foundations Flashcards
rule
+ non legal rules, these are regulations/codes/policies
+ made by private individuals or groups in society
+ apply to specific group of people eg school, household
laws
+ legal rules made by legal institutions such as parliament or the courts
+ apply to society and are enforceable by courts and police
date of federation
1st January 1901
parliment
+ a parliament is a formal assembly made of representatives of people who are selected by the people to make laws with the exception of governor general who is appointed
significance of constitution
+ establishes parliament
+ established lawmaking powers of the Cth and states
+ establishes judicial role of the high court
+ establishes how constitution can be changed
social cohesion
a term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper
indicators of socially cohesive society
+ people can work and improve there education
+ indv. feel sense of acceptance and belonging
+ indv. treated fairly and not discriminated against
indicators of dysfunctional society
+ crime
+ recidivism / high reoffending
+ protests and unrest of citizens
how individuals promote social cohesion
+ not everyone is expected to know and understand
+ responsibility to follow the laws once they are aware of them
+ everyone doing there bit
how laws promote social cohesion
+ reflect the acceptable behaviours and values
+ set guidelines for what is acceptable
+ creates boundaries to protect indv.
how the legal system promotes social cohesion
+ by ensuring that institutions exist to effectively create, implement and enforce the law
+ institutions include parliament, police and the courts
fairness
all people can participate in the justice system and its processes should be impartial and open
impartial processes
all personal within the legal system must act in a way that is impartial to show no bias or discrimination
open processes
+ court processes must be transparent
+ open characters allow for media, reporters, guidelines for sentencing and regulations
participation
indv. must effectively participate in the legal system through being aware of charges against them , having time to prepare case, being aware of evidence against them
equality
all people engaging in the justice system should be treated in the same way, if the same treatment causes disparity of disadvantage adequate measures should be implicated to allow all to engage in the system without disparity of disadvantage
same treatment
+ formal equality
+ all individuals are treated the same and given same level of support regardless of different characteristics
different treatment
+ substantive equality
+ When the legal system treats people the same way and it causes disparity, disadvantage and hinders people from participating in the legal system so they need to be given extra support
access
all people should be able to engage with the justice system and its processes on an informed basis
engagement - utilise, interact with
informed - awareness of processes and procedures, awareness of rights
reflects societies values
a belief, principle or idea about how we should behave and treat others, its vital that they are acceptable to the community and society + must align with societal values
enforceable
+ Those who break the law may be apprehended, charged or sued
+ Ensure people abide by rules and/or are held accountable
+ enforced by courts + police
known
+ The public must be aware of the law
+ law makers must keep public informed of major changes and report them in media
clear and understood
+ must be consistent and precise with wording so can be understood clearly by society
+ if unclear less likely to be followed
stable
+ cant be consistently changing or will cause confusion
+ People need to be confident that laws can be relied on
structure of the Commonwealth parliament
- the king [the crown] represented by the governor general
- the house of representatives [ lower house]
- the senate [ upper house]
house of representatives
+ divided into 151 electoral divisions based on population
+ forms government
+ holds government accountable [ opposition]
+ introduces and passes proposed laws
+ represents the peoples interests when debating and making laws
senate
+ consists of 76 senators [ 12 from each state and 2 for each territorie]
+ reviews bills passed by the HoR
+ ensures equal representation for the states
+ introduces and passes proposed laws
[ as the majority are introduced by lower house senate debates bills before passing or rejecting]
governer general
the governor general has to give royal assent and approve the bill before it becomes law
statute law
+ law made by parliament
+ most common law in society
structure of Victorian parliment
- the king [ the crown] represented by the governor
- the legislative assembly [ lower house]
- the legislative council [upper house]
legislative assembly
+ divided into electoral divisions, Vic has 88
+ forms government and elects premier of VIC and the ministers
+ holds government accountable [opposition]
+ introduces and passes proposed laws
+ represents people’s interests
legislative council
+ Upper House of Vic parliament
+ divided into 8 regions with 11 districts- 5 members each so 40 members
+ reviews bills passed by leg assembly
+ introduces and passes proposed laws
subordinate authorities
+ Parliament is the supreme law-making body
+ doesn’t have the time or resources to make laws necessary for social cohesion
+ Commonwealth parliament can delegate law-making power to subordinate authorities
eg local councils making laws on pet ownership, parking, rubbish removal
common law
common law is laws made by courts as part of their case determinations when there is no existing law
statutory interpretation
judges interpret the meaning of words in a statute when applying it to a case before the court
precedent
a legal principle established by judges that should be followed by courts in later cases when similar material facts arise
+ created through statutory interpretation
binding precedent
- must be followed
- set by a higher court in the same court hierarchy
- material facts are similar
persuasive precedent
- does not have to be followed
- set by another state or country
- set by a lower court in the same hierarchy
- set by same court in the same hierarchy
ratio decidendi
- the “reason” for the decision
- binding part of the judgement that must be followed by courts lower in the same hierachy
obiter dictum
-“by the way”
- persuasive part of the judgement that does not have to be followed but can provide suggestions for judges and law makers
methods of avoiding precedent
distinguishing - material facts in the new case are sufficiently different from the material facts in the binding precedent
disapproving - a court follows a binding precedent but expresses disagreement with it in its obiter dictum, doesn’t change precedent but may be considered in higher courts
methods of developing precedent
overruling - a higher court states that the precedent set by a lower court in a different case no longer applies, this sets a new binding precedent
reversing - the same case is appealed to a higher court and the superior court changes the decision of the lower court. the higher court has set a new precedent that becomes binding on lower courts
Donoghue v Stevenson
+ Donoghue got a ginger beer from a friend at a cafe
+ After drinking half a decomposed snail came out
+ She became ill and later suffered severe gastroenteritis
+ She did not buy the bottle so could not sue the cafe
+ She sued the manufacturer [stevenson] but the initial case failed
+she was granted appeal where it was found that a person must take reasonable care to avoid the acts or omissions that may harm one’s neighbour and Stevenson did not
+ this case established negligence
statutory interpretation
judges are often called upon to interpret the meaning of words in a statute when applying it to a case before a court
+ Normally statute is broad to cover a large range of situations so needs to be interpreted
codification
as the supreme law-making body parliament can make legislation that codifies [ reinforces, confirms] precedent set by a court
abrogation
as the supreme law-making body, parliament can make legislation that abrogates [overides, abolishes] a common law principle
judicial influence
in their judgements, courts may influence parliament to change the law by commenting on the need for reform
criminal law [+aim]
an area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct
definition of a crime
an act or omission that violates an existing law, causes harm to an individual or society and is punishable by law
criminal law burden of proof and standard of proof
burden of proof=prosecution
standard of proof = beyond reasonable doubt
civil law [+aims]
an area of law that aims to protect individuals, businesses and organisations by providing them with the legal framework to seek a remedy when their rights have been breached.
civil law burden of burden + standard of proof
burden = plaintiff
standard = on the balance of probabilities
