Legal Flashcards

Question

What is anarchist communism?

Answer 1

Each according to their own need.

Answer 2

Laws created by judges and magistrates in court based on precedent ## Footnote Common law allows judges to use discretion in determining case outcomes.

Answer 3

- New specifics cases that weren’t already specified under Crimes Act 1900 (NSW) - When determining specific years on a sentence - When determining alternatives to sentencing

Answer 4

The power given to judges to make decisions based on their training and expertise.

Answer 5

It means 'the decision stands', indicating that lower courts must follow established precedent.

Answer 6

The reason why a judge made a particular decision.

Answer 7

When a court must follow the precedent set by a higher court.

Answer 8

Precedent that may influence a decision but a judge is not bound to follow it.

Answer 9

Persuasive precedent may influence a decision but is not obligatory for the judge to follow.

Answer 10

When the judge uses his/her discretion to determine sentencing and punishment.

Answer 11

This body of law supplements common law by ensuring fairness as every case is looked at on a case by case basis.

Answer 12

The power given to certain legal representatives to carry out the law based on their expert knowledge and training - given to judges and police.

Answer 13

A legal system where two opposing parties argue their case before a neutral third party. Within the restrictions of evidence, both sides can introduce evidence and witnesses. Both parties can cross examine (ask questions of) the witnesses. The judge/magistrate cannot cross-examine a witness or introduce evidence. Different from the inquisitorial system where the judge is actively involved such as asking questions.

Answer 14

- Ensures impartial judges and juries - Equal opportunity for both parties to present cases - Public jury reflects society's views - Maintains standards for evidence and court processes.

Answer 15

- Potential for biased juries - Risk of misrepresentation of evidence - Quality of legal representation may depend on financial circumstances - Lack of judge/jury engagement in questioning.

Answer 16

When a case is reviewed in a higher court.

Answer 17

The power of a court to hear appeals from lower courts.

Answer 18

Power given to a court to hear a case for the first time.

Answer 19

Preliminary hearings in a magistrate’s court to determine if there is enough evidence for an indictable case.

Answer 20

Established facts sufficient for an indictable case to proceed to trial.

Answer 21

A court hearing where the Coroner considers evidence to determine the identity of the deceased and the date, place, manner and cause of death of the deceased.

Answer 22

The rate of repeat offend

Answer 23

A judicial officer investigating deaths in unusual circumstances.

Answer 24

They hear about 95% of criminal matters, and they mostly hear summary offences. Conducts committal proceedings to determine whether or not there is sufficient evidence for an indictable offence case to be heard in a District or Supreme Court. (If there is enough evidence, it is called prima facie). They can hear civil matters worth up to $100,000. Can hear indictable offences if the accused agrees to have their hearing in the Local Court (tribuneral summaries) Hears bail hearings They have original jurisdiction but not appellate jurisdiction as they are the lowest court. The Local Court Act 2007 (NSW) specifies the jurisdiction and procedures. They are prescribed over by a magistrate.

Answer 25

A closed court focusing on protecting children, with no jury and trained magistrates. Must follow procedure Children’s (Criminal Proceedings) Act 1987 (NSW) Section 6 stating: Children have the right to be heard and to participate in proceedings that affect them Children are responsible for their actions but require guidance Where possible, education of the child should be continued without interruption Where possible, the child should reside in their home Court formalities focus more on protecting the child

Answer 26

To divert individuals charged with drug-related offenses into alternative sentences. The Drug Court Act 1988 outlines procedures, jurisdiction and role This court has limited jurisdiction meaning it only focuses on criminal activity involving drug related activity Cases must be referred to by the Local or District Court Only hears drug consumption cases, not production, distribution, trafficking etc. When there are more eligible applicants than program places, a weekly random selection process occurs to determine which applicants are give the spots The number of places available each week is determined by the Senior Judge, in consultation with the court team

