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Legal foundations Flashcards

1
Q

Rule

A

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

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2
Q

Law

A

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

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3
Q

Federation

A

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)

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4
Q

Parliament

A

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

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5
Q

Constitution=legal guidebook

A

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)

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6
Q

social cohesion

A

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

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7
Q

indicators of social cohesion in society

A

-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

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8
Q

indicators of social dysfunction

A

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

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9
Q

individuals promote social cohesion

A

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

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10
Q

law promoting social cohesion

A

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

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11
Q

legal system promotes social cohesion

A

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

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12
Q

rule of law

A

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

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12
Q

fairness

A

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

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13
Q

equality

A

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

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14
Q

access

A

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

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15
Q

impartial processes
open processes
participation

A

-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

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16
Q

what are the 5 characteristics of an effective law?

A

reflect society’s values
known
clear and understood
enforceable
stable

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17
Q

laws reflecting societies values

A

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

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18
Q

laws are enforceable

A

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

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19
Q

laws are known

A

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

20
Q

laws are clear and understood

A

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

21
Q

Stable

A

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

22
Q

what is the structure of Plmt

A

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

23
Q

The House of Reps

A

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

24
Senate
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)
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Statute law
Plmt= supreme lawmaking body in Aus- can override laws made by other bodies Plmt made law=statute law
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stages of a bill through plmt
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
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Vic Plmt:
Premier of vic Legislative assembly legislative council
28
Legislative assembly:
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
29
Legislative council:
8 regions, 11 districts, 5 members per region= 40 members Reviews bills by LH Intro and passes proposed laws
30
Subordinate authorities
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
31
Vic court hierarchy
HC of Aus Supreme CoA SUpreme TD County Court Magistrates court
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specialist courts
Childrens- criminal and family matters for children Coroners- suspicious deaths and fires SPEC DIVISIONS Koori- within Mag and County= addressing disadvantage faced by FNP
33
specialisation
courts develop expertise- assigned jurisdiction of each court
34
Appeals
application to higher court for review if there is a believed error- must have grounds to pursue an appeal (special leave for HC)
35
Administrative convenience
time and resources- don't delay and minimize time
36
precedent
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
37
common/ case/ judge made law
laws made by judges applied to specific cases with no current statute laws
38
statutory interpretation
judge interpret meaning of words in statute when applying it to accused (broad/outdated wording/ drafting mistake
39
ratio decidendi obiter dictum
-the reason for the decision (binding) -by the way (suggestions)
40
methods of avoiding precedent
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
41
donoghue vs stevenson
snail in bottle- no contract w café so couldn't sue- sued manufacturer for negligence (neighbor principle- reasonable foreseeability)
42
codification
plmt can make legislation to codify/ reinforce precedent set by court
43
abrogation
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
44
judicial influence
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
45
criminal law
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
46
civil law
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
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1/2 Legal (6 decks)

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