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legal studies - legal foundations > Part A > Flashcards

Part A Flashcards

1
Q

Parliament

A
  • Creates statue law also known as legislation, statue or an act of parliament
  • Two types = Federal and State
  • main source of law “supreme”
  • Federal = bicameral (senate and house of representatives)
  • can make laws on any topic
  • QLD = unicameral (Legislative assembly)
  • process of making law = 7 steps
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2
Q

Courts

A
  • create common law (only before the cases before them)
  • laws made by judges in court also known as judge made law/common law/case law
  • process of lawmaking is judicial precedence
  • court hierarchy (magistrate, district, supreme: original jurisdiction, supreme court of appeal and High)
  • Create common law and binding persuasive on lower courts
  • Civil + criminal cases
  • fill in gaps in statue + make laws on controversial topic
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3
Q

Lawyer

A

The general term for a legal practitioner; may be a barrister or a solicitor

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4
Q

Bill

A

A drafted law which has not yet been passed through Parliament or received royal assent

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5
Q

Common law

A

The body of laws made through decisions of the courts - as distinct from statue law; also referred to as judge made law or case law

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6
Q

Judge

A

The senior officer presiding in the District, Supreme or higher courts

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7
Q

Magistrate

A

The judicial officer presiding in the Magistrates court

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8
Q

Obiter Dicta

A

Literally means ‘by the way’; words used by a judge which are other comments or opinions and may be persuasive but are not binding on other courts

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9
Q

Ratio decidendi

A

Literally means “reason for decision”; it is confirmed to the reasoning of the judge that is essential to the decision in the case and becomes the binding precedent

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10
Q

Referendum

A

The process of changing the Constitution by a public vote known as a “double majority”

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11
Q

Senate

A

The upper house of the federal parliament (also referred to as the Upper House)

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12
Q

Legislative assembly

A

The lower house of State Parliaments

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13
Q

Beyond Reasonable Doubt

A

The standard proof required to prove a criminal case

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14
Q

Precedent

A

A decision made in a court which become part of the common law and is required to be followed by other courts that are equal or lower in the heirarchy if the facts of the case are substantially the same

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15
Q

Customs

A

Socially acceptable habits or norms

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16
Q

Rules

A

Regulate our lives in a more formal manner than norms. They are specifically stated, often in written form and consequences given is broken. Only binding on members of the group the made the rules

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17
Q

Laws

A

Three features

  1. Authority - no one person can decree that a rule is a law. Authority to make laws in Australia rests solely with parliament and in some case with law courts. Unless validly made it will not be recognised and enforced by the courts.
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18
Q

Statue law

A

Law made by parliament (also known as legislation or an act of parliament)

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19
Q

Judicial Precedent

A

The process by which judges make common law when judges are obliged to follow the decision of earlier cases in equal or higher courts when the factual circumstances are essentially the same.

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20
Q

Parliament

A

A forum where the elected representatives of the people meet, plan, deliberate upon and review the government of the Country OR state. The three divisions of Parliament are Executive, judiciary and legislature

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21
Q

Electorate

A

The area represented by one member of Parliament who is voted in the citizens of this area

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22
Q

Court Hierarchy

A

A way of structuring courts into different levels, jurisdictions and areas of responsibility based on an area of law, geography and monetary factors

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23
Q

Constitution

A

A set of rules by which a country is run

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24
Q

Jurisdiction

A

The authority of a court to act in a legal matter

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25
Q

Demand for Change

A

The first step in the parliamentary act in a legal matter

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26
Q

Separation of Powers Doctrine

A

The principles established under the Australia Constitution 1901 to distribute power to govern between the Parliament, The executive and Judiciary

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27
Q

Legislature

A

Who? GG/PM/Parliamentarians/151 electorates (voted in elections by citizens)
Role? Create law on any issue

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28
Q

Executive

A

Who? GG/PM/cabinet ministers/Police/armed forces

Role? Enforce/administer law

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29
Q

Judiciary

A

Who? Judges (appointed by executive)

Role? Interpret law only on cases before them

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30
Q

Court Hierarchy (lowest - highest)

A

Magistrate, District, Supreme Court: Original Jurisdictition, Supreme Court of appeal: appellate jurisdiction, High Court

31
Q

High Court Criminal Cases

A

Appeals

32
Q

Supreme Court of appeal Criminal cases

A

Appeals from lower court

33
Q

Supreme Court (original) Criminal cases

A
  • Murder

- any indictable offence with a penalty of imprisonment over 20 years

34
Q

Supreme Court (original) Civil cases

A

Civil claims over $750,000 (e.g. breach of contract, negligence)

35
Q

District Criminal Cases

A
  • Rape, Arson

- any indictable offence with a penalty up to 20 years

36
Q

District Civil cases

A

Civil claims between $150,000 - $750,000 (e.g. breach of contract, negligence)

37
Q

Magistrates Criminal Cases

A
  • Criminal offence with a penalty up to 3 years imprisonment

- Simple offences E.g. drink driving, shoplifting, possession of illegal firearms.

