Legal YR 11 PRELIM SHORT ANSWER Flashcards
Law
Set of enforceable rules imposed on all members of a society which are officially recognized and enforced by the official legal system
Distinguish between customs, rules, laws, values and ethics
Law is generally understood to be a mirror of society — a reflection of its customs, rules, values and ethics — that functions to maintain social order.
Customs
established patterns of behaviour (habits or traditions) developed among people in a society or group over a long period of time
Rules
Where people live together or gather in numbers they usually agree on rules about conduct and procedures –> so that the group may better achieve its objectives and to ensure the rights of its individual members are respected and protected.
eg. school
Values
are a set of moral standards which are
considered desirable in society
Morals
personal beliefs or understandings of right and wrong
Ethics
The execution of moral beliefs in real life.
Justice
The concept of justice involves the fair and impartial treatment of all people, especially under the law. It also requires that all people have access to the law. In order to achieve justice in the legal system, laws must first be ‘just’ to ensure they operate fairly and equally. Justice is underpinned by notions of equality, access and fairness.
JUST LAWS
C- current
A- acceptable
K- known
E- enforced
S- same
Just law - CURRENT
laws must not be retrospective but aim to be proactive for the benefit of society.
Just law - ACCEPTABLE
just laws are acceptable (reflect society’s values and ethics).
Just law - KNOWN
discoverable (known) to all citizens, the law is written down and recorded in Acts of Parliament or decisions in cases in court are publically available.
Just law - ENFORCEABLE
enforceable against all citizens in society (for example, the police can and will bring charges against people who commit a crime, irrespective of the position they hold in society)
Just laws - SAME
apply equally to all persons (no-one is above the law - discussed further with the Rule of Law)
The nature of justice
Equality, fairness and access are central concepts which allow us to distinguish good law from bad law. This requires that all citizens have full and equal access to the legal system.
Equality
treating people with the same rights or status
Fairness
freedom from bias, dishonesty or injustice
Access
the right or opportunity to make use of something, in our case the legal system
Procedural fairness
to ensure a fair decision is reached by an objective decision maker.
- Procedural fairness means fairness in the procedures followed when arriving at an administrative decision.
The two essential features of a fair and just process are:
- the right to be heard
- the right to have a decision made by an unbiased decision-maker
Why is procedural fairness important? justice…
- necessary for justice to be achieved.
- Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process. It is fundamental to the administration of justice and a person can file an appeal and have a decision overturned on the basis that procedural fairness was not observed.
Anarchy
the state of chaos, disorder and lawlessness resulting from an absence of government and an effective legal system.
- following natural disaster/war - law and order breaks down, widespread crime
Tyranny
- no check on the power of those that make the law and/or those that enforce the law.
- where a ruler (or small group of people) has absolute or unlimited power over the people in their country or state and use it unfairly and cruelly.
Constitutions are disregarded and there is no rule of law - eg North Korea,
- Sometimes when tyranny becomes so extreme the population will rise up in opposition and civil unrest and anarchy can result.
Sources of Contemporary Australian law
- Common law (Judge-made law from England and Australian courts)
- Statute law (Parliament made law)
- The Constitution (1901)
- Aboriginal and Torres Strait Islander customary law
- International law
Australia’s legal heritage
- evolved from both Common law and Statute law.
- developed its own system of courts and law as it became independent from Britain.
- Other countries using this system include: Great Britain, Canada, New Zealand and the USA
Common law
- a collection of legal principles and rules derived from the decisions of judges in higher courts.
- make laws on a new issue that arises in a case before them, on which there is not previous statute or common law, or the current common law requires expansion.
The Ability of Judges and Courts to make Laws
- A Judges’ primary role is to adjudicate cases and settle disputes - making law is considered to be their secondary role (ancillary).
There are TWO situations in which the courts make laws:
- common law
- Statutory interpretation
Relationship between Common Law and Statute Law
- Judges are required to obey statute law (law made in parliament)
- If no statute law exists, judges use common law principles to resolve the dispute.
- A judge can use common law to interpret statute law.
- If both common law and statute law exist, the statute law must be followed.
Common Law Precedent and The Doctrine of Precedent
The Common Law relies on the principle of precedent, also known as the Doctrine of Precedent.
Doctrine of Reception
When first fleet arrived in 1788 - declared terra nullius, was regarded as a ‘settled colony’. Upon ‘settlement’ by the colonists, Australia automatically ‘received’ all laws of England.
English law became Australia’s law. This is known as the doctrine of reception.