Answer 27

Established by the District Court Act 1973, it is the largest trial court in all of Australia. Cases are heard by a judge or jury. They have appellate jurisdiction for any cases appealed from a lower level of court Can hear: All serious indictable offences except murder, treason and piracy which are only heard in the Supreme Court Civil matters up to $1.25 million such as debt recovery or personal injury claims Offences against the person inc manslaughter, assault, sexual assault and harm of police officers (but not murder) Offences against property including larceny, robbery, embezzlement, drug offences, mor ore serious driving offences In this court is the judges job to maintain order, ensure procedural fairness and determine punishment if found guilty whilst the jury determines if the accused is guilty or not They have more of a formal process compared to the lower courts.

Answer 28

Hears the most serious cases in NSW Cases are heard by a 12 member jury and a judge More time consuming and costly More serious sentences involved Also hears civil matters of value $1.25m upwards Has original and appellate jurisdiction The Supreme Court Act 1970 (NSW) outlines powers, procedures etc. Types of original jurisdiction include: Muder, manslaughter and attempted murder Major conspiracy cases More serious drug related charges eg. production or distribution Commonwealth prosecutions for serious breaches of Corporations Law If a case here is appealed it with be heard in the Court of Criminal Appeal

Answer 29

Court only has appellate jurisdiction to hear cases appealed in the Supreme or District Courts of NSW or the Land and Environmental Court Highest appellate jurisdiction in NSW (Supreme court has highest original jurisdiction) Appeals are heard by 3 Supreme Court judges and the determination of the majority is what the outcome will be Grounds for appeal include: - Procedural fairness breach - Inaccuracy/questioning of facts provided - Questioning the severity of a punishment given High Court of Australia has jurisdiction to hear appeals from the Supreme Court but only where it grants special leave to appeal

Answer 30

Has very restricted jurisdiction focusing on interpreting and enforcing environmental law in NSW Mostly civil and administrative disputes to do with land and contract disputes to do with land but they also hear criminal cases where there has been breaches in environmental laws Can only hear a case with a judge Cases are usually brought by NSW Environment Protection Authority

Answer 31

Hears the most serious criminal cases The prosecution is these instances is the Commonwealth Director of Public Prosecution Cases often heard include; - Drug trafficking - Money laundering - Tax evasion, fraud, etc

Answer 32

Established under the Federal Circuit and Family Court of Australia Act 2021; they used to be 2 separate courts but now they are one Deals with all family law matters; divorce, child custody, separation, adoption, separation of assets between divorcing parties, etc. Appeals from this court can only go to the High Court of Australia

Answer 33

Highest court in Australia The High Court was established in the Constitution and procedures set out in the Judiciary Act 1903 Has original and appellate jurisdiction for all state and territory Supreme Courts Must get permission to appeal to the High Court in a preliminary hearing proving the appeal has a good reason Their role; Hears appeals from Supreme Courts from states and territories Interprets the Australian Constitution when there is confusion/lack of clarity Determines whether laws are valid/appropriate ie. adheres to rule of law, etc. The High Court grants appeals when: - When it affects the general public - Conflict between courts Administrative issues Has a panel of 7 judges overseeing the case in court

Answer 34

Laws created by parliament and written into the registry of legislation.

Answer 35

A system of government with two houses: upper (House of Senate) and lower (House of Representative).

Answer 36

A proposal to be heard and voted on before it becomes a law.

Answer 37

Need for new law arises.

Answer 38

Need for new law arises ↓ Draft bill - Clerks create bill & schedule it to be heard in parliament ↓ 1st reading - Clerk reads title and MPs get given proposed act. ↓ 2nd reading - Ministers speak about the Act and MPs debate. ↓ Committee stage - Bill is examined and debated in detail. Changes are made. ↓ 3rd reading - Vote on the bill. If the majority agrees, it passes to the Upper house. ↓ Steps 3-6 repeated in the Senate. ↓ Royal assent - If the bill is passed in the Senate, the Governor-General approves the bill and it becomes an official law.

