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Legal Studies > The Legal System > Flashcards

The Legal System Flashcards

1
Q

what is a law?

A

A set of enforceable rules that are seen as binding on the community and impartial as a whole. It is a set of rules are is officially recognised. There are consequences if they are not breached, which are imposed by the institutions that govern society.

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2
Q

define ethics

A

Rules or standards governing the conduct of a person, not members of the profession, what we consider right or wrong

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3
Q

What do laws reflect?

A

laws are intended to reflect traditional and current ethics. Sometimes not the case, example transgender jails made by sovereign power (parliament) through statutes. 

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4
Q

three characteristics of laws.

A
  • Binding on the whole community
  • reflect rights and duties
  • discoverable people can find out about them easily
  • can be enforced backed by punishment
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5
Q

how are laws made?

A
  1. roles governing behaviour to maintain order, based on customs/ traditions/ values
  2. penalties attached to members of a group if they fail to follow the rules from authorities (the gov)
  3. overtime, these rules become formalised as laws
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6
Q

define rule

A

regulations governing procedure or conduct. they are not enforceable l. originate from our customs.

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7
Q

define customs

A

collective habits/ behaviour developed overtime through generations

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8
Q

define value

A

principals or standards consisted desirable by society

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9
Q

define customary law

A

principals developed according to a people, nation treated as obligatory and accepted as a legal requirement

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10
Q

how is the Australian Legal System influenced?

A
  1. International Laws
  2. Aboriginal and Torres Strait Islanders Laws
  3. English Laws
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11
Q

define impartial

A

treating everyone the same regardless of social status

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12
Q

characteristics of just laws:
impartial laws:

A
  • every law has to recognise human rights (eg aboritan rights, same sec marriage)
  • every law should be accessible online
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13
Q

how are laws consistent in society?

A
  • all laws have to be applied equally to everyone
  • equal status (being treated the same)
  • laws don’t discriminate and apply equally
  • despite striving for equality, the legal system takes into account different capacities
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14
Q

how are the laws fair?

A
  • legal system responding to difference
  • applies to everyday life whereas justice has legal connotations
  • fairness and equality are opposites
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15
Q

are laws accessible?

A
  • legal representation
  • all individuals have access to the legal system and awareness of their rights and responsibilities
  • legal aid aims to resolve the issue to access for disadvantaged persons. however, the merit based system has problems
  • achieving justice as the disadvantaged can have legal representation
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16
Q

what are the features of procedural fairness/ natural justice?

A
  1. every individual is accused when evidence is question and verdict is being determined
  2. given a formal sheet of paper when arrested by police - states capture day. and court charge
  3. right to a trail - both sides get to present evidence - the prosecution is the state and the police, the defence can present evidence as well (if they kind an alibi, that’s the defence evidence that’s their right)
    - CASE - RE PINOCHET
  4. cross examination - we must cross examination courts
    - to show quality of the evidence
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17
Q

what is rule of law

A

everyone is answerable to the law and no one is above the law e.g. police powers are controlled

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18
Q

what does it mean by arbitrary power is eliminated?

A

If the government attempts to pass a law that is beyond its constitutional powers (Rules of Government) the Governor General and the High Court of Australia are empowered to intervene.

PSA: the Federal Government CAN ONLY make laws on marriage,

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19
Q

what is the separation of powers?

A

Ensures RULE OF LAW (interdependent judiciary)

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20
Q

define anarchy

A

a state of lawlessness (where law enforcement agencies do not operate effectively)
- May break out during a revolution or a natural disaster
- Why? – enforcement agencies no longer exist or are unable to enforce the laws
- Violence and widespread looting (if people loot shops or houses, they steal things from them, e.g. during a war) are two early indicators that a society or group is on the verge of anarchy.

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21
Q

how might a society maintain order?

A
  • Recognition of evolving values and ethics
    • Establishment of patterns of conduct
    • Provision of dispute settlements e.g., Courts
    • People obey laws due to the consequences and punishments. Sanctions act as a deterrent for others in society.
  • Protests, natural disasters can occur
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22
Q

what is piracy?

A

Because of society is crumbling, because of anarchy, there is piracy. There is no employment. The government is trying to spend resources on civil wars in employment and commercial industry = no jobs.

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23
Q

what is tyranny?

A

The rule by a single leader holding absolute power in a state.

