Exam cue cards Flashcards
The principles of justice
- Fairness
- Equality
- Access
The principles of justice: Fairness
- Everyone has the right to a lawful hearing and procedural fairness.
- Hearings and trials should be impartial and without favouritism.
- Fairness does not always mean everyone is treated equally.
Examples: right to remain silent, presumption of innocence, impartial judge
The principles of justice: Equality
- People should be equal before the law with an equal opportunity to present their case.
- People should be treated equally without discrimination
- No person should be at an advantage or disadvantage because of a personal characteristic
Examples: Legal aid, interpreters, anti-discrimination laws
The principles of justice: Access
- The legal system or organisations that offer legal information or assistance must be available and accessible to all members of the community.
- It involves knowing one’s rights.
- All citizens must be able to afford access to the legal system so that they can pursue their case.
- People must be aware of their right to take a dispute to a resolution body, and have access
Examples: The use of tribunal, right of appeal, court hierarchy
Characteristics of effective law
- Known to the public
- Enforceable
- Stable
- Clear and understood
- Reflect society’s values
Characteristics of effective law: Known to the public
- Lawmakers need to keep the public informed so individuals know how to follow it.
- Individuals bear the responsibility of knowing the law, and ignorance of the law is not an excuse.
- New laws are usually reported in the media, broadcasted on television etc.
Characteristics of effective law: Enforceable
- If the law cannot be enforced then people will not be inclined to follow it.
- If individuals break the law, they must be punished, made to follow the law or made to pay for any damage caused by disobeying the law.
- The law in Australia is enforced by the courts, various governmental bodies and the police.
Characteristics of effective law: Stable
- If the law changes constantly there would be uncertainty and therefore chaos.
- Members of the community need to be confident that the law can be relied upon.
- Law making bodies should try to predict changes to the law that may occur in the future
Characteristics of effective law: Clear and understood
- People need to understand the law and its intent.
- Any words or terms in legislation that are unclear may need to be interpreted by courts.
- Law makers must create laws that cover all circumstances while being understandable.
Characteristics of effective law: Reflect society’s values
- Our laws should identify and reinforce the social, moral, economic, religious and political values of the community.
- When making or changing the law, law makers need to ensure that the law reflects the values of a majority of the community, not of minority groups of society.
Source of law
- Statute law
- Common law
Source of law: Statute law
A written law made by the state and commonwealth parliaments through the legislative process of passing a bill through both houses
AKA legislation or acts
Source of law: Common law
Law made by the courts
A court’s primary responsibility is adjudicate disputes.
As a secondary role, they may need to make law.
AKA judgements
Development of statute law
- A bill is a proposed law drafted by the parliamentary council which goes through parliament
- Every single proposed law in Parliament goes through 3 readings where the law is discussed and analysed in Parliament.
Development of common law
- When there is no legislation in place and the court needs to hand down a decision
- When the legislation is ambiguous and the court needs to interpret it and apply it. This interpretation creates law (precedent). This is called statutory interpretation.
Binding precedent
- Made by a superior court and must be followed by lower courts in the same hierarchy where the facts of the case are similar.
- The reason for the decision in a case is the binding part of precedent.
- This is known as the Ratio decidendi.
Persuasive precedent
- Influential but not binding.
- Courts may choose to follow it but they do not have to follow it.
- Obiter Dictum are statements made by judges along the way that form persuasive precedent
- Courts lower in the hierarchy, and courts in other jurisdictions.
Avoiding previous precedent
- Distinguishing
- Overruling
- Reversing
- Disapproving
Distinguishing a previous precedent
- If the material facts of a case are sufficiently different from the material facts in a binding precedent
- A lower court distinguishes the facts of the case and then they do not follow that case
- They usually set a new precedent.
Overruling a previous precedent
- A precedent can be overruled by a higher court in a different case.
- When a precedent is overruled it no longer applies.
- 2 separate cases - no appeal.
- Superior court changes existing precedent.
Reversing a previous precedent
- A precedent can be reversed when the same case is taken to a higher court on appeals.
- When a precedent is reversed it no longer applies.
Disapproving a previous precedent
- Courts of equal standing can disapprove
- Lower courts will follow the binding precedent.
- Lower courts can also disapprove
- Persuasive precedent is created but they still must follow the binding precedent.
- A higher court when deciding a later case may choose to agree with the court that disapproved of the precedent and decide to overrule it.
Relationship between parliament and the courts
- Parliament passes a law and the courts must apply it.
- Statutory interpretation
- Abrogating
- Codifying
- Courts influencing parliament to change the law
Statutory interpretation
- The process by which courts interpret and apply the words in legislation made by parliament.
- In the judgement, the judge will reference the Act, but give reasons for their interpretation of the legislation
- Creates a precedent in common law.