Answer 39

Royal assent from the Governor or Governor-General.

Answer 40

The first draft of an Act of Parliament ## Footnote A bill is drafted by government lawyers when the government decides to proceed with legislation.

Answer 41

When the bill is first read in parliament. ## Footnote Copies of the Bill are distributed to all members of the House of Representatives.

Answer 42

The responsible minister describes the main purpose and the likely benefits of the bill. Speakers from both the government and the Opposition say what they think about it. Debates may take weeks till a vote is held. If the majority vote in favour, the Bill moves onto the next stage. ## Footnote Debates may take weeks before a vote is held.

Answer 43

The Bill is debated once more and amendments can be made. ## Footnote Changes to the bill may be made during this stage.

Answer 44

The Bill, including any changes, goes through a ‘third reading’ in the House of Representatives and a vote is taken. If the majority vote for it, the Bill is passed through to the Senate. ## Footnote If the majority votes in favor, the Bill is passed.

Answer 45

Small/less important laws made by non-parliamentary bodies Power is given to government bodies to make small level decisions and this happens when there isn’t enough time to draft, consider or pass laws as those processes take a long time. The bodies that can do this are the local councils and the government departments. ## Footnote Power is given to government bodies to make decisions when there isn’t enough time to draft laws.

Answer 46

Types include: - Rules - Ordinances (made for Australian territories) - Regulations (made by the Governor General, state governors or Executive council) - By-laws (made by local councils and only applies the the council's region) ## Footnote Each type serves different levels of government and jurisdiction.

Answer 47

Advantages: The decision makers have greater knowledge of that area and can make more specific decisions Saves parliament time and money to dal with more serious matters Easier to change delegated legislation if need be Disadvantages: MPs don’t always check the delegated legislation Higher chance of errors/holes Inconsistencies between government bodies, councils, etc. These laws are less accessible, not usually reported by the media, etc

Answer 48

A set of rules that regulate the government and governance of Australia ## Footnote It is the supreme law under which the government operates.

Answer 49

It can only be changed by a referendum which requires a double majority (majority of population and majority of states) ## Footnote The referendum must pass both the Senate and the House of Representatives.

Answer 50

- Right to vote - Freedom of religion - Prohibition of discrimination based on State of residency - Right to trial by jury - Protection against acquisition of property on unjust terms - Freedom of speech in debating political issues ## Footnote Freedom of speech was added later; however, it is not absolute.

Answer 51

The referendum must pass both senate and house of representatives. The change must be voted on by the population between 2-6 months after being agreed in parliament. It must get 50+ votes 4 of 6 states must vote for the change; it must get a double majority - majority of states and majority of whole population Governor-general must agree to the changes.

Answer 52

The division of powers refers to the distribution of law-making authority among the three levels of government; federal (Commonwealth), state and territory governments and the local councils. It was established by the Australian Constitution and aims to prevent any one level of government from having absolute power. ## Footnote Established by the Australian Constitution to prevent absolute power.

Answer 53

Law making powers that were given to the Commonwealth to make laws under section 51 and 52 of the Constitution

Answer 54

Power that only the the Commonwealth can makes laws for and the States can not Section 51 outlines the legislative powers of the Federal Parliament ## Footnote States are excluded from legislating on these issues as outlined in Section 51.

Answer 55

Powers that aren’t found within the Australia Constitution The law-making powers that the States retain after the federal government has been granted powers by the Constitution ## Footnote These are the law-making powers that the States retain.

Answer 56

Both the Commonwealth and the States have the authority to legislate in these areas. Section 109 of the Constitution states that the Federal legislation (laws) will override state legislation in the event of a clash or overlap. ## Footnote Section 109 states that Federal legislation will override state legislation in case of conflict.

Answer 57

The principle that power must be shared between the three branches; legislation, executive and judiciary to ensure that no one group can accumulate too much power as each body checks and balance the other two. ## Footnote This prevents any one branch from accumulating too much power.

