UNIT 1 - AOS 1 Flashcards
Define social cohesion.
A term used to describe the willingness of members of a society to cooperate with each other in order to survive. The benefits include a sense of belonging, more opportunities and harmony.
What is the rule of law?
The principle is that everyone in society is bound to the law. Laws must be fair and clear for people to obey them
Rights of individuals
The right to a fair hearing, the right to freedom of expression, the right to protection from retrospective criminal laws.
The role of individuals
Individuals have a responsibility to make themselves aware of the law, and to abide by it. Abiding by law enables social cohesion, as it ensures people are conducting themselves in a socially-expected manner.
The role of laws
Laws establish a framework of acceptable behaviour, including what individuals must do, and what they cannot.
The roles of the legal system
The legal system consists of bodies that make, administer, interpret and enforce the law. The extensions of these institutions provide an avenue for dispute resolution and allow for action to be taken against those who have infringed the rights of others.
The Principles of Justice
Fairness
Equality
Access
Fairness
Fairness is the first principle of justice. Fairness refers to fair processes and a fair hearing; everyone should have the opportunity to know the facts and present their side of events.
Equality
Equality is the second principle of justice. Everyone should be equal before the law and have equal opportunity to present their case
Access
Access is the third principle of justice. Access means that all people should be able to understand their legal rights and pursue their cases.
Characteristics of an effective law
Enforceable
Stable
Known
Clear and understood
Enforceable
An effective law must be enforceable. That is if people break the law, they must be able to be caught and brought to justice.
Stable
Laws need to change with the times, it is important that there is not too much change all at once, which can lead to confusion.
Known
For a law to be enforceable, the public must know about it. If people do not know about the new law, they will not be able to follow it.
Clear and understood
All laws must be written clearly so they are easily understood. If laws are too complicated or contain ambiguity, then uncertainty and confusion may follow.
The reasons for a court hierarchy:
Specialisation
Appeals
Allows the doctrine of Precedent to operate
Administrative convenience
Specialisation
Courts develop expertise in hearing certain types of cases so they should become proficient in delivering fair and just outcomes. So certain people who specialise in certain areas will benefit the case.
Appeals
A person who believes an error has been made by a court can appeal to a higher court to review the decision. Without a hierarchy, parties would not know where to have their appeal heard.
Allows the doctrine of Precedent to operate
Courts have to follow earlier decisions in higher courts in their own hierarchy involving similar material facts. Without a hierarchy, courts would not know whose decisions they have to follow.
Administrative convenience
Cases can be heard more efficiently as more frequently occurring minor matters are heard in the Magistrates’ Court (which are comparatively numerous) and a smaller number of more serious and complex cases are heard in the superior courts.
Jurisdiction
The lawful authority of a court, tribunal or other dispute resolution body to decide legal cases
Criminal law
Is a law that protects the community by establishing outcomes and sanctions for people who commit crimes. For example, murder, manslaughter and theft.
Sanction
Is a penalty or punishment imposed on the offender by the court. A person found guilty of a crime is given a sanction. EG - fine, jail time, community service.
Civil law
Involves disputes between individuals or groups it is claimed that rights have been fringed. Breachment of rights is negligence, defamation, trespass.
Plaintiff
In a civil case, they are the party who makes a legal claim about the other party.
Defendant
In a civil case, they are the party who is alleged to have breached a civil law and who is being sued by the plaintiff.
Remedy
A remedy should provide a legal solution for the plaintiff of the civil law by the defendant and restore the plaintiff to the position they were in before they were wronged.
Accused
A person charged with committing a criminal offence or offences.
Prosecution
The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law. Typically, the prosecutor represents the state or the government in the case brought against the accused person.
Secondary Legislation
Is the granting of additional law-making powers to another branch of government by an Act or statute.
Codify (Codification)
This is where Parliament creates legislation that reinforces principles established by a court decision. The Native Title Act as a result of the Mabo case is an example of codification.
Abrogate (Abrogation)
To cancel or abolish a court-made law so, Parliament may create legislation that changes or overrides a court’s decision.
Statutory Interpretation
Statutory interpretation is when a judge gives meaning to the words in a court matter. Since legislation is often written in broad/general terms which sometimes need to be interpreted.
Sources of Law
Sources of law refer to the origin of law. The two sources of law are known as common and statute law.
Statute Law
Statute law refers to law made by parliament.
A bill can only become law once passed through both houses, which is the upper house and lower houses and also given royal assent in order to become law.
Royal Assent
The formal signing and approval of a bill by the governor-general (at the commonwealth level) or governor (at the state level) after a bill becomes an Act of Parliament (a law).
Legislation
A set of laws passed by Parliament.
Common law
Common law is the law by judges through decisions made in cases.
The courts can make law in 2 situations - Statutory interpretation & Precedents
Act of Parliament
A law made by parliament; a bill that passed through parliament and has received royal assent.
Supremacy of Parliament
It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions.
Ratio Decidendi
The legal reasoning behind a judge’s decision
Stare Decisis
The legal principle of determining points in litigation according to precedent.
Precedent
A court decision that is followed by another court in the lower hierarchy (Eg. Stevenson v Donoghue).
Binding Precedent
Precedent that a court must abide by in its adjudication of a case. For example, a lower court is bound by the decision of a higher court in the same jurisdiction, even if the lower court judge disagrees with the reasoning or outcome of that decision.
Persuasive Precedent
Precedent that a court may, but is not required to, rely on in deciding a case. Examples include decisions from courts in neighbouring jurisdictions in a decision by a higher court.
Obiter Dictum
Comments made by a judge that may be persuasive in future cases.
