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legal studies > PART 1: Legal System > Flashcards

PART 1: Legal System Flashcards

1
Q

what are values

A

the ideas, feelings and principles that a society hold as being important

i.e honest, integrity

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2
Q

what are ethics

A

set of principles and values that define what a society views as right or wrong

i.e. informal rules enforced through emotional punishment

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3
Q

what are customs

A

a collective behaviour or tradition that has been developed over a long period of time, they also are so widely accepted and followed that they become de facto laws

or

sets of behaviours expected by society

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4
Q

what is de facto laws

A

informal laws

i.e politeness

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5
Q

how do customs play a role in affecting laws

A

they are so widely accepted and followed that they often form the basis of laws

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6
Q

what are rules

A

formal regulations of individuals behaviour set out in writing and subject to enforcement if broken

i.e rules against hall way running(getting a detention)

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7
Q

What is the main difference between rules and laws

A

laws are unbiased, and impartial and apply to the whole community/country. while rules only apply to a specific area or group

as well not just by their enforcement by police laws are distinguished by their moral, ethical or community safety justification (laws against murder for example)

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8
Q

what are laws

A

a set of rules imposed on all members of a community that are officially recognised, binding and enforceable by persons or organisations in society such as the police and courts

i.e jaywalking

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9
Q

what does binding meaning

A

means it applies to everyone

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10
Q

who enforces

A

laws police, court and parliment

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11
Q

describe the characteristics of just laws and the nature of justice

  1. what is justice
  2. how does the law ensure it is just
A

justice is the concept that all individuals should be treated equally before the law and punished proportionally in accordance with their crime and the values of society. Justice is underpinned by notions of equality, fairness and access

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12
Q

what must justice be

A

CAKES
c-current(laws cannot be retrospectively)
i.e. law for the present or past

a-accepted in society
- laws must be accepted by society and in line with society’s ethics and values to be effective

k-known
- individuals should only be subject to laws that they know about.
-it isn’t fair to subject people to laws they don’t know about(within reason)

E- enforceable
-laws aren’t effective unless they are enforced by police and courts

S-same
the law must treat everyone the same
must not discriminate

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13
Q

what is the acronym cakes

A

current
accessible
known
enforceable
same/ulitiarian

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14
Q

what is equality(nature of justice)

A

equal treatment or equal opportunity

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15
Q

what is fairness(nature of justice)

A

the law is applied impartially without bias, prejudice or discrimination

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16
Q

what is access(nature of justice)

A

the laws should be financially, physically and psychologically accessible to everyone

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17
Q

what is procedural fairness(principles of natural justice)

A

courts should follow fair and proper procedures in order to reach judicial decisions

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18
Q

define and investigate procedural fairness and the rule of law
(be able to plan, inquire into and draw conclusions about procedural fairness and rule of law)

A

procedural fairness is the fundamental principle underpinning the Australian legal system, requiring courts to follow fair and just procedures to arrive at judicial decisions which include the 4 rules
-everyone has the right to be heard
-courts must treat everyone equally
-evidence should be used to support decisions
-courts must inquire into matters in dispute(make effort)

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19
Q

what are the rules courts must follow to be considered procedurally fair

A

4 main rules
1. everyone has the right to be heard(hearing rule)(courts should hear both sides of the story before they make their decisions)
-both sides should be able to hear evidence/arguments against them
-each side has the right to make their own case

2- courts must treat everyone equally
-equity before the law
-courts can’t be biased(including the jury)

3- evidence should be used to support decisions
-must be relevant and logical

4-courts must inquire into matters in dispute
-courts must make an effort to fairly look into the case

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20
Q

what is the main principle regarding the rule of law

A

that no one(even government) is above the law, no person or group in society stands above the law and no one may break it without facing punishment(protects citizens from abuse and power)

