Legal studies Flashcards
what is democracy ?
A system of government where power is vested in the people, who rule either directly or through elected representatives.
What is jurisdiction?
The official power or authority to make legal decisions and judgments, often within a specific geographic area or type of case.
What is code?
A system of rules or principles, such as a set of laws (legal code)
What is justice?
The fair and impartial treatment of individuals, ensuring that laws are applied equally, and rights are protected.
What are equitable outcomes?
Fair results that take into account individual needs and circumstances to ensure everyone has equal opportunities for success.
What is the rule of law?
The principle that all individuals, including governments, are subject to and accountable under the law, which is applied fairly and consistently.
What is crime?
An act that violates the law and is punishable by the government through penalties such as fines, imprisonment, or other sanctions.
What is statute law?
A written law enacted by a legislative body, such as a parliament or congress, that governs legal rights and responsibilities.
What is common law?
A system of law developed through judicial decisions and precedents rather than through written statutes, where past court rulings guide future cases.
What is customary law?
A system of law based on traditions, customs, and practices that are accepted and followed by a particular community or society.
What is the onus/burden of proof?
The responsibility of a party in a legal case to prove their claims or allegations. In criminal cases, the prosecution has the burden of proving the defendant’s guilt beyond a reasonable doubt.
What is the standard of proof?
The level of certainty required to establish a fact in a legal case. In criminal law, the standard is “beyond a reasonable doubt,” while in civil cases, it is typically “on the balance of probabilities.”
What are the arms of government?
The three branches of government that carry out the functions of governance:
Executive – responsible for implementing and enforcing laws.
Legislature – responsible for making laws.
Judiciary – responsible for interpreting laws and administering justice.
What is the division of powers?
The distribution of authority and responsibilities among the different branches or levels of government (e.g., national, state, local) to prevent any one entity from having too much control
What is the Australian Constitution?
The document that outlines the structure of Australia’s government, defines the powers of the federal government and the states, and protects certain rights and freedoms. It came into effect on January 1, 1901.
What is the doctrine of precedent?
The principle that courts should follow the decisions made in previous similar cases. It ensures consistency and predictability in the law, with higher court decisions binding on lower courts.
What is the adversarial system?
A legal system in which two opposing parties present their case to an impartial judge or jury, who then makes a decision based on the arguments and evidence presented.
What is the inquisitorial system?
A legal system in which the court or judge plays an active role in investigating the case, gathering evidence, and questioning witnesses.
What is the purpose of law within society?
The purpose of law is to maintain order, protect individual rights and freedoms, resolve disputes, and ensure justice by setting clear rules and standards that govern behavior.
What is the difference between a rule and a law?
A rule is a guideline or principle set by an organization or group, often for internal behavior, and typically has limited enforcement. A law is a formal system of rules enacted by the government that applies to everyone in society and is enforceable by legal authorities.
What is the concept of just and equitable outcomes in criminal law?
The idea that criminal justice should be fair and impartial, ensuring that all individuals are treated equally before the law and that punishments are appropriate to the crime, taking into account circumstances and individual rights.
What are the characteristics of an effective law?
Clarity – The law must be clear and easily understood.
Fairness – It must apply equally to everyone and be just.
Enforceability – The law must be enforceable and have clear consequences.
Consistency – It should be applied consistently to ensure fairness.
Flexibility – The law should be adaptable to changing circumstances and societal needs.
Public Awareness – People must know and understand the law for it to be effective.
What are the sources of law in the Australian legal system
Sources of Law in Australia:
Constitutional Law – Laws established by the Australian Constitution.
Statute Law – Laws made by the parliament (legislation).
Common Law – Law developed through judicial decisions and precedents.
Customary Law – Traditional laws recognized by communities.
International Law – Treaties and agreements between countries.
what is the relationship between common law and statute law?
Statute law takes precedence over common law. Statutes passed by parliament can override common law principles. However, common law is still important for interpreting statutes and filling in gaps where no statute exists. The two systems work together to shape the law in Australia.
What is the process of statutory law-making,
Bill Introduction – A proposed law (bill) is introduced in parliament.
First Reading – The bill is read and presented without debate.
Second Reading – The bill is debated, and its purpose is discussed.
Committee Stage – Detailed examination and possible amendments.
Third Reading – Final review before voting.
Vote & Approval – If passed in both houses of parliament, it is sent to the Governor-General (federal) or Governor (state) for royal assent.
Becomes Law – The bill is enacted and becomes a statute (law).
what are the roles of states, territories, and the Australian Government?
Australian Government (Federal) – Makes laws on national matters (e.g., defense, immigration, foreign affairs).
States – Have their own parliaments and can legislate on issues like health, education, and transport, unless overridden by federal law.
Territories – Governed by federal law but have some self-governing powers similar to states.
What does “just” mean in the legal system?
“Just” refers to fairness, equality, and impartiality in applying the law. A just legal system ensures that individuals receive fair treatment, rights are protected, and decisions are made based on evidence and legal principles.
what are some influences on law?
