U1AOS1: Legal Foundations Flashcards
Rule
Made by private individuals/groups. Only apply to a specific group of people and enforcement can vary.
Law
Made by legal institution such as parliaments and the courts. Apply to all of society and are enforceable by the courts and the police.
Date of Federation
January 1st, 1901
Parliament
A formal assemble composed of elected representatives who make laws, with the exception of the Governor-General who is appointed.
Significance of the Constitution
-Establishes parliament
-Establishes the lawmaking powers of Cth +States
-Establishes the judicial role of the HC
-Establishes how the constitution can be changed
Social Cohesion
Willingness of members of a society to cooperate with each other in order to survive and prosper
Role of individuals in SC
By following the law- ‘everyone doing their bit’
By using offical methods of reform law if viewed as unjust
Role of law in SC
Set up guidelines, create boundaries to protect individuals, establish rule of law
Role of LS in SC
Ensuring that institutions exist to effectively create, implement and enforce the law
Include: parliament, the police, courts and flexibility to sanctions
Fairness:
All people can participate in the judicial system and its processes should be impartial and open
Formal Equality
-Everyone receives same treatment regardless personal differences/characteristics
-One size fits all approach
Substantive Equality
-Adjustments put in place when formal equality X work + create disadvantage/ disparity
Access:
Ability to engage with LS and its processes on an informed basis
Characteristics of an effective law: Reflect society’s values
-Belief, principle/idea re. how we should behave + treat others
-Laws must change to align w/ current societal values eg, same sex marriage + legalising cannabis
Characteristics of an effective law: Enforceable
-Breaking -> can be apprehended + charged in a criminal case/sued in civil proceedings
-enforced by courts, various govt agencies (EPA + VicRoads) + police
Characteristics of an effective law: Known
-Ignorance of the law is no excuse
–Public must be kept informed of new laws/ major changes to laws eg through ad campaigns + media debate
Characteristics of an effective law: Clear and Understood
-Must be consistent + precise so law can be interpreted +understood clearly by ppl in society
-unclear, w/ jargon –> less likely to be followed
Characteristics of an effective law: Stable
-Cannot be constantly changing
-Law makers should attempt to forecast change b4 happens
Structure of Cth Parliament
-Made of HoR (lower house) -> forms govt + mostly introduces bills
-Senate (upper house) -> house of review + mainly debates + amends bills
-GG gives royal assent after bills are passed
House of Representatives
Composition: 151 seats (from 151 electorate, ~ 1 seat/ 100 000 ppl), made from govt (forms cabinet + ministers), opposition (forms shadow ministers) +crossbench
Role: Introduces + pass proposed laws, rep ppl’s interest + opposition holds govt accountable
Senate
Composition: made of 76 senators, 12 from each state + 2 frm each territory
Role: review bills passed by HoR, ensures equal rep of states, introduces + passes proposed laws
Governor-General
Gives bills royal assent to become laws
Statute Law
Law made by parliament. Also called Acts of Parliament/ legislation
Legislative Assembly
-88 members re elected every 4 yrs
-maj party forms govt + leader becomes premier
-ministers chosen to form cabinet + opposition= shadow ministers
Structure of the Victoria Parliament
-lower house= legislative assembly
-upper house= legislative council
-leader of govt= premier
-head of state= governor of victoria
Legislative Council
-4 regions + 11 districts -> 40 members
-scrutinise/ debate bills but can also introduce
Subordinate Authorities/ Delegated Bodies
-when power is delegated through legislation to lower authorities to make minor laws in their area of expertise
-eg Domestic Animals Act delegates powers to subordinate authorities to make laws in constituency eg CoB has Domestic Animal Management Plan
Common Law
Made through statutory interpretation and the setting of precedent
Also called common law, case law or judge-made law
Doctrine of Precedent
Legal principle established by judges that should be followed by courts in later cases where similar facts arise. Created through statutory interpretation or when a court decides a case that is the first of it kind
Binding and Persuasive Precedent
Binding precedent
- must be followed
-set by a higher court in the same hierarchy
-facts of the case are similar
Persuasive precedent
-doesn’t have to be followed
-dif court heirarchy
-set by a lower / same court in same heirarchy
Ratio decidendi and obiter dictum
Ratio decidendi - ‘reason for decision’ - binding part of judgement
Obiter dictum - ‘by the way’ - persuasive part, can include suggestions for judges / future law makers
Donoghue v Stevenson
Donoghue drank half of a ginger beer purchased for her by a friend that contained a decomposed snail + developed sever gastroenteritis. Later sued Stevenson (manufacturer) + won case on appeal est. legal principle of duty of care b/tw manufacturer + final consumer + negligence tort
Statutory Interpretation
Judges are often called upon to interpret the meaning of words in a statute when applying it to a case before the court
Codification
As the supreme law-making body, parliament can make legislation that codifies (reinforces, confirms) precedent set by a court.
Abrogation
As the supreme law-making body, parliament can make legislation that abrogates (overrides, abolishes) a common law principle
-Statute may not alight with parli’s intent / reflect current meaning of act
-precedent created / applied that parliament does not agree with
Judicial Influence
In their judgements, courts may influence parliament to change the law by commenting on the need for reform
-courts are bound by unjust / unfair precedent
-judges believe parli better suited to change law
