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Legal studies > Presumption of innocence > Flashcards

Presumption of innocence Flashcards

1
Q

Rules definition

A

Non-legal rules: regulations/codes/policies made by private individuals or groups in society.
They don’t originate from legal institutions such as parliament.

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2
Q

Who do rules apply to?

A

Apply to only a specific group of people as opposed to the whole of society and the way that they are enforced can vary.

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3
Q

rules examples

A

households
schools
workplace
sports games

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4
Q

Laws definition

A

legal rules.
Made by legal institutions such as parliament.
Features of law: they apply to society but are also enforceable by the courts and the police.

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5
Q

examples of where laws can arise from

A

Parliament- at commonwealth and state levels
Courts- through decisions made interpreting statutes or ruling over cases

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6
Q

Why is the Constitution significant?

A

-Establishes parliament.

-Establishes lawmaking powers of commonwealth and states

-Establishes the judicial role of the high court

-Establishes how the constitution can be changed.

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7
Q

Parliament

A

formal assembly made up of representatives of people who are elected by the people to make laws with the exception of the governer general/governor who is appointed

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8
Q

Date of federation

A

1st January 1901

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9
Q

social cohesion

A

The willingness of members of a society to cooperate with each other in order to survive and prosper

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10
Q

indicators of a socially cohesive society

A

People can work and improve their education

individuals are fairly treated, feel a sense of acceptance and belonging.

active participation in gov + community based organizations by community members

Legal system treats individuals equally + promotes accessibility

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11
Q

aims of social cohesion

A

improve the well-being of all members of society

minimise disparities

avoid marginalisation

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12
Q

indicator of dysfunctional society

A

high crime rates
low literacy rates
high recidivism (reoffending)
constant protest

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13
Q

how individuals can promote social cohesion

A

responsibility of individuals to follow the law once they are aware of them.

eg.) Businesses are expected not to exploit their workers for free labor through paying fair wages

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14
Q

how the law promotes social cohesion

A

Reflects acceptable behaviors and values that are prioritised

creates boundaries to protect individuals

establishes the rule of law (no one is above the law )

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15
Q

how the legal system can promote social cohesion

A

ensuring that institutions exist to effectively create, implement and enforce the law.

eg.) police- fairly enforce law/ keep community safe

courts- apply law thru functioning justice system and determine whether an individual has broken the law

parliament- members representing the views of thru voters when making decisions on lawmaking.

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16
Q

Fairness

A

All people can participate in the justice system and its processes should be impartial and open

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17
Q

(Fairness) Impartial processes

A

All personnel within the legal system system including the judges/ magistrate, jury members, court personnel must act in a way that is impartial +independent. to show no bias or discrimination

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18
Q

(Fairness) Open processes

A

Courts processes must be transparent- allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury

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19
Q

(Fairness) Participation

A

Individuals must be able to effectively participate in the legal system

being aware of charges laid against them, having time to prepare their case, being aware of the evidence brought against them

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20
Q

Equality

A

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 allow all to engage with the justice system without disparity or disadvantage

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21
Q

same treatment (formal equality )

A

All individuals are treated the same and given the same level of support regardless of their personal difference or characteristics
eg.) race, religion,gender,identity or age

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22
Q

different treatment (substantive equality )

A

If the legal system did treat people in the same way but in doing so causes disadvantage/ disparity then adjustments should be put in place to allow people to participate in the JS

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23
Q

Access

A

All people should be able to enegage with the JS and its processes on an infromed basis.

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24
Q

Access- Engagement (physical access )

A

The location of the courts in victoria

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25
Q

Access- Engagement (financial access )

A

Vic legal aid is limited in its fundings and thus ability to support individuals who do not have the means to pay for legal representation

people should not be prevented from defending their case because they do not have financial means to do so

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26
Q

Access- Informed basis (Education)

A

Individuals with higher levels of education are generally more informed about their rights+ more thorough awareness of the legal system

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27
Q

Access-Informed basis (legal support services)

A

Having free access to legal support services can help people be more informed about their rights

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28
Q

Access Informed basis (legal representation )

A

Having legal representation is one of the most effective ways a person can be informed about their rights + legal processes

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29
Q

effective law (reflects society’s view )

A

value= belief, principle or idea about how we should behave and treat others—> deemed important to uphold

laws must be accepted by community

laws align with current societal views

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30
Q

effective law (enforceable)

A

Those who break the law mat be apprehended and charged in a criminal case or sued in civil proceedings

Law is enforced in Aus by courts, gov bodies , police

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31
Q

effective law (known)

A

Public must be aware of law in order to follow it

responsibility of individuals to find out what the law is on matters that affect them

law makers must keep public informed of new laws/ major changes to laws= usually reported or debated in media b4 intro.