SOCIAL = social changes in society put pressure to change laws
MORAL = one’s own belief system can mould laws
ECONOMIC = economic circumstances impact laws
POLITICAL = parties and their platforms enact laws along
party/political ideas
CULTURAL = our history can impact the application and use of laws
What is a monarchy?
A system of government where a king, queen, or emperor serves as the head of state, usually for life and by hereditary succession. Monarchies can be absolute (where the ruler has complete power) or constitutional (where the ruler’s powers are limited by laws and a constitution).
What is a dictatorship?
A form of government where absolute power is concentrated in the hands of one ruler or a small group, often without democratic elections, political opposition, or constitutional limitations.
What is a republic?
A form of government in which the country is considered a public matter, and leaders are elected by the people or their representatives, rather than being ruled by a monarch.
What is an aristocracy?
A form of government in which power is held by a small, privileged ruling class, often based on heredity, wealth, or social status.
What is the significance of the year 1788?
Captain Philip arrived in Australia and introduced a
system of English law known as the ‘Westminster System’
– this is why we have a close relationship with the UK.
What is the significance of the year 1922 in Australian history?
Queensland abolished its upper house –
Constitution Act Amendment Act 1922 (Qld)
What does “exclusive” mean?
it can refer to rights, powers, or privileges that are reserved for a particular individual or group.
What does “residential” do in legal system?
the legislative powers not covered by section 51 of
the Constitution, which remain with the states to oversee
What are concurrent powers?
powers under the Constitution that may
be exercised by both the Commonwealth and the states
What is the Magna Carta?
The Magna Carta, signed in 1215, is a foundational document in English law that limited the powers of the king and established certain legal rights for citizens, such as protection from unlawful imprisonment and access to fair trials. It is considered a cornerstone in the development of constitutional law and human rights.
What is the Habeas Corpus Act of 1679?
The Habeas Corpus Act of 1679 is a landmark English law that protects individuals from arbitrary detention. It ensures that a person who is arrested must be brought before a court to determine whether their detention is lawful, effectively safeguarding personal liberty.
What is the British Bill of Rights of 1689?
The British Bill of Rights of 1689 is a historic document that limited the powers of the monarchy and outlined certain rights for Parliament and citizens. It included provisions like the right to free elections, freedom of speech in Parliament, and protection from cruel and unusual punishment. It played a crucial role in the development of constitutional law in Britain.
What does “reading legislation” mean?
Reading legislation” refers to the process by which a proposed law (bill) is formally presented and debated in parliament. In most parliamentary systems, a bill goes through multiple readings:
First Reading – The bill is introduced, and its title is read aloud.
Second Reading – General principles are debated.
Committee Stage – Detailed examination and amendments.
Third Reading – Final approval and vote.
Once passed, the bill becomes law.
What is the relationship between the Commonwealth and Parliament in Australia?
The Commonwealth refers to the federal government of Australia, established by the Australian Constitution, and represents the nation as a whole.
Parliament consists of the House of Representatives and the Senate, and is responsible for making laws, scrutinizing the government, and representing the people.
The Commonwealth Parliament is the legislative body that enacts federal laws, while state parliaments create laws for their individual states. The Commonwealth Parliament’s laws apply across the entire nation, while state laws are more localized.
What is a jury?
A jury is a group of citizens selected to hear evidence and make decisions in legal cases, typically in criminal or civil trials. In criminal cases, the jury determines the guilt or innocence of the defendant, while in civil cases, the jury may decide the outcome of a dispute. Juries help ensure fairness and impartiality in the legal process.
What is the Magistrates Court?
Magistrate Summary Criminal offences + Civil Matters less than $150 000
➢ Examples: Drink driving, shoplifting
ACTS as a committal court for the first time to determine where or
not there is sufficient evidence for a person to stand trial in a District
or Supreme court – called “Committal Hearing”
What is the role of the District Court in Australia?
judge + duty Serious Criminal case penalties less 14 years imprisonment + Civil
Matters over $150 000
➢ Examples: Rape, Armed Robbery
what is the supreme court?
Judge + Jury
➢ Very Serious Criminal Cases penalties greater than 14 years
imprisonment + Civil Matters over $750 000 (no limit)
➢ Examples: Murder, Manslaughter
or AS A COURT OF APPEAL = 3 to 5 Judges
➢ Hears ALL appeals from District/Supreme Court and tribunals
specialist courts
Children’s Court – children committed indictable (serious) offences
Family Court – hears divorce proceedings to dissolution of a marriage
Federal Circuit Court – deals with judicial reviews of Admin decisions
Federal Court – breaches of Federal Legislation
Drugs Court – drug offences
Domestic Violence Court – deals with issues of Domestic Violence
Land Court – issues around land zoning, acquisitions
+ other courts exist
High court of Australia?
interprets Constitution: settles
disputes between the states, territories, and the Commonwealth, hears
appeals from the Supreme and Family and Federal Courts.
