unit 1 - the legal system Flashcards
customs
traditional and widely accepted way of behaving or doing something that is specific to a particular society, place, or time
example - shaking hands when you greet someone in Australia
rules
set of explicit or understood regulations governing conduct or procedure within a particular area of activity
example - wearing the right school uniform at school
laws
system of rules created and enforced through social or governmental institutions to regulate behaviour
example - stopping at a red light when driving
values
principles, standards or qualities a society considers worthwhile or desirable
example - value life, freedom
ethics
rules or standards directing the behaviour of a person within a group of people; to do with what is considered right and wrong behaviour
example - taking someones life without permission for euthanasia
just law
laws that are consistent with the moral rights of persons and peoples, and that are implemented in conformity with the principles of natural justice
just law characteristics
- follows requirements of procedural fairness
- upholds and protects
- known and easily found by the public
- based on widely held values
nature of justice - equality2
the state of being equal or the same, especially in status, rights, or opportunities
nature of justice - fairness
impartial and just treatment or behaviour without favouritism or discrimination
nature of justice - access
the means or opportunity to approach or enter a place
procedural fairness (principles of natural justice)
key principles of procedural justice and fairness:
- transparency (being open and honest about case and identity)
- freedoms from bias (rights to have a decision made by an unbiased decision maker)
- the right to be heard (right to a fair hearing in court)
rule of law
political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws
anarchy
society being freely constituted without authorities or a governing body.
Can refer to a society or group of people that entirely rejects a set hierarchy - meaning “an absence of government”
tyranny
a government or ruler with total power.
example - country run by a cruel dictator (hitler over germany)
fairness
freedom from bias, dishonesty, or injustice; a concept commonly related to everyday activities
timeliness
Balance between the time required to properly obtain, present and weigh evidence, law and arguments, and unreasonable delay due to inefficient processes and resources (justice delayed is justice denied)
non-retrospective
A law can only be applied to an act that occurs after the law was adopted
natural justice
Rules against bias and the right to a fair hearing
binding precident
every court in a hierarchy is bound by that precedent (cannot divert from the precedent)
persuasive precedent
established by a superior court that is not higher in the hierarchy of courts. Precedents should be seriously considered but it is not required to be followed
Ratio decidendi
the essential legal reason why a judge came to a particular decision; this sets the precedent
Obiter dicta
what judges may say around the ratio, but it is not part of the judgment as it doesn’t form the principal (is persuasive argument however not binding)
defamation
the action of damaging the good reputation of someone
common law
laws made by judges
statue law
Laws made by parliament (legislation, an act, parliament law)
The Australian Constitution
written constitution that is supreme law in Australia. It establishes Australia as a federation under a constitutional monarchy and outlines the structure and powers of the Australian government’s three constituent parts, the executive, legislature, and judiciary
First nations (indigenous Australians), customary law
Indigenous Australian customary law refers to the legal systems and practices uniquely belonging to Indigenous Australians of Australia, that is, Aboriginal and Torres Strait Islander people
international law
A body of rules established by custom or treaty and recognised by nations as binding in their relations with one another
adversary
2 sides (defence and prosecutors)
judge made law
The collection of legal principles and rules that are derived from decisions judges make in courts
precedent
A judgement made by a judge in court that provides guidance for deciding later cases that have similar facts. (Judges are obliged to apply the reasoning of judges in past cases when deciding cases that raise similar facts)
equity
The body of law that supplements the common law and corrects injustices by applying principles of fairness
injunction
stops someone form doing something
division of powers in Australian Constitution
three levels of government in which no one level of government can control all the laws and activities in the nation
legislative powers
legal capacity or power to make laws
concurrent powers
existing at the same time; powers held by both the state and federal parliaments
exclusive powers
powers that can only be exercised by the Federal Parliament. Includes:
- Trade and commerce with other countries
- Foreign relations with other countries
- National Defence
residual powers
Residual powers - Powers that belong solely to the states
Residual powers in NSW = crime, hospitals, public transport, environmental protection
amending the Australian constitution
The Australian Constitution can only be altered by referendum.
Referendum - Australians of voting age (18+) vote yes or no for the proposed changes.
To succeed, a majority of voters nationwide and a majority of States (four out of six) must approve the changes.
separation of powers in Australian Constitution
definition - Power is divided between a law-making body (Parliament), an executive body (Executive) and courts (Judiciary).
Australian Constitution divides the power to govern Australia between the Australian Parliament (that makes laws for all Australians), the Prime Minister and ministers (who put the law into action), and the High Court of Australia and other federal courts (that make judgements on the law).
(Cth)
commonwealth - federal law - whole of Aus have to follow that law
(NSW)
only NSW follows that law
