legal foundations Flashcards
Lesson one
Define social cohesion
The ability of a community to live together in a peaceful, orderly and harmonious manner by recognising that all people have rights and responsibilities
Lesson one
Define the protection of individual rights
All individuals have basic rights, such as the right to life, the right to privacy and the right to practice a religion. law ensure that individual rights are protected
Lesson one
Define rules
Non legal guidelines which apply to a specific group of people
Lesson one
Who are rules made by?
Rules are made by non legal institutions
e.g. families, sporting clubs
Lesson one
Who are rules interpreted by?
Rules are interpreted by sporting associations, parents, school administration
Lesson one
Who are rules enforced by?
Rules are enforced by non legal individuals
e.g. umpires and parents
Lesson one
What could happen if you break a rule?
Breaking a rule could result in receiving a ban, fine, detention or becoming grounded
Lesson one
Define law
Legal rules that everyone in society must follow
Lesson one
Who are laws made by?
Laws are made by parliament, subordinate authorities and courts
Lesson one
Who are laws interpreted by?
Laws are interpreted by the courts
Lesson one
Who are laws enforced by?
Laws are enforced by police
Lesson one
What are the consequences of breaking laws?
Breaking a law can result in receiving a sanction
Lesson one
What are the contributing factors that contribute to social cohesion?
Role of the law
Role of individual
Role of the legal system
Lesson one
How do individuals play a role in achieving social cohesion?
Respecting human rights
Assisting police with investigations (being a witness)
Reporting crimes
Using the legal system to resolve disputes
= choosing to follow the law or not
Lesson one
How does the legal system play a role in achieving social cohesion?
Protects rights of individuals when disputes arise
Enforces consequences when individuals break a law
Enforces the law to ensure that rights are upheld and society functions effectively
Lesson one
How does the law play a role in achieving social cohesion?
Establishes a framework within which people live
Set boundaries on behaviour (what is acceptable and unacceptable)
Allow individuals to make choices about how they live
Protect rights of individuals
Establishes guidelines for sanctions
Lesson two
What are the three principles of justice?
Fairness, equality and access
Lesson two
Define fairness
Impartial and just treatment or behaviour without favouritism or discrimination
Lesson two
What are examples of fairness in the legal system?
Right to silence when being questioned by police
Ability of young people to have a parent or guardian present when being questioned by police
Being informed of the crimes with which you have been charged
Being able to access legal representation
Having access to an interpreter if needed
Receiving a fair trial
Being given adequate time to prepare your case
Right to a fair trial and public hearing before an independent and impartial court
Presumption of innocence
Right to examine witnesses in court
Lesson two
What does fairness ensure?
Fairness ensures all are treated fairly and impartially without fear or favouritism
Lesson two
Define equality
The state of being equal especially in status, rights or opportunities
Lesson two
What are examples of equality in the legal system?
Both parties have a right to legal representation
Both parties have equal opportunity to present their case
Both parties are treated equally with regard to strict rules of evidence and procedure in court
The judge is an independent and impartial adjudicator who treats both parties equally
Lesson two
What are examples of equality in the legal system?
Both parties have a right to legal representation
Both parties have equal opportunity to present their case
Both parties are treated equally with regard to strict rules of evidence and procedure in court
The judge is an independent and impartial adjudicator who treats both parties equally
Lesson two
What does equality ensure?
Equality ensures all are treated equally or alike with the same status, rights and opportunities
Lesson two
Define access
The means or opportunity to access the legal system
Lesson two
What are examples of access in the legal system?
Access to an interpreter if needed
The ability to access legal representation even if you cannot afford to pay (legal aid)
Being able to access a court in your geographic area
Having access to the evidence that will be presented against you in court
Having right to appeal the courts decision (access to a higher court)
Ensures all have the means or opportunity to attain dispute settlement
Lesson three
What are the 5 characteristics of an effective law?
- Reflect society’s values
- Enforceable
- Known
- Clear and understandable
- Stable
Lesson three
What does it mean for a law to reflect soceity’s values?
The law reflects the moral values and beliefs of the society in which it operates.
Lesson three
What does it mean for a law to be enforceable?
Laws need to be enforceable to ensure that justice can occur
e.g. fines, imprisonment, police, transit officers
Lesson three
What does it mean for a law to be known?
Laws must be known in order for people to follow them. Ignorance of the law is not an excuse - advertising campaigns (newspaper, websites, billboards ect.) to raise awarness ad make the law clear
Lesson three
What does it mean for a law to be clear and undertsandabl?
Laws should be written in plain English (no legal jargon) so that people can understand the intention of the law because if people do not understand the law, they will not follow it
Lesson four
What does it mean for a law to be stable?
