Legal foundations

Question 1

Rule

Answer 1

WHAT-non-legal rules/reg/codes/policies
WHO-private indiv/groups->specific groups of ppl
HOW-enforcement varies

Question 2

Law

Answer 2

WHAT-legal rules
WHO-legal institutions->society at large
WHERE-Cth/state parliaments via legislation and courts via cases
HOW-police and courts via sanctions

Question 3

Federation

Answer 3

PRIOR TO FED:
Aus=Brit, FNP=65000 yrs (‘terra nulius’)
increased popn + distance from UK= increased support for indep.
FED:
1 Jan 1901
decades of debate->formal discussion (imm/invasion fear/border control resources)
Asked for permission->Cth of Aus=constitutional monarchy (indep but monarch=head of state)

Question 4

Parliament

Answer 4

formal assembly made up of representatives of people who are elected by the ppl to make laws w/ exceptions of GG (appointed)-9

Question 5

Constitution=legal guidebook

Answer 5

ESTABLISHED PARLIAMENT:
bicameral, chosen by the people to represent the people
ESTABLISHED THE POWERS OF THE CTH + STATES:
division of powers-
Cth(supremacy)-immigration/defence/currency
States-education/health/crime
ESTABLISHED JUDICIAL ROLE OF HC:
only court to interpret constitution
determines if Plmt is outside jurisdiction
final court of appeal
ESTABLISHES HOW CONS CAN BE CHANGED:
referendum (DM-51%, 4/6 states)

Question 6

social cohesion

Answer 6

term to describe the willingness of members of society to cooperate w/ each other in order to survive and prosper

Question 7

indicators of social cohesion in society

Answer 7

-people can work and improve education
-indiv feel a sense of acceptance and belonging
-indiv fairly treated and not discrim against
-active and effective participation in govt and community based organizations by community members
-LS treats individuals equally and promotes accessibility

Question 8

indicators of social dysfunction

Answer 8

crime=against law= disagreement on morals and unharmonious=disregard for govt policies and rights of others
-lack of representation of society
-lack support support=can’t move out of cycle

Question 9

individuals promote social cohesion

Answer 9

aware of and following relevant laws, campaign for change if unjust

Question 10

law promoting social cohesion

Answer 10

Laws: set guidelines for what is acceptable/create boundaries to protect individuals/estab rule of law
outline and enshrine rights of all individuals to be treated fairly and w/o discrim

Question 11

legal system promotes social cohesion

Answer 11

institutions exist to effectively create, implement, enforce law:
plmt, police, court, flexibility of sanctions

Question 12

rule of law

Answer 12

principle that everyone in society is bound by law and must obey the law-should be clear so they can be obeyed

Question 12

fairness

Answer 12

All ppl can participate in the justice system and its processes should be impartial and open
-impartial processes, open processes, participation

Question 13

equality

Answer 13

everyone engaging in the justice system should e treated in the same way, if this creates disparity or disadvantage, adequate measures should be implemented to allow all to engage w/o disparity or disadvantage
-same treatment-formal equality
-different treatment-substantive equality

Question 14

access

Answer 14

all people should e able to engages with the justice system and its processes on an informed basis
Engagement-physical/financial access
Informed Basis-education, access to legal support services, legal rep

Question 15

impartial processes
open processes
participation

Answer 15

-all personnel w/in the legal system must act in a way that is impartial and independent-no bias or discrimination
-court processes must be transparent
-individuals can effectively participate in legal system: aware of charges, time to prepare case, aware of evidence

Question 16

what are the 5 characteristics of an effective law?

Answer 16

reflect society’s values
known
clear and understood
enforceable
stable

Question 17

laws reflecting societies values

Answer 17

value=belief/principle/idea-behave and treat others= important to uphold
laws regulate and restrict actions-need to be acceptable to community bc increases likelihood of being followed

Question 18

laws are enforceable

Answer 18

reprimand=ppl are inclined to follow (charged or sued)
enforced by courts/gvt bodies/police

Question 19

laws are known

Answer 19

public must be aware to be able to follow- responsibility of the individual (ignorance is not an excuse)
BUT lawmakers must keep public informed of new/changed laws (reported and debated in media before intro)-proceedings from Fed Plmt are broadcast on TV/radio and new Leg is published in govt Gazette

Question 20

laws are clear and understood

Answer 20

laws must be consistent and precise in wording-ppl in society can understand
(if ambiguous/inclear/legal jargon=less likely to be followed)

Question 21

Stable

Answer 21

cannot be constantly changing otherwise there will be confusion- ppl need to be confident the law can be relied on
Lawmaking bodies should attempt to forecast changes that may occur in the future

Question 22

what is the structure of Plmt

Answer 22

The crown
the senate (upper house/states house/house of review)
House of Reps (lower house/peoples house)

