The Legal System Flashcards
Laws
Rules made by a sovereign power and are applied to everyone equally. They are enforced by people in positions of power or authority and change over time to reflect societal values.
Purpose of Laws
Laws are put in place so that society can work effectively - prevents anarchy
Rules
Regulations or principles governing procedure or controlling conduct which tells us what is and isn’t allowed. Rules only apply to a certain group in a certain situation
Customs
Collective habits or traditions developed in a society over a long period of time. Customs develop when behaviour in a particular situation becomes so common that members of the community expect it to occur all the time
Values
Principles considered important by individuals or society and are often reflected in the law.
Ethics
Standards set by society about right or wrong actions
Morals
Things we (individually) think are right or wrong.
Links between legal concepts
Values > Ethics > Customs > Rules > Law Reform
Justice
Legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved. Justice is always the goal of the legal system.
Characteristics of Just Laws
Equal
Based on widely held values
Utilitarian
Rectifies inequalities
Minimise delays
Must be known
Nature of Justice
Equality
Fairness
Access
Equality
Nature of justice: requires laws that don’t discriminate and are applied equally to all people
Fairness
Nature of justice: state of being fair, or free from bias, dishonesty or injustice
Access
Nature of justice: individuals must be able to access the law in order for justice to be achieved
Procedural Fairness (Natural Justice)
There must be fairness in the processes that resolve disputes.
Procedural Fairness = Fair Hearing Rule (right to be heard) + No Bias Rule (an unbiased decision maker)
Rule of Law
No one is above the law and people are treated equally and fairly under the law
Anarchy
State of disorder and chaos resulting from the absence of laws and government
Tyranny
Rule by a single leader holding absolute power in a state
- Opposite of anarchy
- No rule of law
Common Law
Collection of legal principles and rules that are derived from the decisions of judges in higher courts > establish precedent
Equity
Body of law that supplements common law.
Corrects injustices by judging each case on its merits and applying principles of fairness
- Equity always prevails common law
Doctrine of Precedent
Rule that a legal principle that has been established by a superior court should be followed in other similar cases by other courts
Ratio Decidendi
A statement by the judge about the reason for their decision. Creates precedent for lower courts
Obiter Dicta
Other statements made by judges (e.g. personal opinions)
Civil Law System
Judge investigates case and defence has responsibility of proving accused person did not commit offence
- Inquisitorial System of Trial
Common Law System
Judges can make law, do not seek evidence, make their decision based on evidence presented to them by both sides
- Adversarial System of Trial
Inquisitorial System of Trial
Judge is actively involved in asking questions, calling evidence and determining the case
Adversarial System of Trial
Parties to a court case are opponents who must prove their version of events to win the case. The judge is only an impartial observer.
Statute Law
Laws developed by parliaments.
Overrides common law.
Role of Parliament
Passing legislation
Representing votes
Scrutiny (examining government)
Formation of government
Structure of parliament
Bicameral: TWO chambers or houses of parliament
Unicameral: SINGLE legislative chamber
NSW Lower House
Legislative Assembly
NSW Upper House
Legislative Council
Commonwealth Lower House
House of Representatives
Commonwealth Upper House
Senate
Legislative Process
- Identify new law
- Draft bill
- First reading (occurs in LOWER house)
- Second reading (describe man purpose and likely benefits + debate/vote)
- Committee Stage (law is debated and changes made if necessary)
- Third reading (if passed via vote it goes to the UPPER house)
- Upper House votes
- Royal Assent (by Governor-General)
Delegated Legislation
Laws made by authorities other than parliament. Subordinate bodies (e.g. local councils) make law on parliament’s behalf)
Delegated Legislation: Regulations
Laws made by the governor-general, state governors or members of the executive council
Delegated Legislation: Ordinances
Laws made for Australian territories
Delegated Legislation: Rules
Legislation made for government departments, usually by the department involved
Delegated Legislation: By-Laws
Laws made by local councils, restricted to the area governed by the council
Constitution
Document that outlines the rules that control the power, authority and operation of Australia
- Can only be changed through a referendum
Division of Powers
Power is divided between the federal government and the states by the constitution
- Powers: Exclusive, Concurrent, Residual, Legislative
Separation of Powers
Ensures that no group or individual within government has all the power
- Legislature: Law makers (parliament)
- Executive: Administer the law (police force, governor-general)
- Judiciary: Interpret and apply the law (judges and courts)
High Court of Australia
Hears cases involving interpretation of the constitution. Highest court in Australia.
Role of the High Court
- INTERPRET the constitution
- LISTEN AND DEAL with constitutional challenges between federal and state parliaments (e.g. Tasmanian Dam Case)
