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Year 11 Legal Studies > Legal Foundations > Flashcards

Legal Foundations Flashcards

Rules, Laws and Parliament

1
Q

Rules

A

Non-legal rules: these are regulations/codes/policies made by private individuals or groups in society.
They do not originate from legal institutions such as parliament of the courts.

Rules only apply to a specific group of people as oppose to the whole of society and the way they are enforced can vary.

Eg.
> Household rules
> School rules
> Rules within Sport Organizations

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2
Q

Laws

A

Laws are legal rules made by legal institutions (parliaments or the courts), apply to society at large and are enforceable by the police and the courts.

Eg.
> Parliament - Commonwealth or State Laws
> Courts - interpretation of statutes or ruling over cases

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3
Q

When did Australia become a federation?

A

1st January 1901

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4
Q

Parliament

A

A parliament is a formal assembly made up of representatives of people who are elected by the people to make laws, with the exception of the Governor General/Governor who is appointed.

There are 9 parliaments in Australia
> Commonwealth
> States and Territories

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5
Q

Significance of the constitution

A

> It establishes parliament (bicameral structure, chosen and represents people).
It establishes the law making powers of Cth. and States (div. of powers, express, residual, supremacy).
It establishes judicial role of HC (interpret const., determine whether Cth. acted in jurisdiction, final CoA).
It establishes how the const. can be changed (referendum, double majority).

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6
Q

Social Cohesion

A

A term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper.
Aims to:
> Improve the wellbeing of all members of society
> Minimize disparities
> Avoid marginalization

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7
Q

Socially cohesive looks like

A

People working and improving education, sense of acceptance and belonging, individuals are fairly treated and not discriminated against, legal system promotes equal treatment and accessibility and there is an active and effective participation in government and community based organizations

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8
Q

Socially Dysfunctional Looks Like

A

Increased crimes statistics, violent and aggressive protests, increased recidivism rates

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9
Q

Law Promote Social Cohesion

A

Laws in each society reflect behaviors and values that are prioritized.
Laws set up guidelines for what is acceptable, create boundaries to protect individuals, establish rule of law. These legislation outlines and enshrines the rights of all individuals to be treated fairly
Eg. Aus federal act, The Fair Work Act (2009)

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10
Q

Rule Of Law

A

The principle that everyone in society is bound by the law and must obey the law. Hence, the law should be clear so people can obey them

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11
Q

Individuals Promote Social Cohesion

A

Individuals promote social cohesion by following the law - ‘everyone doing their bit’.
Not everyone is expected to know every single law, just the ones which apply to them.
Individuals can advocate for change if they do not believe in a law.

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12
Q

Legal System Promotes Social Cohesion

A

The LS promotes social cohesion by ensuring that institutions exist to effectively create, implement and enforce the law. These institutions include;
> Parliament
> The police
> The courts
> Flexibility of sanctions

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13
Q

Principles of Justice
Fairness

A

All people can participate in the justice system and its processes should be impartial and open.
Impartial process - all personnel within the legal system including the judge/magistrate, jury members, court personnel must act in a way that is impartial and independent, in order to show no bias or discrimination.

Open processes - court processes must be transparent - open court rooms to allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury.

Participation - individuals must be able to effectively participate in the legal system - through being aware of changes laid against them, having time to prepare their case, bring aware of the evidence brought against them

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14
Q

Principle of Justice
Equality

A

All people engaging in the justice system should be treated in the same way; if the same treatment creates disparity or disadvantage; adequate measures should be implemented, to allow all to engage with the justice system without disparity or disadvantage.

This includes;
> Formal equality, which refers to the same treatment whereby all individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race, religion, gender, identity or age.
> Substantive equality, which refers to different treatment whereby if the legal system did treat people in the same way but in doing so causes disadvantage or disparity then measures/adjustments should be put in place to allow people to participate in the justice system.