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24
Q

what is a tyrant? with an example

A

A tyrant is a single leader who has unlimited and arbitrary power over the people in a country or state.
- Does not allow elections for voting.
- Never be unvoted

example Kim Jong un

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25
Q

Australia has two types of law. what are they?

A
  1. common law
  2. statute law
    both have originated from English law
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26
Q

define common law

A

laws made by judges based on precedent.
the Australian political system - British and America

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27
Q

define statute law

A

laws made by parliament

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28
Q

constitution

A

government

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29
Q

international law

A

united nations

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30
Q

precedent

A

achieves equality (justice)

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31
Q

define equity

A

Developed after common law precedent. The court of chancery dealt with unique cases (achieve fairness).

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32
Q

define equity law

A

fairness. The body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness.

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33
Q

what is the role of the chancellor?

A
  • Not basing their judgements on precedent and form
    • They were influenced by Christian principles.
  • This body of law, which developed to deal with the injustices that had crept ‘into the common law’ and was set up to hear these petitions became known as equity.
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34
Q

define obiter dicta

A

personal opinion, the judges opinion

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35
Q

define ratio decidendi

A

legal reason

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36
Q

what is precedent

A

judgement made by a court that establishes ‘a point of law’

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37
Q

Judge is bound by the ratio decidendi . what is the reason for the judicial decision

A

Judges in a higher court may override the precedent (e.g. if the case is appealed) - ensures equality
Old cases retain an authority, which allow their decisions to be used as the basis for decisions in newer cases

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38
Q

define stare decisis

A

the decision stands. a judge who follows precedent is attempting to resolve a legal issue in a certain way because a similar issue was resolved in this way in the past

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39
Q

what are the two rules of precedent?

A
  • binding precedent
  • persuasive precedent
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40
Q

what are 5 points of binding precedent with an example

A
  • Precedent is ‘binding’ on a court if the precedent was made by a superior court that is higher in the hierarchy or courts
  • Lower courts are bound to follow decisions of superior courts, regardless of whether the judge believes a decision of the higher court is correct
  • Must be followed if the precedent is relevant and the circumstances of the case are sufficiently similar
  • All state and federal courts in Australia are bound by the decision of the high court of Australia
  • Only the radio decidendi of the superior court is binding
  • E.g. The NSW Local Court and district court must follow the decisions of the supreme court
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41
Q

what are 5 points of persuasive precedent with an example

A
  • A precedent is ‘persuasive’ if it was established by a superior court that is not higher in the hierarchy of courts
  • The precedent should be seriously considered, but is not required to be followed
  • Superior courts do not have to follow decisions made in the lower courts
  • They may use them to help make a decision
  • May also include orbiter dicta of a judge in a higher court
  • E.g. A precedent established by the supreme court of New South Wales is persuasive but not binding on the supreme court of Victoria, since these courts are not the same hierarchy and are of equal authority
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42
Q

how will a judge affect the precedent?

A

a court is more likely to take into account a precedent set by eminent and influential judge

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43
Q

how will the court affect the precedent?

A

the higher the court, the more persuasive the precedent will be

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44
Q

what are two advantages of using the doctrine of precedent in the legal system

A
  • Prevent bias or prejudice from judges
  • Promotes judicial restraint
    Limits a judge’s ability to be too creative when making a decision
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45
Q

what are two disadvantages of using the doctrine of precedent in the legal system

A
  • Inflexible nature of the binding precedent
  • Lower courts in the hierarchy are bound by existing precedents if they cannot distinguish material facts
    Judgements from these previous cases may be outdated or not taken into consideration, though the lower court is still bound to follow it
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46
Q

define obiter dicta

A

comments from a judge in a case that are not directly relevant to the case; not legally binding

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47
Q

when does precedent not have to be followed?

A
  • When a higher court upholds an appeal against a lower court’s decision, the decision of the lower court is reversed
  • Court may refuse to follow a decision of another court that is at a lower or equal level in the hierarchy
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48
Q

define refusal

A

overruling the decision of the lower court

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49
Q

avoiding the use of precedent: distinguishing the case

A

judge ay decide that the facts of a current case are different to a previous case that precedent does not have to be followed

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50
Q

avoiding the use of precedent: reversing a judgement

A

when a matter is appealed to a higher court, there is a possibility that the appeal will be up held. precedent set by the lower court will be reversed

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51
Q

avoiding the use of precedent: overruling a decision with an example

A

Similar to reversing a decision, but involves two separate cases
E.g. a person is found guilty of an offence in a lower court. Another person is tried for a similar offence with similar facts in a higher court. If the higher court decides the ruling of the lower court was wrong, may overturn the decision and therefore the lower court’s precedent

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52
Q

avoiding the use of precedent: disapproving a decision

A

Case from another court system may be referred to a judge for consideration
Judge may refuse to consider the case because it comes from another jurisdiction

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53
Q

define adversarial system of trial

A

A system of resolving legal conflicts, used in common law countries which relies on the skill of representatives for each side (e.g., defence and prosecution lawyers) who present their cases to an impartial decision-maker.

