binding or persuasive
law reform
when the law is changed
rules
non-enforceable guidelines for behaviour that have consequences
values
ethics and morals that underpin rules and laws to reflect society
custodial sentence
jail sentence
ICO
Intensive Correction Order which is supervised detention outside of prison
summary offence
low-order offence
indictable offence (pronounced inditable)
high-order offence
Doli Incapax
no child 10-14 y.o can be sentenced unless intent is proven
beyond reasonable doubt
the judge or magistrate must be certain that the defendant committed the crime before they can be found guilty.
mitigating factor
reduces responsibility on individual due to external factors
aggrivating factor
increases responsibility on individual due to external factors
aggravating factor
increases responsibility on individual due to external factors
security of tenure
2/3 of Parliament must rule of a judge to be removed and the judge must have committed a serious misdemeanor
ratio decendi
the rule of law in which a judicial system is based
obiter dictum
a judges expression or opinion uttered in court or in a written judgement, but not essential to the decision therefore not legally binding as precedent
stare decisis
the legal principle of determining points in litigation (legal action) according to precedent
prina facie (preliminary trial)
establishing if there is enough evidence to go to court
justice formula
equality+fairness+access=justice
equality
the assumption that everyone benefits from the same support
equity
everyone receives the support they individually need
justice
can be achieved when causes of inequity are addressed, systemic barriers removed and the problem is solved in the long term
justice needs to be achieved for…
victims, offenders and society
areas where inequality is present…
young offenders, homeless, women
areas where there is a lack of fairness…
young people, refugees, health-impaired
areas where this is a lack of access…
disabled, rural, young people
4 issues in access to legal system
can people get:
- access to info?
- representation and justice?
- justice in a timely manner?
- physical access to legal system?
customs
established patterns of behaviour among people in a society or group which is dependent on the culture, religion and history of a group of people
customary law
established patterns of behaviour that are accepted within a particular social or commercial setting or sufficient importance to be enforced
Rule of Law
nobody is above the law. It is binding and there are no exceptions. All authority is constrained and subject to the law.
origins of Rule of Law
Magna Carta which came out in 1215 and is considered the first human rights law. It limited the Kings power.
equality before the law
the law should apply to all people equally regardless of status.
presumption of innocence
individuals are only punished when proven guilty. Independent and impartial judges ensure that trials are fair and justice is achieved.
procedural fairness
the body of principles used to ensure the fairness and justice of the decision-making and procedures of court.
in Australia, procedural fairness gives you the right to…
know the case against you, present your case, freedom from bias and a fair trial
the Hearing Rule
the right to be heard
the rule against bias
there cannot be apparent bias which is as direct link to the judge
apprehension of bias
possibility of a relationship link that would violate rule against bias
tyranny
rule by a single leader holding absolute power in a state eg. Putin
anarchy
state of lawlessness (chaos) eg. Somalia
common law
law that comes from the decision of the courts which can be binding or persuasive
statute law
law made by Parliament
basic features of the Australian Legal System retained from British Legal System
travelling judges (magistrates), notion of compensation for wrongs, precedent
Adversarial System
the judges decides on questions of the law and doesn’t personally investigate. Only legally obtained evidence is allowed and defendants have the right to silence.
Inquisitorial System
judge-based search for truth where all evidence is allowed to be brought up and there is no right to silence or “guilty plea” for defendant eg. US
hierarchy
a chain of command system that indicates varying levels of jurisdiction in the legal system
local court
minor criminal matters and minor civil disputes
district court
more serious criminal matters from charges of larceny up to charges such as manslaughter, SA and drug importation
supreme court
highest court in NSW which deals with criminal matters and civil cases involving large sums of money (above circuit court)
federal court
deals with civil disputes governed by Federal laws as well as summary criminal offences
family court
superior federal court that deals with complex family matters eg. parenting orders, division of property
high court
highest court in Australia’s judicial system and deals with appeals from the Federal Court and Constitutional matters. It is interpreted by 7 judges.
original jurisdiction
list of common crimes/cases for each court, hearing a case for the first time
houses in Federal Govt.
Senate (upper house) and HOR (lower house)
houses in state Govt.
Legislative Council (upper house) and Legislative Assembly (lower house)
Australia has a ____ system at a federal and state level
bicameral
Who represents the King in Parliament?
