THE LEGAL SYSTEM Flashcards
Definition of Law?
the system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties
Definition of Customs?
a usage of common practice to many or a particular place, class or habitual
Definition of Rule?
a set of explicit or understood regulations or principles governing a conduct or procedure within a particular area of activity
Definition of Values?
principles or standards of behaviour; one’s own judgement of what is important in life.
Definition of Ethics?
moral principles that govern a person’s behaviour or conduct of an activity. often as a group or society.
What are the characteristics of just laws?
applies to everyone equally, reflects widely held values/ethics, utilitarian, redressed inequalities, minimises delays, not retrospective, must be known.
What are the aspects of the Nature of justice?
equality, fairness, access
Definition of fairness and what it ensures?
ensures that laws do not impact an individual or group harshly - appeal rights are an important aspect of this as they can correct errors in the process
ensures laws do not have negative effects -
Definition of equality and what it ensures?
the enforcement of the law must be equal- justice is achieved when laws do not discriminate and apply equally to all people - must take in peoples capacities and vulnerabilities.
Definition of access and what it ensures?
everyone has access and is given the opportunity to utilise the law and assistance with it - legal aid and lawyers in order to properly understand the law - barriers like cost and language may prevent this.
What are procedural fairness principles?
right to be heard, and the right to an impartial decision-maker.
What is the rule of law?
everyone, regardless of position or status, is subjected to the law and must follow it.
Definition of anarchy?
absence of a government; a state of lawlessness or a political disorder
Definition of tyranny?
cruel and oppressive government or rule
outline what the adversarial system is
a legal system where two advocates represent their parties positions before an impartial judge and sometimes a jury
what are the 3 main bodies in an adversarial system?
prosecutor, defendant, judge
What is common law?
refers to law made by judges hearing disputes in court. This is also known as case law. follows doctrine of precedent.
What is equity?
a body of law that provides a remedy in situations where the application of common law would’ve lead to injustice - operates alongside common law.
Definition of remedy?
a coirt ordered solution to a dispute that enforces a right or rights a wrong in some way.
Definition of petition?
a formal request to a person in authority for some favour, right, mercy or assistance
What are some differences between common law and equity?
- equity is more flexible and responsive to individual circumstances
- common law is more consistent and rigid
- equity offers more suitable remedies
What is a precedent?
a case that is the first of its kind that establishes a new legal principle and that is subsequently used to guide decision-making in lower courts. standardised common law system.
What are the two parliamentary houses?
The senate (upper house green) and House of representatives (lower house red)
How is a bill passed?
A bill must pass through the House of Representatives, and then through to the Senate. If passed by the Senate, must be given royal ascent, and then it becomes law.
About the doctrine of precedent and its rules? (what is binding, persuasive etc)
- decisions of higher courts are binding to
lower courts, - the high court or same-level court is not
binded by its own decisions - International courts are not binding
(persuasive) - The binding part is ratio decidendi (the reasoning)
What is the local council and what are examples of their roles?
council of people elected by the community to make decisions about local law. examples include parking, permits, and garbage collection.
what is the constitution?
a set of fundamental rules by which Australia is governed and the supreme law under which the Australian government operates. Further, this provides a commonwealth judiciary in the form of a high court, and is used by parliament to enact legislation and relationships between commonwealth and state and territories.
What is the division of powers?
refers to the way that the legislative power is divided between the Australian government, state government, and local. Also referred to as the three levels of government.
What is Section 51 of the Australian constitution?
section 51 lists the areas that are the domain of commonwealth lawmaking.
What are residual powers?
Any powers not specified in section 51 are known as residual powers and are exercised by the state. eg education, police, local government, and transport.
What is concurrent and exclusive powers?
concurrent powers are when both state and federal can pass laws (federal can overall state though). Exclusive powers can only be exercised by the federal parliament.
What are the separation of powers and their role?
legislative power - law-making
judicial power - interpreting the law
executive power - implementing
and enforcing the law
ASTI hierarchy of sorts? biggest to smallest.
nations, clans, families
What is kinship?
an elaborate system of blood relations that defined the roles, and responsibilities of members within a clan.
