Unit 1 - AOS1 Flashcards
Law
A regulation created by the government, courts or other authorities, which is enforceable through said courts. For example: traffic laws about speeding.
Non-Legal Rule
A regulation or principle regarding conduct within a particular activity or organisation. For example: dress codes at a social event.
Rule of Law
A principle which states that everyone in a society must obey the law, and that the law should be fair and clear, so that people are willing and able to obey it.
Characteristics of an Effective Law
- Clear and Understood
- Enforceable
- Known
- Stable
- Reflect Society’s Values
Social Cohesion
A term used to describe the willingness of individuals within a society to cooperate with each other.
Principles of Justice
The three aspects of justice, that determine whether it has been achieved in a case: fairness, equality and access.
Fairness
The first principle of justice, which states that all people can participate in the justice system, and that its processes should be impartial and open.
Equality
The second principle of justice, which states that all people engaging with the justice system should be treated in the same way, unless this creates disparity, in which case adequate measures should be implemented to allow all to engage with the justice system without disadvantage.
Access
The third principle of justice, which states that all people should be able to engage with the justice system and its processes on an informed basis.
Human Rights Charter
A legal act passed in 2006 in Victoria, with the purpose of protecting and promoting human rights.
Presumption of Innocence
The right of a person accused of a crime to be presumed not guilty unless proven otherwise.
Impartial Processes
The first feature of fairness, which states that members of the legal system (judges, jury, etc) should be unbiased and independent.
Open Processes
The second feature of fairness, which states that court cases should be made publicly available for analysis.
Participation
The third feature of fairness, which states that all people should be able to participate in a court case, such as by providing a translator or giving the accused an opportunity to meet with a lawyer.
Jury
An impartial group representing society, made up of 12 people. Determines whether the accused/defendant is guilty or not guilty in a trial.
Bias
A prejudice against a person or particular group of people.
Apprehended Bias
A situation in which it is believed that an individual might have bias. For example: if a jury member in a tax fraud case was a victim of tax fraud.
Disparity
A situation in which two things are not equal, leading to inequality.
Formal Equality
Treating everyone in exactly the same way.
Substantive Equality
Treating specific people differently so that they are not disadvantaged; equity. For example: taking breaks during a trial for small children.
Evidence
Information, documents or other materials that prove the facts presented in a legal case.
Lawyer
A person who has been trained in the law and is qualified to provide legal advice.
Victorian Legal Aid (VLA)
A government organisation that provides free legal advice for people who can not afford a lawyer.
Australian Constitution
A legal document put into effect in 1901, which outlines the set of principles on which Australia is to be governed.
Federation
The union of the separate Australian colonies in 1901, to create one central Commonwealth Parliament.
Parliament
The group of elected representatives that make up the King’s representative, upper and lower houses. Responsible for passing new laws.
Bicameral Parliament
A parliament that is split into two houses, such as the Australian Federal Parliament.
Government
The ruling body made up of members from the political party (or parties) with a majority in the lower house. Responsible for implementing laws and deciding which bills should be introduced to parliament.
Political Party
A political organisation that represents a group of people with similar ideas. For example: the Liberal, Labor and Greens parties.
Coalition
An alliance between two or more political parties. For example: LNP (Liberal National Party).
Independent (MP)
A member of parliament who does not belong to a particular party.
Minister
A member of government who is in charge of a particular area. For example: education minister.
Opposition (Party)
The political party that holds the second largest number of seats in the lower house. Responsible for holding the government to account.
Cabinet
A group made up of government ministers, along with the Prime Minister, who are in charge of the government’s portfolios and policies.
Election
The formal process through which people vote upon the person/party who they want to hold power.
Portfolios
The different areas of government, such as health, education and defense.
Structure of Federal Parliament
Lower House (House of Representatives) → Upper House (Senate) → King’s Representative (Governor-General)
House of Representatives
The lower house of Federal Parliament, which holds 151 members. Responsible for forming government, introducing bills and representing the people of each electorate. Members hold seats for 3 years.
Senate
The upper house of Federal Parliament, which holds 76 members (12 per each state, and two per territory). Responsible for reviewing bills passed in the Lower House and representing the people of each state. Members hold seats for 6 years (states) or 3 years (territories).
Governor-General
The King’s representative at the Commonwealth level.
Statute
Also commonly referred to as ‘legislature’ or ‘Acts of Parliament’; a law created by parliament.
Statute Law
Laws made by parliament.
Secondary Legislation
Laws made by secondary authorities, that have been given their power by parliament. For example: road laws created by VicRoads.
Bill
A written draft for a new law or change to an existing law, that is presented to parliament for debate.
Private Members’ Bill
A bill that is introduced to parliament by a member of parliament who is not a government minister.
Royal Assent
The formal signing and approval of a bill by the Governor-General (at the Federal level) or Governor (at the state level), before it becomes law.
Supremacy of Parliament
A concept which states that the final law-making power lies with parliament, which can pass statutes to override common law.
Structure of Victorian Parliament
Lower House (Legislative Assembly) → Upper House (Legislative Council) → King’s Representative (Governor)
Legislative Assembly
The lower house of Victorian Parliament, which holds 88 members. Responsible for forming government, introducing bills and representing the people of each electorate. Members hold seats for four years.