Answer 58

To interpret the Constitution and clarify issues in the event of uncertainty. Decides the judicial powers held by particular bodies Eg. what the federal government has control over and what is a state matter. Outlines the powers and limits of the government Judicial review, investigates if decisions/actions by a government official or government bodies is legal or not Original jurisdiction; can hear cases in which the dispute is brought directly to the high court without being referred to an appeal from a lower court. Eg. Constitutional challenges Appellate jurisdiction; it is the final court of appeal in Australia’s legal system. ## Footnote It has both appellate and original jurisdiction.

Answer 59

Principles developed by a people that are treated as obligatory ## Footnote It governs behavior, dispute resolution, and community relationships.

Answer 60

People of a higher rank, often older men/women but not always keepers of traditional knowledge, responsibility and handling of punishment.

Answer 61

A connection between people based on shared culture and connection to community.

Answer 62

Reducing the severity of a crime/sentence due to specific circumstances. (eg. age)

Answer 63

Land is considered sacred and cannot be owned. ## Footnote Communities feel a responsibility to look after the land.

Answer 64

There is no single system of Aboriginal and Torres Strait Islander Law, instead each community has their own set of laws. While there are some similarities, there are also many differences but are all considered customary law. Customary law; principles developed by people or a nation that are treated as obligatory. They are often passed down traditionally such as orally or through stories and are not necessarily written into legal documentation. The main difference between European and Aboriginal law is to do with land rights. Right to possess land is key to European law but in Indigenous law, land cannot be owned as it is considered sacred - Aboriginal and Torres Strait Islander peoples consider them custodians of the land. Terra Nullius, which is latin for land belonging to no one, is the idea and legal concept that when the Euopeans first came to Australia, the land was owned by no one due to lack of distinct land ownership and written legal system, meaning it was ‘open’ to settlement. This has been judged legally invalid

Answer 65

In Indigenous society, disputes are resolved by the community in Aboriginal nation societies. These meetings are a much less formal process compared to civil court and are held and run by community elders who try to help reach a resolution. ## Footnote It is less formal than civil court processes.

Answer 66

Kinship refers to the connection between people based on shared culture and connection to community. This extends to roles, relationships, responsibilities and obligations within communities and to the land. It also shapes social interactions, marriage practices and cultural traditions. Matrilineal (maternal) and Patrilineal (paternal) descent and interactions.

Answer 67

Aboriginal and Torres Strait Islander law is central to all parts of Indigenous life including marriage, education, religion and family - it is part of the values, customs and ethics of the Indigenous communities. The way in which these laws are communicated is through stories, songs and dances and each member in the Aboriginal community has access and different laws based on their status. For example, women have different laws compared to men as well as children compared to adults. There are laws in each community that only some members are allowed to be aware of and severe punishments can be given for communicating these laws to people who are not entitled to them (non-Aboriginal members).

Answer 68

Since the Native Title Act (1993) was established, eradicating the principle of terra nullius, more statute and common laws have begun to incorporate customary law with some laws even being based off of customary law. The Crimes Amendment (Bail and Sentencing) Bill 2006, removed customary law as a reason for bail, however mitigation laws do allow for reduced sentences.

Answer 69

Customary laws may be too harsh Eg. Spearing, death It may cause unhappiness to others in society Customary law isn’t consistent as laws differ throughout different communities Many customary laws go against statute/common law Relativism; The idea that certain values such as morales are not absolute but are relative to a particular perspective. Eg. What makes Indigenous practices such as payback wrong compared to our own legal system? → links back to human rights and raises the issue of different perspectives of what is considered basic human rights.

Answer 70

* Ridicule * Shaming * Exile * Spearing * Death ## Footnote Elders enforce these sanctions based on community customs.

Answer 71

Domestic law applies universally within a country; international law applies only to nations that agree to be bound ## Footnote Enforcement mechanisms also differ significantly.