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21
Q

what are 6 features of the rule of law

A
  1. the government is bound by the same laws as the individuals
  2. the law must be certain, general, and equal (published and known)
  3. the law must be in line with societal values(maintained through law reform)
  4. there must be an independent judiciary(i.e governments make laws about murder but they can’t be in court deciding, meaning total free reign which is not good)
  5. law must conform to procedural fairness
    -right to be heard
    -evidence should be used to support
    -courts must treat everyone equally
    -courts must inquire into matters in dispute

6.the public must favour the application of rule of law(the people have to want rule of law

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22
Q

what is anarchy(define)

A

the absence of effective government or law in a country or region, generally leading to confusion and disarray in society. Modern periods of anarchy, such as those experienced in the 2011 London riots, have been relatively short, with governments regaining power within days or weeks.

in practice this: leads to mass disorder and confusion

Definition-the absence of effective government or law in a country or region

characteristics-confusion and disarray in society
example- 2011 London riots

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23
Q

what is tyranny(define)

A

tyranny refers to a situation where a person or group of people has absolute control of a state and is generally associated with the oppressive treatment of citizens and suppression of dissent, such as exercised by Kim Jong Un in North Korea

definition: where a person or group of people has absolute control of a state

characteristics: oppressive treatment of citizens and suppression of dissent

example: North Korea

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24
Q

what is common law

A

court made law
i.e the law made by judges when deciding on cases

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25
Q

what is precedent

A

lower courts have to follow the decisions of higher courts on similar cases
which is called binding precedent:
-lower courts must follow the decisions of higher courts(must also follow their own decisions)

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26
Q

what is persuasive precedent

A

higher courts may(but don’t have to) follow decisions of lower courts

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27
Q

what is ratio decidendi

A

legal reasons why decisions were made

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28
Q

why was the common law developed

A

the common law was developed in Britain around 1066 in order to cure inconsistencies around the application of the law in Britain. It was adopted in Australia after 1788 when the British arrived

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29
Q

how did the common law come about in australia.

A

It was adopted in Australia after 1788 when the British arrive

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30
Q

what is the adversarial system

A

is a court system wherein two lawyers argue their case in front of an impartial judge and jury

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31
Q

what is equity’s contribution to the common law

A

it was developed in reaction to the rigidity of the common law, decisions were made based on conscience and case merits not legal principles

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32
Q

what system does the australian system follow

A

the adversarial system where two lawyers argue a case before an impartial judge

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33
Q

what does terra nullius mean

A

land belonging to no one

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34
Q

Common law is law made by parliament.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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35
Q

Judges may develop new laws with each decision.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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36
Q

Why was precedent initially developed?

2019 Atomi Question
A
(Choice A)
A need for consistency in law
B
(Choice B)
A need for judges to have more power
C
(Choice C)
A need for courts to have more power
D
(Choice D)
A need for stronger punishments from law

A

a

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37
Q

Higher courts must follow the decisions of lower courts.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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38
Q

What is the term given to the reasoning behind a judge’s final decision?

2019 Atomi Question
A
(Choice A)
The summary
B
(Choice B)
The ratio decidendi
C
(Choice C)
The obiter dicta
D
(Choice D)
The persuasive precedent

A

b

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39
Q

Which part of a judge’s decision forms the binding legal precedent?

2019 Atomi Question
A
(Choice A)
The judicial remarks
B
(Choice B)
The legal reasoning
C
(Choice C)
The whole judgment
D
(Choice D)
The judicial opinion

A

b

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40
Q

Courts of Equity decide cases on the grounds of merit.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

a

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41
Q

what is the system of appeal

A

the system whereby one part of a proceeding complains and goes to another court for a new judgement

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42
Q

what is orginal juisdiction

A

the ability of a court to hear a case at the first instance
i.e they are the first court you go to for that crime

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43
Q

what is appellate jurisdiction

A

the ability of a court to hear appeals from lower courts

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44
Q

what is the two different types of structure in court hierarchy

A

state(i.e nsw court system) and federal

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45
Q

what court sits on top of state and federal

A

the high court

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46
Q

what is the lowest court in state

A

local(original jurisdiction)
for summary offences(minor)
also civil cases up to $100 000