Legislative Council
The upper house of Victorian Parliament, which holds 40 members. Responsible for reviewing bills passed in the Lower House. Members hold seats for four years.
Governor
The King’s representative at the state level.
Court
An institution, consisting of a judge or magistrate, which hears and resolves legal cases.
Court Hierarchy
The ranking of courts from highest to lowest, based on the severity and complexity of cases. Allows for courts to specialise in specific areas and hear cases faster.
High Court
The highest court in Australia, which hears disputes over the Constitution, and occasionally appeals from lower courts. Consists of 7 judges (justices). Federal court.
Federal Court
A Federal court that hears matters relating to federal law, and appeals from lower courts. Consists of a judge and a jury. One per state.
Family Court
A Federal court that hears civil cases under the Family Law Act 1975, such as divorce, custody or property settlement. Can also hear appeals from other cases within the Family Court. Consists of a judge and no jury.
Supreme Court (Trial Division)
The highest court at the state level. Hears the most serious criminal cases such as murder, and civil disputes that involve large payments ($200,000+). Can also hear appeals from the Magistrate’s Court on point of law. Consists of a judge and jury.
County Court
A state court that hears serious criminal cases (except murder), and civil cases that involve payments of over $100,000. Can also hear appeals from the Magistrate’s Court or Children’s Court on grounds of conviction or sentence. Consists of a judge and a jury.
Magistrates’ Court
The lowest court level, which hears a range of minor criminal cases and civil disputes. Consists of 3 judges (magistrates) and no jury. State court.
Childrens’ Court
A state court that hears a range of criminal cases (excluding murder, arson, etc) where the accused is a child between the ages of 10-17.
Coroners Court
A state court that conducts inquests to investigate suspicious deaths and fires. Evidence gathered can then be sent to a higher court for trial.
Koori Court
A subsection of the Magistrates’, County and Childrens’ Courts, which sentences a range of cases in which the accused is Indigenous. Involves informal discussions between the offender, respected community members and the judge/magistrate to determine an appropriate sanction.
Common Law
Laws made through the decisions of judges.
Precedent
A legal decision that has been made in one case, which must be followed in other similar cases.
Doctrine of Precedent
A legal rule which states that the decisions made by higher courts in the same hierarchy must be followed by the lower courts, if the cases are similar.
Binding Precedent
A precedent that must be followed, due to it being set in a higher court in the same hierarchy.
Persuasive Precedent
A precedent that does not have to be followed, due to it being set in a lower court or in a different hierarchy.
Obiter Dictum
A Latin term meaning ‘by the way’; informal comments made by a judge that may influence future court cases.
Ratio Decidendi
A Latin term meaning ‘the reason’; the reasoning behind a judge’s decision.
Stare Decisis
A Latin term meaning ‘let the decision stand’; the principle forming the Doctrine of Precedent.
Statutory Interpretation
The process through which courts interpret the meaning of statute laws, to apply them to specific cases.
Appeal
The application of asking a higher court to review a decision made in a lower court.
Jurisdiction
The legal authority of a court or tribunal to resolve legal disputes and decide the outcome of cases.
4 Relationships Between Courts & Parliament
- Interpretation of statutes by the courts
- Codification of common law
- Abrogation of common law
- Ability of courts to influence parliament
Codification
The process of turning court precedent into statute law.
Abrogation
The process of abolishing court precedent by introducing a contradictory statute law.
How can Courts influence Parliament?
Judges are allowed to make comments during court cases, such as suggesting that a law should be changed.
Criminal Law
An area of law that defines prohibited behaviours (crimes) and outlines sanctions for people who commit said behaviours. Involves the Crown taking the accused to court.
Burden of Proof
The responsibility of the prosecution (in criminal cases) and plaintiff (in civil cases) to prove the guilt of the accused/defendant.
Prosecution
A lawyer who presents the case of the State or Crown in a criminal case. Is responsible for proving the guilt of the accused, by bringing forward witnesses and evidence.
Accused
The person within a criminal case who has been charged with a crime, but is not yet found guilty or not guilty.
Civil Law
An area of law that covers offenses that break someone else’s rights, such as defamation. Involves an individual taking another individual to court.
Plaintiff
A lawyer who presents the case of the injured party in a civil case. Is responsible for proving that the defendant committed a wrong act, by bringing forward witnesses and evidence.
Defendant
The individual or party in a civil case that is alleged to have breached civil law.
Reversing Precedent
A circumstance in which a precedent is set in a lower court, but then reversed due to the same case being appealed to a higher court.
Overruling Precedent
When a precedent set in a lower court is replaced by a precedent created in a higher court later on (different cases).
Distinguishing Precedent
When a court argues that the facts of a case are too different to those set in a previous precedent, meaning that they aren’t required to follow it.
Disapproving Precedent
When a court is bound by a precedent, but the judge expresses disapproval towards it, in hopes that a higher court may later overturn it.
Supreme Court (Appeal Division)
The appeal division of the Supreme Court, which hears appeals from the County and Supreme Courts. Consists of 3 judges and no jury.
