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AOS 1 - Legal foundations Flashcards

(58 cards)

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1
Q

DOT POINT 1

A
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2
Q

The role of individuals

A
  • Follow laws
  • Respect other people’s rights
  • Corporate with law enforcement authorities
  • Use the legal system to resolve disputes
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3
Q

The role of laws

A
  • Apply to everyone
  • Protects individual rights
  • Specify what is and what is not acceptable
  • Specify how conflicts are resolved
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4
Q

The role of the legal system

A
  • Make laws
  • Administer laws
  • Enforce laws = consequences
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5
Q

Social cohesion

A

The willingness of members of society to cooperate with each other in order to survive and prosper

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6
Q

DOT POINT 2

A
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7
Q

Principles of justice

A
  • Fairness
  • Equality
  • Access
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8
Q

Fairness (IPO)

A
  1. Impartiality
    - Neutral
    - Unbiased
  2. Participation
    - Involvement
    - Opportunities
  3. Open (processes)
    - Open courts
    - Transparency
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9
Q

Equality

A
  1. Same treatment
    - Both should have lawyers
    - Both have an opening statement
  2. Provisions (adequate measures)
    - To correct disadvantage or disparity
    - Equity
    - eg adequate measures = VLA provide free lawyers
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10
Q

Access (IE)

A
  1. Informed
    - Education
    - Knowledge
  2. Engagement
    - Active
    - Partaking
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11
Q

DOT POINT 3

A
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12
Q

Characteristics of an effective law

A
  1. Reflect’s society’s values
  2. Be enforceable
  3. Is known
  4. Clear and understood
  5. Be stable
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13
Q

Reflect’s society’s values

A

Law needs to reflect society’s values
-If they do, more people will be inclined to follow the law more often
- If not, laws might need to be changed

Society’s values change over time - laws also need to change to reflect this

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14
Q

Be enforceable

A

Laws need to be enforced
- If someone breaks the law, police must catch and punish them
- This can be challenging - it is almost impossible to stop people from breaking every single law every single day
- So it means a balance must be struck

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15
Q

Is known

A

The public have to know about laws
- It is actually on us to find out; ignorance is no excuse
- We generally find out through the media/research

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16
Q

Clear and understood

A

People need to be able to know what the law means and its intention
- A law that is unclear or ambiguous cannot be followed

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17
Q

Be stable

A

People cannot keep up with the changes
- Therefore it’s a balance
- Change enough to reflect values but not too much to confuse/lose people

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18
Q

DOT POINT 4

A
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19
Q

Roles of parliament

A
  • Make laws
  • Statue, act, legislation
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20
Q

Commonwealth Parliament

A
  • King’s representative (Governor general)
  • Upper house (Senate)
  • Lower house (House of reps)
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21
Q

Governor general

A

Royal assent (Optional)

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22
Q

Senate

A
  • 76 members
  • Each state (6) contain 12 senators
  • Each territory (2) contain 2 senators
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23
Q

Senate role

A
  • Act’s as a ‘house of review’
  • Act’s as a ‘state’s house’ = reflects state’s values
  • To initiate bills (no MONEY bills)
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24
Q