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53
Q

define adversarial

A

A system of resolving legal conflicts – used in common law countries, that relies on the skill of representatives for each side who present their cases.
- Adversary means opponent.
- 2 sides – offender + prosecutor.
- In theory, the defendant does not have to prove anything as they are assumed innocent until proven guilty.
- Impartial judge or jury will listen to evidence presented by both parties.
- Jury – 12 people who are tasked with hearing evidence presented and returning a verdict of guilty or not guilty.
- In civil cases (private), plaintiff is the victim.

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54
Q

define inquisitorial

A

A legal system where the court or part of the court is actively involved in conducting the trial and determining the questions to ask. Used primarily in countries where they have civil legal systems.
- Judges will conduct an inquiry into the truth of what occurred.
- Judges can decide when witnesses are called and can call for outside testimony, even if it hasn’t been requested by either side.
- No cross examination – judge does it.

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55
Q

disadvantages of adversary systems

A
  • Biggest Flaw: Despite the rigorous testing of evidence, cases are often won by the best and most persuasive argument rather than on the evidence
    • Civil cases: mediation should be used in family law matters to reduce time, costs and animosity between parties in dispute
  • Criminal law: the way witnesses, such as children and victims of sexual assault, are cross examined is to reduce the trauma of the trial process
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56
Q

court hierarch

A

look over one note

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57
Q

define statute law

A

laws made by parliament. Also known as ‘legislation’ and ‘Acts of Parliament’. These can override common law precedents.

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58
Q

what are the 3 areas of statute law?

A
  • delegated legislation
  • role and structure of parliament
  • legislative process
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59
Q

statute law always prevail over common law. what does this mean?

A
  • Any parliament (state, territory, and federal governments) have the power to make statute law.
    • Australian Constitution sets out the powers of state and federal parliaments with respect to making law.
  • Courts work with society and the cases presented to them
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60
Q

what are the features of a democracy

A
  • Population elects who they want to represent the country
    • Transparency
    • Free elections -
    • Multi-party
    • Freedom of movement, and basic human rights
  • Government is not run by monarchs or family; it is run by the people (anyone has the right to become politics)
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61
Q

who is the parliament?

A

A body of elected representatives from members of society

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62
Q

what is the role of the parliament?

A
  • Debates proposed legislation
    • Passes, amends, rejects legislation
  • Delegates legislative authority to other bodies
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63
Q

define bicameral

A
  • two houses
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64
Q

what is a double dissolution

A

When the Upper and Lower House fail to agree on passing legislation TWICE, Section 57 of the Constitution grants a special power to the Governor General (by request of the Prime Minister) to dissolve both Houses and call a new election.

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65
Q

who is the Governor General

A
  • A representative of the Queen created by the Constitution.
    • The appointment has no set time frame, but usually lasts 5 years.
    • The Australia Act 1886 diminished the role of the Queen. Today, the main role of the Queen is to appoint the Governor General
    • Gives the Queens assent (approval) to laws.
    • The Governor General can exercise their “Reserve Powers,” and choose not to follow when:
    • A hung parliament occurs  the GG can appoint a new Prime Minister
  • Dismiss the Prime Minister who has lost the public’s confidence, or has acted unlawfully
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66
Q

what is the federal executive council?

A
  • Is made up of the GG, PM, and Cabinet Ministers.
  • The GG main role is to ensure the FEC acts lawfully within the Constitution
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67
Q

what is a hung parliament?

A

A hung parliament occurs when two parties have the same number of seats in the lower house after an election. No one can form government on its own, and minor parties or independents will have to side with one or the other to create a government.

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68
Q

what is the legislative process?

A

Under a bicameral system, bills (or proposed laws) pass through several stages in both of the Houses of Parliament, before being sent to the Governor for assent.w

69
Q

what does the constitution determine?