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47
Q

does the local court have appellate jurisdiction

A

no(lowest court in the hierarchy)

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48
Q

what are the other courts on the same level as local

A

coroner and children’s courts(specialised courts)

coroner: deals with suspicious deaths
children: deals with crimes involving children

both have original jurisdiction but not appellate

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49
Q

what jurisdiction does the district court have

A

is has original jurisdiction
- for all indictable offences except for murder and treason
civil jurisdiction up to $750 00

has appellate jurisdiction from the local, coroners, and children courts

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50
Q

what appeallate jurisdiction does the district court have

A

it has appellate jurisdiction on local, coroners and childrens

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51
Q

is the supreme court the highest court in nsw

A

yes

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52
Q

what is the jurisdiction of the supreme court

A

only for the most serious cases such as murder and treason

and civil cases for over $750 00

has appellate jurisdiciton of the district only

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53
Q

what appellate jurisdiction does the Supreme Court have on the lower courts

A

only the district

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54
Q

what jurisdiction does the nsw court of appeal have

A

has no original jurisdiction

but has appellate jurisdiction from the supreme and district court in some cases, the land and environmental court

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55
Q

what appellate jurisdiction does the court of appeals have

A

hears from the supreme, district(some cases), and the land and environmental court

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56
Q

what is the federal magistrate’s court

A

like the lower court but for federal stuff

deal with the stuff the federal court doesn’t want to because its too petty or small crimes

it has orginal jurisdiction for lowe severity federal crimes

and no appellate jurisdiction

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57
Q

does the federal magistrate court have appellate jurisdiction

A

No

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58
Q

what is the federal court of australia

A

original jurisdiction over bankruptcy, intellectual property, trade and other federal offences

has appellate jurisdiction of the federal magistrate court and the Fair Work Australia

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59
Q

what is the jurisdiction of the family court

A

original jurisdiction over
divorce, separation, property disputes, custody of children etc

no appellate jurisdiction

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60
Q

what jurisdiction does the high court of Australia have

A

Original jurisdiction over constitutional interpretation

and final appellate jurisdiction meaning they can hear appeals from the state supreme courts, federal courts, family courts(what they say goes)

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61
Q

how many judges in the high court

A

there are 7 judges

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62
Q

What is the lowest court in the NSW Court Hierarchy?

2019 Atomi Question
A
(Choice A)
The Supreme Court
B
(Choice B)
The Local Court
C
(Choice C)
The District Court
D
(Choice D)
The Court of Appeal

A

b

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63
Q

The District Court deals with minor offences.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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64
Q

Skip
What does jurisdiction mean?

2019 Atomi Question
A
(Choice A)
The power courts have to delegate certain cases to other courts
B
(Choice B)
The power of courts to appeal certain case decisions
C
(Choice C)
The power courts have to hear or deal with certain cases
D
(Choice D)
The power courts have to dismiss a case

A

c

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65
Q

What are the two divisions of the Supreme Court?

2019 Atomi Question
A
(Choice A)
Appeal and Review
B
(Choice B)
Trial and Sentencing
C
(Choice C)
Trial and Appeal
D
(Choice D)
Sentencing and Review

A

c

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66
Q

The Coroner’s Court investigates all homicides.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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67
Q

The court hierarchy prohibits individual courts, like the Supreme Court, from being specialised.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

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68
Q

Which of the following is not a reason for the court hierarchy?

2019 Atomi Question
A
(Choice A)
Specialisation
B
(Choice B)
Precedent
C
(Choice C)
Administrative convenience
D
(Choice D)
Equality before the law

A

d(because it doesn’t neccessary allow that)

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69
Q

Which court does the District court not have appellate jurisdiction for?

