Beyond reasonable reason Flashcards
rule of law
The Rule of Law is a legal tradition in Australian society. At its simplest, it requires that we have laws that are followed and enforced. The rule of law pyramid demonstrates how different legal principles uphold the rule of law, and how they protect rights, freedoms and stability in our legal system.
In Australia today, the rule of law requires that our legal system and government should provide:
▫ just outcomes when a person is brought before a court
▫ consistent, fair and impartial decisions about legal matters
▫ protection of individual’s rights, freedoms, and
▫ ways to settle disputes between parties according to the law
▫ laws that are knowable, followable and fit for purpose.
The rule of law is fundamental to maintaining a free, democratic, and fair society. Rules may differ from one community to another and be enforced in different ways but, for humans to co-exist harmoniously, they need laws that are applied and enforced in a legal system that provides citizens with justice based on a generally accepted moral code of what behaviour is right and wrong.
the features of an ‘effective’ law
The law must be known and understood (must be clearly written so the citizens can understand it in order to follow it), able to adapt to a change (the society changes and the rules must change too or, the law is not in line with the community values, then people may be inclined to disregard it), stable and consistent (because too much change all at once could lead to confusion and chaos if people does not know certainly what the law is) and enforceable (if people break the law, they must be able to be caught and brought to justice).
difference between a social custom and a rule
Social Customs - Actions that are considered to be socially acceptable habits, such as waiting in queues, replying to an invite by the RSVP date and bringing a gift to a birthday party.
Rules - There are many rules which regulate our lives in a more formal manner than customs and which have been specifically stated, often in written form. School rules include not being late for school or class, not talking during a parade, completing homework/assignments and not physically or verbally abusing others.
Household chores may be transferred from customs into rules by your parents.
separation of powers
The Separation of powers doctrine aims to keep separate the powers of making, implementing and interpreting the law.
1. Parliament, which makes laws (or Acts) (legislative power);
2. Executive government (including the public service), which implements, administers and enforces laws (executive power); and
3. Courts, which interpret and apply laws (judicial power).
These powers of Government were separated by the Australian Constitution to avoid injustice and power imbalance which could arise if too much authority is held by one sector.
Australian Constitution
The Australian Constitution (Commonwealth of Australia Constitution Act 1900) is the primary piece of legislation in Australia, giving all levels of Government throughout the country their powers of existence and their authority or jurisdiction to make laws for the people they represent.
A Constitution is a set of laws that specify the powers, responsibilities, and roles of the governing bodies within a state or a country.
Each Australian State also has its own constitution. The Constitution of Queensland 2001 (Qld) is the document that gives powers to make laws (the Parliament), to administer the laws (Executive) and to rule upon the laws (Judiciary).
Division of Powers
The Constitution states what powers are given to the commonwealth and what are to remain with the state. There are 3 types:
- Exclusive of the commonwealth (like defence, currency or foreign affairs)
- Concurrent powers between both (trade and commerce, environmental and most taxation) can be exercised by both but the s109 of the constitution states that the commonwealth overrides the state
- Residual powers of the state (education and training, energy and water or sport and racing and all the powers that are not stated in s51 or included as exclusive powers)
Statutory Interpretation
In the criminal justice system, the investigative process, the trial process and the role of the courts in punishment and sentencing aim to ensure JUST and EQUITABLE outcomes for all stakeholders.
The independence of the judiciary ensures that the courts remain impartial and protect all citizens’ rights.
To ensure these just and equitable outcomes for all citizens, it is the role of judges and magistrates to interpret the statute. In Queensland, judicial officers refer to the Acts Interpretation Act 1954 (Qld). This process is called statutory interpretation.
Statutory Interpretation – the process used by judges and magistrates in court to interpret and apply the legislation.
three levels of the Australian government
The Australian parliament is divided into 3 levels:
- Federal (commonwealth) Parliament makes laws that apply to all Australians (trade and commerce, defence, copyright)
- State and Territory Parliaments (public transport, electricity, police)
- Local authorities (councils and shires) subject to the higher lawmaking authority of the relevant state government (parking, dog registration, childcare).
difference between the adversarial and inquisitorial systems of justice.
The adversarial system (the legal system used in Australia) is based on a contest between 2 parties in dispute and each side puts forward its own version of the facts and tests the opposing version. The judges have to ensure that the rules are followed and decide what evidence is allowed and the verdict when the jury is not present. The jury has to listen to the evidence presented and make decisions of gilt (criminal matter) or what party’s version is more likely to be true (civil matter)
But in the inquisitorial system, the judges have to question the accused (s), gather the evidence and decide the truth.
terms ‘standard of proof’ and ‘onus of proof’ in relation to court proceedings.
The criminal justice system is founded on the most basic and important principle that a person is innocent until proven guilty.
The onus or burden of proof (who) – rests with the prosecution. This means the prosecutor must prove in court that the accused did in fact commit the crime.
Standard of proof (how much) –
o Criminal matter – beyond reasonable doubt
o Civil matter – the balance of probabilities
difference between an indictable and summary offence and provide an example for each
Summary offences – simple or less serious criminal offences heard by a magistrate. If you are charged with a summary offence, you do not have the right to have a trial.
- E.g. traffic offences and minor crimes.
Indictable offences – more serious criminal offences and misdemeanours that require a committal hearing and trial.
- E.g. murder, rape, robbery, serious assault, and break and enter.
essential elements of a crime
Actus Reus (criminal act) and Mens Rea (Criminal intent: purpose, knowledge, negligence and recklessness). But strict liability laws state that one can be guilty without Mens rea (usually involving endangering the public).
differences between Direct and Circumstantial evidence
The evidence that is collected by police during their investigation and presented in court can be classified as
Direct:
Evidence that tends to prove a fact directly – E.g. A witness sees the suspect commit the crime.
Circumstantial:
Evidence pointing to a fact, but not proving it directly. E.g. the Suspect’s fingerprints in the house where someone has been murdered, but the suspect claims to have never been in that house before.
the main categories of Criminal activities in Queensland, providing at least one example for each.
Offences Against The Person (murder)
Offences Against Property (malicious damage of property)
Public Order Offences (sale of harmful things)
Motor Vehicle Offences (drink driving)
Drug Offences (possession of drugs)
Sexual Offences (r)
Police’s main powers
The Police Powers and Responsibilities Act 2000 (Qld) (PPRA) has been enacted to give special powers to the police and also to protect the liberties and rights of citizens.
Detain and question suspects
Search property and seize evidence (commonly known as search and seizure)
Use reasonable force if necessary to carry out their duties
Use particular technology to assist an investigation, such as phone taps, surveillance or DNA samples
Arrest and interrogate suspects
Recommend whether or not bail should be granted.