32
Q

effective law (clear and understood)

A

Legislative drafters must be consistent and precise with their wording so that the law can be interpretated and understood by people in society

if law=ambiguous—> less likely to be followed

33
Q

effective law (stable)

A

Laws cannot constantly change otherwise there will be confusion.

Law making bodies should attempt to forecast changes that may occur in the future.

34
Q

Structure of commonwealth parliament

A

Bicameral- consist of two houses

35
Q

House of Representatives

A

Political party with majority of members in HOR forms government
PM chooses cabinet

majority of bills introduced by HOR

if bill is introduced and first passed in senate proceeds to lower house for review

36
Q

Governor general

A

the chief representative of the Crown in a Commonwealth country of which the British monarch is head of state.

37
Q

Senate

A

Scrutinizes and debates bills before accepting/ rejecting ‘house of review’

each state elects 12 senators for 6 years.
territories elect 2 senators for 3 years

cannot introduce bills that generate revenue

38
Q

Statue law

A

Laws made by parliament

39
Q

Structure of Vic parliament

A
40
Q

Legislative Assembly

A

88 electoral districts in Victoria t/f 88 members

each member is elected for a period of four years

Forms lower house+ leaders becomes premiers of Victoria–> choose ministers=cabinet

introduce laws

41
Q

Legislative Council

A

Upper house of Vic parliament
Vic is divided into 8 regions each consisting of 11 districts

5 members elected from each region t/f there are 40 members

review, debate, scrutinize bills b4 passing/rejecting

42
Q

Subordinate authorities

A

commonwealth + state parliament can delegate law making power to sub auth which make minor laws in their area of expertise.

43
Q

The Victorian court hierarchy

A

ranking of courts based on jurisdiction
ordered horizontally from most superior to least superior

high court of Australia
Supreme court-court of appeal
supreme court-trial division
county court
magistrate court

44
Q

Reasons for the hierarchy- Specialisation

A

courts developing expertise in a particular area of law as a result of hearing similar matters regularly.

e.g) in criminal law, mag court specializes in less serous offences such as drink driving.

45
Q

Reasons for the hierarchy-appeal

A

have a higher court review a ruling

if a person believes an error has been made in their case
they can appeal to a higher court

person must have ‘grounds’ to appeal incl. ?of fact or a ? of law

must have special leave to appeal a case to higher court

46
Q

Reasons for the hierarchy-administrative convenience

A

systematic benefit derived form legal matters being distributed amongst the courts according to their complexity

separating minor offences and disputes from more serious and complex ones

mag court can move quickly resolve a large number of relatively minor offences and disputes minimizing delay for all parties involved

47
Q

Reasons for the hierarchy-precedent

A

past deciosons made by higher courts must be followed by lower courts in the same hierachy when cimilar cases arise

enables consistancy and fairness to be achieved whena pplying the law in a simialr fashion and inables individuals and lawyers to predict the likeyly outcome of a case

48
Q

common law

A

body of law created by judges

secondary role of court is to make laws as part of their case determinations

49
Q

Doctrine of precedent

A

legal principle established by judges that should be followed by courts in later cases when similar facts arise

created through statuary interpretation

created when a court decides a case that is first of its kind

judges decide a new issue in a case when there is no legislation in the area or when a previous principle of law requires expanding to cover a new situation

50
Q

Binding precedent

A

must be followed

set by higher court in the same court hierarchy

material facts are similar

51
Q

persuasive precedent

A

doesn’t have to be followed

set by another state/ country (diff court hierarchy)

set by a lower court in the same court hierarchy

set by the same court in the court hierarchy

52
Q

ratio decidendi

A

“The reason for the decision”

binding part of the judgement that must be followed by courts lower in the hierarchy

