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Legal Studies, Unit 1 > Outcome 1 - Legal Foundations > Flashcards

Outcome 1 - Legal Foundations Flashcards

1
Q

Common Law

A

Laws made by judges as part of their case determinations

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2
Q

Statute Law

A

Laws made by parliament. Also known as legislation

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3
Q

Statutory Interpretation

A

When judges apply meaning to words within Acts made by parliament to resolve a dispute

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4
Q

How can common law be made?

A

Statutory Interpretation
Precedent - Judges decide a new issue in a case before the court when there is no legislation in the area or when a previous principle of law requires expanding to cover a new situation

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5
Q

Reasons for statutory interpretation

A

Unclear wording-Wording used can often be too broad to suit a wide range of circumstances
Changing nature of words-Nature of words can change over time as society changes and tech develops
To Clarify words- Legislation may have been drafted to cover emergency situations -> may have been a wording mistake

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6
Q

Impacts of Statutory Interpretation

A

-Wording/Phrases are narrowed
-Wording/phrases are broadened
-Establishes a precedent (binding or persuasive)

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7
Q

Deing v Tarola

Facts, Legal decision, outcome

A

Deing wearing belt w/metal studs -> arrested and found guilty in Mag court for possessing ‘regulated weapon’ -> appealled in Sup court

Court interpreted term ‘regulated weapon’, narrowing definition in Control of Weapons Act to exclude items eg studded belt -> created precedent

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8
Q

Strengths of statutory interpretation

A

Allows meaning of words to be updated efficiently (x have to wait for parlia to amend bills)
Judges are not elected, so more freedom to apply meaning to words without worrying abt being re-elected
Judges=experts at law -> updating legislation from position of someone highly experienced w/specialised expertise, t/f interp. likely to be more accepted

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9
Q

Weaknesses of statutory interpretation

A

Judges x democ. elected -> decisions x necessarily reflect vvs of ppl
Impact can be reversed or overruled by higher court on appeal or diff. case.
Can be abolished by parliament through abrogation -> able to override court’s decision through amending legislation

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10
Q

Doctrine of Precedent

A

The idea/theory where if a precedent already exists, it should be followed to ensure consistency and fairness in common law.

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11
Q

Ratio Decidendi

A

Binding Precedent. MUST be followed. Precedent was:
-Set by a higher court in the same hierarchy
- similar material facts

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12
Q

Obiter dictum

A

Persuasive precedent. Does not have to be followed. Precedent was:
-Set by another state or country (diff. court hierarchy)
-Set by a lower court in same hierar.
-Case has different material facts

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13
Q

Stare decisis

A

‘To stand by what has been decided’ - When a court follows precedent set by a higher court.
-Ensures consistency
-Provides guidelines and predictability

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14
Q

Methods of developing/avoiding precedent

A

Distinguishing, Overruling, Reversing, Disapproving

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15
Q

Distinguishing

A

Material facts in new case are sufficiently different from facts in binding precedent

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16
Q

Overruling

A

A higher court states precedent set by a lower court in a diff. case no longer applies. Higher court sets a new precedent which then becomes binding on lower courts.

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17
Q

Reversing

A

The same case is appealed to a higher court and the superior court changes the decision of the lower court. Higher court sets new precedent which then becomes binding on lower courts.

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18
Q

Disapproving

A

A court follows a binding precedent but expresses disagreement with it. Does not change precedent, but may be considered by a higher court in the future.