A

who makes the power in certain areas

70
Q

what is the process of making a statute law?

A
  • need for new law is identified
  • draft bill
  • first reading
  • second reading
  • committee stage
  • third reading
  • upper house
  • royal assent
71
Q

what is an original act?

A

areas where there have been no previous laws

72
Q

what is an amending act?

A

change sections of existing legislation

73
Q

what is a consolidating act?

A

combine all the statute made over the years on one area into one Act

74
Q

what is a repealing act?

A

remove statute laws either totally or partially

75
Q

define a delegated legislation

A

Made by non-parliamentary bodies such as councils, often called an “enabling Act”

76
Q

what does the Parliamentary Committee Enabling Act (1996) NSW list

A

the powers and rights of various committees of the parliament of NSW

77
Q

define delegated legislation

A

Delegated legislation laws made by authorities other than parliament, which are delegated the power to do this by an Act of parliament.

78
Q

what are the types of delegated legislation

A
  • regulations
  • ordinances
  • rules
  • by laws
79
Q

regulations - delegated regulation

A

laws made by the Governor General, state governors or members of the Executive Council

80
Q

ordinances - delegated regulation

A

laws made for Australian territories (e.g., Norfolk Island and the Australian Antarctic Territory)

81
Q

rules - delegated regulation

A

legislation made for government departments, usually by the department involved

82
Q

by laws - delegated regulation

A

laws made by local councils, which are restricted to the area governed by that council.

83
Q

what are three advantages of delegated regulation?

A
  1. the people making the legislation are usually experts in that field
  2. delegation of minor legislation frees up parliamentary time for very serious issues
  3. it is easier to amend delegated legislation and therefore, more flexible
84
Q

what are three disadvantages of delegated legislation

A
  1. elected members of parliament do not have the time or expertise to fully check the delegated legislation
  2. with many different bodies involved in making delegated legislation, there can be inconsistences
  3. little publicity surrounds delegated legislation and therefore, the public cannot voice their views
85
Q

what are the three parts of the constitution?

A
  1. division of powers
  2. separation of powers
  3. the high court
86
Q

what is federation?

A

the process of uniting several states to form a single national government.

87
Q

what is the constitution

A

Set of rules that may apply to a nation. On 1 January 1901, Australia gained a Commonwealth Constitution, which outlined the legal framework and rules that apply to the governance of Australia.

88
Q

what are three advantages of federation in 1901

A
  1. economics: the removal of trade barriers between the colonies would promote a more efficient economy
  2. transport: a national rail network would overcome problems caused by the colonies having different rail gauges
  3. defence: as the colonies were far from britain and from britain’s ability to assist in the event of an attack, an unified military force would reduce vulnerability
89
Q

what 3 disadvantages for federation in 1901

A
  1. trade: tariffs could be used to protect industries in certain colonies from competition in other colonies
  2. fear: smaller states believed that the more populous and ‘richer’ states would override their interests
  3. apathy: many people felt that federation was irrelevant to their daily lives; this was compounded by the severe economic depression of the 1890s`
90
Q

define tariff

A

a tax that must be paid on imports or exports

91
Q

what was the white australia policy?

A

The Government Policy of only allowing Europeans and English speaking people to immigrate to Australia; so called ‘undesirables’ were kept out by the use of the infamous ‘Dictation Test’.

92
Q

what does section 51 say of the constitution

A

includes exclusive law making power reserved for the federal government

93
Q

what does section 109 state in the constitution?

A

states that laws are inconsistent with federal laws, federal laws prevail

94
Q

what is included in the exclusive part of the division of powers?

A
  • trade
  • defence
  • external powers/relations
  • marriage
95
Q

what is included in the concurrent section of the division of powers?

A
  • tax
  • health care (state responsible for hospital, federal responsible for funds eg medicare)
96
Q

what does section 106 and 107 state in the constitution

A

states existence and remaining power after federation

97
Q

what is included in the residual part of the division of powers?

A
  • health
  • transport
  • education
  • law and order (crime)
98
Q

define external affairs powers

A

the power of the Commonwealth to legislate on international matters involving Australia; interpreted by the High Court to mean that when the Commonwealth signs an international treaty or convention, it has the authority to enact laws to give effect to this international law within Australia.w

99
Q

what is the judiciary

A

courts = interpret and apply the law

100
Q

what is the legislature

A

law makers - parliament

101
Q

what is the executive

A

cabinet, GG, PM

102
Q

separation of powers upholds rule of law. what is the purpose of this?