53
Q

Obiter dictum

A

“By the way”

persuasive part of the judgment that doesn’t have to be followed but can provide suggestions for judges and other law-makers in the future

54
Q

methods of developing/avoiding precedent- distinguish

A

material facts in the new case are sufficiently different from the material facts in the binding precedent

55
Q

methods of developing/avoiding precedent-overruling

A

a higher court states that the precedent set by the lower court in a different case no longer applies. the higher court then sets a new precedent that becomes binding on the lower courts.

56
Q

methods of developing/avoiding precedent-disapproving

A

a court follows a binding precedent but expresses disagreement with it in its obiter dictum. this does not change the precedent but may be considered by a higher court in the future.

57
Q

methods of developing/avoiding precedent-reversing

A

the same case is appealed to a higher court anf the superior court chnages the desion of the low court. the higher court has set a new precedent tht becomes binding on lower courts

58
Q

Donoghue v stevenson

A

May Donoghue went to a café
her friend bought a ginger beer after drinking half the bottle a decomposed snail fell into her glass.
She became ill as a result and later suffered from gastroenteritis.
Don didn’t have contract with the café/manufacturer bcs she didn’t buy the bottle—-> cant sue for breach of contract .
claimed

59
Q

relationship between courts and parliament= Statutory interpretation

A

Judges interpret the meaning of words in a statute when applying it to a case before the court

60
Q

relo btwn courts+parli= Codification

A

Parliament can make legislation that codifies (reinforce, confirms) precedent set by court

61
Q

relo btwn courts+parli= Abrogation

A

Parliament can make legislation that abrogates (overrides, abolishes) a common law principle

62
Q

relo btwn courts+parli= Judicial influence

A

Courts may influence parliament to change the law by commenting on the need to reform

63
Q

governor general

A

Kings power is delegated to GG
GG appointed by King on recommendation of PM

64
Q

GG constitutional role

A
  • giving royal assent to a bill
  • starting process of fed election
  • appointing times for parli to meet
  • act as commander-in-chief of the ADF
65
Q

GG civic role

A

engage with Australian comm

visit places hit by natural disaster

open + attend national+ international meetings

attend exhibitions + sporting events as official patron of org

visit regions to meet ppl in specific group

66
Q

GG ceremonial responsibilities

A

attend opening of new parli

administering oaths from PM, ministers, judges, other officials

meet foreign heads of state + ambassadors

award special honours

attend Anzac day ceremonies

67
Q

structure of commonwealth parliament

A

HOR (green seats)- easters side

Senate (red seats)- western side

central zone contains public + ceremonial space that separates HOR + senate

68
Q

roles of commonwealth parliament- ministers

A

Ministers are members of government who have each been given a particular area of responsibility called a portfolio

69
Q

roles of commonwealth parliament- cabinet

A

the most high profile portfolios are given to senior ministers

senior ministers and PM form cabinet

70
Q

roles of commonwealth parliament- opposition

A

largest party or Coalition of parties that is not in government

main role is to scrutinize work of government

71
Q

roles of commonwealth parliament- shadow ministers

A

members of opposition chosen by leader of opposition

72
Q

roles of commonwealth parliament- cross bench

A

minor parties and independence

73
Q

roles of commonwealth parliament- majority + minority govt

A

majority government formed with support of majority of members HOR

minority government formed with support of independent and slash or minor parties

74
Q

roles of commonwealth parliament- intro bills

A

Any member of parliament can propose bill except for bills that collect and spend tax pays money which must be introduced by HOR

75
Q

roles of commonwealth parliament- passing bills

A

after bills is introduced MPs debate and vote on it
bill needs to be passed by both houses and be assented by GG

76
Q

roles of commonwealth parliament- amending bills

A

after examining a bill in detail the senate or HOR may decide to make changes to a bill to improve it amendments also debated and Voted on

77
Q

where do ideas for new laws come from?

A

committees

political parties

private members/ senators bills

government departments

public

lobby groups

Legal studies (6 decks)

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