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19
Q

Precedent

A

A legal principle est. by judges that should be followed by courts in later cases when similar facts arise.
Est. via statutory interp. + when judges preside over case that is first of kind (test case)

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20
Q

Facts, legal decision and outcome

Donoghue v Stevenson

A
  • Donoghue at cafe when friend bought her a ginger beer. Drank half the bottle before a decomposed snail was poured out. Diagnosed w/ severe gastroenteritis and shocked -> alleged presence of snail caused illness and sued manufacturer
  • Court ruled in favour of D, affirming that S owed a duty of care
  • Established ‘Neighbour principle’ and negligence
  • Forms foundation of modern negligence laws
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21
Q

Precedent established

Donoghue v Stevenson

A

-Duty of care owed to neighbours
-A neighbour is anyone that can be directly affected by your acts or omissions
- Manufacters owe consumers a duty of care
- A duty of care is breached if actions of manufacterer cause harm/loss to consumers and outcome of harm is reasonably forseeable
- Manufacters are liable if breach caused harm/loss to consumer

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22
Q

Facts, legal decision and outcome

Grant v Australian Knitting Mills

A
  • Purchased 2 pairs of woolen underpants from AKM. Wore them and developed a rash which had caused him to be bedridden for 17 weeks as a result of severe dermatitis.
  • Sued AKM for careless manufacturing process causing dermatitis. Argued overuse of sulphur had caused. Grant was able to est. a connection between injury and sulphur. Even after AKM appealed, still found guilty of negligence -> est that manufacturers owe duty of care in Aus
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23
Q

(Courts + Parlia relat)

Statutory Interpretation

A
  • Parliament creates Acts and legislation as the supreme law making authority
  • Courts can compliment this role through adding meaning and change the scope of words in legislation to clarify the law
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24
Q

(Courts + Parlia relat)

Codification

A

-Courts est precedent through an attempt to resolve disputes
-Parliament absorbs this decision into legislation, strengthening it