2019 Atomi Question
A
(Choice A)
The Local Court
B
(Choice B)
The Supreme Court
C
(Choice C)
The Children’s Court
D
(Choice D)
The Coroner’s Court

A

b

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70
Q

what is another word for statute law

A

legislation or acts of parliament considered to be superior to common law

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71
Q

what is statue law

A

laws made by parliment

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72
Q

what is the parliament

A

the people who elect into power to govern us

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73
Q

in NSW we have a bicameral parliamentary system what does that mean

A

means we have a lower and upper chamber or house of parliament

known as the legislative council(upper) and the legislative assembly(lower)

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74
Q

in order to make laws what needs to happen between the upper and lower house of parliment

A

both need to agree for a law to pass

75
Q

what is a unicameral system

A

only having a single legislative chamber or house of parliament making it easier

i.e. Queensland and the territories

76
Q

does the federal parliment have bicameral or unicameral

A

bi cameral
the Senate(upper)(made of 12 senators from every state and 2 from the territories)
the house of representatives(lower)(made up of 150 elected members of parliament from different parties)

majority= ruling party

77
Q

what is the process of passing a bill through parliament?

A
  1. the need for the new law is identified
  2. draft a bill
  3. first reading
  4. second reading
  5. committee stage
  6. third reading + vote
  7. upper house
  8. royal assent(govern general)
78
Q

what is delegated legislation

A

parliament delegates(gives away) some of their law-making powers to other bodies only for minor laws(i.e. parking laws)

the people include
local councils, Australian securities and invest commission(ASIC) (Financial stuff), government depts(department of education)

the laws are still subject to review

79
Q

are both the state and federal parliments bicameral

A

yes they have the house of representatives and senators(12 & 2)

80
Q

Statute law is made by judges.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

81
Q

According to the Constitution, why does Parliament make laws?

2019 Atomi Question
A
(Choice A)
For harmony, order and efficient government of the Commonwealth
B
(Choice B)
For harmony, order and efficient government of the Australian states
C
(Choice C)
For the peace, direction and good government of the Australian states
D
(Choice D)
For the peace, order and good government of the Commonwealth

A
82
Q

what must laws be made for

A

peace, order and good government of the commonwealth

83
Q

NSW has a bicameral parliament.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

a

84
Q

What does it mean to have a bicameral system of parliament?

2019 Atomi Question
A
(Choice A)
Having two opposing parties in government
B
(Choice B)
Having two Premiers in Parliament
C
(Choice C)
Having elections every four years
D
(Choice D)
Having two houses of Parliament

A

d

85
Q

How many senators from each state sit in the Senate?

2019 Atomi Question
A
(Choice A)
2
B
(Choice B)
4
C
(Choice C)
12
D
(Choice D)
14

A

c

86
Q

Bills are always introduced into the House of Representatives first.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A
87
Q

Who is required to provide assent over all laws passed through parliament?

2019 Atomi Question
A
(Choice A)
The Prime Minister
B
(Choice B)
A High Court Judge
C
(Choice C)
The Attorney General
D
(Choice D)
The Governor General

A

d

88
Q

what are the 4 types of delegated legislation

A

regulations (laws made by the government general;, state governors or members of the executive council)

ordinances (laws made for australian territories

rules(legalisation made for government departments)

by-laws(made by local councils)

89
Q

What is delegated legislation?

2019 Atomi Question
A
(Choice A)
Legislation made under the authority of the Senate
B
(Choice B)
Legislation made under the executive authority of the Prime Minister
C
(Choice C)
Legislation made under the authority of the specific government bodies
D
(Choice D)
Legislation made under the authority of the High Court

A

c

90
Q

what is the division of powers

A

the split of powers into federal and state

91
Q

Which of the following is not a body that can create delegated legislation?

