Unit 1 AOS 1 - Legal Foundations

Question 1

Define social cohesion

Answer 1

Social cohesion is the willingness of members of a community to cooperate with each other in order to survive and prosper

Question 2

What are the five pillars of social cohesion?

Answer 2

• belonging
• social injustice and equity
• participation
• acceptance and rejection legitimacy
• worth

Question 3

Explain the role of the law in achieving social cohesion

Answer 3

Laws set boundaries for acceptable behaviour which establish a framework in which people live and allows individuals to make choices.

Question 4

Explain the role of individuals in achieving social cohesion?

Answer 4

Individuals need to be aware of the laws and follow these laws.

Question 5

Explain the role the legal system in achieving social cohesion?

Answer 5

The legal system sets out methods and institutes which makes and administers the law, including courts, police and tribunals. These institutions apply and enforce the law which facilitates social cohesion.

Question 6

Explain the role of the law in protecting the rights of the individual?

Answer 6

The law enforces what we can and can’t do, therefore protecting the rights of the individual such as the right not to be discriminated against.

Question 7

Explain the role of individuals in protecting the rights of the individual?

Answer 7

Individuals must be aware and respect the rights of others. Especially human rights.

Question 8

What is the role of the legal system in protecting the rights of the individual?

Answer 8

The legal system ensures that all the rights of the individual are protected.

Question 9

What are the principles of justice?

Answer 9

• fairness
• equality
• access

Question 10

Define the principle of justice: fairness

Answer 10

When disputes arise, fairness means there are fair legal processes in place, and all parties receive a fair hearing. People should be able to understand court processes and have an equal opportunity to present their case and rebut the other parties case.

Question 11

Define the principle of justice: equality

Answer 11

It means that all people should be equal under the law regardless of their characteristics or attributes, such as status, race, religion, marital status or culture. Everyone is given equal opportunity to present their case.

Question 12

Define the principle of justice: access

Answer 12

Access means that the law and legal system should make it possible for people to use the procedures, methods and institutions that help to resolve a civil dispute or determine a criminal case. It also means that people have access to understand their rights.

Question 13

What are the five characteristics of an effective law?

Answer 13

• reflect societies values
• enforceable
• known
• clear and understandable
• stable

Question 14

Explain the characteristic of an effective law: reflect societies values

Answer 14

A law must reflect and be able to change to reflect the societies values. This is because members of a society are more likely to follow a law if they agree with it.

Question 15

Explain the characteristic of an effective law: enforceable

Answer 15

A law must be enforceable, that is, if the law has been broken then it must be possible to catch and punish them, or sue them in a civil case. If this is not possible, people are less inclined to follow the rule, because they believe it will have no consequence.

Question 16

Explain the characteristic of an effective law: known

Answer 16

A law must be known to the public. If a law is not known, people will not know to follow it.

Question 17

Explain the characteristic of an effective law: clear and understandable

Answer 17

It is important for a law to be written in a way that people can understand, and it is clear what its intent is.

Question 18

Explain the characteristic of an effective law: stable

Answer 18

A law must be stable to be effective, meaning it must be clear and stable over time. If the law was constantly changing, no one would be certain what the law was, therefore would not follow it.

Question 19

What are the two main sources of law?

Answer 19

• common law

- statute law

Question 20

Define statute law

Answer 20

Statute laws are laws or legislations made by parliament. Parliament is the supreme law-making body and can override any laws created by the courts, providing it is within the parliaments power.

Question 21

Define common law

Answer 21

Common laws are laws made by the courts. The role of the courts is to apply existing laws made by parliament to the cases brought before them.

Question 22

Explain the relationship between parliament and the courts

Answer 22

• interpretation of statutes by the courts
• the codification of common law, or where the parliament confirms the common law by passing an act of parliament
• the abrogation of common law, or where the parliament overrules the common law by passing an Act of parliament
• the ability of the courts to influence parliament
• statutory interpretation

Question 23

Define statutory interpretation

Answer 23

Is the process undertaken by judges when they are required to give meaning to words or phrases in an Act of parliament so it can be applied to resolve a court case.An example of this is the studded belt case

Question 24

What is a precedent?

Answer 24

A precedent is when a court makes a decision which is the first of its kind, which then applies to all lower courts in the same court hierarchy when similar cases come before the courts in the future.

Question 25

What are the two parts that influence the court’s decision when setting a precedent?

Answer 25

• ratio decidendi

- obiter dictum

Question 26

What is the ratio decidendi?

Answer 26

‘The reason’ for the decision being made, not the decision itself.

Question 27

What is the obiter dictum?

Answer 27

Words ‘by the way’, and is not part of the decision or reason, but comments made by the judge.

Question 28

What are the two types of precedent?

Answer 28

• binding precedent

- persuasive precedent

Question 29

Explain a binding precedent

Answer 29

Is one that must be followed by courts lower in the same court hierarchy.

Question 30

Explain a persuasive precedent

Answer 30

Not a binding precedent, but the court can choose to follow it or can be persuaded by it.

Question 31

Outline the steps in developing or avoiding earlier precedents

Answer 31

Reversing
Overruling
Distinguishing
Disapproving

Question 32

What is the court hierarchy

Answer 32

• High Court of Australia
• Supreme Court
• County court
• Magistrates Court

Question 33

What is criminal law?

Answer 33

Criminal law is a type of law which protects the community by establishing crimes and setting sanctions for people that commit the crimes

Question 34

What is civil law?

Answer 34

Civil law protects and enforces the rights of individuals, and regulates disputes between individuals and groups. The main aim of civil law is to remedy a civil wrong, and return a person whose rights have been infringed to their original position.

Question 35

What are four reasons for court hierarchy?

Answer 35

• appeals
• specialisation
• administration convenience
• doctrine of precedent