Legal Foundations Flashcards
Why do we need laws?
In other words, we need laws to achieve
social cohesion and to protect individual
rights
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.
Customs
Socially acceptable habits that have become common practice.
e.g. not smoking around children, not speaking with your mouth full, not sneezing all over someone.
* Made by society
* Interpreted by society
* Enforced by society
* Not adhering to the social custom / norm = social exclusion, labelling, disdain
Rules
Are non-legal guidelines which apply to a specific group of people.
e.g. house hold rules, sporting rules, school rules.
* Made by non-legal institutions or bodies e.g. families, sporting clubs
* Interpreted by sporting association, parents, school administration
* Enforced by non-legal individuals e.g. umpires, parents
* Breaking the rule = ban, fine, detention, grounded
Laws
Legal rules that everyone in society must follow.
- Made by parliament, subordinate authorities, or the courts
- Interpreted by the courts
- Enforced by the police
- Breaking the law = sanctions
Characteristics of an Effective Law
-Known
-Enforceable
-Reflects society’s values
-Stable
-Clear and Understandable
The Principles of Justice
Fairness, Equality, Access
Fairness
Impartial and just treatment or behaviour without favouritism or discrimination.
e.g.-The right to silence when being questioned by police
- Receiving a fair trial
-The ability of young people (under 18) to have a parent or guardian
present when being
questioned by police
Equality
The state of being equal, especially in status, rights or opportunities.
e.g.* 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
Access
The means or opportunity to access the legal system.
e.g. * 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
Three Levels of Government
- Commonwealth (Federal) Parliament—makes laws for the whole of
Australia - 6 state and 2 territory parliaments—make laws for their state or territory
- Over 500 local councils—make local laws (by-laws) for their region or
district
The Parliamentary System
The Constitution separates the functions of the legal system between the parliament, the executive, and the judiciary.
Role of parliament
The parliament makes and amends the law
Role of executive
The executive puts the law into action
Role of judiciary
The judiciary makes judgements about the law
Governor-General roles
- Giving royal assent to laws made by the houses of parliament.
- Commissioning the Prime Minister; appointing ministers and
assistant ministers; and swearing-in other statutory positions.
The Commonwealth Parliament
Commonwealth Parliament consists of:
* The King (represented by the Governor-General)
* Two houses (the Senate and the House of Representatives).
House of Representatives (Lower House)
-151 members representing 151 electorates
-The aim is to ensure that electoral divisions within each state or territory
contain approx. an equal
-Roles:
* Introduces bills.
* Reviews bills passed by the upper house.
* Holds government (political party, or parties in coalition, which holds the
majority of seats).
* Represents majority interests.
Senate (Upper House)
-The aim or intention is to ensure that each state/territory has equal
representation, regardless of population.
-There are 76 Senators
-Role:
* Reviews bills (proposed laws) introduced from the lower house.
* Introduces and passes bills.
* Known as the ‘house of review’ because most bills are introduced in l
lower house.
Division of Powers
The Constitution gives the Commonwealth / Federal Parliament exclusive powers in some areas
Eg. defence, currency, citizenship
Some powers are shared between the Commonwealth and the states. These are called concurrent powers.
Eg. Taxation
Powers not addressed in the Constitution are residual powers; these rest with the states.
Eg. Crime.
The Functions of Parliament
- legislation (making laws)
- representation (acting on behalf of voters and citizens)
- scrutiny (examining the government)
- formation of government
Victorian Parliament
The Parliament of Victoria also has two houses.
Representatives are elected to either the Legislative Council or Legislative
Assembly:
- The Legislative Council (the Upper House) - 40 members.
Designed to ensure that rural and metropolitan areas are given equal representation
(based on area, not population).
*The Legislative Assembly (the Lower House) - 88 members.
Electorates divided based on population.
Outline the steps involved in making a new law.
-First reading
-Second reading
-Debated by members of the house
-Passed by both houses
-Becomes an act (given name, number and year)
-Given royal assent
-Commencement (act becomes an actual law)
Why do laws change?
For social cohesion to exist, laws must be effective. If they do not meet certain aspects of the 5 characteristics of an effective law, the law may be changed.
Reasons for a Court Hierarchy
- Precedent
- Appeals
- Specialisation
- Time and money
- Administrative convenience
Precedent
-Precedent is a legal principle or rule established in a
previous legal case.
Precedent established by higher courts are binding
on lower courts in the court hierarchy.
Appeals
The process whereby decisions can be reviewed by a higher court,
should a party not be satisfied with the outcome of a case.
Specialisation
Having a court hierarchy allows courts to specialise in certain types of
cases.
It also allows judges to develop expertise in a particular area.
e.g. The Family Court of Australia
Time and Money
Having a court hierarchy saves time and money.
A court hierarchy saves time as less serious matters that do not take as
long to be heard can be heard in the lower courts, leaving the higher
courts to concentrate on more serious matters, thus streamlining the
process.
Administrative Convenience
A court hierarchy ensures administrative convenience as
administration can be dealt with more effectively when courts are
ranked and hear cases of a similar nature.
Jurisdiction
Jurisdiction refers to the power or authority of a court to hear and determine
specific cases.
Original jurisdiction
Original jurisdiction refers to the power of a court to hear a case in the first instance
Appellate jurisdiction
Appellate jurisdiction refers to the power of a court to hear a case for the second time on appeal
Court Hierarchy ( Most to least powerful)
-High Court of Australia
-Supreme Court (Court of Appeal)
-Supreme Court (Trial Division)
-County Court
-Magistrates’ Court
High Court of Australia
The High Court of Australia is the highest court in the Australian judicial system.
The High Court has original jurisdiction to hear cases of special federal significance including challenges to the constitutional validity of laws.
It also hears appeals, by special leave, from Federal, State and Territory courts.
Supreme Court (Court of Appeal)
The Court of Appeal hears appeals about decisions made in the County Court and the Trial
Division of the Supreme Court.
Supreme Court (Trial Division)
The Trial Division hears the most serious criminal cases like murder and attempted murder
and large/complex civil disputes involving claims of an unlimited amount.
The County Court
The County Court is an intermediate trial court, with both civil and criminal jurisdictions. It is above the Magistrates’ Court and below the Supreme Court in the Victorian courts hierarchy.
County Court hears serious criminal matters such as armed robbery, dangerous driving, drug offences and sexual assault offences. Civil matters involving claims of an unlimited amount (usually personal injury claims) are also heard in the County Court.
Magistrates Court
The Magistrates Court is the busiest court, handling approximately 90 per cent of all cases that come before Victoria’s courts. The Magistrates Court sits at 52 different locations state-wide.
The Magistrates Court hears less serious criminal matters including traffic offences, minor assaults, property damage and offensive behaviour. The Magistrates Court hears civil disputes involving claims of up to $100,000
