Unit 1 AoS1 - Legal Foundations (SAC) Flashcards
The role of individuals in achieving social cohesion and protecting the rights of individuals.
Individuals need to be aware of laws and follow these laws. They should especially be aware of and respect human rights.
- Assisting the police with their investigation.
- Reporting crime.
- Using the legal system to resolve their disputes when their rights have been infringed.
The role of laws in achieving social cohesion
Laws are fundamental in establishing social cohesion.
- Set boundaries for behaviour
- Establish a framework in which people live and allow individuals to make choices
- Laws specify what we can and cannot do
- Apply to everyone
- Laws also protect rights such as the right to not be subject to discrimination.
The legal system in achieving social cohesion
The legal system is a set of methods and institutions which makes, administers and enforces laws. It includes courts, tribunals and the police.
Explain and list the principles of justice.
Fairness – impartial and just treatment without discrimination. In criminal law, this upholds the right to fair processes and hearings
Equality – everyone is treated the same before the law, free from bias, impartial decisions, etc.
Access – everyone understands their legal rights and pursues their case with access to institutions and approaches.
Charter of Human Rights and Responsibilities Act 2006
Explain and list the characteristics. of effective law.
C lear and understood – ambiguous, confusing or unclear cannot be followed
A cceptable (reflect societies values)
K nown – informed by changes
E nforceable – possible to catch and punish people who break a law
S table – if laws are constantly changing…
Common law
- Law made by the courts (judge-made law)
Courts can make law in two situations:
1. Interpreting the meaning of words in statutes (Statutory Interpretation)
2. By deciding on an issue where there is no legislation or existing principle of law (precedent)
Statute law
- Law made by parliament
- Statutes are also called Acts of Parliament or legislation.
- All laws must pass through both houses of parliament and receive royal assent form the Queen’s representative.
The relationship between the parliaments and the courts.
- Codification of common law: parliament confirms a precedent by passing an act of parliament that reinforces that principle.
- Statutory interpretation: parliament creates statutes and court interpret the meaning of words in statutes or secondary legislation.
- Abrogation of common law: over-riding or changing a common law principle. Parliament can do this by passing a law that specifically abrogates a common law principle that, for example does not reflect society’s values .
- Ability of courts to influence parliament: courts can influence parliament through comments they make during court cases.
Describe the stage in the passage of a bill referred to as, ‘Royal Assent’.
The bill is presented to the Governor of Victoria for royal assent. Once royal assent is received, the bill becomes an Act of Parliament.
Explain persuasive precedent
A precedent can be persuasive (influential but not binding) on a Victorian court.
Explain binding precedent
A binding precedent is one that must be followed by courts lower in the same court hierarchy.
“It is so frustrating that judges can make law. They are just a bunch of old white men wearing wigs and going to fancy lunches. At least politicians are elected! Judges should not be able to make laws.” To what extent do you agree with this statement?
In Australia, the power to make laws is divided between the parliament and the courts. While parliament has the primary responsibility for creating laws, the courts have the power to interpret and apply those laws. This includes the power to shape legal precedent and establish new legal principles.
However, it is important to note that judges do not have the power to create laws from scratch. Rather, they must base their decisions on existing laws, legal precedent, and the Constitution. They do not have the ability to create new legal principles without a basis in existing law.
In Australia, the Constitution provides a framework for the division of powers between the federal and state governments, and between the executive, legislative, and judicial branches of government. The Constitution also establishes the High Court of Australia, which is the highest court in the country and has the power to interpret the Constitution and other laws.
The relationship between parliament and the courts is an important aspect of the Australian legal system. While parliament has the primary responsibility for creating laws, the courts play a critical role in ensuring that those laws are applied fairly and impartially. This includes interpreting and applying the law to individual cases, as well as shaping legal precedent through their decisions.
In conclusion, while it may be frustrating to some that judges have the power to interpret and apply the law, it is important to recognize the critical role that an independent judiciary plays in upholding the rule of law and ensuring justice is served. Judges must adhere to legal precedents and established principles, and their decisions are subject to review and scrutiny by higher courts. Ultimately, the division of powers between parliament and the courts helps to ensure that the law is created and applied fairly and impartially.
Plaintiff
a person who brings a legal (civil law) action.
Defendant
the party who is being sued (civil law).
Accused
a person or group of people who are charged with or on trial for a crime (criminal law).
