LEGAL - Long version Flashcards
What are customs?
Established patterns of behaviour among people in a society.
Define values.
Principles, standards and qualities considered worthwhile or desirable within a society. E.g kindness.
What are ethics?
Rules or standards governing the conduct of a person or the member of a profession. E.g the right to privacy.
What are rules?
Prescribed directions for conduct in certain situations, made by groups and affecting only people within those groups.
True or False: Penalties for rules are enforceable by the state.
False
What is a law?
A set of rules imposed on all members of a community that are officially recognised, binding and enforceable.
List the sources of Australian law.
- Aboriginal and Torres Strait Islander laws
- English customary law
- International customary law
Define customary law.
Patterns of behaviour accepted within a particular social or commercial setting, enforced due to their importance.
What are the characteristics of just laws?
- Enforceable
- Acceptable by society
- Discoverable by all members of society
What does justice uphold?
Generally accepted rights and responsibilities, ensuring equal outcomes.
What is procedural fairness?
The idea that there must be fairness in the processes that resolve disputes.
What is the rule of law?
The principle that no one is above the law, inferring equal treatment in the legal system.
What does the Magna Carta represent?
The concept of the rule of law established in 1215.
Define anarchy.
A state of chaos and disorder resulting from the absence of laws and government.
What is tyranny?
Rule by a single leader holding absolute power in a state.
What is common law?
Law made by magistrates as they encounter new cases, aimed at correcting injustices.
What is equity in law?
The body of law that supplements common law to correct injustices based on fairness.
What is precedent?
Judgements that become authority for legal principles and provide guidance for similar cases.
Define binding precedent.
Lower courts are bound to follow decisions of superior courts.
What is obiter dicta?
The opinion of the judge.
What is ratio decidendi?
The rationale for the judge’s decision.
What is persuasive precedent?
When superior courts may use decisions from lower courts to assist in their own decisions.
Describe the adversarial system of trial.
A system where two parties compete to win, each acting as an opponent, with an independent third party.
What is the difference between civil and criminal cases?
Civil cases involve disputes between private parties; criminal cases involve actions harmful to society.
What is the role of juries?
A cross-section of the community used to reach a verdict in most cases, requiring 12 jurors.
True or False: Jurors must decide a case based on personal opinions.
False
What is the inquisitorial system of trial?
A system where a judge controls evidence and the process, with less focus on legal representation.
What is the role of courts in Australia?
To provide a forum for resolution of legal disputes between individuals or between individuals and the government.
What are the two systems of courts in Australia?
- Federal courts
- State and territory courts
What are the types of lower courts in NSW?
- Coroners Court
- Land and Environment Court
- Children’s Court
- Drug Court
What is the function of the District Court of NSW?
Deals with more serious criminal matters and civil claims under $750,000.
What is the highest court in NSW?
Supreme Court of NSW.
What does the Federal Circuit Court of Australia deal with?
Civil disputes governed by federal law and summary criminal offences.\
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It shares jurisdiction with the family court and the federal court of Australia, matters can be transferred between these courts depending on the circumstances.
What is the main function of the Family Court of Australia?
To rule on complex family law matters, including divorce and parenting orders.
What is statute law?
Laws made by parliament, also known as legislation.
What is the legislative process?
A proposed law called a bill must be approved by both houses and the governor-general.
What is delegated legislation?
Legislation made by non-parliamentary bodies for less important laws.
List types of delegated legislation.
- Regulations
- Ordinances
- Rules
- By-laws
What are advantages of delegated legislation?
- Expertise of those making it
- Flexibility for amendments
- Frees parliamentary time
What are disadvantages of delegated legislation?
- Lack of time for parliamentary review
- Potential inconsistencies
- Minimal public awareness
What is the Australian Constitution?
A document outlining the rules for the governing body of a nation.
How many referendums have proposed changes to the Australian Constitution since 1901?
19 referendums proposing 44 changes.
What are the two constitutions affecting citizens of NSW?
- Australian Constitution
- Constitution of NSW
Define exclusive power.
Powers exercised solely by the Commonwealth government. laws regarding commmerce and trade.
Define residual power.
Powers that remain with state governments.
e.g. public transport, police and ambulance services.
Define concurrent power.
Powers shared between the Commonwealth and state governments.
Medicare
Defence
Immigration
Foreign policy
What does Section 51 of the Constitution outline?
The division and separation of powers, granting the federal government the power to legislate on international matters.
What does Section 109 state?
Federal law overrides state law regarding concurrent laws.
What is required to change the Constitution according to Section 128?
A referendum with a double majority.
Describe the referendum process.
A bill must pass both houses and then be approved by a majority of voters in a majority of states.
What is required for a referendum to change the Australian constitution?
A double majority must be achieved, meaning a majority of people in the majority states must vote in favor.
This is outlined in Section 128 of the Australian Constitution.
What emergency powers does the government have regarding constitutional changes?
The government can change rules without a referendum when the country is in dire need.
What is the process for a referendum in Australia?
A bill is introduced and passed by an absolute majority in both houses, then Australians vote ‘yes’ or ‘no’ after receiving a pamphlet explaining both sides.
What type of parliament does Australia have?
Bicameral federal parliament.
What is the role of the High Court of Australia?
To oversee other courts and provide final and conclusive judgments on appeals.
Define the division of powers.
The process of dividing powers among three separate governments to ensure appropriate jurisdiction.
This includes federal, state, and local governments.
What are concurrent powers?
Powers that both state and federal governments hold.
What matters does the federal government deal with?
- Medicare
- Defence
- Immigration
- Foreign policy
What matters do state/territory governments handle?
- Roads (highways)
- Public transport
- Police and ambulance services
What are exclusive powers?
Powers that belong solely to the federal government, such as trade and commerce with other countries, foreign relations, and national defense.
What is the significance of Section 114 of the constitution?
It forbids states from raising or maintaining any military force.
What does the separation of powers entail?
Distributing governing power among parliament, executive, and judiciary to prevent oppression.
What powers does the parliament hold?
The power to make and change laws.
What is the judiciary’s role?
To make judgments and interpret the law.
What is the executive branch responsible for?
To put laws into action.
What jurisdiction does the High Court of Australia have?
Both original and appellate jurisdiction.
What is one important role of the High Court?
To interpret the constitution.
What does Section 73 of the constitution outline?
The appellate jurisdiction of the High Court, allowing it to hear judgments from various courts.
What is ‘terra nullius’?
The concept that Australia was considered unoccupied land by the British.
What is Aboriginal and Torres Strait Islander customary law based on?
Tradition, ritual, and socially acceptable conduct.
What does the term ‘kinship’ refer to in Indigenous cultures?
Family relationships and extended family ties.
How is customary law passed down in Indigenous cultures?
Through diverse sacred ceremonies.
What is the main feature of Aboriginal and Torres Strait Islander customary law?
It is oral law and not written down.
What is the purpose of restorative justice programs like Rainbow Lodge?
To provide support post-prison.
What is the Walama list?
A court program recognizing customary laws to help Indigenous Australians from reoffending.
What is circle sentencing?
A process where community leaders and a magistrate decide on the punishment of offenders.
What is the main criticism of the United Nations Security Council?
The veto power of permanent members can prevent resolutions from passing.
What is state sovereignty?
A nation’s right to refuse to participate in international laws.
What are the two main international courts?
- International Court of Justice (ICJ)
- International Criminal Court (ICC)
What does the ICJ deal with?
Legal disputes between states and provides advisory proceedings.
What types of crimes does the ICC prosecute?
- Genocide
- Crimes against humanity
- Serious war crimes
How are treaties defined in international law?
International agreements concluded between states in written form.
What must happen for an international law to become part of domestic law?
It must be ratified by the nation.
What is the function of intergovernmental organizations (IGOs)?
To represent the governments or member nations.
What are intergovernmental organisations (IGOs)?
Organisations which represent the governments or member nations
The UN is the most significant of these organisations, with the European Union as another regional example.
How do intergovernmental organisations impact Australian law?
They create and enforce international law, which Australia can choose to ratify and incorporate into domestic law.
What is the role of non-governmental organisations (NGOs)?
Associations based on common interests that contribute to world peace, disaster relief, and environmental protection.
Give an example of a non-governmental organisation.
Red Cross, World Vision, Amnesty International.
What is Amnesty International known for?
A global movement of over seven million people committed to defending those denied justice or freedom.
How can NGOs influence Australian law?
By advocating for the adoption of international legal standards into domestic law.
What does public law govern?
Relationships between individuals and the state.
What are the three bodies of public law?
- Criminal law
- Administrative law
- Constitutional law
What is the primary role of criminal law?
To maintain public safety and order for society.
What is considered a criminal offence?
An offence against the whole community that damages the moral order of society.
What is the main criminal statute in New South Wales?
CRIMES ACT 1900 (NSW).
What are changes to the law known as?
Law reform.
What does administrative law involve?
Challenging decisions made by government agencies.
What are the three ways a person can seek a review of a government agency’s decision?
- Internal review
- External review
- Judicial review
What can judicial review assess?
Whether a decision was lawfully, fairly, and rationally made.
What is constitutional law focused on?
The rules governing the executive, legislative, and judicial functions of governments.
What does section 51 of the Australian Constitution refer to?
External affairs power.
What is the role of the High Court in Australia?
To hear constitutional matters and make binding decisions on all courts.
What does private law regulate?
Relationships between persons, companies, and organisations.
What are the three main components of private law?
- Contract law
- Tort law
- Property law
What is contract law?
A legally binding agreement between two or more parties.
What remedies are available for breach of contract?
- Damages
- Injunction
- Specific performance
What does tort law deal with?
Situations where someone breaches a duty owed to another person.
What are some examples of torts?
- Negligence
- Defamation
- Nuisance
- Trespass