Laws shouldn’t continue to change rapidly otherwise they can become confusing and inconsistent
however, laws need to be flexible enough to overcome future problems and reflect society’s values
Lesson four
How can laws be classified?
The two ways in which laws can be classified is by the source of the law (i.e. the institution that made the law) and the type of law (i.e. criminal or civil law)
lesson four
What are the two sources of law?
parliaments and courts
with both having the abillity to make laws however parliament is the supreme law making body
Lesson four
parliament
Main role is to make laws.
Known as statute law / legislation / acts of parliament
Lesson four
Courts
Main function of the courts is to settle disputes by interpreting and applying the law however can also make laws, known as common law / judge-made law / case law / precedent
Lesson four
What is criminal law concerned with?
criminal law is concerned with protecting the community as a whole and controlling behaviour by punishing offenders
e.g. of crimes inc. homocide, assault and theft
Lesson four
What is civil law concerned with?
Civil law is concerned with protecting the rights of individuals by providing remedies which restore the plaintiff to their original state
e.g. of civil law inc. negligence, defamation and contract
Lesson four
Criminal law vs Civil law
(Aim)
Criminal law: protection of te community as a whole
Civil law: protection os individual rights
Lesson four
Criminal law vs Civil law
(parties)
Criminal law: prosecution rep the crown / Defence rep the accused on trial
Civil law: plaintiff, party whose rights have been infringed / Defendant, party being sued
Lesson four
Criminal law vs Civil law
(burden of proof)
Criminal law: prosecution to prove the wrongdoing of the accused
Civil law: plaintiff to prove the wrongdoing of the defendant
Lesson four
Criminal law vs Civil law
(standard of proof)
Criminal law: beyond reasonable doubt
Civil law: on the balance of probabilities
Lesson four
Criminal law vs Civil law
(outcomes)
Criminal law: sanctions
Civil law: remedies
Lesson four
Criminal law vs Civil law
(jury)
Criminal law: compulsory in CC and SC however it is not used in the MC. Not used in appeals or when plea of guilty is entered. Made up of 12 jurors
Civil law: optional in civil trials, requested by at least one of the parties. Made up of 6 jurors
Lesson five
What does the Australian constitution do?
Sets out the guidelines and principles for how country is governed and lays down the authority of the government and parliament and est. the division of powers
Lesson five
Define specific powers
The power of the Commonwealth Parliament to make laws ‘for the peace, order and good government of the commonwealth’ is specifically stated in section 51 of the constitution.
e.g. defence, taxation and marriage
Lesson five
Define exclusive powers
Section 52 of the constitution states that the Commonwealth parliament has exclusive power to legislate in certain areas
e.g. printing $, defence, immigration
Lesson five
Define concurrent powers
Powers that are shared by both Commonwealth and state parliaments
e.g. taxation, education, health
Lesson five
Define residual powers
Any power that was not specifically mentioned in the Constitution as being a power given to the Commonwealth Pariament remained a state power. these included large areas of law making such as criminal and civil law, health and education
Lesson five
What are inconsistent laws?
Stated in section 59 of the constitution provides for cases where a state introduces law which is inconsistent with a commonwealth law. in such situations, the Commonwealth law will prevail to the extent of the inconsistency
Lesson five
What is the role of the Senate?
Reviews bills introduced from the lower house
Introduces and passes bils
lesson five
What is the senate?
76 senators. known as the ‘house of review’ or the ‘States’ house’ because each state / territory has equal representation, regardless of population
Lesson five
What is the role of the house of representatives?
Introduces bills
Reviews bills passed by the uppoer house
Holds government
Lesson five
What is the crown (in Commonwealth and Victorian parliament)
Representative of the King
The (Commonwealth: Governor General / Victorian: Governor) gives royal assent to laws passed by both houses of parliament
Lesson five
What is the House of Representatives?
151 members representing electorates with approx. the same number of voters in each electorate
Lesson five
What is the Legislative Council (upper house)
40 members
Designed to ensure that rural and metropolitan areas are given equal representation (based on area, not population)
Lesson five
What is the Legislative Assembly (lower house)?
88 members
Electorates divided based on population
Lesson six
What is a precedent?
A legal principle developed by a court which all lower courts in the court hierarchy must follow
Noted in the judgement
Can be est. through statutory interpretation and by way of common law decision
Lesson six
What are the two parts of a judgement?
Ratio decidendi
Obiter dictum
Lesson six
What is the ratio decidendi
The reasoning behind the decision
Lesson six
What is the obiter dictum?
A comment made ‘by the way’. These do not form part of the reasoning for the decision, or part of the precedent, but can influence future cases
Lesson six
What is common law precendent?