Answer 72

Permanently living population Effective government Defined territory Ability to enter into international negotiations

Answer 73

Declarations and treaties Customs Legal Writing Legal Decisions

Answer 74

Nations have the right to refuse to participate in international law with nations even being able to refuse to participate in hearings of international courts and tribunals. Nations that wish to disregard the interests of the global community and follow their own interest can do so without the fear of consequences, knowing that they cannot be held accountable. ## Footnote Nations can refuse to participate in international law processes.

Answer 75

War crimes; actions carried out during a time of war the violated accepted international rules of war Genocide; acts intent on destroying all parts of a national, ethnic, racial or religious group Crimes against humanity; acts of a sanctioned widespread or systematic attack against civilians Crimes of aggression; acts of war committed by leaders whereby there direct military to act ## Footnote These can be prosecuted by the International Criminal Court (ICC).

Answer 76

Piracy Hijacking of aircraft Slave trading

Answer 77

Monist countries automatically incorporate international treaties into domestic law; dualist countries require ratification and codification ## Footnote This affects how international laws are implemented.

Answer 78

Transnational crimes are crimes that are committed over 2 or more country's borders. These crimes cross multiple nation’s legal systems.

Answer 79

An agreement between nations that is entered voluntarily ## Footnote Nations that sign treaties become 'parties to the agreement'.

Answer 80

Laws that aren’t necessarily written but there are expectations that have been held for a long time. ## Footnote Customary law plays a significant role in international legal frameworks.

Answer 81

“opinion that an act is necessary by rule of law” meaning that unless the state accepts that the international law is binding, it is not a law. ## Footnote These crimes highlight the importance of customary international law.

Answer 82

A non-binding agreement between nations. ## Footnote Declarations can express intentions but do not impose legal obligations.

Answer 83

An agreement between nations that is entered voluntarily. ## Footnote Treaties are binding and create legal obligations for the parties involved.

Answer 84

* Conventions * Protocols * Covenants * Declarations ## Footnote These terms are often used interchangeably in international law.

Answer 85

Negotiation Consent to be bound Ratification Reservation; allows countries to withdraw partly or completely

Answer 86

Treaty law is a more common method of establishing international law compared to customary law as customary law was considered too slow to effectively create international laws in a rapidly changing world. Furthermore, due to too many independent nations, finding common ground became increasingly difficult. ## Footnote Additionally, the diversity of independent nations makes finding common ground difficult.

Answer 87

* Bilateral treaties: between 2 countries * Multilateral treaties: between more than 2 nations ## Footnote Examples include the UK/Ireland Continental Shelf Boundary Agreement 1988 (bilateral) and the Antarctica Treaty (1959) (multilateral).

Answer 88

Considered in decision making and treaty formulation, and help interpret international treaties. ## Footnote Scholarly writings can provide insights into the application of international law.

Answer 89

Acts as the forum for global discussion and runs numerous committees and programs. ## Footnote It represents all UN member states.

Answer 90

Responsible for overseeing and making recommendations in human rights for all member states. ## Footnote It plays a crucial role in the promotion and protection of human rights.

Answer 91

Responsible for the preservation of international peace and security. ## Footnote It has the authority to authorize military action and impose sanctions.

Answer 92

The primary judicial organ of the UN that hears disputes submitted by member states and issues advisory opinions. ## Footnote It only settles disputes between nations.

Answer 93

Deals with crimes against the international community Created by the Roman Statute which came into action in 2002 Does not hear cases already being investigated by another body eg. national court

Answer 94

ICJ deals with disputes between nations, while ICC deals with crimes against the international community. ## Footnote ICC was established by the Roman Statute in 2002.

Answer 95

Temporary tribunals set up for a specific purpose, which are disbanded once the purpose is achieved. ## Footnote Examples include the International Criminal Tribunal of the Former Yugoslavia and the Nuremberg Trials.