38
Q

Magistrates Civil cases

A

Civil claims up to $150,000 (e.g. breach of contract, negligence)

39
Q

Order for making a law

A

Before the introduction of bill in a parliament, Introduction and first reading, Committee stage, Second reading, Consideration in detail, Third reading and Royal assent,

40
Q

Before the introduction of a Bill in parliament

A
  • The need for a new law is identifies (by community), Cabinet grants Minister Authority to prepare a Bill.
  • A bill is prepared (a proposal written down in the form of an act)
41
Q

Committee stage

A

The committee (made up of parliamentarians + experts) takes up to 6 months to consider the bill and prepare a report

42
Q

Second reading

A
  • Report is tabled in parliaments.

- Minister makes a speech outlining reasons for bill + responding to report + debate + question time

43
Q

Consideration in detail

A

Parliament considers every section of the bill + vote (if yes)

44
Q

Third Reading

A

The clerk reads the title for a third and final time. The bill is passed by a majority vote.

45
Q

Royal Assent

A

The Governor or Governor general signs off the bill. Bill becomes an Act of parliament (law, legislation, statue)

46
Q

Queensland Court Structure

A

Magistrate, District, Supreme Court, Court of appeal and High Court

47
Q

Differences between customs, rules and laws

A
  • consequences of breaking laws are more severe than rules
  • anyone can make a custom where as the parliament and courts can only make laws
  • rules are only binding on those in that organisation whereas laws are made for everyone to follow
48
Q

Changing the constiution

A

Proposal - A bill is passed in parliament - proposal put to the people - double majority vote (majority 1 & 2) - change in the constitution - royal assent

49
Q

Proposal

A

can come from a range of different sources in the community - parliament, a constitutional convention, parliamentary committees and pressure groups

50
Q

A bill is passed

A

Both houses of Federal Parliament must vote FOR the proposed change to the constitution

51
Q

Proposal put to the people

A

For two to six moths after the bill is passed, the public is informed about the details of the proposal

52
Q

Double majority vote 1

A

More than the majority of eligible voting citizens (18+) in ALL of Australia (states + territories) vote yes

53
Q

Double majority 2

A

AND majority of eligible voters in 4/6 states (8/44 bills have been successful)

54
Q

Change in the constitution

A

The wording of the constitution is changed

55
Q

Royal assent

A

The bill changing the wording of constitution, goes to the Governor-General for royal assent

56
Q

Higher courts bind on the lower courts

A

True

57
Q

Both ratio decidendi and the obiter of a precedent are binding precedent

A

False - only ratio decidendi is binding

58
Q

The ratio decidendi is the judge’s reasons for the decision which may be binding or persuasive precedent

A

True

59
Q

Judges cannot avoid following binding precedent in any circumstances

A

False - if the facts are substantially the same

60
Q

Queensland courts are bound by decisions made in other state jurisdiction is no Queensland precedent can be applied

A

False - can be persuasive

61
Q

The high court of Australia is the highest court in the land

A

True

62
Q

The Hugh court of Australia makes decisions that require interpretation of the constitution

A

True

63
Q

All courts are bound by their previous decisions

A

True - when facts are substantially the same

64
Q

Obiter dicta are the other opinions or comments of the judge which are not binding precedent

A

True

65
Q

The doctrine of precedent

A
  • the doctrine of precedent requires judges to follow the earlier decisions of cases in higher courts when the factual circumstances are essentially the same
  • The legal system uses the doctrine of precedent to ensure that the outcome of trials are fair and consistent
  • Precedent can be either binding or persuasive
  • Binding precedent means that the earlier case must be followed.
  • Persuasive precedent means that the earlier case my be followed
66
Q

An earlier decision is binding on a court when

A
  • the facts of the case are essentially the same
  • the decision was made by a higher court
  • the higher court is in the same heirarchy
67
Q

An earlier decision of a court of lower, equal or higher rank is persuasive to a court

A
  • the facts of the case are essentially the same
  • there are no relevant binding precedents
  • the decision was made by a court in the same court hierarchy
68
Q

MODEL RESPONSE + QUESTION

A magistrates courts is deciding a case. Relevant legal principles were decided by the Supreme Court recently: are these principles binding or persuasive on the Magistrates court

A

Relevant legal principles by the supreme court are binding in the magistrates court because it is higher in the court hierarchy and the facts of the case are substantially the same.

69
Q

Ration decidendi

A
  • binding
  • The ratio decidendi is that part of the reasons for the decision that relates directly and specifically to the particular law or facts of the case.
  • It is the ratio that makes the decision a binding precedent for the future
70
Q

Obiter Dicta

A
  • not binding
  • is that part of the reasons for the decision that includes an additional observation made by a judge about the law generally.
  • it does no relate specifically to the particular facts of the case.
  • While obiter is not binding, it may be persuasive in later cases
71
Q

Deciding Ratio and Obiter in a scenario

The court is dealing with the case mentioned in the How precedent is used in practice handout. The courts decides that because the man feared for his safety and did not use excessive force, he is not guilty of assault on the grounds of self defence. However, the court added that if the man had used much more physical force, or used a gun, this may have been excessive force, and he may not have been able to claim self defence.

A

Ratio - because the man feared for his safety and did not use excessive force, he is not guilty of assault on the grounds of self defence.

Obiter - if the man had used much more physical force, or used a gun, this may have been excessive force, and he may not have been able to claim self defence.

72
Q

High Court Civil cases

A
  • Appeals
  • Disputes between Commonwealth and States and Territories
  • Interpreting the constitution
73
Q

Supreme Court of appeal Civil cases

A

-Appeals

legal studies - legal foundations (3 decks)

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