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25
# (Courts + Parlia relat) Abrogation
-Courts make a ruling and establishes a precedent -Parliament disagrees with the legal principle that is established and abolishes the precedent by changing acts/legislation
26
# (Courts + Parlia relat) Judicial Influence
- Courts, through judge's obiter dictum statements can mention to parlia the need to change acts/legis since judges were not able to/unwilling - Parliament can agree w the judge's comments and initiate change or ignore them
27
# Facts, Legal Decision and Outcome Trigwell's case
-Trigwell fam seriously injured in car accident caused by roaming sheep on road - Argued farmer who owned sheep should be responsible for sheep's actions, esp in preventing from roaming on public road - heard on appeal in High Court. Found farmer x responsib (followed old common low, origin in britain, at time ppl in horse and carriage could avoid livestock) - Obiter dictum of Justice Mason -> states such law making should be left to parliament - 5 yrs later, vic parlia passed Wrongs (Animals Staying on highways) Act 1984 -> farmers now responsib 4 livestock and damage they cause
28
Codification
When parliament embeds a common law decision into the Acts of parliament throuhg writing a new Act or amending current legislation -> strengthens legal principle b/c no longer precedent and cannot be overruled by higher courts
29
Abrogation
When parliament disagrees w/ a decision of the courts, they can prevent precedent from being applied in future through changing acts or writing new legislation to abolish the precedent
30
Judicial Influence
In their judgements, courts may influence parlia to change the law by commenting on the need for reform, or state that it is not the role of courts to change the law but should be left to parlia
31
Obiter Dictum
"That which is said in passing" Statements made by the judge throughout a case which x necessary for final decision
32
# Definition, Parties, Burden and Standard of proof and outcomes Criminal Law
- Area of law that aims to protect society from harm by defining prohibited behaviourd and outlining sanctions for those who participate in illegal conduct - The prosecution represents the state / the crown, the accused is the person who allegedly committed the crime - Burden of proof is the prosecution, who are responsible for proving that accused committed crime - standard is beyond reasonable doubt (no other logical exp.) - Consequences = sanctions eg fines, imprisonment
33
Crime
An act or omission that violates existing law, causes harm to an indiv/society and is punishable by the law eg drug offences
34
# Definition, Parties, Burden and Standard of proof and outcomes Civil Law
- An area of law which aims to protect indivs, businesses and organisations by providing them w legal framework to seek a remedy when their rights have been breached by another party - eg Tort Law (negligence) - The plaintiff is the party making the claim that their rights have allegedly been breached, the defendant is the party which allegedly inflicted the plaintiff's suffering or loss - Burden of proof is on the plaintiff, on the balance of probabilities (more likely than not) - Consequences= remedies
35
Definition of a rule
**Non-legal** guidelines made by private individuals or groups in society which only apply to a **specific group of people** as opposed to the whole of society, and the way in which they are enforced varies. E.g. Rules in sports
36
Definition of a law
**Legal rules** made by legal institutions which apply to everyone in society and are also enforceable by the courts and police. Can be created by parliament, the courts, bylaws...
37
Date of federation
1st January 1901
38
Significance of federation
Australia was now recognised as its own independent state with its own constitution.
39
Definition of parliament
A formal assembly made up of representatives of people who are elected by the people to make laws (Except the governor/governor general, who is appointed). There are 9 Parliaments in Aus.
40
Significance of the constitution (Four Points)
-**It establishes Parliament**: Bimerical (Two Houses), Directly chosen by the people + MoPs represent the people -**It establishes the lawmaking power of the Commonwealth and the States**: Division of Powers (Which areas Cth can make laws for, and what is not stated is left to the states) and recognises that the Cth parliament has supremacy over the states -**It establishes the judicial role of the High Court**: HC is the only court which can interpret the words in the Constitution and can determine whether parliament has acted outside of their jurisdiction. -**It establishes how the constitution can be changed**- Referendum with more than 51% pop. majority and 4/6 states vote yes
41
Social Cohesion
A term used to describe the willingness of members of a society to cooperate with each other to survive and prosper - Aims to improve wellbeing of all members of society - Minimise disparities - Avoid marginalisation
42
Three indicators of a socially cohesive society
Indivs are treated fairly and not discriminated against, the legal system promotes accessibility, people can work and improve their education
43
Three indicators of a dysfunctional society
High crime statistics, protests from society, high rates of recidivism
44
Ways individuals can promote social cohesion
**Following the law**- it is the responsibility of individuals to follow the law once they are aware of them eg. Business owners are expected to not exploit their workers for free labour by paying fair wages, indivs should respect rights of others and not engage in behav that can cause harm eg stalking or harassment
45
Ways the law can promote social cohesion
**-Set up guidelines for what is acceptable** - Create boundaries to protect individuals - Establish the ‘rule of law’ E.g. The Fair Work Act (2009), The Racial Discrimination Act (1975) – outlines the right of all indiv. To be treated fairly and without discrim.
46
Two ways the legal system can promote social cohesion
**Parliament** – MoP rep. views of voters when making decisions on lawmaking Police - fairly enforce laws once made to protect rights + keep commun. safe **Courts** – Apply law and determine thru justice system as to whether indiv has broken law **Flexibility of sanctions** – options doe sanctions eg fines, imprisonment available to ensure balance b/w punishing offender, rehabilitation + protect commun
47
Rule of Law
The principle that everyone in society is bound by the law and must obey the law.
48
Fairness
