Untitled Deck Flashcards
Court Hierarchy
The hierarchy of courts from highest to lowest:
The High Court
The Court of Appeal
The Supreme Court
The District Court
The Magistrates Court
Native Title
Native title is a collection of rights, recognised by Australian law, that are held by Aboriginal and Torres Strait Islander peoples to the land and waters based on customs which came before European settlement. It is a claim to land rights by Indigenous peoples, based on their ongoing usage and connection to land.
Customary Law VS Statutory Law
The difference is, customary law refers to the rules developed based on traditional beliefs and values of Indigenous groups, as held in common by their people and in many societies, it is never written down. Statutory law is made by the parliament and consists of written law in a complex and formal legal system.
Constitution and Key Sections
The constitution is a written legal framework establishing the structure and powers of government. It determines the division, separation and allocation of powers and allows for checks and balances in how law is set.
Key sections:
- Section 51: It outlines the areas in which the Australian Parliament can make laws
- Section 128: It outlines that changes to the constitution have to be approved by the people of Australia and provides the process for constitutional amendments through referendums.
Common Law VS Statutory Law
Common law is law made by judges on a case-by-case basis and builds on the precedent and interpretation of earlier court decisions; judges have authority to make law and decisions around those laws. Whereas statute law is law made by parliament; it’s proposed as a bill, goes through a series of steps and is made into an act, it must be passed by the House of Representatives, the Senate, and given Royal Assent.
Jurisdiction
The jurisdiction is the area in which a court or government agency may properly exercise power. Jurisdiction exercised by Australian courts is either federal jurisdiction or state or territory jurisdiction. Federal jurisdiction is the authority to exercise the judicial power of the Commonwealth. State or territory jurisdiction is the authority to exercise the judicial power of a State or Territory.
Criminal Code Act 1899 (Cth)
The Criminal Code Act 1899 sets out Commonwealth criminal offences, elements of offences and defences.
Police Powers and Responsibility Act 2000 (Cth)
The Police Powers and Responsibility Act 2000 gives police their authority to conduct investigations into criminals and criminal matters. It deals with how police interact with citizens and manage criminal or disruptive behaviours under certain parameters.
Criminal Law VS Civil Law
Criminal law is a system of laws concerning crimes and the punishment of those who commit crimes and aims to punish individuals who have committed crimes against society, protecting the public interest. Whereas civil law focuses on regulating private disputes between two parties when someone believes there has been an infringement to their rights. In civil cases entities seek compensation for harm or loss.
Doctrine of Precedent
It establishes that judges are obliged (legally bound) to follow the decision of earlier cases in equal or higher courts in the same court hierarchy and when the factual circumstances of the latter case are materially the same as the earlier court case.
Summary Offences VS Indictable Offences
A summary or non-indictable offence is when an offence is heard by complaint and is dealt with by a magistrate and not by jury in the Magistrate’s Court. These include simple and regulatory offences and are less serious offence. Whereas an indictable offence is when the offence must be heard at trial following a written charge to an accused person. This includes crimes and misdemeanour which tend to be the more serious offences.
Legal Criteria (Just and Equitable)
Just and equitable relate to the fair and reasonableness of a court’s decision and ensures that the outcomes of cases are fair provided the individual circumstances of specific cases - matters must be settled on just and equitable grounds.
Features of an Effective Law (Just)
- Law should be prospective (known in advance)
* Laws must be made before they are enforced, not applied retroactively.
* This ensures people can make informed choices without fear of
unpredictable legal consequences. - Law should be clear
* Laws must be understandable and not open to excessive
interpretation.
* If laws are too vague, different judges may apply them inconsistently. - Law should apply equally to all
* The law should not discriminate based on race, gender, wealth, or
social status.
* Everyone should have equal access to legal representation and
protection under the law. - Law should be consistent and stable
* Laws should not change frequently or unpredictably.
* Stability allows people to plan their actions and trust the legal system. - Law should be capable of being enforced
* Law must be practical and enforceable.
* If a law is impossible to enforce, it becomes meaningless - Law must be acceptable to the citizens
* Laws must reflect social values and be generally accepted by the
population.
* If people see laws as unfair, they may ignore or protest them
Separation of powers
The separation of powers determined by the Constitution divides government authority into three branches: Legislative the branch which makes laws (e.g. Federal Parliament), Executive which implements and enforces laws (e.g. Prime Minister and Cabinet), and Judicial which interprets laws (e.g. the courts and judges).
Murder VS Manslaughter
Murder involves the unlawful and premediated killing of one human by another. The key element in murder is intent and if the prosecution can prove beyond reasonable doubt to there was intention to kill or cause grievous bodily harm they can be charged for murder. On the other hand, manslaughter is the unlawful killing of another person under circumstances that do not amount to murder, and it can arise from criminal negligence.
Standard of Proof VS Burden of Proof
The standard of proof refers to proving a defendant is guilty beyond reasonable doubt, and this must be achieved before said person can be convicted. Whereas the burden of proof refers to the fact the defendant is presumed to be innocent until proven guilty and it rests on the prosecution to prove the guilt of the defendant.