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15
Q

Access

A

All people should be able to engage with the justice system and its processes on an informed basis.
Engagement - physical access - the location of courts in Victoria (rural people may have limited physical access)
- financial access - Victorian Legal Aid is limited in its funds and therefore limited to the amount it is able to support people who cannot afford legal representation

Informed basis - education - higher education generally means people are more informed about their rights
- access to legal support services - free access can help people become more informed of their rights
- legal representation - particularly when accused

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16
Q

Characteristics of an Effective Law

A
  1. Reflect society’s values
  2. Are enforceable
  3. Are known
  4. Are clear and understood
  5. Are stable
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17
Q

Reflect Society’s Values

A

A value is a belief, principle or idea about the way we should behave and treat others, which are deemed important to uphold. As laws regulate and restrict actions, it is vital that they align with current societal values as it means society as a whole is more inclined to follow them.

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18
Q

Enforceable

A

People would be less likely to follow a law if there was no punishment for breaking one. Those who break the law may be apprehended and charged (Crim.) or sued (Civ.). The law is enforced by Australian courts, by various government bodies and by the police.

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19
Q

Known

A

The public must be aware of laws in order to follow them, but it is their responsibility to ensure that they are informed of laws that apply to them (ignorance of the law is not an excuse). Law making bodies must inform the public of new/changing laws to ensure that people have access to know laws.

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20
Q

Clear and Understood

A

Legislative drafters must be clear and consistent with their wording (no legal jargon) so that in can be interpreted and followed by people in society.

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21
Q

Stable

A

Laws cannot be constantly changing otherwise it will cause confusion amongst society and a decreased reliance on the law. Legislative bodies should attempt to forecast changes to laws so that people are aware of the changes.

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22
Q

Structure of Commonwealth Parliament

A

The Commonwealth Parliament is a bicameral parliament because it has two houses. These are;
> The House of Representatives
> The Senate
All members of these houses are elected by the people of the nation. The ONLY member of government not elected by the people is the Governor General - he is appointed by the reigning monarch to represent the Crown.

23
Q

House of Reps.
The Lower House
The Peoples’ House

A

Forms government, 151 Seats available
> Political party w/most members in HOR forms government (second largest becomes Opposition). Leader becomes PM
> PM then chooses ministers to be responsible for different policies - this forms the Cabinet. Shadow ministers (Opposition) challenge the gov. on policy matters.
> Majority of bills are introduced in the Lower House, if not then reviewed in HOR

REPRESENTS THE PEOPLE’S INTERESTS WHEN DEBATING AND MAKING LAWS

24
Q

Senate
Upper House
House of Review
States House

A

> Mostly reviews bills passed through HOR
76 Senators
Each state has 12 senators (for 6 years) and each territory has 2 (for 3 years)
Can introduce bills as long as it does not involve/generate revenue or spend money

25
Q

Statute Law

A

Plmt is the supreme law making body in Aus and can override laws made by other bodies, incl. courts. Law made by plmt is called statute law, Acts of Parliament or legislation. Must pass both houses - several stages and must have majority vote. Must then receive royal assent from the GG b4 it becomes a law.

26
Q

Structure of Victorian Parliament

A

Victorian Parliament consists of the Governor (who represents the Crown), the Legislative Assembly (the Lower House) and the Legislative Council (the Upper House).

27
Q

Legislative Assembly
Lower House

A

Victoria is divided into 88 electoral districts and each district is represented by a member. Each member is elected for a period of four years. The political party with the majority of members in the lower house forms government (the leader if the party becomes Premier of Victoria). The premier then chooses member to be responsible for different portfolios - this forms the Cabinet. The second largest political party becomes the opposition, with shadow ministers to hold the government accountable. Majority of bills are introduce here, with the purpose of the LA to represent the people’s interests when debating and making laws.