A

The purpose is to ensure rule of law, and no one group can dominate, reducing the chances of dictatorship.
- All three arms are independent
- The separation of powers does not exist in its pure form e.g., Ministers and the PM are members of the Executive and Legislature.

This is effective because courts can set new precedents that respond to social issues. E.g. Gloucester Resources Case

103
Q

what is the difference between division and separation of powers?

A

We need to have a functional legal system to make things fair - these components have to be separate in order to work together. If not, there is going to be overlap, too much power

1. The Legislature – process: the lawmakers (in Australia this is the parliament: the HOP and the Senate)
2. The Judiciary - interpret laws that the Parliament pass and apply them. 
3. The Executive - Cabinet (all ministers), GG, PM - discuss significantly important issues that can wait for a parliament sitting. Executive can fast track legislative process
104
Q

what does section 71 of the constitution state?

A
  • Creates The High Court
  • Allows the parliament to create other courts. Over time, this had led to the creation of:
  • Federal Court
  • Family Court
  • Federal Magistrates Court
105
Q

what does section 72 state in the constitution?

A
  • It must contain one Chief Justice and 2 other judges
    High Court judges usually come from State Supreme courts or Federal Courts. - – They must retire by 70 (s. 72 outlined how judges are appointed)
106
Q

what does section 75 state in the constitution

A

treaties, matters between states, if an injunction or prohibition is sought after an officer of the Cwlth.

Treaties, matters between states (e.g., borders closing) if an injunction or prohibition is sought after an officer of the Cwlth.

107
Q

what does section 76 say in the constitution

A

constitutional matters, laws made by parliament

108
Q

what does section 73 of the constitution state?

A
  • The High Court can hear cases from any federal court, or the Supreme Court of any state, meaning that special leave is granted.
  • Decisions in the HC are final and conclusive (High Court Rules 2004)
109
Q

define original jurisdiction

A

The ability or power of a court to hear a case in the first instance
- What cases skip every court - straight to the high court
- Constitutional related - e.g., referendum, the division and separation of powers

110
Q

define appellate jurisdiction

A
  • Any matter - as long as it comes from the Criminal Court of Appeal
    • Decisions in the HC are final and conclusive (High Court Rules 2004)
111
Q

what is judicial review?

A

The High Court can also review actions of government official or depts, and administrative decisions.
It involves the court with appropriate jurisdiction investigating whether a government official or department has acted ultra vires or whether they have followed the rules of natural justice (procedural fairness).
However, the most efficient way to resolve a government administrative decision is through a tribunal (non-judicial)
e.g., Police force is with corruption- high court investigates government department - that is called a judicial review, it still reviewed in high court

112
Q

why is it called judicial?

A

We are reviewing the process of the government departments. E.g., Centrelink etc.

113
Q

define mandamus

A

A court order compelling a government official or organisation to perform a particular task

114
Q

define prohibition

A

A court order that forbids a lower-level court from hearing or taking further action in a case or matter

115
Q

define injunction

A

A court order requiring an individual or organisation to perform, or (more commonly) not to perform, a particular action

116
Q

what is customary law?

A

principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nation, and area treated as obligatory.

117
Q

define terra nullius

A

land belonging to no one

118
Q

what was the tradition prior to colonisation?

A
  • Customary law is based on tradition, ritual and socially acceptable behaviour developed over time
    • Prior to colonisation, much of their lifestyle focused on hunting and nomadic living
  • Being a part of a tribe means to live and use its resources. If the land is lost, the group has lost its identity.
119
Q

what is the diverse system of law?

A
  • The separate ATSI communities developed their own laws but there were also common aspects among groups. The similarities in customary law outweigh the differences.
    • Disputes are not restricted to individuals, the resolution of the dispute (involving negotiation, mediation, conciliation) involved everyone in community

There are also offences not recognised by non-customary law but punishable under traditional law.
Example – insulting an elder and the singing of sacred songs in public.

120
Q

what is the spiritual nature of customary law?

A
  • Dreaming is the source of ATSI customary law which contain stories of how plants, animals and the land were created and should be treated.
    • Due to the secrecy and lack of written documentation it is difficult to link laws to the dreamtime.  the cultural role is played by oral history in contrast to written documentation.
    • Laws differ from community to community.
121
Q

what is the significance of land bodies?