2019 Atomi Question
A
(Choice A)
Local Councils
B
(Choice B)
Australian Securities and Investments Commission (ASIC)
C
(Choice C)
The Department of Education
D
(Choice D)
The High Court

A

d

92
Q

what is section 51

A

specifies the legislative powers of the federal government

93
Q

what is section 52

A

outlines the exclusive powers of the federal government

94
Q

what is concurrent powers

A

powers that can be exercised by both the state and federal governments
the high court looks at whether there is overlap(federal law ways win out of state)

95
Q

what is section 109 of the consititution

A

that commonwealth laws will override any state laws if they are inconsistent

96
Q

what is separation of powers

A

is the divvying up of law-making power between the three pillars of government
including the judiciary(courts), legislature(parliament), executive(cabinets)

-applies at both federal and state level

-ensures that no one body can have too much power( such as parliament(legislation), courts(through president), cabinet)

97
Q

what are the three law making bodies

A

legislative, executive and judiciary

98
Q

who is the legislature

A

it is the parliament who are the people who make up the law i.e legislation

made up of elected representatives

99
Q

who is the judiciary

A

federal courts(mostly high)

they interpret the law, while keeping a check on the power of the legislature(keeping an eye on the parliament)

100
Q

who is the executive

A

considered the top dogs of parliament
which are made up of the cabinet(PM and ministers) + public service departments
responsible for a lot of delegated legislation

the cabinet is within parliament, and is accountable to parliament for their decisions

101
Q

whats the difference between separation of powers and division of powers

A

division of powers is the split of powers into federal and state while separation of powers ensures power is evenly distributed through the judiciary, executive and the legislature

102
Q

do all bodies of power keep a check on the power of the others?

A

yes

103
Q

what is exclusive powers

A

powers that can be exercised only by federal government

104
Q

what is residual powers

A

those matters on which can be legislated, as they are not referred to in the constitution

state and territory govs

105
Q

Which document enshrines the division and separation of powers?

2019 Atomi Question
A
(Choice A)
The Division of Powers Act
B
(Choice B)
The Separation of Powers Act
C
(Choice C)
The Executive, Judicial and Legislative Powers Act
D
(Choice D)
The Australian Constitution

A

d

106
Q

In what year was the Constitution drafted?

2019 Atomi Question
A
(Choice A)
1788
B
(Choice B)
1888
C
(Choice C)
1900
D
(Choice D)
1901

A
107
Q

Which sections of the Constitution outline the powers only the Federal government can make laws about?

2019 Atomi Question
A
(Choice A)
Sections 50 and 51
B
(Choice B)
Sections 51 and 52
C
(Choice C)
Sections 53 and 54
D
(Choice D)
Sections 54 and 55

A

b

108
Q

What are State powers also known as?

2019 Atomi Question
A
(Choice A)
Residual Powers
B
(Choice B)
Alternative powers
C
(Choice C)
Secondary Powers
D
(Choice D)
Non-federal powers

A

a

109
Q

Which of the following is not part of the separation of powers?

2019 Atomi Question
A
(Choice A)
The legislature
B
(Choice B)
The police
C
(Choice C)
The executive
D
(Choice D)
The judiciary

A

b

110
Q

Federal legislation prevails over State legislation.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

a

111
Q

The Prime Minister belongs to which law-making body?

2019 Atomi Question
A
(Choice A)
The legislature
B
(Choice B)
The judiciary
C
(Choice C)
The executive
D
(Choice D)
They do not belong to any body

A

c

112
Q

The legislature has more power than the executive and the judiciary.

2019 Atomi Question
A
(Choice A)
True
B
(Choice B)
False

A

b

113
Q

what is the roles of the high court

A
  1. interpret the constitution
  2. listen and deal with the constitutional challenges between federal and state parliaments
114
Q

what is section 71

A

vests judicial power in the high court

115
Q

Which section of the Constitution vests judicial power in the High Court?