28
Q

Legislative Council

A

The upper house of Vic Parliament. Vic is also divided into 8 regions, each consisting of 11 districts - 5 members are elected from each region meaning there are 40 members who sit in the LC. The most common role of the LC is to review bills that have passed the LA although it can introduce bills as well.

29
Q

Subordinate Authorities

A

Parliament = supreme law-making body h/w not have time or resources to make all laws necessary t/f law-making power can be delegated (by both PLMT) to subordinate authorities to make minor laws in their expertise. K/As delegated or subordinate legislation, e.g. local councils, VicRoads.

30
Q

Victorian Court Hierarchy

A

A court hierarchy refers to the ranking of courts based on their jurisdiction (power; lawful authority) to hear various matters. Higher courts hear more serious/complex cases whilst lower courts hear minor matters.
Victorian Court Hierarchy:
> High Court of Australia (federal court)
> Supreme Court - Court of Appeal
> Supreme Court - Trial Division
> County Court
> Magistrates’ Court

Specialist Courts
> Children’s Court
> Coroner’s Court
> Koori Court

31
Q

Reasons for Court Hierarchy

A

Specialization
Administrative convenience
Appeals
Precedent

32
Q

Specialization

A

Refers to the process of a court developing expertise in a particular area of law as a result of hearing similar matters regularly. Is facilitated by the assigned jurisdiction of each court. E.g. in criminal law the Magistrates’ Court specializes in less serious offences such as drink driving whilst the Supreme Court has expertise in hearing the serious case such as murder.

33
Q

Appeals

A

Refers to an application to have a higher court review a ruling. If a person believes that an error has been made in their case, they can appeal the case to a higher court.
A person must have ‘grounds’ to pursue an appeal including a question of fact or a question of law. A person must also have special leave to appeal a case to the High Court.

34
Q

Administrative Convenience

A

Refers to the systematic benefit derived from legal matters being distributed amongst the courts according to their complexity. By separating minor offences and disputes from the more serious and complex ones;
> superior courts are free to devote time and resources to long complicated cases as they are not delayed resolving minor matters
> the lower courts can quickly resolve a large number of relatively minor offences and disputes minimizing delays for all parties involved

35
Q

Precedent

A

The doctrine of precedent refers to the legal mechanism by which past decisions made in higher courts must be followed by lower courts in the same hierarchy when similar cases arise.
This enables consistency and fairness to be achieved when applying the law in a similar fashion and enable individuals and lawyers to predict the likely outcome of a case.

36
Q

Common Law

A

The primary role of courts is to resolve cases by applying existing laws to factual scenarios.
The secondary role is to make law as part of their case determinations. (common law, case law or judge-made law)
> Statutory interpretation - judges interpret the meaning of words in a statute when applying it to a case before the court.
> Precedent - judges decide a new issue in a case before the court where there is no legislation in the are or when a previous principle of law requires expanding to cover a new situation.

37
Q

Statutory Interpretation

A

Acts need to be interpreted so that courts can clarify the meaning of legislation to better apply it to a particular case. (legislation is created to suit a wide range of circumstances t/f wording can be broad; wording can change over time; there may have been a drafting mistake: hence meanings need to be clarified)

To interpret judges;
1. examine the plain and literal meaning of words in the statute
2. examine the statute as a whole as the meaning of ambiguous words may be clarified in other sections such as objects, clauses and definitions sections
3. examine the context of the statute via extrinsic materials such as;
> relevant reports of Royal Commissions, law reform commissions and inquiry committees
> parliamentary materials such as second reading speeches
> treaties and international agreements referred to in the statute
4. favoring interpretations that uphold peoples’ fundamental rights and freedoms

38
Q

Effects of Statutory Interpretation

A
  1. Widen the scope of the law. A wide interpretation of a word or phrase may extend the statute to cover a new situation
  2. Narrow the scope of the law through a restrictive interpretation.
  3. Set precedent. The interpretation of words in a statute forms part of the common law and must be followed in future cases with similar facts.
39
Q