Precedent
a judgment (decision) that is authority for a legal principle and that provides guidance for Courts deciding cases that have similar facts.
eg. diectrich v R case
‘Doctrine of Precedent’
refers to the process by which judges follow the reasons for the decision given by courts higher in the court hierarchy when deciding similar cases.
- This means that courts are to be guided by previous decisions of courts, particularly courts that have higher authority.
‘Stare decisis’
the requirement of courts to be bound by precedent set in higher courts. ‘Stare decisis’ literally means ‘to stand by what has been decided’ (or ‘the decision stands’).
‘ratio decidendi’
When a judge (or Court) decides a case, they must give a reason for their decision.
reason for the decision, which becomes a statement of court-made law and precedent for future cases
‘obiter dictum’
‘things said in passing’ ie comments made by a Judge that are NOT part of the decision
Binding precedent
Precedent that MUST be followed by a court when making a decision on a similar case. It is the ‘ratio decidendi’ that forms the binding part of the precedent.
- The decisions of a higher court in the same hierarchy
- Eg. decisions of the High Court of Australia (HCA) are binding on all courts in each Australian jurisdiction
Persuasive precedent
Precedent that courts do NOT have to follow, but they may choose to do so for consistency. It is often highly influential in a court’s decision.
- The decision of lower court in the same court hierarchy or different court hierarchy, such as another state or country
- The decision of the same court if it is not one that is bound to follow its own decisions
- ‘Obiter dictum’ statements
Justifications for courts following precedents
- Like cases should be treated alike (consistency)
- Need for certainty in the law
- Need for predictability
- People should know what the law is in order to obey it.
This means that:
- Lower courts simply apply relevant precedents
- Consistency ensures equality
- Legal representation can advise clients of probable outcomes
Equity
developed in bodies known as the Court of Chancery - looked at the features of each case to decide what was just or fair.
- not bound by precedent.
- moral principles - the rules of equity.
Main principles of equity
- To modify a remedy in common law that is deficient, or to create a new remedy
- To develop remedies for wrongs that the common law doesn’t recognise
Remedies in Equity
Injunctions – a court order requiring someone not to do something eg. Gina Rinehart sought an injunction against Channel 9 to prevent them airing “House of Hancock”.
Specific Performance – a court order requiring a person to fulfil an obligation they undertook as part of a contract eg. to complete a contract
Merge of common law and equity
- Equity and common law co-existed for several hundred years, though not always peacefully.
- In 1873, the two legal systems were combined, creating the Supreme Court of Judicature.
Courts were instructed to consider equity when considering common law. - In Australia, the Courts can apply Common Law and/or Equity as necessary
Adverserial system
- The adversarial system is used as part of both criminal and civil court proceedings.
- ‘adversary’ = opponent.
- 2 sides, the prosecution and the defence, each trying to prove their version of the facts (by presenting evidence and disprove the other side (by cross-examination of witnesses presented by the other side).
- An impartial judge (and often a jury) listens to the evidence and decides which side has proved its case. They can only consider evidence in Court.
- used in Aus, england, NZ &USA
- Robert Xie
Inquisitorial system
- used in countries such as France, Bulgaria and Italy.
- used as part of both criminal and civil court proceedings.
- The judge conducts an inquiry to discover the truth of what occurred.
- The inquisitorial system does not have the same rules about admissibility of evidence that apply in Australia.
- Amanda Knox
Court Hierarchy
- Australia has two overlapping jurisdictions of law: state (or territory) and federal.
Local court (no appellate, magistrate, no jury)
Children’s Court (no appellate, specialised magistrate)
Coroner’s court (no appellate, inquisitorial, coroner)
Drug court (no appeal against drug court decision, judge)
Land & Environment court (Yes against local, commissioner/judge)
District Court (yes appeal, judge/sometimes jury.)
Supreme (Highest in state/territory, appeals from lower, judge and jury, indictable)
Court of Criminal Appeal - (appeals from supreme/district, judge 3-5)
High Court (interpretation of Australian Constitution, appeals from lower, up to 7 judges/ justices)
Role/structure of parliament
- federal and state jurisdictions over certain matters, 2 levels of government and 2 sets of laws apply to everyone in Australia (eg. Federal and NSW)
- bi cameral parliament - House of Representative (lower house)
Senate (upper house) - Legislative Assembly (lower house)
Legislative Council (upper house)
Delegated legislation
legislation made under the authority of an Act of Parliament.
For example, State parliaments delegate limited power to Local governments (Councils) to make regulation, orders or by-laws.
House of Reps & senate
reps - Pass legislation and form a government from the party who holds the majority of seats in this house.
senate - allow for the equal representation of the states of Australia and acts as a House of Review. Most laws are introduced in the lower house and the Senate’s role is to review the laws being proposed.
