Term 1 Legal Studies Flashcards
Parliament
a forum where the elected representatives of the people meet, plan, deliberate upon and review the government of the Country OR State and make laws for the efficient and effective conduct of the Country Or State
what is the main purpose of parliament?
To make/change laws - statute law overrides any common law - also adds precedent for Courts
Common law?
laws made by judges
Custom
A socially acceptable habit or norm.
Orbiter Dicta
OPINION- a judge’s opinion or other comments made by a judge, which are not essential in making the decision in the case in which he or she is presiding.
Referendum
the process of changing the Constitution involving a double majority vote.
What is a double majority vote?
A double majority vote is to look at the statistics regarding the majority voting yes in a national majority and state majority. This is done to keep the voting fair and to not be affected by NSW and Victoria
What are the steps of turning a Bill into an Act?
Demand for a change, committee consideration, committee report, second reading, consideration-in-detail third reading, Royal assent
Constitution
a set of rules by which a country is run
What are the Paragraph sentence structures?
P1 - N+S
The role of parliaments and court as law-making bodies is an issue of concern in Queensland and can be viewed from different perspectives.
P2 - VP1
There is a strong Viewpoint…
This is evidenced in stimulus…
Additionally, stimulus … asserts…
Consequently
P3 - VP2
A second viewpoint is…
Stimulus… suggest…
Also, stimulus… indicates
Therefore,
P4 - D
one decision which ensures just and equitable outcomes for individuals and society is…
This decision is just because…
This decision is also equitable because…
The implications of this decision are…
Electorate
The area represented by one member of parliament
Judicial Precedent
The process by which judges are obliged to follow the decision of earlier cases in higher courts when the factual circumstances are essentially the same, creating common law.
Rule
regulate our lives in a more formal manner than norms. They are specifically stated, often in written form and consequences given if broken. Only binding on members of the group that made the rules.
Persuasive Precedent
earlier case MAY be followed
Binding Precedent
earlier case MUST be followed
Jurisdiction
the Courts authority to hear a case
Court Hierarchy
a way of structuring courts into different levels, jurisdictions and areas of responsibility
Name the Court Hierarchy from Least to Most Important:
Magistrates Court, District Court, Supreme Court, Court of Appeal, High Court
Statute law
law made by Parliament (also known as legislation or an Act of Parliament)
Ratio Decidendi
REASON DECISION - It is the reasoning used by the judge in making the final decision.
Judge
a public officer appointed to decide cases in a law court
Trial by Ordeal
something physical to determine guilt - e.g. wound did not heal = guilty
Trial by Battle
Settling disputes through Fighting/Battling each other - e.g. kings physically battling to determine guilt
What are Advantages of Judicial Precedent?
- Laws are fair/unbias
- consistent with previous decisions
3 Features of Law
Three Features:
(1) Authority – no one person can decree that a rule is law. Authority to make laws in Australia rests solely with parliament and in some cases with law courts. Unless validly made it will not be recognised and enforced by the courts.
(2) Consequences – breaking law has more serious consequences than a norm or rule. Legal penalties such as fines, imprisonment, community service
Regulation – regulates behaviour of all citizens who are member of society.
Separation Of Powers Doctrine
Legislative - Make/Change Laws, Executive - Enforce Laws, Judiciary - Interpret Laws/administers Justice
5 Strengths of Courts
-Bound by Precedent
-free from political pressure
-keep laws flexible
-fill in the gaps in law (common law)
-Experts in law (easily recognize law’s weaknesses
5 Weaknesses of Courts
-must wait for new case to arise to make law
-conservative (criticised for being “out of touch with society”
-may be bound by OUTDATED precedent (unjust ruling)
-cannot fill all holes left by parliament (cannot anticipate a case)
-Resources are limited (can only focus on facts and issues presented to them by the parties)
5 Strengths of Parliament
-can act quickly if needed
-can make laws in anticipation of future
-more accessible to public
-issues are publicly aired (society views are represented)
-can investigate a whole area of law
5 Weaknesses of Parliament
-can easily become outdated
-only sits on a limited number of days in the year
- unwilling to make laws on controversial areas, makes popular decisions in order to get re-elected
-cannot amend constitution without referendum
-statute law is worded broadly (leaves loopholes).
Bi-cameral
2 Houses
Australian Parliament
Senate (upper house)
House of Representatives
Government
majority party in lower house. The government is formed by the political party which gets the majority of seats (through the election process) in the Lower House
QLD Parliament structure
○ Legislative assembly (Lower House) only
○ Unicameral Parliament = One house = Lower House
Governor - King’s Representative
other AUS state Parliament structure
= Lower House AND
= Legislative Council AND Governor - King’s Representative
(Bicameral) Senate: Upper House
76 Senators: 12 from each State (7,2)
2 from each Territory (4)
: 6 Year terms. (voting)
(Bicameral) House of Representatives: Lower House *Government is formed here.
members (based on population) - 76 seats or more (majority)
: 3 year terms (voting)
Governor - General
King’s Representative, provides Royal Assent to Bills
(Unicameral) Legislative Assembly *Government is formed in this house
93 members (based on population)
4 year fixed terms (voting) - 47 seats or more (majority)
Federal Court (least-most)
federal magistrates court, Federal court-Family court, Full court of the federal court-Full court of the family court, High court
Original Jurisdiction
Hears cases for the first time, first instance/trial courts. Listen to evidence presented by witnesses, supervise cross examination of witnesses and then finally reach a decision.
Appellate Jurisdiction
Rarely hears cases for the first time, usually hears appeals from a lower court, decide if the lower courts have made a decision in accordance with the law (non-biased, sticking to the facts)