How is precedent created

A

A precedent is a legal principle established by judges that should be followed by courts in later cases when similar facts arise.
> created through statutory interpretation
> created when a court decides a case that is the first of its kind

40
Q

Stare decisis

A

‘to stand by what has been decided’ - when a court follows the precedent set by a higher court

41
Q

Binding precedent

A

Must be followed
> set by a higher court in the same hierarchy
> material facts are similar

42
Q

Persuasive precedent

A

Does not have to be followed
> set by another state or country
> set by a lower court in the same court hierarchy
> set by the same court in the same hierarchy

43
Q

Ratio decidendi

A

‘the reason for the decision’ - binding part of the judgement that must be followed by courts lower in the hierarchy

44
Q

Obiter dictum

A

‘by the way’ - persuasive part of the judgement that does not have to be followed but can provide suggestions for judges and other law makers in the future

45
Q

Developing/Avoiding precedent

A

Distinguishing - material facts in the new case are sufficiently different from the material facts in the binding precedent

Overruling - a higher court states that the precedent set by a lower court in a different case no longer applies. This becomes the new precedent

Reversing - the same case is appealed to a higher court and the superior court changes the decision of the lower court. This becomes the new precedent

Disapproving - a court follows a binding precedent but expresses disagreement with it in its obiter dictum. This does not change the precedent (immediately - could be taken as a suggestion)

46
Q

Donoghue v. Stevenson

A

UK - persuasive on Grant v. Australian Knitting Mills
Donoghue consumed decomposed snail and fell ill. Could not sue café bc not entered into contract (her friend bought the ginger beer)
Initial case failed - succeeded on appeal
Established negligence as there had been no other case like it so the court got to make common law.

47
Q

What are the four main relationships between parliament and the courts?

A
  1. Statutory interpretation
  2. Codification of common law
  3. Abrogation of common law
  4. Ability of courts to influence parliament
48
Q

Codification

A

As the supreme law-making body, parliament can make legislation that codifies (reinforces, confirms) precedent set by a court. For example, self defense was once common law but was codified into the Crimes Act 1958 (Vic) in 2005.

49
Q

Abrogation

A

As the supreme law-making body, parliament can make legislation that abrogates (overrides, abolishes) a common law principle. This occurs if the statute is interpreted in a way that does not align with parliament’s intent or reflect the current meaning of the act or if precedent is created or applied that parliament does not agree with.

50
Q

Judicial Influence

A

In their judgements, courts may influence parliament to change the law by commenting on the need for reform. This is given in the judges obiter dictum because the courts are either bound by unjust or outdated precedent or the judges may believe that parliament is in a better position to change the law.

51
Q

Criminal Law Aim

A

an area of law that aims to protect society from harm by defining prohibited behaviors and outlining sanctions for those who participate in illegal conduct.

Prosecution - representative of the state (OPP) and burden of proof lies with them
Accused - innocent until proven guilty
Standard of proof - beyond reasonable doubt
Sanctions - Imprisonment or fine

52
Q

Crime

A

an act or omission that violates an existing law, causes harm to an individual or society and is punishable by law.
> Crimes against the person; assault, murder, manslaughter
> Crimes against property; theft, robbery, property damage
> Drug offences; possession, use, trafficking
> Public order and security offences; public nuisance, grossly offensive conduct

53
Q

Civil Law Aim

A

an area of law that aims to protect individuals, businesses and organizations by providing them with the legal framework to seek a remedy when their rights have been breached by another party.
Plaintiff - BOP and seeking remedy
Defendant - innocent until guilty
SOP - on the balance of probabilities
Remedy - damages or injunction (return them to their original position)

Claims
> Tort; negligence, defamation, nuisance, trespass
> Contract; breach of contract
> Family; divorce, property settlement, child maintenance
> Industrial and Workplace; union disputes, OH&S, work conditions
> Consumer; advertising, sale of goods and services

Year 11 Legal Studies (6 decks)

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