Answer 96

IGOs are organisations that represent the government of member nations. The UN is the most significant IGO however there are many other organisations that are regionally based such as the EU or African Union. IGOs have their own international laws and regulations and some may have their own tribunals and use sanctions against other members who fail to abide by these laws. ## Footnote IGOs can have their own laws and regulations.

Answer 97

NGOs represent a variety of special-interest groups however these organisations are not recognised under international law and therefore have no direct legal role. Eg. an NGO cannot bring a matter before the ICJ. However NGOs play a significant role in applying political pressure to nations to abide by international laws. Eg. environmental groups worldwide have used media to apply public pressure to governments to encourage them to participate in international environmental laws. Examples of NGOs: Amnesty International Oxfam Human Rights Watch ## Footnote NGOs can apply political pressure to nations to comply with international laws.

Answer 98

* Conventions of the Rights of Child * International Law of the Sea ## Footnote These laws reflect Australia's commitment to international legal standards.

Answer 99

International Civil Aviation Organisation International Maritime Organisation International Telecommunication Union

Answer 100

Public law is concerned with regulating people’s behaviour within society as a whole and protecting the freedom and rights of individuals.

Answer 101

Criminal laws are created to: - Keep the community safe from harm - Provide for an orderly society - Provide a way of dealing with crime when it occurs It is usually established by statute law and is considered public law because when a person breaks a criminal law, they are said to be harming all members of society. Consequently, the victim in a criminal case is all of society which is why the case is brought by police and prosecution on behalf of all of society.

Answer 102

Crimes against persons: These crimes involved injury or threat of injury to another person such as homicide and assault. Crime against property: These crimes involve the theft or damage to another person’s property. This can include larceny (removing another person’s property without their consent) and robbery (the use or threatened use of violence in order to take another person’s property). Crimes against the state or sovereign: These laws involve crime that damage the country and its people. There are two main types; sedition (the crime of encouraging hatred of the country) and treason (which is the most serious crime of all which is the crime of actively trying to bring about the collapse of the country or assisting enemies of the country). Public order offences: These crimes disrupt the activities of a society and are usually minor offences such as being drunk in a public place or swearing in a public place. Traffic offences: These are the most common offences and most offences such as speeding are dealt with on the spot fines. More serious traffic offences such as drink driving require a court hearing. White-collar crime: This covers crimes that are usually committed by professional people such as tax evasion, fraud and computer hacking. Drug offences: These are offences against the state and include the importation, manufacture, possession, trafficking, distribution, supply and use of prohibited narcotics. Some may be Commonwealth crimes and some may be state offences.

Answer 103

Administrative laws are laws that relate to the operation of the government and its various departments. When a government department or agency is created, it is done through the passing of a law establishing the department. Eg. The NSW Board of Studies was established by the Education Act 1900 (NSW) and the act outlines its responsibilities and powers. The Administrative Decisions Tribunal is a special tribunal that deals with matters of administrative law for Commonwealth government departments and agencies.

Answer 104

Constitutional law is about interpreting the Constitution. It is concerned with: - The power and authority of Parliament - The rights of each citizen - The powers between the federal and state governments Responsibility of the High Court A constitution is a legal document that outlines the powers and operations of the government. While in other countries deal extensively with the right of individuals (eg. America), the Australian Constitution deals with the division of owners between the Federal and State governments and the separation of powers between the executive, legislative and judiciary branches.

Answer 105

Private law deals with the legal relations between individuals and organisations and civil law focuses on matters between individuals. The person who the action is brought against is known as the defendant while the person who initiates the action is called the plaintiff.

Answer 106

A contract is a legally binding agreement between two or more parties. Many civil law matters deal with contracts where one party believes that the other party has failed to fulfill the requirements of the contract. Contract law requires the parties who enter into a contract to do so in ‘good faith’, meaning that the parties will act fairly and not try to deceive the other party. When either party fails to act fairly, it is called ‘unconscionable conduct’. Many contact laws/cases such as the one following, come about because of this issue.