Governor General
the person Australians vote from their local area to represent them in Parliament
electoriate
how a party becomes the government
the party or coalition of parties with support of majority of members selected into HOR becomes the government until the loose support of majority members.
what are the responsibilities of government?
develop national policy, introducing bills, putting laws into action, making important decisions, representing Australia overseas
bill
a proposal for a new law. They have to be approved by both houses before becoming laws
how bills get approved
Introduced to HOR, debated upon, public enquiry, reviewed, voted, sent to Senate and passed (same process occurs in Senate)
how bills become act
bill is passed by Senate, and GG signs off
division of powers
how the power to make law is divided between the Commonwealth Govt. and Territory governments
Section 51 in Australian Constitution
gives the Commonwealth Govt. ‘heads of power’ which outlines what they can only make laws about
the ‘heads of power’ include
lighthouses, tax and trade, defence, corporations, marriage and divorce, census and statistics
residual powers
any area not covered in the Constitution is considered to be within the state’s power to legislate about (trickle down)
concurrent powers
areas in which both the Commonwealth and states can make laws
exclusive powers
powers that the Commonwealth can make laws for and states cannot
how legal power is separated
judiciary (courts), legislature (Parliament), executive (PM, GG, Cabinet)
what the judiciary (courts) does
interprets and applies the law
legislature (Parliament)
create laws and amend them as required. It includes the Senate, HOR. States and territories are allocated seats in the HOR based on population
executive (PM, GG, Cabinet)
administer laws made by Parliament. Shadow Cabinet questions executives, opposition provides checks and balances
issues with separation of power
execs. appoint judges which may cause judges to have a political agenda, it is likely for political agenda to seep through legislation
appellate jurisdiction
appeals from lower courts
Mandamus
court order compelling a government official or organisation to do something
prohibition
rare court order that forbids a lower court from hearing/taking further action on a case
injunction
common court order stopping an organisation or person from performing an action
special leave
the HCA grants approval for a case to come before it
Judicial review
HCA reviews the actions of government
diverse nature of customary law
Indigenous law
different first nations groups have their own variations of customary law as a result of geographical spread.
the significance of land and water (dreaming)
Indigenous law
many customary laws have evolved from Dreaming regarding the treatment of land and those who live on it.
ritual and oral traditions
Indigenous law
customary laws have been passed down through word of mouth and ritual. Stories, songs and dance help people to remember laws. Different people in community know different laws.
mediation and sanctions
Indigenous law
it is expected that everyone in the community will follow and reinforce customary law. Elders get involved if sacred law is broken.
family and kinship
Indigenous law
the smooth operation or social life depends on obedience to religious precepts on the operation of kinship, a major force in behaviour.
state sovereignty
the right of a state to make laws for people within its borders without outside interference eg. make laws, collect taxes. It can promote or hinder HR’s.
requirements to have state sovereignty
defined territory, permanent population, effective government, capacity to enter international negotiations
domestic laws
each country can make their own laws as they have state sovereignty.
international laws
governs the relationships between nation states
purpose of international laws
provides mechanisms/frameworks for peace maintenance, covers fundamental HR’s, resolves disputes between NS.
incorporation process
the process Australia must go through when dealing with treaties; singing, ratifying, enacting.
International Customary Law
globally accepted customs or beliefs that have been enshrined/evolved into law. It sets a benchmark for what is acceptable eg. UDHR. Not enforceable or binding, only aspirational.
declarations
documents that make aspirational statements of intent and are ‘soft law’ (non-binding) eg. UDHR
treaties (covenants/conventions)
formal agreement between two NS (bilateral) or 3+ (multilateral). Hard law- once incorporated, it becomes binding and enforceable. NS can develop statute law to protect HR enshrined in Intl. law
examples of treaties
International Covenant on Civil and Political Rights (1966). State Sovereignty can undermine the ability of the NS to engage in treaties due to lack of political will.
Intl. law legal decisions
the two international courts; ICJ (International Court of Justice) and ICC (International Criminal Court). ICC deters international criminals but in the ICJ, decisions need to be accepted by both NS which limits effectiveness.
example of legal decision in ICJ
Australia V Japan whaling case (Australia won)
legal writings
UN report documents outlining HRs being abused and non-compliant NS. Similar to judge’s notes/commentary on cases.
two main branches of the UN
UNGA, UNSC
UNGA
United Nations General Assembly, a forum to discuss international affairs eg. climate change, war, human rights
UNSC
United Nations Security Council is made up of the Permanent 5 (P5) and Temporary 10 (T10) with the purpose to promote peace and stability.
Permanent 5 (P5)
Russia, China, US, UK, France. All it takes is one NS to refuse a solution for it not to progress (Veto power)
Temporary 10 (T10)
temporary 10 NS elected every two years, don’t have a vote.
