Exam Revision Flashcards
(93 cards)
The role of individuals in achieving social cohesion and protecting the rights of individuals
Social cohesion is achieved when individuals act morally and respectfully towards others by ensuring they are aware of laws and abide by them
When individuals successfully achieve social cohesion the rights of individuals are more often protected because individuals will respect human rights and report crime and dangerous behavior to law enforcement agencies
Choose to follow laws to avoid consequence, moral compass
The role of laws in achieving social cohesion and protecting the rights of individuals
Laws exist to promote community safety and protect individual rights
Laws achieve social cohesion by being made by a democratically elected parliament to represent community views and values
Individuals are more inclined to abide to laws they believe in
Laws discourage dangerous behaviour and promote positive behaviour
The role of the legal system in achieving social cohesion and protecting the rights of individuals
Made up of institutions, organizations, rules, procedures and people responsible with maintaining order in society. Achieves social cohesion by creating, applying and enforcing laws in our community. Parliament makes laws to regulate behaviour and foster social cohesion. Parliament must produce a statement of compatibility for every law it creates to ensure it is compatible with the seven international human rights and freedoms treaty. Democratically elected parliament- laws mu reflect the views and values of the community. Judges interpret and apply laws in a way that is fair and equitable to resolve disputes. Promotes social cohesion by ensuring disputes are resolved in a way that if transparent, consistent, fair, just and reliable. Police and law enforcement agencies enforce law to ensure individuals are held accountable for behaviour that is not socially cohesive.
How is fairness upheld in the legal system?
The right to a fair trial or hearing is a right protected by the Charter of Human Rights and Responsibilities Act 2006
-Presumption of innocence
-All individuals and businesses to a dispute are entitled to a hearing from an impartial third party
-In some criminal trials the accused as the right to have their case determined by a jury of their peers.
How is fairness not upheld in the legal system?
-delays= limited reliability of evidence
-Financially disadvantaged accused may be unable to present their case to the same extent as the prosecution, limiting the achievement of fairness
-They have communication difficulties such as the inability to speak or understand English, or experience other cultural barriers which mean they are misunderstood, for example a culture where direct eye contact is offensive may lead a party to avoid eye contact which may be misinterpreted as guilt
How does the legal system uphold equality?
-In a criminal trial, equality is achieved when an individual defendant is granted rights such as the rights to silence and the burden of proof resting on the prosecution, to balance out the State (prosecutor) is more powerful in terms of money, resources and expertise.
-Sentencing guidelines, including max and min sentences, ensuring courts impose similar sanctions for similar offences, meaning offenders who commit the same, or similar crimes are treated alike.
-healthy discrimination may be necessary as some people need to be treated differently. Specialist courts such as the Children’s Court and Koori Court allow groups in society to have their case presented in a court which meets those needs.
How is equality not achieved in the legal system?
(strengths are not upheld)
-appeals are not equally accessible to the prosecution and accused due to their high cost. This can cause socioeconomic discrimination if the accused cannot appeal an unjust decision due to their financial position.
How is access upheld in the legal system?
-Court services Victoria provides translators and other support for individuals attending courts
-Government advertising campaigns, government departments and the courts provide information across many platforms about legal rights, responsibilities and how legal disputes are resolved
-Specialized knowledge and expertise of court judges and magistrates enhance access to justice as it allows cases to be resolved in a more efficient, consistent way.
How is access not upheld in the legal system?
-accused may struggle to understand the criminal processes and procedures of the courts if they have no prior knowledge, therefore limiting their access to justice
-13% of Australians live below the poverty line, but Legal Aid is only available for 8% of Australians
List characteristics of an effective law
-Reflective of society views and values
-Enforceable
-Clear
-Known
-Stable
Effective law- R
A law reflecting society’s values is one that reflects what the majority of society accepts and believes in. This is important because members of society are more inclined to follow a law they believe in, rather than disregard it. This means laws need to be changed and amended regularly to reflect shifting values.
Effective law- E
The characteristic of enforceability means it must be possible to monitor whether people follow the law and provide consequences for people who do not. If a law cannot be enforced people are less likely to abide by it. Law enforcement agencies can utilise up-to-date technology to improve enforcement. For example, police using new technology to detect drivers not wearing a seatbelt or using their mobile phones while driving.
