U1 AOS1 - Legal Foundations Flashcards
what is social cohesion?
a term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper
what is the role of laws in achieveing social cohesion?
- to provide guidelines on what behaviour is acceptable/not acceptable
- to protect the rights of individuals
to resolve disputes peacefully
what is the role of individuals in achieving social cohesion?
- responsibility to ensure that they are aware of the laws + abide by them
- respect human rights + act in accordance with human rights
- assist police investigations, report crimes, use the legal system to resolve disputes
what is the role of the legal system in achieving social cohesion?
- implements + enforces the law
- deals fairly + justly with individuals who have broken the law/breached someone’s rights
- settles disputes in a way that avoids further conflict/disruption to society
what are the 3 principles of justice?
fairness, equality, and access
what is fairness?
having fair processes and a fair hearing
what is equality?
people should be equal before the law + have an equal opportunity to present their case (no advantage/disadvantage)
what is access?
all people should be able to understand their legal rights and pursue their case (legal procedures should be accessible)
how many steps are there for a bill to become an act?
10
what are the first 5 steps for a bill to become an act?
- introduction and first reading
- second reading
- committee stage/consideration in detail
- third reading
- the bill passes the house
which house do bills usually go through first?
the lower house (house of representatives)
what happens in the second house before the bill is passed?
the same steps as the first house
what happens after the bill has passed both houses?
royal assent (governor-general in federal gov and governor in state gov approves the bill)
what are the 2 houses in victorian parliament?
- lower house (house of representatives, green)
- upper house (senate, red)
what are the characteristics of an effective law?
- must reflect society’s current values
- must be enforceable
- must be known
- must be clear and understood
- must be stable
what are the 2 types of law?
civil law and criminal law
what is civil law?
an area of law that defines the rights and responsibilites of individuals, groups, and organisations in society, and regulates private disputes
what is criminal law?
an area of law that defines behaviours and conduct that are prohibited (crimes) and outlines sanctions (penalties) for those who commit them
what are the 2 ways offences can be classified?
summary offences and indictable offences
what are summary offences?
- minor criminal offences
- heard in the magistrate’s court
- contained in the summary offences act
- heard/determine without a judge or jury
what are examples of summary offences?
drink-driving, disorderly conduct, minor assaults, etc.
what are indictable offences?
- serious criminal offences
- heard by a juge and a jury
- heard in the county or supreme courts
- contained in the crimes act
what are examples of indictable offences?
murder, manslaughter, etc.
what are indictable offences heard summarily?
serious offences that can be heard and determined as summary offences
when can indictable offences be heard summarily?
- if the accused consents
- if the offence is punishable by not more than 10 years imprisonment or a fine greater than 1200 penalty units
how are criminal cases cited?
DPP v defendant
what is the DPP?
director or public prosecutions
how are civil cases cited?
plaintiff v defendant
what are the aims of criminal law?
- to protect society
- to protect property
- to protect individuals
- to promote justice
what are the aims of civil law?
- to regulate the conduct between parties to a dispute
- to remedy a wrong that has occured
what is the burden of proof?
the responsibility to prove the allegations made in a case
who holds the burden of proof?
the person who initiates or brings the case to court (prosecution in criminal case, plaintiff in civil case)
what is the standard of proof?
the strength of evidence needed to prove a legal case
what is the standard of proof in a criminal case?
beyond a reasonable doubt
what is the standard of proof in a civil case?
on the balance of probabilities
what are the parties in criminal law?
the prosecution and the defendant
what are the parties in civil law?
the plaintiff and the defendant
what can the verdict be in a criminal case?
guilty or not guilty
what can the verdict be in a civil case?
in favour of the plaintiff or in favour of the defendant
what is the victorian court hierarchy (lowest to highest)?
- magistrate’s court
- county court
- supreme court (trial division)
- supreme court (court of appeal)
- high court of australia (federal)
what are the specialist courts in victoria
- coroners court (investigates suspicious deaths and fires
- childrens court (deals with cirminal and family matters involving children)
which court hears summary offences?
magistrates court
which courts hear indictable offences?
supreme court (trial division) and county court
what are the reasons for having a court hierarchy?
- specialisation/expertise
- appeals
- doctrine of precedent
- administrative convenience
what are the 4 main features of the relationship between parliament and the courts?
- statutory interpretation
- codification of common law
- abrogation of common law
- ability of courts to influence parliament
what is statutory interpretation?
when courts interpret/give meaning to the words in statutes when applying them to a new case
what is codification of common law?
when parliament collects all law (statute and common) on one topic together into a single statute
what is the abrogation of common law?
when parliament cancels/abolishes a court-made law by passing an act of parliament
what is the ability of courts to influence parliament?
when the court indicates in a judgement that they think a law should be changed by parliament
what is statute law?
laws made by parliament, also known as acts of parliament/legislation
what is the main role of parliament?
to make laws
what is supremacy of parliament?
the fact that the final law-making power rests with parliament, which can repeal/amend its own statutes + pass legislation to override common law
what is common law?
laws made by judges through decisions in cases, also known as case law/judge-made law
what is the main role of courts?
to apply existing laws to cases
what is the secondary role of courts?
to make laws as part of their determination of cases
what are the 2 ways that courts can make laws?
- through statutory interpretation
- through establishing a precedent
what is a precedent?
a principle established in a legal case that is followed by the courts in cases where the material facts are similar
when do courts make precedents?
- when the meaning of words in statutes is unclear and needs interpretation
- when there is no legislation in the area of law that a case refers to, or the previous law/principle needs expanding upon
what are the 2 types of precedents?
binding and persuasive
when is a precedent binding?
if it was set in a higher court in the same court hierarchy
when is a precedent persuasive?
if it was set in a law court in the same hierarchy, the same level of court in the same hierarchy, or a court in a different hierarchy
