Glossary Terms ( Justice System ) Flashcards
Social Cohesion
Social cohesion is a term used to describe the willingness of members
of a society to cooperate with each other to survive and prosper.
How do courts and laws promote social cohesion
Laws promote social cohesion by…
* Establishing guidelines for what is acceptable and unacceptable
* Establishing the ‘rule of law’. This means that everyone, no matter their social
position or status, must equally abide by the law.
Parliament – consisting of elected representatives who create laws
* Police – consisting of officers who enforce the law and protect the community
* Courts – consisting of judges and jury members who apply the law and decide whether a
law has been broken
Principles of justice
The principles of justice are the standards or yardsticks by which we can measure whether
justice is being achieved in the legal system:
* Fairness
* Equality
* Access
Access
The principal that all people in should be able to engage with the justice system and its process on an informed baises.
Subelements:
Engagement:
- ability to physically in courts, services and representation
- ability to use techinionaly and virtually attend courts
- ability to pay for legal representation and court fees
Informed Baises:
- understand legal processes and their rights
- ability to obtain information and make decisions on an educated baises
Fairness
The principle that all people can participate in the Justice system and its processes should be impartial and open.
Participate:
- the accused or victims can meaningfully involve themselves in the proceedings and are provided with the means to fulfil their role
Impartial:
-Judges, magistrates and jury members are unbiased and objectively decide the case based on facts
Open:
- hearing are conducted in public
- legal processes are transparent and decisions can e scrutinised
Equality
The principle that all people engaging with the justice system and its process should be treated in the same way. However, if teh same treatment causes disparity or disadvantage, adequate measures should be implemented to adress theses hardships.
Formal Equality:
- same, equivalent, alike treatment regardless of personal characteristics such as age, gender, race, culture etc.
Characteristics of an effective law
(1) Reflects society’s values
* This means the law upholds the beliefs of the majority in society
* You must identify what the value is – e.g. clean environment, democracy
Characteristics of an effective law
2) Enforceable
* This means that people who break the law can be monitored and caught – e.g. speed
cameras, behaviour occurring in public, reporting procedures
* There must also be consequences attached to the law- e.g. fines, imprisonment
Characteristics of an effective law
(3) Clear and understood
* This means that people can comprehend the requirements of the law
* The law must be written in plain English (not legal jargon) and the terms used must not be ambiguous or
open to multiple interpretations.
Characteristics of an effective law
(4) Known
* This means that individuals are aware that the law exists via advertisements, campaigns, websites, signs
* However, ignorance of the law is no excuse – that means individuals can’t argue ‘I didn’t know…’
Characteristics of an effective law
(5) Stable
* It is important for laws to change in order to reflect society’s values. However, they cannot change too
frequently because then people will be confused.
Structure of Commonwealth Parliament
The Australian Constitution states that the Commonwealth Parliament (also known as Federal
Parliament) consists of three elements:
1. The King (the Crown) represented by the Governor-General
2. The Senate (the upper house)
3. The House of Representatives (the lower house)
Structure of the House of Representatives
Australia is divided into geographical areas known as electorates. Each electorate as
approximately the same number of voters (approx. 114,000).
As of 2023, there were 151 electorates in Australia and therefore 151 members in
the House of Representatives.
Each member is elected for a period of three years.
Political parties
A political party is an organisation with members who share similar social, political and economic values and beliefs. The largest
political parties we have in Australia are:
* The Liberal Party of Australia
* The Nationals
* The Australian Labor Party
* The Australian Green
When a politicians wins a seat in the House of Representatives, they win it for their party (e.g. Catherine King won the Ballarat
seat for the Labor Party).
A person can run on their own without any party membership. When this person gets elected, they are known as an independent.
Government
The political party that wins 76 or more seats in the
House of Representatives (the majority) forms the
government. The government sits on the right of the
Speaker.
The political party that wins the second highest number
of seats forms the opposition. The opposition sits on the
left of the Speaker.
Role of House of Representatives
Forms government
* The political party that wins the majority of seats (minimum 76) forms the government. The Prime Minister
then chooses Ministers to be responsible for different portfolios – e.g. education, health
Introduces and passes proposed laws
* Most bills (proposed laws) are introduced in the House of Representatives by the government ministers.
* However, any member of parliament can introduce a bill.
* If a bill is first passed in the Senate, it will come down to the House of Representatives for review.
Hold government accountable
* Some members of the Opposition are ‘shadow ministers’. Their job is to challenge and question the government
on policy matters.
Structure of the Senate
There are 76 seats in the Senate: 12 senators from each state and 2 from each
territory.Senators are elected for a term of six years. However, half of the Senate goes up
for election every three years.
Role of the Senate
Reviews bills from the House of Representatives
* As most bills are introduced in the lower house (by government minsters) the Senate plays an important role in
debating and scrutinising bills before either passing them or rejecting them. This is why the Senate is known as
the ‘House of Review’.
Ensures equal representation for the States
* Regardless of their population size, each state elects 12 senator for a period of six years. This ensures that more
populated sizes (e.g. NSW and VIC) don’t dominate the law making process.
Introduces and passes proposed laws
* Senators are also able to introduce bills, except for ones that generate revenue (e.g. taxes) or spend money.
Structure of the Victorian Parliament
The Victorian Parliament consists of three elements:
* The King (the Crown) represented by the Governor
* The Legislative Council (the upper house)
* The Legislative Assembly (the lower house)
Structure of the Legislative Assembly
Victoria is divided into electoral districts.
As of 2023, there were 88 electoral districts in Victoria and therefore 88 members in the Legislative Assembly.
Each member of the Legislative Assembly is elected for a period of four years.
