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Stage 1 Legal Studies > Stage 1 Exam > Flashcards

Stage 1 Exam Flashcards

1
Q

What is the doctrine of precedent

A

it is a fundamental constraint on judicial decision-making in Australia.

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2
Q

What is the idea behind the doctrine of precedent

A

The general idea behind the doctrine of precedent is that judges, when they are deciding cases, must pay proper respect to past judicial decisions

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3
Q

What are the two types of precedents

A

Binding precedent and persuasive precedent

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4
Q

What is a binding precedent

A

a binding precedent obliges a court to follow its decision from past binding decisions

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5
Q

What is a persuasive precedent

A

can influence or inform a decision but not compel or restrict it

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6
Q

What is Ratio decidendi

A

The most important part of the judgement is the legal reasoning used by the judge to reach the decision in the case. This is known as the ratio decidendi.

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7
Q

What is the Obiter dictum

A

a judge can make a statement that is not part of the reason for the decision, but is an important statement relating to the main issue of the case. This statement, known as obiter dictum

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8
Q

What is Statutory interpretation

A

it is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a Statute.

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9
Q

What is Common law

A

that is derived from custom and judicial precedent rather than statutes

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10
Q

What is RODD

A

Reversing, Overruling, Distinguishing, Disapproving

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11
Q

What is a political party

A

is made by Political parties when they have enough members to pass a bill

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12
Q

What are pressure groups

A

Because individuals cannot overpower the government people form pressure groups which helps persuade the government to pass a specific legislation

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13
Q

What are public services

A

Government departments and agencies advise ministers on appropriate legislation to pass

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14
Q

What are investigative committees

A

Governments and parliament set up special committees to research and investigate issues and to make recommendations regarding changes to legislation

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15
Q

What is a public bill

A

A public bill is introduced by the government as part of its legislative plan there are two types of public bill ‘Ordinary public bill’ which do not involve tax or spending of government money, ‘Supply/tax bills’ these impose tax or authorise spending of government money.

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16
Q

what is the difference of Ordinary Bills and Supply/tax bills

A

Ordinary Bills are bills that do not involve tax or spending
Supply/tax bills these bills do impose tax or authorise the spending of government money

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17
Q

What is a private bill

A

these are bills introduced by a person not acting as a minister of the government, including: Independent members, Opposition members, Government backbenches, a minister acting as an ordinary member

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18
Q

What is delegated legislation

A

Delegated legislation is legislation made by bodies other than parliament (for example, the executive). It is also known as by-laws or regulations.

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19
Q

Why does parliament delegate legislation

A

it reduces the parliaments workload, it allows the delegated authorities to explore the broader issue

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20
Q

What is the 3 types of negligence

A

1 The defendant owed the plaintiff a duty of care as their ‘legal neighbour’
2 The defendant breached the duty of care.
3 The plaintiff suffered foreseeable harm/injury/loss as a direct result of the breach

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21
Q

What are the types of bills

A

Ordinary Bills, Amending Bill, Constitution alteration bill, Money Bills, Taxation Bills

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22
Q

How to make delegated legislation

A

Enabling/Parent Act, Consultation Stage, Drafting Stage, Confirmation Stage, Proclamation Stage, Tabling Stage.

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23
Q

Steps to make a bill to an act

A

making legislation, originating house, reviewing house, Royal Assessment, act of parliament

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24
Q

What are the different types of relationship

A 
Nuclear Family
Defacto relationship
Same sex couples
Blended families 
Single Parent families
25
Q

What are the legal requirements of marriage

A
  • parties are free to marry
  • parties are of marriageable age and/or have consent to marry
  • parties are not in a prohibited relationship
  • parties have given real consent
  • the marriage is properly solemnised and registered
26
Q

How do law achieve social cohesion

A
  • defining rights and responsibilities
  • defining what our society considers is acceptable behavior and what is not.
  • reflecting the values and attitudes of the majority of citizens
  • providing mechanisms, such as courts, which provide us with ways to resolve our disputes fairly and justly, when breaches of the law do occur
27
Q

What is the key legal document which states how the commonwealth of Australia is to be governed

A

The Australian Constitution

28
Q

what are the two main types of bills

A

Government Bills, Private member bills

29
Q

What are the other types of bills (not the main two types)

A

Original bills, Amending Bills, Constitutional alteration bill, Money bills, Taxation bills

30
Q

what are different parts of an act

A 
short title
long title
jurisdiction
commencement date
objectives of the act
definitions or interpretation section
assent date
regulations
31
Q