Question 23

The House of Reps

Answer 23

Forms govt-majority of members=leader is PM (PM chooses members)
Holds govt accountable-2nd largest political party forms the opposition/shadow ministers challenge and question govt on policy matters
Introduces and passes proposed laws-majority of bills intro in LH, if bill passed in senate=reviewed in LH
Represents ppls interests when debating + making laws

Question 24

Senate

Answer 24

reviews bills by LH
ensures equal rep for the states (12 per state, 2 per territory for 3 yrs)
introduces + passes proposed laws (cannot intro money bills)

Question 25

Statute law

Answer 25

Plmt= supreme lawmaking body in Aus- can override laws made by other bodies
Plmt made law=statute law

Question 26

stages of a bill through plmt

Answer 26

intro + first reading
2nd reading
committee stage/ consideration in detail
third reading
bill passes in first house
repeat for 2nd house
royal assent
proclamation
law

Question 27

Vic Plmt:

Answer 27

Premier of vic
Legislative assembly
legislative council

Question 28

Legislative assembly:

Answer 28

88 electorates-88 members in LA (4 years)
Forms govt-party w/ majority members forms govt- leader=premier (ministers=cabinet)
Holds govt accountable- 2nd largest party= opposition (shadow ministers)
Intro and passes proposed laws-majority of bills intro in LH, if in UH then LH will review
Represent the ppls interest when debating and making laws

Question 29

Legislative council:

Answer 29

8 regions, 11 districts, 5 members per region= 40 members
Reviews bills by LH
Intro and passes proposed laws

Question 30

Subordinate authorities

Answer 30

plmt= supreme law making body, doesn’t have time or resources to make all necessary laws for social cohesion
Law making bodies can be delegated to sub authorities to make minor laws in area of expertise=delegated/ subordinate legislation
E.G local councils about pet ownership/ rubbish removal/ parking

Question 31

Vic court hierarchy

Answer 31

HC of Aus
Supreme CoA
SUpreme TD
County Court
Magistrates court

Question 32

specialist courts

Answer 32

Childrens- criminal and family matters for children
Coroners- suspicious deaths and fires
SPEC DIVISIONS
Koori- within Mag and County= addressing disadvantage faced by FNP

Question 33

specialisation

Answer 33

courts develop expertise- assigned jurisdiction of each court

Question 34

Appeals

Answer 34

application to higher court for review
if there is a believed error- must have grounds to pursue an appeal (special leave for HC)

Question 35

Administrative convenience

Answer 35

time and resources- don’t delay and minimize time

Question 36

precedent

Answer 36

a legal principle made by courts
must be followed by lower courts in same hierarchy when similar cases arise - consistency and fairness and allows parties to predict likely outcome

Question 37

common/ case/ judge made law

Answer 37

laws made by judges applied to specific cases with no current statute laws

Question 38

statutory interpretation

Answer 38

judge interpret meaning of words in statute when applying it to accused (broad/outdated wording/ drafting mistake

Question 39

ratio decidendi
obiter dictum

Answer 39

-the reason for the decision (binding)
-by the way (suggestions)

Question 40

methods of avoiding precedent

Answer 40

distinguish- material facts sufficiently different
overruling-higher court in different case says precedent no longer applies= new precedent
reversing- same case is appealed and higher court changes decision
disapproving-follows binding precedent but disagrees in obiter dictum

Question 41

donoghue vs stevenson

Answer 41

snail in bottle- no contract w café so couldn’t sue- sued manufacturer for negligence (neighbor principle- reasonable foreseeability)

Question 42

codification

Answer 42

plmt can make legislation to codify/ reinforce precedent set by court

Question 43

abrogation

Answer 43

plmt can make legislation that abrogates/overrides a common law principle IF:
the way a astatute is interpreted does not align with plmts intent or does not reflect the current meaning of the legislation
OR
plmt doesn’t agree w/ precedent

Question 44

judicial influence

Answer 44

in judgement courts may influence plmt to change law (obiter dictum) IF
the courts are bound by unjust/ outdated precedents
OR
judges believe plmt are in a better position to change law

Question 45

criminal law

Answer 45

criminal law- an area of law that aims to protect society from harm by defining prohibited behaviours and outlining sanctions for those who participate in illegal conduct
crime-an act or omission that violates an exisiting law, causes harm to an individual or society and is punishable by law
parties- accused and prosecution
burden of proof- prosecution
standard of proof- beyond reasonable doubt
sanctions- imprisonment/ fine

Question 46

civil law

Answer 46

civil law-an area of law that aims to protect individuals, businesses and organisations by providing them with the legal framework to seek a remedy when their rights have been breached by another party
parties- plaintiff and defendant
burden of proof- plaintiff
standard of proof- on balance of prob
remedies- damages/ injunctions