Legal foundations

Question 1

Equality

Answer 1

Definition-
All people engaging in the justice system should be treated in the same way; if the same treatment creates disparity or disadvantage, measures should be implemented to allow engagement without said disadvantages.

Same treatment: Formal equality ( same treatment no matter what)

Different treatment: substantive equality (implemented measures to ensure fair outcomes)

Question 2

Fairness

Answer 2

Definition-
All people can participate in the justice system and its processes should be impartial and open.

Includes:
-Impartial processes (all members of process can’t show bias ect)

-Open processes (allow media, open courts)

-Participation (time to prepare case, Understand charges ect)

Question 3

Access

Answer 3

Definition-
All people should be able to engage with the justice system and its processes on an informed basis.

Engagement: physical and financial access.

Informed basis: education, Access to legal support, Legal representation.

Question 4

CCharacteristics Of An Effective Law

Answer 4

1) Reflects Society’s Value
2) Enforceable
3) Known
4) Clear and understandable
5) Stable

Question 5

Structure of Commonwealth Parliament

Answer 5

(Parliament Of Australia or Federal Parliament)

Consists of:
-The King/ Crown (rep by GG)
- House of Reps
- Senate

Question 6

House of representatives

Answer 6

(Lower house, Peoples house)

-Made up of 151 members (voted in by each electorate) every 3 years
- Party with majority votes= Government (prime minister, Cabinet ect)
- 2nd majority= opposition

Question 7

Senate

Answer 7

(upper house, States)

Consists of 76 Senators
- Each states gets 12 members, each territory gets 2.
- They scrutinize/ Review proposed bills and can propose them

( cannot propose bills on money)

Question 8

Governor-General

Answer 8

Representative of the Crown- Approves the bill before it becomes a law (grants Royal Assent)

Question 9

Statute law

Answer 9

Law made and passed by parliament.
( has passes through both houses and Royal assent)
- It overrides other laws made by other bodies (eg court)

Question 10

Structure of Vic parliament

Answer 10

Made up of the:
-Crown (rep by Governor)
- Legislative Assembly ( lower)
- Legislative Council (upper)

Question 11

Legislative Assembly

Answer 11

88 members elected for 4 years.
- Party with most members= Government and Premier ( who chooses minister)

Question 12

Legislative council

Answer 12

40 member (8 regions each electing 11 members)
- Scrutinizes and debates bills passed by lower
- Can introduce bills.

Question 13

Subordinate Authorities

Question 14

Common Law

Question 15

Doctrine of Precedent

Answer 15

Legal principle established by judges that should be followed by courts when similar cases arise. STARE DECISIS ( stand by what’s been decided)

Question 16

Binding Precedent

Answer 16

Precedent set by courts that MUST be followed by lower courts in the same court hierarchy with cases with similar material facts.

Question 17

Persuasive Precedent

Answer 17

Doesn’t Have to be followed. Can be set by other court hierarchy, Lower court or same court.

Question 18

Ratio Decidendi

Answer 18

’ The reason for the decision’
- Binding part of the judgement that must be followed by other courts

Question 19

Obiter Dictum

Answer 19

‘By the way’
-Persuasive parts of judgement (suggestions, comments)

Question 20

Methods of Developing/Avoiding Precedent

Answer 20

Distinguishing- Material facts in new case are sufficiently different from other case.

Overruling- Higher court states precedent (set by lower) no longer applies when dealing with a different case. This then becomes binding.

Reversing- Same case is appealed, higher court changes the lower courts decision ( becomes binding precedent)

Disapproving- Follows binding precedent but expresses disagreement in the Obiter Dictum.

Question 21

Donoghue v Stevenson

Answer 21

A decomposed snail found in ginger beer in Uk cafe. The manufacturer was found to not fufill a duty of care as stated in the ratio Decidendi and therefore found liable. This case set up the persuasive precedent for australian courts on matters of negligence and duty of care.

Question 22

Statutory Interpretation

Answer 22

Judges are called upon to interpret the meaning of word in a statute law and applying it to cases when presented in court.

Question 23

Codification

Answer 23

Parliament can make legislation that codifies (reinforces, confirms) precedent set by a court.

Question 24

Abrogation

Answer 24

Parliament can make legislation that abrogates (overrides, abolishes) a common law principle.

Question 25

Judicial Influence

Answer 25

In their judgements, courts may influence parliament to change the law by commenting on a need for reform.