House of Reps

Study These Flashcards
A
  • 151 members
  • Need 76 to form the government
25
House of Reps role
- To initiate and make laws - To form the government - To represent the people - To provide responsible government - To review bills passed by the senate
26
Victorian Parliament
- King's representative (Governor) - Upper house (Legislative council) - Lower house (Legislative assembly)
27
Governor
Royal assent (Must)
28
Legislative council
40 members - To act as a 'House of review' - To initiate and pass bills
29
Legislative assembly
88 members - To initiate and pass bills - To form government - To represent the people - To provide responsible government - To review bills passed by the Legislative Council
30
Court hierarchy
- High court of Australia - Supreme court of Vic (Appeal) - Supreme court of Vic (Trial division) - County court of Vic - Magistrate's court of Vic
31
Reason's for a court hierarchy (SADA)
- Specialisation - Appeals - Doctrine of Precedent - Administrative Convenience
32
Specialisation
Each court hears certain types of cases - Courts can develop expertise - Workload gets shared - Promotes consistency
33
Appeals
If you don't like the decision of your case, you can appeal to a higher court to have it reviewed - Either dismissed or upheld
34
Doctrine of Precedent
Lower courts have to follow precedents created by higher courts in the same jurisdiction where facts are materially the same - Need a court hierarchy to operate this
35
Administrative Convenience
Cases get allocated based on seriousness and complexity - Judges in county or supreme are more experienced - As a result, these cases can be heard more QUICKLY and CHEAPLY - More efficient to have courts develop expertise by hearing the same types of cases
36
Roles of courts
- To resolve cases - usually by applying existing laws - To make laws - through statutory interpretation or through setting a precedent
37
Precedent
A legal principle established in a case that may be followed by courts in later cases - The sum of all precedents is the common law - Value predictability - Like cases should be treated alike
38
Terms of a precedent
- Stare decisis - Ratio decidendi - Obiter dictum
39
Stare decisis
To 'stand by what has been decided' - Like cases should be treated alike - Underlying logic for all precedents
40
Ratio decidendi
Reason for Deciding - Binding on on all lower courts, in the same hierarchy, with similar facts - Persuasive for courts in other jurisdictions (interstate, overseas) - Persuasive for equal and superior courts in the same jurisdiction - Means courts can change their mind
41
Obiter dictum
'Things said by the way' - Not everything the judge says is apart of the RD - Not binding on lower courts, only PERSUASIVE
42
How a court may avoid following an earlier precedent
- Precedent is binding : Court MUST follow it - Precedent is persuasive : Court may choose to follow it or may not (DROD) - Distinguish - Reverse - Overrule - Disapprove
43
Distinguish
Do not follow precedent as FACTS are different - Old precedent remains - New precedent created
44
Reverse
Precedent overturned on APPEAL by superior court hearing same case - Old precedent no longer exists - New precedent created
45
Overrule
Precedent overturned by superior court hearing a different CASE - Old precedent no longer exists - New precedent created
46
Disapprove
Inferior/equal court expresses DISSATISFACTION with earlier precedent - Old precedent remains - New precedent created ONLY if both courts are on same level
47
The relationship between the courts and parliament (SCAC)
- Statutory interpretation - Codification - Abrogation - Courts influence parliament
48
Statutory interpretation
- Initial event : Parliament has passed a statute - Response : Courts give meaning to the words in it - Parliament to courts
49
Codification
- Initial event : Courts have made a decision and created a precedent - Response : Parliament CONFIRMS that principle in a statute - Courts to parliament
50
Abrogation
- Initial event : Courts have made a decision and created a precedent - Response : Parliament OVERTURNS that principle in a statute (May be inappropriate, outdated, doesn't reflect values/interests/expectations of voters) - Courts to parliament
51
Courts influence parliament
- Initial event : Parliament has passed a statute - Response : Judges feel law should change so make comments/suggestions (May be outdated, difficult to apply, unclear consequences) - Parliament to courts
52
DOT POINT 7
53
Criminal Law
Setting out behaviour considered to be wrong and harmful to society as a whole. The law is designed to maintain social order. - Punished person receives a sanction - Police get involved and enforce the criminal law - Prosecution v accused
54
Criminal Law examples
Indictable offences (more serious) - Murder - Assault Summary offences (less serious) - Speeding - Driving unregistered car
55
Civil Law
Concerned with private disputes between two individuals. All about the protection of individuals and their rights. - Purpose is to restore the plaintiff and compensate them - Police are not involved - Plaintiff v defendant
56
DOT POINT 8
57
Distinction between Criminal and Civil law
- Money only used in CIVIL trials - Defendant v Accused - Police involvement
58
Relationship between Criminal and Civil law
Sometimes cases contain facts that can lead to BOTH civil and criminal trials - Victim often suing the offender to gain compensation

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