Effective law- C
Laws must be clear and understood by the community.
Simple, clear language should be used when writing laws. If the law is ambiguous, unclear or written in language/jargon that people don’t understand, it is possible people won’t follow it and the law will be ineffective.
Effective law- K
A law is known if changes are clearly communicated, and people are given time to become familiar with the new law. However, ignorance of the law is not a defence.
Knowledge of the law means that members of society are less likely to break the law.
New laws are usually reported in the media, often following a great deal of discussion before changes are made.
Effective law- S
Effective laws should be stable, meaning they should not change so frequently that they are difficult to keep up with. Effective laws should be implemented for a reasonable period of time, so the community can become familiar with them and clarify expected behaviors.
Role of parliament
-The term Parliamentary supremacy means Parliament is the supreme law-making body. Parliament can make laws on any issue within its constitutional power.
Main role of the Commonwealth Parliament:
-Make laws for the peace, order and good government of Australia- laws called legislation or statute
-to represent the people of Australia in the laws that it makes, ensuring that laws passed reflect the social, moral, political and economic values of society.
-to check the laws made by bodies to which they have delegated law-making powers
Vic court hierarchy
High Court
Supreme Court of Appeal
Supreme Court
County Court
Magistrates Court
Role of the courts
-judges cannot make law as an immediate response to a community demand. Courts can act only to declare that legal principles apply to the facts of a case that is brought before them. Sometimes when courts do this, they create law, which is known as common law, or precedent
-TheCourts’main role is toapply legislation to resolve disputes before them.
-Each court was created by an Act of Parliament
Relationship between parliament and courts
-Act-
- Parliament establishes courts by passing a law and setting out its jurisdiction. Parliament can change these Acts at any time, and add to or take away from a particular court’s jurisdiction. Eg. The County Court in Victoria was established by the County Court Act 1958
Relationship between courts and parliament
-statutory interpretation-
Statutory interpretation is the courts interpreting and giving meaning to the words in legislation when resolving disputes. Courts may need to do this because:
Sections of a statute are drafted in broad terms and need to be applied to a specific fact scenario
The meaning of some words may change over time
As Parliament makes law ‘in future’ they may be unable to forsee a situation arising so the court must clarify the law to apply it to a case before them
When interpreting statute, courts must uphold the intentions of Parliament at the time of creating it.
-broadening or narrowing the operation of statute
Relationship between courts and parliament
-codification-
Codification of common law occurs where Parliament agrees with a principle of common law established by judges from a particular case and creates legislation to ‘confirm’ it. It is therefore ‘codified’ – which means it is written into law to protect the legal principle established.
Codification clarifies the operation of the law for future. It enables Parliament, as the sovereign, to ensure that the new law will extend beyond the parties to the dispute in which the common law principle was established.
eg. Mabo vs Queensland
The Commonwealth Parliament codified this decision by passing the Native Title Act 1993
Relationship between courts and parliament
-abrogation-
Abrogation of common law occurs when Parliament disagrees with a legal principle(s) established by a Court and ‘abolishes’ or ‘overrides’ the common law principle(s) by writing new law (legislation).
To ‘abrogate’ is to cancel or abolish a court made law, by passing a new Parliament Act.
Parliament may decide to abrogate common law for a number of reasons:
the courts may interpret the meaning of the words in a statute in a way that was not the intention of parliament, or
in a way that does not reflect the current meaning of the act, or
courts may develop precedent in a way that the parliament does not agree with.
Relationship between courts and parliament
-courts influence-
Through statutory interpretation judges may comment on whether particular legislation is appropriate to the cases being presented in the courts, or difficult to apply.
A court may remark that a legal principle is confusing when interpreting or applying a statute. It may also remark a common law principle needs to be changed but leave it to Parliament to do it.
Relationship between courts and parliament
-invalidation of statute-
Courts enforce the division of law-making powers between the State and the Commonwealth Parliament.
The High Court can hear applications where a party is claiming that a parliament has made a law that it is not in their power to make