2019 Atomi Question
A
(Choice A)
Section 40
B
(Choice B)
Section 41
C
(Choice C)
Section 70
D
(Choice D)
Section 71

A
116
Q

section 73

A

sets out the ultimate appropriate jurisdiction of the high court

117
Q

what is section 75

A

sets out the areas where the court has original jurisdiction including
-matters arising under a treaty
-matters affecting international relations
-matters involving the commonwealth as a party(being sued)
-disputes between states

118
Q

what is mediation

A

where traditionally elders played a large role in determining punishments through mediation(discussing resolution of the issue and deciding on punishment)

119
Q

what is section 76

A

the parliament can confer original jurisdiction on the high court in relation constitutional interpretation

120
Q

what is circle sentencing

A

circle sentencing is an alternative sentencing method available to indigenous Australians who have retained their connection to culture

the sentence has judicial weight

121
Q

what are some facts about customary law

A

despite strong customary laws pre-colonisation, few ATSI laws have been integrated into Australian contemporary law

122
Q

what is international laws

A

international law governs the relations between nations

122
Q

what is state sovereignty

A

power of a country to make its own laws and govern itself without external influence

has political independence from other countries

122
Q

what is customary laws

A

unwritten laws that have been complied with for a very long time and so act as law

i.e privacy is seen as a crime internationallly

123
Q

what is private law

A

governs private relationships, for reason extending beyond public safety and policy

123
Q

what is public law

A

governs the relationship the government’s relationship with individuals and other governments

124
Q

what is the main purpose of public law

A

to ensure the stability of the state and government

125
Q

what are the three main types of public law

A

criminal law
administrative law
constitutional law

126
Q

what criminal law

A

criminal law governs the relationship between individuals and the state, protecting society from harm

crimes are those that harm society’s peace and safety and are prosecuted by the state

127
Q

what are indictable offences

A

bigger crimes

127
Q

what are summary offences

A

small crimes

128
Q

what are administrative law

A

administrative law governs government bodies, including the relationship between those bodies and individuals

the purpose is to protect society from harmful acts by administrative bodies operating outside of power

and to clarify and organise government so its able to function properly

129
Q

what is the purpose of adminstrative law

A

the purpose is to protect society from harmful acts by administrative bodies operating outside of power

and to clarify and organise government so its able to function properly

130
Q

what is constitutional law

A

constitutional law deals with the Constitution, and it relates to the powers and operation of the government, the legislature and the judiciary

131
Q

what is the purpose of the constitutional law

A

it separates the power between these groups to keep each other in check and prevent abuses of power by any one of them

132
Q

what is private law

A

private law(civil law) governs the relationships between individuals

132
Q

what is contract law

A

contract that is a legally binding agreement between two or more parties

or

contracts are legally enforced promises from one person to another

elements in a contract include
-agreement
-consideration(benefits to both parties)
-intention
-compliance
-capacity

133
Q

what is tort law

A

involves civil wrongs
4 key areas
duty of care concept
N-negligence

N-nuisance
inferring with someone’s right to peace

D-defamation
using lies to ruin someone’s reputation
T-trespass
interfering with someone’s property

134
Q

what is property law

A

property law deals with buying, selling and renting out property; anything that can be bought or sold is considered property(commercial value)

135
Q

what is the civil procedure

A

the civil system deals with private individuals without involving the government

135
Q

what is the standard of proof in civil cases

A

the balance of probabilities more than 50% sure of guilt(whose telling the truth)

136
Q

what is the standard of proof in criminal law

A

beyond reasonable doubt

136
Q

what is the outcome of civil cases

A

compensation

136
Q

what is the outcome of criminal cases

A

guilty or not guilty

137
Q

who is the plantif

A

the burden of proof in civil cases

138
Q

who is the prosecution(government)

A

the burden of proof in criminal cases

139
Q

how many juries in a civil cases

A

4-6

140
Q

what is committal hearing

A

a committal hearing is a mini-trial to see if there is enough evidence to argue that you’re guilty

called a “prima facie case”

then the jury decides the outcome after both sides present their argument and the verdict is beyond reasonable doubt

141
Q

distinguish between civil and criminal court procedures

A

civil trials, you get a court attendance notice or generally get told you are getting sued, you will try to resolve it in negotiations and if it goes to trial the plaintiff(the person bringing the claim) and the defence each argue their side and the plaintiff has the burden of proving on the balance of probabilities that you did what they claimed what you did.