Formed when there is a case before the court for which there is no existing law (test case)
A new situation before the courts = no legislation and no previously-made common law
Court must make a decision and reasoning behind this decision (ratio decideni) will form precedent to be followed in the future
Lesson six
What is an example of a case which is a common law precedent?
Donoghue v Stevenson
Lesson six
What is statutory interpretation?
When a case comes before the courts for which there is existing legislation, if legislation already exits in an area of law, courts will sometimes need to interpret how it applies to the case they are hearing. Interpretation will be required if there is confusion or uncertainty about terms used within the relevant act of parliament
Lesson six
How can courts determine the meaning of terms within the law?
Courts might consult an interpretation act or they might refer to the 2nd readings speeches made in parliament to determine the intent of parliament in making the law. Courts can also refer to both legal and standard English dictionaries and previous courts decisions
Lesson six
What is a example of a case which is statutory interpretation?
Studded belt case.
The court had to determine whether the studded belt was a regulated weapon according to the Control of Weapons Act 1990 (Vic)
Lesson six
What is a binding precedent?
Must be followed by all lower courts:
In the same court hierarchy as the precedent-setting court
The material facts of the current case need to be similar of those of the precedent-setting case
Lesson six
What is an example of a binding precedent?
Decision handed down in Grant v Australian Knittinf Mills was binding on all courts in Australia as the decision was made in the High court of Australia
Lesson six
What is the persuasive precedent?
Does not need to be followed by other courts because the decision was:
Made in either a lower (or equal level) court
Made in a court in another juridisction
The facts of the 2 cases are not necessarily exactly the same (different material facts)
h/w pp. may still be considered relevant and taken into account by judges in other courts in future cases
Lesson six
What is an example of a persuasive precedent?
Donoghue v Stevenson was not binding on Autralian courts, as it was British case (different jurisdiction / outside of Aus) h/w the decision in that case was taken into consideration in the case of Grant v Australian Knitting Mills. It was t/f persuasive in the development of Australian negligence law
Lesson seven
Define jurisdiction
The power of a court to hear and determine particular type of case
Lesson seven
Define original jurisdiction
the types of cases heard in the 1st instance / the case is being heard for the 1st time
Lesson seven
Define appellate jurisdiction
The types of cases heard on appeal / the case is being reviewed from a lower court
Lesson seven
What are the reasons for a court hierarchy?
PASTA
P: precedent
A: appeals
S: specialisation
T: time and money
A: administrative convenience
Lesson seven
How does the court hierarchy meet the principle of justice, fairness?
Each party has the right to an appeal and their case can be reveiwed by a higher court
Lesson seven
How does the court hierarchy meet the principle of justice, equality?
The doctrine of precedent ensures that decisions are applied in the same way, that way each case is treated similarly
Specialisation means that each case is treated with the experience and knowledge of the law
Lesson seven
How does the court hierarchy meet the principle of justice, access?
There are magistrates’ courts in various locations around the state. This way, matters can be heard locally.
The distribution of cases amongst different courts also enhance access
Lesson eight
What is parliament sovereignty?
Parliament is the ultimate law making body, meaning the laws of parliament override the laws of all other law-making bosides, such as courts and subordinate authorities
Lesson eight
Relationships between parliament and courts
(abrogation of common law)
Sometimes courts will interpret legislation in a way that parliament did not intend when it was written.
A court might also develop common law w/ which the parliament disagrees.
Parliament may also choose to amend the law so that its intention is clearer or est. new law which addresses the common law
When this happens, the precedent set by the statutory interpretation or common law is no longer valid and the courts will need to use the legislation in the next case that is presented.
Lesson eight
What is an example of a case which involved the abrogation of common law?
Trigwell case when Victorian parliament passed law addressing common law of concern
Lesson eight
Relationships between Parliament and courts
(Codification of common law)
Sometimes, an issue might present in court that parliament has not considered.
In order to make sure a precedent, w/ which that parliament agrees is not changed in the future, a parliament may choose to codify (or confirm) the precedent by making it legislation
Once codification has occurred, courts are not abe to change the law
Lesson eight
What is an example of case which involved the codification of common law?
Codification occurred when the Victorian Parliament chose to codify the precedent set in Grant v Australian Knitting Mills by producing the Wrongs Act 1958 (Vic)
Lesson eight
Relationships between Parliament and courts
(Ability of courts to influence parliament)
Courts can influence parliament through the obiter dictum, a statement of the court made ‘by the way’ can influence parliament to make new laws or amend existing laws
Lesson eight
Why might a judge make an obiter dictum?
To indicate that a law should be changed by parliament
They think that parliament is in a better position to change the law (e.g. toowide of an area of law)
Parliament can carry out investigations while courts cannot (Royal commissions)
Lesson eight
What is an example of a case that involved courts influencing parliament?
Trigwell case
