U1 AOS 1 Flashcards
Social cohesion
The willingness of a society to cooperate to survive and prosper.
What is the role of laws?
To set boundaries of behaviour and protect rights.
What is the role of Individuals?
Individuals should be aware of the laws and respect human rights. Ignorance of the law is not an excuse.
What is the role of the legal system?
Create, administer, enforce laws
What are the principles of justice?
Fairness, equality and acess
What is fairness in the legal system?
Impartial and just treatment; behaviour without favouritism and discrimination.
How is justice upheld in the legal system?
Accused is presumed innocent, and aware of charges against them. Able to recieve legal aid and present defences. Right to appeal
What is equality in the legal system?
Everyone treated in the same manner, every individual is equal under the law and entitled to law’s protection
What is access in the legal system?
people aware of their legal rights, have opportunity to pursue case and receive rights
What makes a law effective? (SECKS)
Reflects society’s values, Enforceable, known, clear and understood, stable
What are the sources of law?
Statute and common law
What is parliament’s principle role?
To make laws
What does ‘supremacy of parliament’ mean?
The concept that final law making power rests with parliament, can repeal and amend its own statutes and pass legislation to override common law
How is a bill created?
must pass through the legislative process (propesed in lower house, pass upper house, royal ascent)
What is the Victorian court hierarchy?
High court of Australia, Supreme court - court of appeal, supreme court - trial division, county court, Magistrate’s court.
What is the Federal court hierarchy?
High court, federal court, federal circuit and family court.
Parliament with 2 houses
Bicameral
Structure of cth parliament
House of representatives - lower house
Senate - upper house
Govenor General - royal ascent, crown’s representative.
Structure of Vic parliament
Legislative assembly - lower house
Legislative council - upper house
Govenor - representative, royal ascent
What is the relationship between courts and parliament in law-making?
Supremacy of parliament, codification of common law, abrogation, statutory interpretation, ability of courts to influence parliament.
What does codification mean?
Process which parliament confirms and precedent by passing legislation.
E.g Mabo case and native title
What is abrogation?
Process which parliament overrides/cancels a precedent by passing legislation that abolishes/changes principles established by court.
e.g trigwell and livestock
What is statutory interpretation?
Courts give meaning to words of legislation in the way parliament intended.
E.g studded belt case and weapon
What is the ability of courts to influence parliament?
Decisions made in courts and statements by judges can influence parliament to create legislation.
Trigwell, Mabo
What is the doctrine of precedent?
Courts’ rulings can become a precedent which can be binding in certain situations.
When do courts create precedents?
- there is no existing law in area (Donaghue v Stevenson)
- Legislation exists, court is required to give meaning to words or phrases (studded belt)
When is a precedent binding?
- set by higher court in same hierarchy
- material facts of case are similar
what does binding mean?
Judges in a lower court must follow the ruling od a higher court if the precedent is binding.
When is a precedent persuasive?
- set by a lower court on same hierarchy
- different hierarchy
- statements made as obita dicta, not ratio decendi.
What are the latin terms for the doctrine of precedent?
Stare decisis, ratio decendi, obiter dicta
What does stare decisis mean?
“To stand by what has been decided”
- lower courts will stand by decisions of higher courts, using them in own cases
What does ratio decendi mean?
“Reasons for the decision”
- legal reasoning behind decision
- becomes binding part of precedent
What is obiter dicta?
“Things said by the way”
- other comments made by judge in case, can become persuasive in future cases.
How do judges use precedent?
Reversing, overruling, distinguishing, denouncing.
What does reversing mean?
If court creates precedent, but decision is appealed, higher court can reverse precedent that was created (same case)
What does overruling do?
Court creates precedent that is changed in later case by higher court, old precedent has been overruled
What is distinguishing?
Judge can refuse to follow precedent when material facts are different. Not binding.
What is denouncing?
Judge can disapprove of precedent and record in judgment, but have to follow it = binding.
What are the reasons for a court hierarchy?
Appeals, specialisation, administrative convenience, doctrine of precedent.
What are appeals?
If someone is unhappy with outcome of case, can have decision reviewed by higher court.
What is specalisation?
Judge will have experience in case/expertise.
What is administrative convenience?
More small courts to hear higher volume of cases, allows higher courts to spend more time on more complex cases.
- promotes efficiency in court system
What are the types of law?
Criminal law, civil law.
What is the aim of criminal law?
protect members of community and their property from harm.
What are the names of parties in criminal law?
Accused, prosecution.
Explanation of criminal law.
Body of law that defines criminal offences and their sanctions.
Explanation of civil law.
Body of law that resolves disputes between individuals and organisations.
What is the aim of civil law?
To protect the rights of individuals, provide justice to those who believe their rights have been infringed.
What are the consequences in civil law?
Remedies
- damages
- injunctions
Parties in civil law
Plaintiff, defendant
Parties in criminal law
Prosecution, accused