Civil trials can be in front a judge or a judge and jury of 4 people. Who decides on a verdict and decides the money as compensation

for criminal trials you get summoned to appear at a mention where you get arraigned and plead guilty or not guilty, if you plead not guilty you might have to go to a committal hearing to decide if there is a prima facie case, after which you go to an actual trial where the prosection has the burden of proof of beyond reasonable doubt and the defence doesn’t have to do anything or disprove through lawyers. after the verdict of guilty and not guilty then your sentenced

both civil and criminal can be appealed

142
Q

who are magistrates and judges

A

they are the highest and most official people in the courtroom,
a judge presides over both civil and criminal trials and impartially hears both arguments
-makes a decision of based on the merits of a case(civil)

  • in criminal trials the jury decides the fact and guilty. while the judge decides the question of the law

the purpose of the magistrates and judges are to ensure cases are handled lawfully, while following court rules, evidence is obtained legally,

143
Q

whats the difference between magistrates and judges

A

magistrates like judges that are only for the local court and deal with less serious matters

144
Q

what is the role of the jury

A

the jury mainly plays a role in criminal cases made up of 12 members
the role of jury is to decide guilt on facts as well beyond reasonable doubt(criminal)

in a civil case, there is 4 members of juries and they decide on balance of probabilities(civil)
mostly jurys are used in civil cases, where only used in mostly defamation cases

145
Q

how many jurors in civil and criminal

A

civil is 4
criminal is 12

146
Q

what is the purpose of jury

A

society is chosen to judge guilty, they are made up of a random representation of society

147
Q

what is the prosecutions purpose

A

their purpose is to represent the party suffering wrong

in criminal cases is society

in civil its the plaintiff/complainant

148
Q

what is the role of the prosectution

A

bring the accused to trial

in criminal cases, the prosecution is the DPP (director of public prosecutor)
this is done by the public prosecutor who is a specialist barrister trained to present in court

in other ways there are police forces where police prosecutors which are specialist police officers trained to present in and deal with summary offences in the local court

in civil cases, you have to get your own layer

149
Q

in a criminal case do you get a government funded barrister/

A

yes

150
Q

what is the purpose and role of the defence

A

the role of the defence is to defend against the accusations through private solicitors(deal with cases)/barristers (present cases)

in civil cases the defendent can either defend themselves or hire a barrister to speak for them.

in criminal cases you have to do the same in civil cases however through special circumstances if your deemed to be strong enough(good supporting evidence but can afford a private laywer) the government might step in through legal aid

151
Q

what is legal aid

A

legal aid is a government-funded body that provides lawyers for the accused in criminal proceedings

solicitors/lawyers

152
Q

in serious criminal cases instead of criminal aid what the other aid

A

public defenders office (criminal)
which are specialist barristers trained to present in court especially where there are good chances of winning they will get the help of public defenders aswell.

153
Q

what is the definition, role and purpose of judges?

A

definition: presides over cases(magistrates for summary offences in local court)

role: decides questions of law/guilt(civil) sentencing

purpose: to ensure court rules are followed, the law is explained and decided

154
Q

what is the definition, role and purpose of the jury?

A

Definition:
4(civil), 12(criminal) random members of society
Role:
decide guilt either beyond reasonable doubt(criminal), and the balance of probabilities(civil)
Purpose:

155
Q

What is the definition, role and purpose ofd the prosecution?

A

Definition:
-public/police prosecutors(criminal),
-private lawyers(civil)
Role:
prosecute accused and prove guilt
Purpose:
represent party suffering wrong(e.g society)

156
Q

what is the definition, role, and purpose of the defence?