A
  • Bodies of water are also cared for by groups, not owned by individuals.
    • Land is care for by the group under customary law.
      ○ Not following these responsibilities towards the land, meant that individuals failed to show respect for land and traditional values.
122
Q

define kinship

A

family relationships including all extended family relationships; an important part of ATSI cultures and values, which dictate how all people in the group behave towards each other.

123
Q

what are some ritual and oral traditions

A
  • Most laws relate to marriage, religion, family and kinship.
    • Stories, songs and dance are used to help remember laws. These are passed on at communal gatherings.
    • Some laws are passed on at certain ages.
124
Q

define sanction

A
  • a threatened penalty for disobeying a law or rule.
    Relationships and their maintenance are very important as it allows people to pass on and follow traditional laws. As a result, mediation has important role in dispute resolution.
125
Q

define mediation

A

a form of alternative dispute resolution designed to help two or more parties in the presence of a neutral third party to reach an agreement.

126
Q

define mitigation

A

making the severity or a sentence milder or less severe

127
Q

define international law

A

Laws that govern relations between nation states developed through diplomatic relationships and agreements/treaties/conventions.

128
Q

define domestic law

A

governs the behaviour and conduct of individuals within a nation.

129
Q

define international law

A

governs behaviour and conduct of nations in the international system

130
Q

can international law have its own laws?

A

A nation state can have its own laws because it is an independent state that has sovereignty (ability to make rules and the power to enforce these).

131
Q

define state

A
  • Defined territory
    • Permanent population
    • An effective government
  • Capacity to enter international negotiations
132
Q

when does international law become domestic law?

A

When it is enacted into domestic legislation (ratification)
Sign –> ratify –> enacted

133
Q

what are the four sources of international law

A
  • instruments
  • legal decisions
  • legal writings
  • customary law
134
Q

define state sovereignty

A

both the power of states to make their own laws, and the power of state governments to be free from federal interference in certain aspects of government.

135
Q

what is an advantage of state sovereignty

A

It stops interference from other countries into the law making and enforcement of other countries

136
Q

what is a disadvantage of state sovereignty

A

Particularly for human rights abuses, other countries cannot get involved in changing the law.

137
Q

what are treaties?

A

also referred to as conventions or covenants  an international agreement concluded between states in written form and governed by international law
Purpose: to make specific laws and to control conduct and cooperation between and within states.

138
Q

what does hard law include?

A

Includes conventions, protocols, covenants, declarations (non-binding agreement between nations). It can be comparable to entering a contract
Declarations is a soft law agreement to statement.

139
Q

what are the two types of treaties?

A
  1. bi lateral
  2. multi lateral
140
Q

describe bi lateral

A

between 2 nations
e.g. Agreement between the Republic of Indonesia and Australia on the Framework for Security Cooperation concerning their common security and respective national security

141
Q

describe multi materal

A

more than 2 nations
e.g., Charter of the United Nations (1945) à each country that is a signatory to this treaty has a seat in the General Assembly and participates in the UN process.

142
Q

what goes into making a treaty?

A
  1. negotiation
  2. consent to be bound
  3. ratification
  4. reservation
143
Q

what is international customary law

A
  • A rule that has been established because it is based on long established tradition or common practices followed by many states to the point that they are accepted as being fair and right by the international community.
    • Not contained within a written document
  • An issue with customary international law is that it may be too slow in a rapidly changing world  it needs to be constant and uniform
144
Q

what is opinio juris?

A

It will not be considered law unless the states accept that the practice is binding upon them.

145
Q

what is declaration

A

A formal statement of a party’s position on a particular issue: a declaration is not legally binding under international law

146
Q

define treaties

A

international agreement concluded between states (or between legal equals) in written form and governed by international law

147
Q

what are the 3 main objectives of the UN

A
  • Develop good relations between states based on recognition of equal rights and each state’s right to govern its own political, economic and social development.
    • Promote cooperation in solving problems.
  • Maintain global peace and security
148
Q

what is the UN’s international law commission?

A

the body primarily responsible for codifying and developing international law.

149
Q

why do the critics of the UN believe that reform is necessary?

A

Critics of the UN believe that reform is necessary for its continued relevance.

State Sovereignty is a challenge to the authority of the UN especially in situations involving peace and security.  Security Council’s structure should be re-examined as the UN has no powers to make states enact its resolutions into domestic law or to follow a particular course of action, its effectiveness is very much dependent on the political will of states.

