Week eight exam revision 2025 Flashcards
Jurisdiction
refers to who makes the law like federal or state governments and what areas of law they cover
The criminal code
Set of laws the define crimes, penalties and legal procedures, Outlines what actions are illegal and the punishments for breaking those laws. Covers crimes like murder, theft, assault and fraud
- Each state and territory has their own criminal code
Justice
Fair and impartial use of the law to ensure equality, accountability and the protection of rights
The rule of law
Doctrine where people are all equal before the law, government is subject to the law
examples: law does not discriminate between people unfairly, the judiciary be independent
Statute Law
The three levels of parliament are responsible for making law in Australia. These rules override common law. Statute laws can be changed by parliament as society changes. These laws are documented and publicly available
Process of statutory Law Making
The need for the law is identified, presentation and first reading, second reading, committee consideration, consideration in detail, third reading. In all states and territories other than Queensland the bill is then passed to the senate and then given royal assent
Common Law
fills in the gaps within legislative laws, mainly by judges
The doctrine of precedent
Means that courts must follow decisions made in earlier cases when deciding similar cases. Ensures fairness and consistency
Customary Law
Traditional legal practises and systems for Indigenous Australian’s communities, oral teaching. Regulates social behaviour, land ownership and dispute resolutions with an emphasis on restorative justice. Reflects a holistic approach to law and order. Seeks to address historical injustice and improve relations between indigenous and non-indigenous Australians
Onus of proof - criminal
Prosecution must prove guilty, innocence does not have to be proven
Standard of Proof - criminal
beyond responable doubt
Seperation of powers
Legislative (government)
- Has the power to make laws
Executive (police, governor general, ministers, premier)
- Administer the law
- Consists of the governor general (represents the queen), cabinet, prime minister and 18 other ministers
Judiciary (judges)
- Role is to interpret and adjudicate upon the laws
- Made up of supreme courts and other courts within the Queensland jurisdiction
- Executive appoint judiciary, based of liberal/labour
- checks and balances are put into place
- needs to ensure their isnt an abuse of powers
Adversarial System
- Followed in Australia, England, united stated, New Zealand and Canada
- Provides each party in a criminal trial (prosecution and defence) with the opportunity to present their arguments to the court
- An impartial decision maker (judicial officer or jury) decide the outcome
- An independent judge ensures the trial is fair and in a just manner
- Is a slow process as evidentiary and procedural rules are applied in order for the trial to be fair
- Relies on each party having access to legal representation which can be costly
Inquisitorial System
- Followed by France, Germany and Italy
- The judges role is to supervise or direct police investigations, determine witnesses and the order they are presented, decides which issues are important and the evidence used, makes all legal and factual decisions and don’t rely on judicial precedent meaning they are able to decide each case independently
- All boundaries between law enforcement, prosecution and judiciary are blurred
- Great deal of poiwer that the judge obtains
- Passive role played by the lawyers can make the defendant disempowered and has the defendant doesn’t have the right to silence they are unable to defend themselves
- Rick of personal bias
Court Hierarchy in Federal System
- High court of Australia
- Federal Court and family court of Australia
- Federal Majastraites Court
Court Hierarchy in Queensland
- High court of Australia
- Queensland Court of appeal
- Queensland supreme court
- Queensland District Court
- Queensland Magistrates Court
Purpose of laws within society
Laws are a system of rules created and enforced by the government or institutions to regulate behaviours and maintain order in society
Difference between a rule and a law
Laws apply to everyone and have legal consequences, while rules apply only within specific groups and have internal penalties
Characteristics of effective law
Known to the public, acceptance in the community, able to be enforced, stable, able to be changed, applied consistently and able to resolve disputes
Retribution / Punishment
- Offenders receive a penalty that reflects the seriousness of their crime
Prevention
- Stopping future crimes by deterring offenders and others from breaking the law
Denunciation
- The court publicly condemns the crime to show society’s disapproval
Community Protection
- Keeping the public safe by restricting or removing dangerous offenders
Rehabilitation
- Helping offenders change their behaviour to prevent reoffending
Police powers regarding warrants and evidence
Police powers and responsibilities act (2000) includes the rights to:
- searching of property, person, vehicle
- carrying out forensic procedures
- taking DNA samples
- arresting / detaining persons
- rights after detention
Police powers are checked by responsibilities such as to procure a warrant, permission to search, explained rights
- “items relevant to search”
- Evidence not properly collected = inadmissible
Legal Criteria
- Needs to incorporate elements of the rule of law
- Common law or statutory law
- Just and/or equitable outcomes
Just and Equitable Outcomes
Fairness of all circumstances and / or even and impartial outcome as a result
Eg. improved accessibility, enforceability, responsiveness or use of resources
Emergent search
Right to search without a warrant in special circumstances