A

Definition:
-public defenders(criminal)
-legal aid lawyers(criminal)
-attained through a means and merits test
-private lawyers(civil)

Role:
defend against accusations
Purpose:
represent accused and provide access to justice

157
Q

what is NNDT

A

nuisance, negligence, defamation and trespass

158
Q

what is the common law system

A

common law is made by judges in higher courts meaning they are precedent; binding decisions of judges in higher courts

however common law system allows judges to make decisions based on their discretion and independent legal principles

159
Q

what is the civil law system

A

many European countries use the civil law system due to its European origins

the civil law system only allows judges to consider the law as it is or lack thereof with no room for precedent.

160
Q

compare and contrast between the civil law system and the common law system

A

common law

discretion
-wider
-judges use their own ideas and related law
-and can take into consideration statute
law as well as common, international
and customary law

-emphasis
-law
-decide on the law of the case

-evidence
-strict rules
-allows/prohibits evidence based on fairness and justice

-based on
adversarial system
-where judges have to be impartial adjudicators/moderations

civil law
-discretion
narrower
-judges only use the relevant law
- statute and international law only

-emphasis
facts
establishes the facts of the case
-evidence
lax rules
question witness, bring in evidence and direct the trial
-based on
inquisitorial system
where the judges are inquiring adjudicators

161
Q

what is the main takeaway from common law and civil law systems

A

the common law system allows judges to fill in the not gaps in statute law, whist the civil law system does

162
Q

what is existing law is law reform

A

the process by which we amend existing laws so that it remains up to date with what we consider to be crimes in our day and age

163
Q

how does technology give rise to law reform

A

legislation can lose its relevance as technology develops over time.

Older legislation can become stuck in the time it was made and become out of date, development in technology is creating new areas legislation needs to fill/cover

i.e stealing a cow in 1967, space travel

164
Q

how does events and media give rise to law reform

A

changes in values and thus changes in the law can be prompted by events and media coverage of them

example :
the events of 9/11 put terrorism on the radar, the Australia implemented the terrorism(police powers) 2002(NSW) to strengthen the powers of detaining terrorists

media also exposes society to these events and any related issues through investigations of them

i.e elder abuse in age care

165
Q

how does social values give rise to law reform

A

society’s values change as time goes on
meaning that the government is accountable to the people and so they must be responsive to change

i.e change in morals surrounding gay marrage

166
Q

how does law reform change

A

law reform can come through common law or statute law

167
Q

how does new concepts of justice give rise to law reform

A

the law must reflect new definitions of justice and crime developed over time.
new definitions of change change how we pursue it

i.e. hanging many people used to think it was justice however ideologies have changed

168
Q

what are law reform commissions

A

bodies of law reform experts set up by parliament to investigate and provide solutions for certain issues with the law

-to simplify and modernise the law
-to harmonise state and territory laws
-to systematically reform the law
-to improve access to justice
-to eliminate defects in the law; and
-to remove obsolete or basically useless laws

169
Q

what is the law reform commission of nsw

A

they receive their legal areas from the new attorney general and report on NSW law, but they will similarly get feedback back and make recommendations to the parliament

170
Q

what is parliamentary committees

A

members of parliament form committees to investigate and provide solutions for certain issues with the law(kind of like a court except the outcome is not a sentence but a law)

171
Q

what is the royal commissions

A

bodies set up by the parliament to investigate and provide solutions for one specific issue with the
big issues such
as billing people for life insurance after their died

172
Q

what is media and ngos

A

NGOs and media pressure the government to introduce law reform through soft power

media shape and reflect public opinion

i.e abuse in aged care facilities

NGOS use media to campaign for legal change

173
Q

how does law reform go into practice in courts

A

court reform the law by developing it through precedent that has to be followed by other courts below them

174
Q

how does law reform go into practice in parliament

A

parliament reforms the law by introducing or amending legislation

175
Q

how does law reform go into practice in the united nations

A

an international parliament responsible for all international law
-they enact new treaties and conventions
-the UN international court of justice and international criminal court can also make binding decisions

176
Q

how does law reform go into practice in intergovernmental organisations

A

organisations made up of multiple countries
-they can enter binding agreements that act like contracts(but they only apply to members of the organisation)

legal studies (2 decks)

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