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legal unit 1 > legal foundations > Flashcards

legal foundations Flashcards

1
Q

social cohesion

A

the ability of a community to live together in a peaceful, harmonious manner by recognising that all individuals have rights and responsibilities

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2
Q

rules

A

non-legal guidelines which apply to a specific group of people

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3
Q

laws

A

laws are legal rules that everyone in society must follow

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4
Q

difference between rule and law

A
  • who makes it
  • who it applies to
  • enforceability
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5
Q

protection of individual rights

A

all individuals have basic rights, such as the right to life, the right to privacy and the right to practice a religion. laws ensure that individual rights are protected

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6
Q

SC: role of the law

A
  • establishes guidelines
  • sets expectations on behaviour
  • establishes a framework in which ppl live
  • allows individs to make choices on how they live
  • guidelines for sanctions
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7
Q

SC: role of individuals

A
  • make a choice to follow the law
  • help police with investigations and witnesses
  • ignorance of law isn’t excuse
  • reporting crimes and using system
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8
Q

SC: role of the legal system

A
  • ensures the law is enforced and applied
  • interprets the law in order tho make decisions
  • aims to protect individ rights
  • consequences for breaking laws
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9
Q

fairness

A

impartial or just treatment or behaviour without favouritism or discrimination

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10
Q

equality

A

the state of being equal, especially in status, rights and opportunities.

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11
Q

access

A

the means or opportunity to access the legal system

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12
Q

fairness examples

A

fair trial, interpreter, right to silence

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13
Q

equality examples

A

both parties have legal rep, equal opportunity to present a case, treated equally with regard to strict rules of evidence and procedure in court

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14
Q

access examples

A

access to legal rep, access a court in geo area, right to appeal

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15
Q

parliament

A

the supreme law-making body, main role is to make statute law

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16
Q

courts

A

settle disputes by interpreting and applying the law, make common law

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17
Q

criminal law

A

protecting the community as a whole and controlling behaviour by punishing offenders

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18
Q

civil law

A

protecting the rights of individuals by providing remedies that restore the plaintiff to their original state

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19
Q

specific powers

A

the power of the commonwealth parliament to make laws ‘for the peace, order and good government of the commonwealth’
- specifically stated

20
Q

where are specific powers in the constitution

A

section 51

21
Q

concurrent powers

A

powers that are shared by both commonwealth and state parliaments

22
Q

where are concurrent powers in the constitution

A

section 107

23
Q

exclusive powers

A

commonwealth parliament has exclusive power to legislate in certain areas

24
Q

where are exclusive powers in the constitution

A

section 52

25
Q

residual powers

A

any power not specifically mentioned in the constitution as being a power given to the commonwealth parliament (law-making)

26
Q

house of representatives

A

lower house, introduces bills, reviews bills passed by senate, holds government, green, 151 m

27
Q

senate

A

upper house, reviews bills introduced by lower house and passes bills, red, 76 m, represent state and territories

28
Q

the crown

A

representative of the queen, the governer general gives royal assent to laws passed by both houses

29
Q

victorian parliament: legislative council

A

upper house, 40 m, ensures that rural and metropolitan areas have equal representation

30
Q

victorian parliament: legislative assembly

A

lower house, 88 members, eloctrates divided based on population

31
Q

victorian parliament: the crown

A

the governer represents the queen and gives royal assent to laws passed by the victorian parliament

32
Q

precedent

A

a legal rule or principle established in a previous legal case, noted in the judgement (written report of the case by judges)

33
Q

ratio decedendi

A

the reasoning behind the decision, part of the judgement which forms the precedent

34
Q

obiter dictum

A

a comment made ‘by the way’. doesn’t form part of the reasoning for the decision or the precedent but can influence future cases

35
Q

common law precedent

A

formed when there is a case before the court for which there is no existing law. a new situation with no previously made common law/legislation. the reasoning behind this decision will form a precedent for future similar cases. EXAMPLE = DONOGHUE V STEVENSON

36
Q

statutory interpretation

A

when a case comes before the courts and there is existing legislation, the court must interpret the meaning of the legislation by determining what the intention of parliament was at the time the law was created. forms precedent to be followed by lower courts in the same court hierarchy. EXAMPLE = THE STUDDED BELT CASE (DEING V TAROLA)

37
Q

binding precedent

A

material facts of the case are similar, must be followed by all lower courts in the same court hierarchy as the precedent-setting court. EXAMPLE = GRANT V AUSTRALIAN KNITTING MILLS (1936)

38
Q

persuasive precedent

A

doesn’t need to be followed by other courts because the decision was made in a lower or equal court or in a different court hierarchy, can influence the outcome of the case. EXAMPLE = DONOGHUE V STEVENSON (1932)

39
Q

parliamentary sovereignty

A

Parliament is the ultimate law-making body, the laws of parliament override the laws of all other law-making bodies, such as the courts and subordinate authorities

40
Q

statutory interpretation

A

if legislation already exists in an area of law, sometimes courts will need to interpret how it applies to the case they are hearing, used if there is confusion or uncertainty about terms within relevant act
- used in studded belt case

41
Q

abrogation

A

when courts interpret legislation in a way that parliament didn’t intend when it was written. this can result in a court developing common law in which the parliament disagrees

parliament then amends the law so that the intention is clear and the precedent set by statutory interpretation is invalid

42
Q

codification of common law

A

in order to make sure a precedent with which the parliament agrees is not changed in the future, parliament may choose to codify the precedent by making it legislation
- Grant v Australian Knitting Mills (1936) was codified into the Wrongs Act 1958 (vic)

43
Q

courts influencing parliament

A

obiter dictum = something said ‘by the way’ or ‘in passing’. such statements can be made in the judgements delivered by the court
- obiter dictum can influence parliament to make new laws or amend existing laws
- Trigwell case (sheep)

44
Q

characteristics of an effective law

A
  • known
  • enforcable
  • reflect societys values
  • laws should be stable
  • laws should be clear and understandable
45
Q

reasons for the victorian court hierarchy

A
  • precedent
  • appeals
  • specialisation
    (+ administrative convenience, time and money)

legal unit 1 (4 decks)

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