The Australian Legal System Quick Notes/Definitions Flashcards
Why is it important that courts can make law?
- For ensuring that the legal system remains flexible, dynamic, and responsive to the changing needs of society
- That justice can be achieved
What is customary law?
- Is the laws and customs performed by Aboriginal people to achieve justice
- Rooted in tradition, culture and spiritual practices
What is justice?
- Is fairness in protecting individual’s rights
- Also includes punishment of wrongs
- Punishment must match crime
- Cannot be simply defined/complex → hard to define what is ‘fair’ → subjective
- Entirely reliant on where you sit in a particular case/matter
What is the rule of law?
- That all people have been held responsible to the same laws
How are the burden of proof and presumption of innocence linked?
- The burden of proof and the presumption of innocence are linked because they both serve the same overarching purpose: to protect individuals from wrongful conviction and ensure a fair trial.
Why is the right to a fair trial important?
- Protects individuals from wrongful convictions
- Ensures equality before the law
- Maintains public confidence in the legal system
- Prevents the abuse of power.
Why is having legal representation important to achieve justice?
- Important to ensure that the three other concepts used to achieve justice are achieved and the person understands how to navigate their way through a criminal trial
- Helps individual understand their rights and have a fair trial
- Helps protect rule of law
What is the separation of powers?
- Divides the government into three independent branches—executive, legislative, and judicial—that each have distinct powers and responsibilities.
- This system is crucial for preventing abuses of power, ensuring accountability, protecting individual rights, and maintaining the rule of law.
What is common law?
- Court made law
- Is created and developed through judicial decisions and is based on the principle of precedent, where past case law shapes future decisions.
How does the doctrine of precedent operate?
- By applying decisions that judges made before that are examples to follow when judging a case
- Ensures laws are applied consistently
What are the 4 features of our legal system?
- Rule of Law
- Presumption of Innocence and Burden of Proof
- Right to a Fair Trial
- Importance of Legal Representation
What is statute law? How are laws made by the Commonwealth Parliament?
- Is parliamentary law
- Written and enacted by a legislative body such as parliament
→ Bill introduced to parliament = 1st Reading
→ Detailed speech = 2nd Reading
→ Discussed, debated and voted on (majority)
→ Goes through other house
→ If successful, becomes an act
→ Needs royal assent
→ Then a law
How did customary law used to operate in Australia before 1788 and how does it operate in Australia today?
- Based upon oral traditions and customs
- Each nation had unique customary law
- British colonisation introduced British law
- Now Koori Courts are used to combine traditional law and customary law for Aboriginal Australians
Why is “justice” such a complex and ambiguous concept?
- Subjective to each individual based upon circumstance
- Combines an ethical ideal and legal principle
- Ones understanding is individualised based upon experience, society and belief system
How does the doctrine of precedent operate?
→ Case comes to court
→ No law exists
→ Statute needs clarity
→ Judge makes decision
→In decision they establish a legal ruling principle
→ The principle is binding on all cases that are the same, in lower courts in same hierarchy
→ Can be persuasive if in different hierarchy