150
Q

what is the most powerful part of the UN and what is the role?

A

the executive of the UN. Role: Maintaining international Security and peacekeeping activities of the General Assembly.
Issues economic sanctions against nation-states to persuade to change policies or prevent and stop aggression.

151
Q

what are the 5 permanent member of the security council?

A
  • UK
  • USA
  • Russia
  • China
  • France
152
Q

what is the general assembly?

A

The main body of the UN
- The General Assembly is made up of representatives from all member states and is the main forum for multilateral discussion on all international matters covered by the UN Charter.  Health, trade etc

153
Q

what is the role of the general assembly?

A

Discusses and makes recommendations of the operation of the UN, on conflicts between states, and on practical questions regarding political cooperation, human rights and international law.

154
Q

what does the UN Article 24 state?

A

collective measures - responsible of gathering troops peace keeping troops to prevent acts of prevention

155
Q

what does the UN Article 51 state?

A

gives powers to enforce and fight other countries without persecution, ICC, no one will question

156
Q

can the permanent 5 change the UNSC?

A

Lengthy process, Article 108 - allows for amendments, but all of the 5 have to agree with it

157
Q

what are IGOs?

A

Intergovernmental Organisations
IGOs are organised groups of states, established to pursue: Mutual interests in a wide variety of areas.

158
Q

define ratification

A

the action of signing or giving formal consent to a treaty, contract, or agreement, making it officially valid.

159
Q

define public law

A

Laws affecting everyone, disputes between the state and the citizen and with law making powers of government.

160
Q

define private law

A

Regulates the relationships between persons, companies, and organisations.

161
Q

how do criminal case hearings occur at Local and Magistrates’ Courts

A
  • Deals with most criminal cases.
  • Don’t have judges and juries - rather a magistrate determines each case.
  • Matters are generally handled quickly, efficiently, and cost-effectively.
  • Proceedings are less formal than higher courts.
  • Solicitors rather than barristers carry out most of the legal.
  • Defendants choose to represent themselves and argue their case without the help of a lawyer.
162
Q

how do criminal case hearings occur at coronial inquests?

A
  • Occurs when there is an unnatural death of an unexplained fire or explosion.
  • Proceedings are more inquisitorial than in normal court proceedings as the coroner’s office gathers all of the evidence.
  • If there is evidence that a serious crime has been committed, the coroner will recommend that an indictment be issued, and the accused will be tried in a court of law in usual way.
163
Q

how do criminal case hearings occur at children courts?

A
  • Charges against people under 18 years old age are heard in a special Children’s Court hearing.
  • Children are treated differently by the legal system –> have a lower level of responsibility than adults.
  • Conviction has less severe consequences than conviction in an ordinary criminal court.
  • Cases before the Children’s Court are usually heard before a magistrate who specialises in children’s cases and who takes reasonable measures to ensure the child understand the proceedings.
  • Cases are heard in a closed court, meaning the public aren’t allowed to attend.
  • If journalists are present, they are not permitted to publish the identity of the offender.
  • In NSW, if the child is under 16 years old, no conviction is recorded.
164
Q

what is common law and where did t develop from?

A
  • developed by custom
    In common law courts, the judge is an impartial observer. Evidence is presented from each side through the adversary system. Strict rules of evidence are followed.
    • The rules are derived from specific court rulings.
  • Follows the adversarial system of trial.
165
Q

what is civil law and where did it originate from?

A
  • origins from roman law
    in civil law courts, the inquisitorial system is followed, whereby the judge is not an impartial arbitrator. Rather the judge takes an active role in the proceedings, often preparing evidence.
  • The rules are derived from codes of law. Judges apply these in cases before them.
166
Q

what is law reform?

A

As society constantly changes and evolves the law needs to adapt.
Law reform refers to the improvement, recognition and changes to laws that have produced better circumstanced and protection for a significant proportion of society.

‘Society moves ahead and the law limps ahead.’

167
Q

conditions that give rise to law refrom

A
  • changing social values - new concepts of justice
  • same sex marriage - DV, capital punishment
  • de facto couples - youth justice conferences permitted under young offenders act 1997 (NSW)
168
Q

agencies of reform

A
  • Law reform commissions
    • Parliamentary committees
    • The media
  • Non-government organisations
169
Q

mechanisms of reform

A
  • Courts
    • Parliaments
    • United nations
  • Intergovernmental organisations

Legal Studies (4 decks)

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