All people can participate in the justice system and its processes should be impartial and open. -Impartial Processes -Open Processes -Participation
49
Impartial Processes
All personnel within the legal system (including judge etc.) must act in a way that is impartial and independent and show no bias or discrimination.
50
Open Processes
Court processes must be transparent - open courtrooms to allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury.
51
Participation
Indivs must be able to effectively participate in the legal system - through being aware of charges laid against them, having time to prepare their case, being aware of evidence brought against them
52
Equality
All people engaging in the justice system should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to remove this disparity.
53
Formal Equality
All individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics. 'Same treatment'
54
Substantive Equality
If the legal system treating people in the same way causes disadvantage or disparity, then measures should be put in place to allow people to participate in the justice system. 'Different Treatment'
55
Access
All people should engage with the justice system and processes on an informed basis.
56
Engagement
To engage with the justice system, people need to be able to use and participate in the system. E.g. Physical Access (People in rural areas having hard time travelling to court), Financial Access (Vic legal aid for people who cannot afford legal rep)
57
Informed Basis
Indiv with higher lvls of edu are generally more informed abt rights, having access to legal support services can help people be more informed abt their rights, having legal representation is one of the most effective way a person can be informed of their rights.
58
Characteristics of an effective law
-Reflects society's values -Enforceable -Known -Clear and understandable -Stable
59
Stable
Consistent/unchanging/predictable Law cannot constantly change otherwise there will be confusion. Law-making bodies should attempt to forecast changes that may occur in future.
60
Reflects society's values
Belief, principle or idea about the way we should behave and treat others, which are deemed important to uphold. -If accepted within society, members are more inclined to follow it --> law reform as laws must change to align with social values of time
61
Enforceable
To be held accountable to consequences attached -If it were not possible to reprimand those who break law, people would be less inclined to follow it -Law is enforced in Aus by courts, various govt bodies and the police
62
Clear and easy to understand
To be accessible/easily interpreted/logical/precise -If law is ambiguous, less likely to be followed -Lawmakers must be consistent and precise with wording to law can be interpreted clearly by people in society.
63
Known
To be aware of/To understand -The public must be aware of a law to follow it -Responsib. of Indies to find out what law is (ignorance is no excuse) -Lawmakers must keep public informed (usually reported by media before being intro.)
64
Structure of Commonwealth Parliament
The legislative body of Australia= Bicameral (two houses) constitutional monarchy (crown= head of state) -The Crown (Rep. by the Govt. General) -The House of Rep. (lower house) -The Senate (upper house)
65
Composition of the House of Representatives
Green House, Peoples' House 151 Members elected by each electoral division in Australia voted for every three years. Each electoral division is divided by population, with each section having approx. the same number of voters. (114,000)
66
Two roles of the House of Representatives
-**Forms government** - Political party w/ majority members in lower house = govt, leader = PM -**Holds government accountable** - Second largest party = the Opposition, some of whom become shadow ministers who challenge + question govt on policy matters -**Introduces and passes proposed laws** - majority bills introduced in lower house. Bill introduced and first passed in senate will proceed to lower house for review. | Two of the following:
67
Composition of the Senate
Red House. States' House States have equal representation regardless of population - every state has 12 senators and every territory has 2 senators (76 total).
68
Two roles of the Senate
-**Reviews bills passed by lower house** - Debates these bills before passing or rejecting them (t/f known as house of review) -**Ensures equal rep. of states** - Regardless of pop. size, all states elect 12 senators for a period of 6 years (2 for three years in territories) - **Introduces and passes proposed laws** - Can also introduce bills, but not about money or generating revenue. | Two of the following:
69
The Governor General
The crown's representative in Australian parliament who provides royal assent in order to pass bills.
70
Statute Law
Bills that have been passed through parliament and received royal assent from the governor general (known as Acts of parliament/ legislation). Once a law has been assented, it is fully applicable and enforceable via other authorities eg police.
71
Structure of the Vic Parliament
Consists of: The Crown, represented by the Governor The Legislative Assembly (Lower house) The Legislative Council (Upper house)
72
Legislative Assembly
Each member of parliament is voted on in the 88 electoral districts, so the LA has 88 members. **-Forms Government** Polit party w majority seats in lower house= govt, leader =premier **-Holds government accountable** Opposition (second largest party) Some become shadow ministers who challenge and ? govt **-Introduces and passes proposed laws** Majority of bills passed by LA Represents the people's interests when debating and making laws.
73
Legislative Council
Victoria is divided into 8 regions, each containing 11 districts. 5 members from each region --> 40 members. **Reviews bills passed by LA** Scrutinises and debates bills passed in LA, either passes or rejects. **Introduces and passes proposed bills** Can also create bills **Represents views of their region in lawmaking** Ensures laws made in Vic equally reflect needs of Vic in regional and rural areas. Ensures focus is not just on metropolitan Melb.
74
Subordinate Authorities
Organisations/Government departments that have given the authority to create bylaws or policies based upon State parliament handing over some of their lawmaking powers. Parliaments can delegate law making power to subordinate authorities which can make minor laws in delegated areas= subordinate legislation

Legal Studies, Unit 1 (4 decks)

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