SDG
17 Sustainable Development Goals which encourage NS to be compliant
two UN courts
ICC, ICJ
ICC
International Criminal Court based on Rome Statute (1998) which deals with war crime, genocide, crimes against humanity
cases in the ICC
Germain Katanga found guilty in 2014 for one count of crime against humanity and four war crimes and sentenced to 12 years, Thomas Lubanga Dylio found guilty in 2012 sentenced to 14 years in prison and reparation proceedings for conscripting children under 15 years old.
ICJ
International Court Justice, handles civil cases between Nation States. It ensures compliance and sanctions, but is limited by SS and the ICJ needs both NS to agree to sanctions.
ad hoc
set up for a specific purpose
ad hoc tribunal
acts like a court set up to hear a specific case and trial those involved accordingly. It deals with serious international criminal offences that have violated HR en mass. The need for ad hoc tribunals was removed once the ICC was created in 2002.
International Criminal Tribunal for Rwanda (ICTR)
est. 1994 which aimed to find those guilty for the mass genocide of 800 000 Totsis people in 100 days. Former Minister sentenced to life in prison.
International Criminal Tribunal for Yugoslavia (ICTY)
dealt with war crimes committed in the Balkans in the 1990s. It set the precedent for how genocide and war crimes are dealt with internationally, laid the foundations of conflict-resolution and post-conflict development after mass murder.
Intergovernmental organisations (IGO)
international institution comprised of various member states. They are created in agreement between member states, and each has an intl. treaty that acts as a charter outlining the organisations purpose and operation.
most important IGO
the UN Charter (1945)
promotion
to support or endorse an ideology or concept, usually soft law
protection
to maintain something from being violated eg. enshrining a HR within a treaty as hard law
Human Rights Council (HRC)
an IGO within the UN created in 2006 make up for 47 member states which are elected by the UN General Assembly responsible for protecting HR around the world.
How the HRC protects human rights
Universal Periodic Review (review of all HR records of UN member states) to ensure equal treatment for every country, Advisory Committee (composed of 18 experts who meet twice a year) as a think-tank, HRC Complaint Procedure which adresses patterns of HR violation
Non-government Organisation (NGO)
bodies that aren’t funded by governments but rather by public donations which allows them to adress intl. HR issues
pros and cons NGO’s
raise awareness, lobby for change, educate society, name and shame non-compliant NS. They can’t enforce law, have no legal power and lack funding.
examples of NGO’s
Amnesty International (gathers first-hand testimonies and publishes), Human Rights Watch (publishes articles about HR violation), Anti-Slavery Aus (provides free legal and migration services to disadvantaged)
relevance of intl. law to domestic law
Australia is a dualist system which is a legal system that doesn’t deem treaties enforceable until similar domestic legislation has been passed. The two steps include: ratifying intl. treaty and enacting dom. legislation.
example of dualist system- incorporation of treaties
Intl. treaty: Convention on the Rights of a Child (1989)
dom. legislation: Young Offenders Act 1997 (NSW)
intl. law impacts on Australian law
When an Intl. treaty is ratified, Australian law is enacted to reflect the Intl. treaty, directly effecting Australian law.
public law
deals with the powers and obligations of govt. and citizens, the relationships between persons and the state.
the types of public law include
criminal law, constitutional law, administrative law
criminal law
a body of rules under which certain acts or omissions are punished by the state to maintain public safety and order for the whole of society. Offence is seen to be against the whole community.
examples of criminal law
R v Xie (2017)- Robert Xie sentenced to 5 life sentences after murdering 5 members of extended family
R v Singh (2012)- Chamanjot Singh sentenced to 6 years jailtime for killing wife with box cutter
constitutional law
focuses on the rules governing the executive, legislative and judical functions of the govt. Australian constitution divides legislative power between Cth. and state governments. If there is an inconsistency, Cth. always overrides. If a law violates consitution, the case goes to high court where it is reviewed
examples of constitutional law
Croome v Tasmania (1997)- plaintiffs argued that Tasmanian law violated the HR Sexual Conduct Act 1994 (Cth)
Tasmanian Dam Case- Tasmania tried to build a dam in a national park, which the Cth. law prevented from occuring.
administrative law
deals with govt. powers and decisions made by govt. bodies. Based on the English model to ensure accountability of administrative decisions and actions made by govt. It cannot be used to challenge all govt. dealings eg. taxes
how a person can seek a review of administrative law
internal review- decision is reviewed by peer in agency (conflict of interest)
external review- person outside of agency reviews decision (formalised approach)
judicial review- courts only provide review of administrative decisions
private law
regulates the relationships between persons, companies and organisations which involves litigation (sueing). The court hearing the case must exercise civil jurisdiction.