Who are the different delegated authorities

A 
Government Departments
The governor 
the administrator 
the Governor general 
local councils
32
Q

What are the reasons for delegated legislation

A
  • it reduces parliaments workload
  • Executive bodies often more knowledge in certain areas
  • the process is quicker
  • it can be faster and cheaper
33
Q

what is the doctrine of precedent

A

The doctrine of precedent is the principle that decisions of higher courts in a hierarchy must be followed by lower courts in the same hierarchy where the facts are similar

34
Q

what laws effect marriage and divorce in Australia

A

The marriage act of 1961

and the family law act of 1975

35
Q

When can Financial agreements be entered into

A

Before, During or after a marriage

36
Q

what do Financial agreements deal with

A

These arrangements can deal with all, or any, of the parties’ property and set out how the property will be divided if the relationship ends.

37
Q

How long do you have to be separated before you get a divorce

A

12 months (there can be a reconciliation period of 3 months)

38
Q

What happens if you have been married for less than 2 years and want a divorce

A

you have to undergo compulsory counselling

39
Q

until what year did every state and territory have different laws on defacto relationships

A

2009

40
Q

why is mediation used to settle legal agreements without going to court

A

because its cheaper, less adversarial and more likely to preserve amicable relationships

41
Q

what factors are considered in in division of property

A

the financial contribution
the non-financial contributions
the contributions made by a party as parent or homemaker

42
Q

what methods are used to decide who looks after the child

A

Counselling/and or mediation can assist them to create a written, legally enforceable agreement

43
Q

what is child support

A

Child support is the financial support paid by one parent to the other, to help with the costs of a child aged under 18.

44
Q

if an agreement cannot be reached how does the department of human services decide how

A

both parents’ income
if the parents are supporting other children
the costs of raising children (including their ages and the number of children)
how much time each parent spends with the children (your ‘levels of care’).

45
Q

what are the main stages investigated before trial

A

Police investigation

Charging the offender

Bail applications

46
Q

what is the element of a crime

A

Generally for an accused to be found guilty of a crime, two elements must be proven - the mens rea (guilty mind) and the actus reus (guilty act).

47
Q

reasons why people choose not to report a crime

A

the seriousness of the crime

attitudes towards police

past experience

the relationship between the victim and the offender

fear of reprisal

the likelihood of compensation or a successful insurance claim

48
Q

After the person accused of the crime is charged by the police, they may be what

A

granted bail and released while waiting for their court case

granted bail but not released until the bail requirements are met

held in custody until the court hearing

released (not on bail) and summonsed to appear at court at a later time.

49
Q

what can happen to the victim if an accused person is released on bail

A

However, if an accused person is released on bail, this can cause stress for a victim or their family, as they may be fearful that the accused will seek contact with them.

50
Q

The main reasons for charge bargaining are to

A

save the cost and time of lengthy trials in our under-resourced legal system;

to ensure that accused people do not escape justice, in cases where the evidence is not strong enough to prove the more serious charge beyond reasonable doubt

51
Q

victims will often be summonsed by the court to appear in court as what

A

Witnesses

52
Q

what is the The process for a victim who appears as a witness

A

Victim called by prosecution as a witness

Swears an oath to tell the truth

Examination in chief - victim is asked questions by the prosecution counsel (lawyer)

Cross-examination - victim is asksed questions by the defence counsel

Re-examination - victim is asked questions by the prosecution again

53
Q

what are the four aims of sentencing

A

to punish the offender in a way that is just in all of the circumstances

to protect the victim and the wider community

to deter people from committing offences

to rehabilitate the offender so that they will be able to re-enter the community if and when their sentence is completed

54
Q

what are the two forms of criminal sanctions

A

denial of personal freedoms (imprisonment, good behaviour bonds etc)

denial of financial freedoms (fines, restitution orders)

55
Q

how does the judge understand how the crime impacted the victim

A

by using the victim impact statement

56
Q

What are the three ways that a victim can seek compensation.

A
  1. compensation as part of sentencing
  2. A civil claim
  3. Victims of crime fund
57
Q

what is the max amount of compensation a victim can receive

A

$40,000

58
Q

what can the victim be compensated with if they have multiple injuries

A

the standard amount for their most serious injury

30% of the standard amount for their second most serious injury

if there are more than two injuries, the victm will also receive 15% of the standard amount of the third most serious injury.

Stage 1 Legal Studies (1 decks)

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