Role of the Legislative Assembly
Forms government
* The political party with the majority of members in the Legislative Assembly forms government. The leader of the government then
becomes the Premier of Victoria.
* The Premier of Victoria then chooses ministers to be responsible for different portfolios (e.g., housing, police).
Hold government accountable
* The second largest political party forms the Opposition.
* Some of the Opposition become shadow ministers who challenge and question the government on policy matters (e.g. through
Question Time)
Introduces and passes proposed laws
* Most bills (proposed laws) are introduced in the Legislative Assembly by government ministers.
* However, any member of parliament can introduce a bill. If a bill is introduced and first passed in the Legislative Council, it will proceed
to the lower house for review.
Structure of the Legislative Council
Victoria is also divided into eight
regions.
Five members are elected from each
region which means that there 40
members sitting in the Legislative
Council.
Role of the Legislative Council
Reviews and scrutinises bills
* As most bills are introduced in the lower house, the Legislative Council debates these
bills before either passing them or rejecting them.
Represents the views of their region in law-making
* Members of the Legislative Council ensure that laws made in Victoria equally reflect the
needs of Victorians reside in regional and rural areas. Thus ensures that lows and
government spending do not solely focus on residents in Metropolitan Melbourne
Victorian court hierarchy
Court hierarchy = ranking of courts based on their
jurisdiction (power) to hear legal matters
Each state has its own court hierarchy.
There is also a federal court hierarchy.
Victorian court hierarchy:
- High court of Aus ( federal)
- Supreme court of Vic ( court of appeal )
- Supreme court of Vic ( Trial Divison )
- County court of Vic
- Magistrates Court of Vic
Reasons for a court hierarchy (ASAP)
Appeals (review)
2. Specialisation (expertise)
3. Administrative convenience (resource allocation)
4. Precedent (previous decisions)
Appeals
Appeal = seek a review of a decision from a higher authority
* If a party believes that a lower court (e.g. County Court) has made an incorrect
decision, they can seek an appeal of the trial judge’s decision in a higher court (e.g.
Supreme Court of Appeal).
* The court hierarchy allows for appeals because a decision made by a lower court
can be reviewed by a higher ranked court.
Specialisation
Specialisation = to develop expertise or thorough knowledge in an area
* The court hierarchy allows for specialisation because judges can only hear cases within their
specified jurisdiction. They then develop expertise those types of cases.
* For example, the Magistrates Court has the jurisdiction to hear minor criminal offences (e.g.
traffic infringements). As a result, the magistrate is exposed to the same types of cases day in and
day out on a regular basis. Therefore, the magistrate develops expertise in presiding over minor
criminal offences, allowing their decision to be made fairly and consistently.
Administrative convenience
Administrative convenience = the systematic benefit derived from legal matters being distributed among the
courts according to their complexity and severity
* The fact that courts have specific jurisdiction means that time and resources are allocated more effectively.
* For example, since nearly all criminal offences committed are minor (summary) offences, this allows for
more Magistrates courts to be built to resolve these issues in a timely manner.
* For example, having minor offences dealt with quickly by the Magistrates Court means that the higher
ranked courts are not experiencing backlogs and have sufficient time and resource to hear jury trials.
Precedent
The term precedent means …
a legal principle that has been established by judges through deciding cases.
The court hierarchy allows for the operation of precedent because…
Precedent established by judges in the higher ranked courts will be binding
on the judges in the lower ranked courts (if the facts of the cases are similar)
Types of precedent
Binding precedent = must be followed
* Set by a higher court in the same hierarchy; and
* The material facts of the case are similar
Persuasive precedent = does not have to be followed
* Set by another state or country (different hierarchy)
* Set by a lower court in the same hierarchy
* Set by a same level court in the same hierarchy
Role of the courts
The courts’ main role is to interpret the law and apply it to factual situations. Through this process, they
determine criminal cases and resolve civil disputes.
Sometimes, a novel (new) factual situation arises and there is no existing law. In these cases, courts fulfil their
secondary role of creating new legal principles.
Definitions
* Common law – the law made by judges.
* Precedent – a legal principle that has been established by judges through deciding cases.
Statutory interpretation
More commonly, judges create precedents by interpreting the meaning of words in a statute when
applying it to a case. This process is known as statutory interpretation.
Statutes need to be interpreted because:
* As legislation is created to cover a wide range of circumstances, the wording can often be broad
* The meaning of words change over time
* There may have been drafting mistakes
Effects of statutory interpretation
The judges can widen the scope of the statute. A wide interpretation of a
word or phrase may extend the statute to cover a new situation.
* The judges may narrow the scope of the statute through a restrictive
interpretation of a word of phrase.
Note – judges cannot change the words in a statute or add/remove any words.
- Distinguish =
differences
* Must use words such as however, in contrast, on the other hand
Describe =
detailed account of what, who, when, where, how
Explain
detailed description of how, why / causes and effects /
relationships between concepts
* Must use words such as because, since, by, so, therefore, as a result
Evaluate =
strengths and weaknesses AND an overall judgement
Abrogation
Abrogation is when parliament overrides or abolishes a court-made precedent by passing legislation that explicitly invalidates the common law. This happens when the government believes a court decision is outdated, inappropriate, or does not reflect the public interest.
For example, if a court ruled in a way that parliament disagrees with, parliament can pass a new law that overturns the decision, making the precedent no longer applicable.
Judicial influence
Judicial influence refers to how courts can indirectly shape law-making by highlighting the need for legal reform. When judges make decisions, especially in controversial or unclear areas of law, they can signal to parliament that existing laws need updating, clarification, or change.
For example, if a court identifies gaps or inconsistencies in legislation, parliament may later introduce a new law to address the issue. While courts do not directly make laws like parliament, their rulings can influence legislative change.