the types of private law includes…
contract law, tort law, property law
contract law
concerned with the recognition of an agreement between 2 or more parties recognised by law and actions taken to enforce it.
three features of contract law
offer, acceptance, consideration
examples of contract law
Competition and Consumer Act (2010)
ACC: Chrisco lay-by agreement which contained a term allowing them to deduct money from customers after the product was fully paid for (2015)
tort law
deals with situations in which someone/organisation has done something which has breached the rights of another with the aim to restore the plaintiff to the position he/she was in before a wrong was committed. The most common type is negligence.
examples of tort law
Samaan v KFC (2012) girl became paralysed by consuming uncooked chicken
Donohue v Stenvenson (1932) snail in bottle case, Donohue suffered from gastroenteritis
property law
involves things that can be owned and have commercial value which is protected by statute and common law. Most common type is real property including actual land and what is attached to the land.
criminal law
the legal processes in which a person accused of a crime is prosecuted. The two main types are summary hearings and trial by jury.
victim impact statement (VIS)
shares the details of how offences have affected the life of the victim when proven guilty. It cannot influence a judge’s decision.
judges and magistrates
legal professionals which alot of experience in the law that preside over court cases to make sure rules are followed and trials are fair. A judge sits with intermediate/superior courts whereas magistrates sit with lower courts.
tipstaff
supports the judge with procedure and organisation. May provide research and administrative support when court isn’t in session.
judges associate
confidential secretary to the judge and performs clerical duties for court, has a law degree.
solicitors
solicitors give legal advice on legal issues, have a completed law degree.
barristers
specialise in one area of the law which gives them depth of knowledge
witness
gives evidence regarding the case in court
court officer
responsible for court lists and calls witnesses to the court room
court reporter
records all court proceeding which may be written in an audio/visual format
corrective services officer
escorts the accused to and from the court room in a criminal case
jury
a panel of citizens who consider evidence presented and are sworn in. In a criminal trial, the prosecution and defence are entitled to challenge the selection and have the right to ‘peremptory challenges’ (dismiss w/o reason)
plaintiff
brings about civil action against another
defendant
must defend his/her actions
media
journalists will attend high-profile court cases and report on them. Media representatives sit in media gallery of wait outside court to conduct interviews.
civil law (AKA private law in aus)
originates from Roman law and is a set of judgements framed by judges in courts. It involves plaintiff v defence, balance of probabilities and when a defendant is proven guilty, it must be ‘beyond reasonable doubt’ which have evolved into Australia’s adversarial system.
common law
developed by custom and is where judges apply civil law statutes to deduce outcomes in court cases and precedent is developed in two forms; binding and persuasive.
conditions that give rise to law reform
changing social values, new concepts of justice, new technology
conditions that give rise to law reform: changing social values
Social values are standards or principles that guide people in their thinking about aspects of their society and are underpinned by beliefs of right/wrong.
When majority of people hold similar views, they reflect public morality. Public morality is constantly evolving, therefore reform is required. eg. Family Law Amendment Act 2001 (Cth)
conditions that give rise to law reform: new concepts of justice
when a law is unable to achieve just outcomes for individuals/community, there may be need for law reform eg. Death Penalty Abolition Act 1973 (Cth)
conditions that give rise to law reform: new technology
advancement in technology has meant that laws are constantly under pressure to remain current
eg. Surrogacy Act 2010 (NSW) was introduced to allow transfer of parentage
agency of reform
a department of body providing a specific service to the govt. or other organisation.
Australian Law Reform Commission (ALRC)
An independent statutory body established in 1975 and operates under the Australian Law Reform Commission Act 1996 (Cth). It reviews laws referred to it by the GG and conducts enquiries which aims to harmonise cth. and state laws where possible and advise how the law can change to meet current needs.
examples of Australian Law Reform Commission
elder abuse, Family Law system, incarceration of Indigenous
NSW Law Reform Commission
Basically the ALRC on a state level set up under the Law Reform Commission Act 1967 (NSW). They consider NSW laws that are out-of-date, unnecessary, too complex or defective by consolidating legislation and consulting public.
examples of NSW Law Reform Commission
unanimous vs. majority jury decisions
media (regarding law reform)
modern media shares testimonies of those who have suffered, keeping people informed and empowered to apply pressure on the govt. to adress issues
examples of media (regarding law reform)
same-sex marriage
NGO’s
promotes law reform through active pursuits of HR goals, develops resources and tactics which enables pressure to be applied on govt. eg. Amnesty Intl.
NGO’s actions (regarding law reform)
changes to Victorian bail laws, offshore processing at Naru Dentention Centre.
