Week 1 Flashcards
What is the definition of law?
A system of rules that a particular country or community recognises as regulating the actions of its members.
What are the three key components of law?
- System of rules, 2. Recognised as law by the community, 3. That regulate the actions of the community.
What is a system of rules?
Rules are a set of principles and restrictions governing conduct within a particular area of activity.
How are rules defined and applied?
Rules are defined in advance and consistently applied for objectivity and predictability.
How do rules impact daily life?
Rules affect almost everything: buying or selling, contract law, trade practices law, criminal law (assault), and traffic regulations.
What distinguishes law from other rules?
Not all rules are ‘law’; norms come from families, schools, and communities, but law requires community recognition.
What authorities have the power to create laws?
Parliament and courts, and in some Indigenous systems, elders have the authority to speak the law.
What is the role of law in regulating community actions?
Laws regulate community actions, but Australian laws only bind the local population, not people in other countries.
What are the two main sources of law?
Common law (judges/precedent) and statute law (parliament).
What are the levels of jurisdiction in Australia?
State laws and Commonwealth laws, as outlined in the Constitution.
Why do communities submit to the legal system?
The legal system facilitates peaceful dispute resolution, maintains order, enables community living, promotes safe driving, respect for rules, and ensures fair compensation from employers.
How does the authority of law evolve?
Law’s authority is dynamic, aligning with community values, and changing over time, e.g., the decriminalisation of adultery and domestic violence.
What was the Hart and Devlin debate about?
A debate between Lord Devlin and Professor Hart in the 1950s-60s on the relationship between law and morality.
What was the context of the Hart and Devlin debate?
The debate occurred after the Lord Wolfenden Report (1957), which recommended decriminalising homosexual relations in the UK.
What was Devlin’s view on the relationship between law and morality?
Devlin believed law should preserve a moral code, stating that societal disintegration occurs without common morality, but questioned how ‘common morality’ is determined.
What was Hart’s view on the relationship between law and morality?
Hart argued that law should only prevent harm, not reflect morality, advocating for private, consensual sex to be legal regardless of societal views.
What was the Toonen v Australia case about?
In the 1990s, Tasmania criminalised homosexual relations on moral grounds, but the UN Human Rights Committee ruled this violated the ICCPR’s right to privacy and non-discrimination.
How did international law impact the Toonen v Australia case?
International human rights law (ICCPR) overrode Tasmania’s moral laws, leading to decriminalisation.
What was the McBain case about?
Ms Meldrum was denied access to IVF in 1999 due to laws restricting it to married or heterosexual de facto couples, leading to legal conflict.
How did the feminist movement influence IVF access laws?
The feminist movement pushed for legal reform, leading to federal laws prohibiting marital discrimination under the Sex Discrimination Act 1984.
What was the legal conflict in the McBain case?
Victorian law restricted IVF to married women, while Commonwealth law prohibited discrimination based on marriage.
What does Section 109 of the Australian Constitution state?
If a State law is inconsistent with a Commonwealth law, the Commonwealth law prevails, and the State law is invalid to the extent of the inconsistency.
How was the McBain case resolved?
The case was resolved based on legal principles, not moral ones, applying Section 109 of the Constitution, ensuring that Commonwealth law prevailed over Victorian law.