What is mediation and why is it important to ASTI?
process of resolving disputes in which a third party assists disputing parties to reach a solution. Important to ASTI as it is more conductive to maintaining a relationship which is essential to kinship
What are sanctions and who are they imposed by? add examples.
punishments imposed for breaches of customary law (ASTI), and are imposed by relatives or wronged persons, elders in the community, and ceremonial leaders. examples include shaming, spearing, duelling, exclusion, death, and exile.
What is circle sentencing?
an alternative sentencing court for adult Aboriginal offenders. The circle has the full sentencing power of the court. Customary laws cannot be enforced in Australian courts, however, CL is taken into account or integrated into the application of the law.
What is international law? and examples.
the body of law that governs the legal relations between or among sovereign states or nations. Examples include treaties, conventions and declarations, legal decisions by international organisations, and international customary law.
What is domestic law?
domestic law is state and federal internal laws by individual countries.
What are some major organisations in international court?
United Nations, international criminal court, European court of justice, European court of human rights
What’s an IGO (an intergovernmental organisation).?
one with a regional or global mandate to carry out projects and plans in the common interests of its members made up of sovereign states. eg World Trade Organisation.
What is public law?
a branch of law that deals with relationships between government or state and individuals, as well as the relationship between the state and other states. applies to everyone. (individual refers to a person or organisation/business.
What is Criminal law?
is designed to protect society as a whole from crimes and proceed as a punishable.
What is administrative law?
deals with obligations of government towards individuals and corporations. it also regulates government decision-making, making everyone even the government accountable to the law.
What is constitutional law?
outlines the powers and operation of the government (section 51 divides up powers).
Is the refusal of medical treatment administrative law, criminal law or constitutional law?
administrative law
What is private law?
a branch of law that deals with relationships between individuals within the state. Part of the civil legal system.
Identify the three aspects of public law.
Criminal, Administrative, and Constitutional Law.
Identify the three aspects of Private law.
Contract, Tort, and Property Law.
Outline what contract law is
Contract law is a branch of law that governs legally enforceable agreements between parties, establishing mutual obligations.
Outline what Tort law is
Tort law is a broad area of civil law that deals with acts or omissions that cause harm to others, resulting in legal liability for the person who committed the tortious act. It protects persons’ safety, physical and intellectual property, and reputation.
Identify the four key areas of tort law
negligence, trespass, nuisance, and defamation.
Outline what Property Law is
Property law is the area of law that governs ownership rights and interests in both real property (land and buildings) and personal property (movable items).
Who are trials initiated by?
Prosecution (criminal), Plaintiff (civil)
Who is the onus placed upon?
Plaintiff or prosecution
Outline the standard of proof for both civil and criminal
criminal - beyond reasonable doubt
civil - balance of probabilities
Identify some personnel in a court/trial
magistrate, judges, lawyers, solicitors, barristers, prosecutors, jury, tipstaff.
Identify some conditions that give rise to law reform
Changing in social values, new concepts of justice, and new technology.
Identify agencies of law reform
law reform commissions, parliamentary committees, media, and non-government organisations.
Identify mechanisms of law reform
courts, parliaments, United Nations, intergovernmental organisations
what is the cabinet?
subgroup of ministers of the government that meet for decision-making purposes.
how are compensation claims divided between local, district, and supreme?
local court - below 100,000
district - up to 750,000
supreme - anything above 750,000
what are the four main sources of international law?
united nations, other IGO’s, international instruments, and courts and tribunals.
what is the process of a treaty (summarized)
discussions - draft - more discussions - finalise - sign - ratify
what are the main ‘organs’ of the United Nations?
general assembly, the security council, the secretariat, ICJ
what is the general assembly?
main forum for international discussions. each state has equal voting power.
what is the security council?
responsible for the maintenance of peace and security. exercises power through legally binding resolutions. authorises sanctions, and peacekeeping military action.
what is the secretariat?
main administrative body
ICJ role?
settle legal disputes submitted to it by states and give advisory opinions on legal questions referred to it bu authorised United Nations.
what is a monist or a dualist system?
monist - when a state signs an international agreement it automatically becomes part of its domestic law.
dualist - when a State signs an international agreement it needs to be enacted into their domestic law before it becomes enforceable.