Lobby Groups (regarding law reform)
an organised group of people who try to influence govt. ministers or other members of Parliament to advance a political agenda which is achieved via writing letters, requesting meetings, making policy submissions.
examples of Lobby Groups (regarding law reform)
‘shared equal parenting’ by Long Father Association of Aus. and amendments to the Family Law Act 1975 (Cth)
mechanisms of reform
the means (machinery) that brings about legislative change within judicial and legislative branches of govt. and intl. organisations.
different mechanisms of reform
Parliaments- most law reforms occur here through passing bills
Courts- precedents made in higher courts clarify what law should be, don’t consciously reform law
UN- primary mechanism of intl. law reform through treaties
Royal Commissions- highest form of enquiry on matters of public importance by revealing cases that show deficiency in law
native title
the recognition of customary connection of Indigenous to land, disproving terra nullius which was a misconception from settlement.
Native Title Act 1993 (Cth)
protects Indigenous land rights and allows them to claim connection and ownership to native land
Mabo v Queensland no. 1 1988- Supreme Court/High Court
Eddie Mabo challenged common law principle of Terra Nullius which aimed to being justice, dividing public opinion.
High Court found that the Queensland Coast Islands Declatory Act conflicted with the Racial Discrimination Act (1975), allowing the original case to continue.
Mabo v Queensland no. 2 1992- High Court
Judgements of the Hight Court enshrined native title into Australian law and recognised that Indigenous people lived in Australia for thousands of years, overturned terra nullius.
Wik Peoples v Queensland (1996)- High Court
Wik Peoples claimed native title rights to land being leased to pastoralists. Fed. court ruled that pastoral leases extinguished right to native title, and enacted the Native Title Amendment Act 1998 (Cth).
Yorta Yorta v Victoria 1998- High Court
Yorta Yorta people claimed native title of public lands and water. The application was dismissed by Fed. Court and then appealed to Full Court of the Fed. Court which delivered the same verdict. It set common law for cases where customs weren’t practiced in the 19th century and only passed down orally.
Native Title Tribunal
Fed.. Govt. agency set up under the Native Title Act 1992 (Cth) with the aim to resolve matters of native title, ensuring justice for all parties.
Doli Incapax case
R v LMW- 10-year-old boy charged with the manslaughter of Corey Davis after drowning him but was found not guilty as the intent wasn’t to kill, but rather “an act of bullying gone wrong”.
Rule of Law case
Justice Einfeld was sentenced to two years in jail non-parole after pleading guilt to purgery for trying to evade a speeding fine.
procedural fairness case
R v Skaf (2004): Bilal and Mohammad Skaf in 2000 committed gang rape of multiple teenage girls and were retrialed because two jurors conducted their own experiment of the crime scene.
anarchy example
Somalia
common law equity case
Lumley v Wagner (1952): Wagner had been contracted to sing at a theatre by Lumley an The contract specified that she couldn’t sing anywhere elsewhere during the period of the contract. She broke this contract, so Lumley sought an injunction in a court of equity
precedent case
Grant v Australian Knitting Mills (1936): The manufacturers failed to remove a chemical irritant from their wollen underwear and Grant developed dermatitis. The court used Donoghue v Stevenson (1932) as persuasive precedent in this case.
separation of powers where there is cross over between legislature and judicial power
R v Jacobs (2013), Crime Amendment Act (2011): the first person to go to jail for life under the mandatory sentence of murdering police officer (judge had no choice)
role of High Court case
Mabo v Queensland no.2 (1992): Eddie Mabo appealed to the High Court to recognise native title.
cases of HR promotion via SS
UDHR (1948)
cases of HR hinderance via SS
treatment of asylum seekers in Australia at Naru (offshore detention) exposed by Amnesty Intl.
PEER JAM AIR
Protection/recognition of right
Equality
Enforceability
Resource efficiency
Justice
Access
Meeting societies needs
Application of rule of law
International law
Responsiveness of law
types of delegated legislation
regulations, ordinances, rules, bylaws
regulations
laws made by the GG, state Governors or members of the Executive Council
ordinances
laws made for Australian territories (external territories = Norfolk Island, Australian Antarctic Territory, Christmas Island, Coral Sea Islands)
rules in reference to delegated legislation
laws made for government departments
by-laws
laws made by local councils (restricted to the area governed by that council)
courts in order from lowest to highest
children’s court, local court, coroners court
supreme court, land and env. court, district court, drug court (NSW)
NSW Court of Criminal Appeal
High Court of Australia
ethics
moral principles that govern a persons behaviour by determining what is right and wrong
