Unit 1: Legal Foundations Flashcards
Why do we need laws?
Laws are needed in society in order to prevent anarchy. Anarchy is defined as “a general state of disorder or uproar” or “a lack of established government or control”. It means that there are no laws, and no order is enforced.
What is the difference between social customs, rules and laws?
Social customs are socially acceptable habits such as saying hello, waiting in lines, and bringing a gift to a birthday party.
Rules regulate our lives in a more formal manner. These are decisions made by parents, teachers and school (basically any non-legal authority figure) in order to keep people under their control safe. They are small-scale. The consequences for breaking a rule aren’t legal.
Laws are rules made by governments to ensure that our society functions properly. There are legal consequences for breaking a law.
Main differences:
- Laws are made by a governmental body with authority.
- The consequences of breaking a law are more serious than a rule
- Laws apply to everyone
Why do laws change?
Laws change to reflect the evolving needs, morals and values of society. For example, as society’s morals have gone to absolute ruin throughout the years, prostitution laws have been relaxed, and laws such as witchcraft have been abolished. Free speech and religion are probably next.
What are the cultural influences in our legal system?
Most Australian Laws are British in origin. When Australia was colonised by Britain, their British laws were adopted.
Due to Australia’s multicultural society, as well as the Indigenous First Nation people, various pieces of legislation have been passes to ensure fairness exists between different cultural groups. E.g. The Racial Discrimination Act (1975) and the Native Title Act.
What are the moral influences of our legal system?
Moral influences in our legal system are the morals that occupy society today. These morals are frankly horrifying, but since they are held by the majority of our very messed up society, they impact the law. For example, since more and more people are becoming sexually immoral, prostitution laws have been relaxed.
What are economic influences in our legal system?
When some laws are passed, they can either be in response to economic pressure of may have some form of economic impact on our society.
What is the rule of law?
The rule of law is the principle that “all people and institutions are equally subject and accountable to the Law.
- Democratic countries such as Australia adhere to this principle in order to ensure just and equitable outcomes for all.
See book for Rule of Law pyramid.
What are the 5 features of a “good” law?
To be a good law, a law must contribute positively to the wellbeing of all citizens in our society.
- Law must fairly balance individual rights with community good
- Law should be clear
- Laws should be consistent and stable
- Laws should apply equally to all
- Laws should be capable of being enforced.
What are the three sources of Law in Australia? (Primary sources of law)
- The Constitution
- Law made by parliament (legislation/statute law)
- Law made by judges (common law)
What is the Constitution?
The Constitution is the most important legal and political document in Australia.
- The Constitution establishes the composition of the Australian Parliament, describes how Parliament works and what powers it has.
- It also outlines how the federal and state Parliaments share power, and the roles of the executive government and the High Court of Australia .
It was drafted when the colonies agreed to come together and form States in a Federation in 1901.
Identify and explain the four different types of law-making powers.
The four different types of law-making powers are exclusive powers, concurrent powers, and residual powers.
Exclusive powers: Only able to be exercised by the Commonwealth Government.
- s90: power to make laws regarding customs
- s115: prevents the States from making their own money
- s114: prevents the States from having their own armies
Concurrent powers: These powers can be exercised by BOTH the Commonwealth and the States. However, s109 states that COMMONWEALTH will PREVAIL if there is inconsistency. (Commonwealth > State)
Specific powers: Section 51 specifically sets out powers that can be exercised by the Commonwealth. They provide the Commonwealth with the power to make laws for ‘peace, order and good government of Australia’.
- If the Commonwealth decides not to legislate in that area, the states are free to do so.
Residual powers: Powers held by the states only. If a power is not set out in s51 or given exclusively to the commonwealth, it is a residual power and can ONLY be exercised by the STATES.
What is the Separation of Powers doctrine? What are the three parts?
The Separation of Powers doctrine ensures the powers of making, enforcing and interpreting law should be separate.
The Constitution separates the powers into 3 parts:
1. Legislative power (make laws and legislations)
- Exercised by Parliament
2. Executive power (enforce laws)
- Exercised by the Cabinet (PM and ministers in charge of Govt departments)
3. Judicial power (interpret law and decide if it has been broken)
- Exercised by Courts and Judges - independent from Parliament.
How does the Separation of powers work? E.g. Underage drinking laws
Only PARLIAMENT makes legislation setting the drinking age limit, making it illegal for minors to drink
The EXECUTIVE has the power to put these laws in to operation in order for law breakers to be arrested.
Only the COURTS interpret the law to see if a person has broken it.
What are the functions of the High Court? How many judges can be on it at a time?
The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts. The High Court can strike down some laws made by parliament.
There must be a High Court in Australia, and there must be at least 3 judges on that Court. Australia can only have 7 High Court judges at any time.
What is the Parliament and what does it do?
The word Parliament means “a meeting at which a discussion takes place”
Parliament is the legislative arm in the Separation of Powers.
The main functions of any parliament:
- To make or change laws
- To represent voters
- To scrutinise and check on the Government (Executive Arm)
What is the Federal (Commonwealth) Parliament?
The federal parliament passes laws that apply to all Australians. It consists of:
- The Crown - The Queen represented by the Governor General
- The House of Representatives - represent voters in their Local Electorate
- The Senate - Senators that represent State/Territory as a whole
What is the House of Representatives?
The House of Representatives is the “Lower House”
- It consists of 150 representatives each elected for a term of 3 years.
- Each member represents about 125,00 people in an electorate
- The most heavily populated states have the most representatives.
What is the Senate? (OLE)
The senate is the “Upper House” of the Federal Parliament.
It is made up of 76 senators - each of the 6 states elect 12, the territories elect 2 senators each.
Senators are elected for a term of 6 years.
What is Preferential Voting in Australia?
Preferential voting is listing candidates in order of preference.
After the first preference votes have been counted, if no candidate receives a majority, the candidate with the fewest first preference votes is eliminated.
The eliminated candidate’s second preferences are then added to the other candidate’s tallies. This process continues until 1 candidate has more than 50% of the votes.
What are the steps of a bill becoming a law?
First reading:
The title of the Bill is read out in the House of Representatives or Legislative Assembly. Each member receives a copy of the Bill.
Second reading:
Detailed discussion of the Bill begins. Bill can be opposed.
Committee stage: The Bill is examined and debated in detail. This is the MOST IMPORTANT STAGE. Pros and cons will be given.
Third reading: The title is read out again and voted on.
If this is just for QLD, it goes straight to the Governor General for signing.
If this is Federal, it must go through this process in the Senate before the Governor General phase.
Royal Assent: A bill becomes a Law after the success of these steps.
What is common law?
Common law (or case law) is made by judges rather than Parliament.
What is Customary Law?
Customary Law is social customs treated as if they are laws in certain communities (e.g. Indigenous)
What is the Doctrine of Precedent?
The doctrine of precedent is that judges are obliged to follow the decisions of earlier cases in higher courts when the factual circumstances are essentially the same.
Criteria: If the earlier court case a higher ranked court? Are the factual circumstances almost exactly the same?
What is the Court Hierarchy for Criminal Matters?
Lowest:
Magistrates Court District Court Supreme Court Court of Appeal High court
Highest:
