Unit 1 area of study 1 legal foundations Flashcards
Rules
what: Non-legal rules which are regulations codes policies
who: made by private individuals and apply to a specific group of people
Where: households schools work sport
How:
Laws
What: Legal rules
Who: made by legal institutions and apply to society
Where: parliaments and courts
How: enforceable by courts and police
Date of Australia’s federation
January 1st 1901
Parliament
is a formal assembly made up of representatives of people who are elected by the people to make laws, with exception to the governor general.
Why is the constitution significant
It establishes parliament/establishes the law making powers of Cth + States/establishes the judicial role of high court/establishes how the constitution can be changed.
Social cohesion
A term used to describe the willingness of members of a society to cooperate with each other in order to survive and prosper
Indicators of socially cohesive society
People can work and improve their education
individuals feel sense of acceptance and belonging
individuals are treated fairly and not discriminated against
Dysfunctional society
Crime, non peaceful protest, recidivism
How individuals can promote social cohesion
It is the Responsibility of individuals to follow the law once they are aware of them
How the law can promote social cohesion
Set up guidelines for what is acceptable
Create boundaries to protest individuals
Establish ‘rule of law’
How the legal system can promote social cohesion
Promotes social cohesion by ensuring that institutions exists to effectively create, implement and enforce the law
5 characteristics of an effective law
Reflect society’s values
Are enforceable
Are known
Are clear and understandable
Are stable
Enforceable
If it were not possible to reprimand those who break the law, people would be less inclined to follow it
Those who break the law may be apprehended and charged in a criminal case or sued in civil proceedings
The law is enforced in Australia by the courts, police and various government bodies.
Known
The public must be aware of a law in order to follow it
However it is the responsibility of individuals to find out what the law is on matters that affect them.ignorance of law is no excuse
Law makers must keep public informed of new laws or major changes to law these are usually reported and debated in media before being introduced
Reflect society’s values
A value is a belief, principle or idea about the way we should behave and treat others which are deemed important to uphold
As laws regulate and restrict our actions it is vital that they are acceptable to the community. If a law is accepted within society, members are more inclined to follow it.
• This is a major reason for law reform, as laws must change with to align with current societal values
Stable
• Laws cannot be constantly changing otherwise there will be confusion. People need to be confident that the law can be relied on.
• Law-making bodies should attempt to forecast changes that may occur in the future as they are making new laws or changing existing ones.
Question
Clear and understandable
Legislative drafters write legislation with a purpose in mind - they must be consistent and precise with their wording so that the law can be interpreted and understood clearly by people in society.
• If a law is ambiguous, unclear or written in technical legal jargon, it is less likely to be followed.
• For example, in Victoria there has recently been calls to change the laws about neighbourhood tree disputes. Tree disputes are incredibly common and yet the law for dealing with such conflicts is convoluted.
Victorian court hierarchy
High court
Supreme Court-court of appeal
Supreme court- trial division
County court
Magistrate court
Reasons for court hierarchy
Specialisation
Appeal
Administrative convenience
Precedent
common law
is judge made law
doctrine of precedent
legal principle established by judges that should be followed by courts in later cases when similar facts
binding and persuasive precedent
binding= must be followed courts in same system
persuasive= does not have to be followed
ratio decidendi and obiter dictum
ratio decidendi: the reason for the decision
obiter dictum : by the way (persuasive)
developing or avoiding precendent
Distinguishing – material facts in the new case are sufficiently different from the material facts in the
binding precedent
Overruling – a higher court states that the precedent set by a lower court in a different case no longer
applies. The higher court then sets a new precedent that becomes binding on lower courts
Reversing – the same case is appealed to a higher court and the superior court changes the decision of
the lower court. The higher court has set a new precedent that becomes binding on lower courts
Disapproving – a court follows a binding precedent but expresses disagreement with it in its obiter
dictum. This does not change the precedent but may be considered by a higher court in the future
donoghue v stevenson
a bottle of ginger beer contained a snail inside and ms donoghue drank it and fell ill however couldn’t sue the cafe as she didnt purchase the beer
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
eg self defence
abrogation
As the supreme law-making body, parliament can make legislation that abrogates
(overrides, abolishes) a common law principle.
why : doesn’t align with way parliaments intent
also applied in way they don’t agree
judicial influence
In their judgements, courts may influence parliament to change the law by
commenting on the need for reform.
unjust or outdated
parliament in better position to change
