Outcome 1 Flashcards
Social Cohesion
A socially cohesive society is one that works towards the wellbeing of all its members, fights exclusion and marginalization, creates a sense of belonging promotes trust and offers its members the opportunity of upward mobility.
Rule of Law
The principle that everyone in society is bound by the law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them.
Legal System
- Made up of the institutions, organizations, rules, procedures, and the people tasked with maintaining and implementing order in society.
- This includes parliaments who create laws, judges who interpret and apply laws, and police, courts, and other organizations such as prisons that enforce the law.
Principles of Justice
The fundamental or basic ideas and values that try to promote just treatment and outcomes in our legal system. The principles of justice are used to determine whether or not justice has been achieved.
Fairness
Treatment or behaviour without favouritism or discrimination-free from bias or injustice.
This means having fair and impartial processes and a fair hearing, parties in a legal case should have an opportunity to know the facts of the case and have the opportunity to present their side of events.
Equality
The state of being equal, especially in status, rights or opportunities.
This means that anyone should be equal before the law and have an equal opportunity to present their case as anyone else without advantage or disadvantage (e.g. allowing both parties legal representation).
Access
Access means making legal procedures available to everyone, including having contact with bodies of institutions that provide legal advice, education, information, and assistance.
Access is ensuring everyone has access to the law in light of financial, physical, mental, or social disadvantages they may face.
Jury
An independent group of people chosen at random to decide on the evidence in a legal case and reach a verdict.
Characteristics of an effective law (RECKS)
Reflect society’s values, be enforceable, be clear and understood, be known, and be stable;
Statute Law
Laws that are passed through both houses of parliament become legislation.
Royal Assent
The formal signing of approval of a bill by the Governor-General (at a commonwealth level) or governor (at a state level) after which the bill becomes an act of parliament or a law.
Role of individuals in achieving social cohesion
Once laws are in place that established social cohesion it is the responsibility of individuals to ensure that they are aware of the laws and abide by them.
Role of the law in achieving social cohesion
Laws exist to protect both our safety and our rights;
Role of legal system in achieving social cohesion
Applying the law and enforcing it are two of the roles of the legal system to help achieve social cohesion.
Common Law
The body of law that is made up of all the judgments (or decisions) of superior courts over time, also known as judge-made law for this reason.
Statutory interpretation
The process by which judges give meaning to the words or phrases in an act of parliament so it can be applied to resolve a case before the court.
Ratio Decindendi
The legal reasoning given by the judge in reaching their decision, which is treated as a binding part of a precedent.
Stare Decisis
Stare decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare decisis means “to stand by things decided” in Latin.
Precedent
The rule that a legal principle has been established by a superior court should be followed in similar cases.
The doctrine of precedent was developed to have consistency in decision-making by judges, on the basis that like cases should be determined in a like manner
Binding Precedent
A precedent must be followed by all lower courts in the same hierarchy when the facts of the present case are similar to the facts of the case where precedent was established
Persuasive Precedent
Precedent that is not binding but that is useful or relevant and that may guide the judge in making the decision in a current case
Four ways courts can develop or avoid earlier precedents
Reversing, overruling, distinguishing, disaproving;
Reversing
Precedent can be reversed when the same case is taken to a higher court on appeal, and the decision of the lower court is set aside.
Overruling
Overruling occurs when a higher court considers a lower court’s decision to be wrong.
Distinguishing
A court decides the holding or legal reasoning of a precedent case will not apply due to materially different facts between the two cases.
Disapproving
This occurs when a lower court disagrees with a decision made by a higher court but cannot overrule it due to precedent being binding.
Four features of the relationship between the courts and parliament`
The interpretation of statutes by courts, the codification of common law, the abrogation of common law, and the ability of the courts to influence parliament
Abrogation of Common Law
To cancel or abolish a court-made law by passing legislation.
Statutory interpretation
This means courts must apply statutes to cases that come before them. To do this it is necessary for a court to interpret the meaning of the words in a statute or in secondary legislation
Codification of Common Law
Parliament can make laws that confirm precedents. To codify a precedent, parliament passes an Act of Parliament that reinforces a principle established by the court.
Ability of Courts to influence parliament
Courts also influence changes in the law made by parliament through the comments made by judges during court cases. (Reasons they do this: reluctant to change the law themselves, parliament is in a better position to review the law)
Parliament
The official gathering of all the elected representatives who together have the power to change laws.
Criminal Law
An area of law that defines behaviors and conduct that is prohibited and outlines sanctions for people who commit them, and the laws that are concerned with the punishment of offenders.
Crime
An act or omission that is against existing law, harmful to an individual or to society as a whole, and punishable by law.
Sanction
A penalty (e.g. A fine or a sentence) imposed by a court on a person guilty of a criminal offence.
Civil law
An area of law that defines the rights and responsibilities of individuals, groups and organizations in society and regulates private disputes.
Tort
A tort is a legal wrong that one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is damaged (money or compensation).
Plaintiff
A party who makes a legal claim against another party in court.
Defendant
A party who is alleged to have breached a civil law and who is being sued by a plaintiff
Remedy
An order made by a court that is designed to address a civil wrong through the provision of a remedy to restore the plaintiff back to their original position before they were wronged or their rights were breached.
Injunction
When the court orders you to do something or not to do something.
Jurisdiction
A court’s power to hear and decide certain legal disputes.
Appeal
An application to have a higher court review a ruling made by a lower court.
Reasons for court hierarchy
Specialisation/expertise, appeal, precedent, and administrative convenience;
Appellate jurisdiction
The authority of a court to hear a cause on appeal, or for another time.
Three types of powers
Exclusive, residual, and concurrent powers;
Exclusive powers
Exclusive powers are law-making powers granted to the Commonwealth alone.
E.g. Immigration, defence, coinage (printing of money), imports and exports;
Concurrent powers
These are law-making powers shared by the Commonwealth and the states.
E.g. Health, taxation, marriage;
Residual powers
Residual powers are laws that are left over for the states.
E.g. Health, roads, school;
Cabinet
A collection of ministers.
Lobby
A person or group/ organisation that puts pressure on the government to push through certain legislation.
Portfolio
An area of responsibility given to a parliamentarian.
Ministry
A parliamentarian given a portfolio to look after a particular area (e.g. Ministry of education, defence, immigration).
Types of subordinate authorities
Council, executive powers, government departments, statutory authorities;
Local councils
Local councils were created to provide goods and services to benefit whole communities and deal with issues such as building development, childcare centres, aged care housing, rubbish collection.
Statutory authorities
Statutory authorities carry out services that benefit the public such as legislation involving the Australian post, and VicRoads.
Government departments
Government departments are responsible for the administration of a particular area of government (a portfolio) this includes areas such as education and taxation.
Executive council
Executive council is made up of the governor or governor-general and relevant ministers and function to approve regulations that have been made by government departments and statutory authorities.
Legal v non-legal rules
Legal rules apply to a society as a whole, made by law making bodies (e.g. parliament, courts or delegates bodies) and are enforced (e.g. by the police).
A punishment may be issues by courts for breaking legal rules whereas non-legal rules only apply to a select group of individuals (e.g. in sporting clubs).