Answer 107

Contract law stipulates that in order for a contract to be valid and therefore enforceable, it must be: An “invitation to treat” (inviting an offer). Eg. A shop advertised a shirt for $45 is inviting interested people to come in and buy it, An offer Eg. A person brings a shirt to the counter and offers to buy it. Consideration; under contract law, both parties in a contract must benefit from it. Eg. The consideration of the buyer is the money given for the shirt while the shirt itself is consideration of the part of the vendor. If one party fails to benefit from the contract, the contract itself will not be valid. Acceptance Eg. When the shop assistant accepts the money, a contract comes into existence. When the shirt is handed over in exchange, the contract is complete.

Answer 108

The law of torts is a complex area of law that involves civil wrongs. Torts are civil wrongs involving the actions of one person inconveniencing another person or breaching their rights.

Answer 109

Negligence: Negligence revolves around the concept of ‘duty of care’ which states that every person and organisation has the responsibility to ensure that their actions do not cause harm to others or their property. This concept was established through the common law in Donoghue v. Stevenson. Nuisance: Nuisance involves one person interfering with another person’s rights. Eg. If a neighbour constantly plays very loud music late at night they may cause a nuisance to another person. Defamation: Defamation involves damaging another person’s reputation which is when misleading information about a person is pub;ished or broadcasted, and this information damages the reputation of that individual. It is important to note that if the information about the individual involved is accurate, then defamation has not occurred. Trespass: Trespass takes place when a person interferes with the property of another.

Answer 110

Anything that can be bought or sold is considered property. There are numerous laws governing the way that property transactions are to take place. Eg. Fair Trading Act 1987 and Trade Practices Act 1974 are both examples of statute law that ensure that businesses act appropriately when selling property.

Answer 111

For less serious offences and triable summarily offences. These are conducted by a judge or magistrate only.

Answer 112

Jury decides on the guilt/not guilty verdict and the judge decides on the sentence.

Answer 113

Less serious offences such as petty theft.

Answer 114

Serious offences such as murder. For indictable cases, a summary hearing takes place first and is heard in front of a jury unless the accused choses a judge only panel. In NSW, 11 out of 12 jury members must agree on the verdict.

Answer 115

In a criminal case the standard of proof is proof beyond reasonable doubt. This means that the jury must be convinced without a doubt that the accused is guilty of the crime. The burden of proof always lies with the prosecution and refers to how they must prove the case. In theory, the defence can say nothing and still be found not guilty if the prosecution’s defence is unconvincing.

Answer 116

In civil matters the standard of proof is based on the balance of probability meaning that it is based on the evidence presented (who is more likely to be telling the truth). The burden of proof in any civil matter lies with the plaintiff and refers to how they must prove the case

Answer 117

Judges and magistrates preside over court and are legally qualified professionals often with considerable experience in law. Judges sit in intermediate and superior courts and their role is adjudication in cases which means they decide on points of law and issue instructions to the jury). Judges are also required to issue sentences and rulings and so in some civil law cases without a jury they will also have to determine the case. A magistrate sits in the inferior courts and their role is to determine cases (reach a verdict). They must also issue rulings and sentences.

Answer 118

- Presides over hearing in the Local Court - Hears summary (minor) cases or indictable cases (serious) that are summarily triable - Oversees proceedings - Decided on verdicts and sentences - Conducts committal proceedings for indictable offences to be tried - Usually hears bail proceedings as well Barristers almost always receive their work through a solicitor and the solicitor approaches a barrister on behalf of a client, for the barrister to then represent the client in court. Most barristers specialise in one particular area of law which allows them to develop considerable expertise in the area.

Answer 119

To provide legal advice also known as ‘opinions’ on legal facts presented to them and usually includes some indication of the likely outcome which allows for the client to decide what is best for them. To present their clients' case in the court (if the barrister has been briefed by the solicitor).

Answer 120

may sometimes appear in court, in majority of cases, their work is non-litigious meaning that it involves no court appearances. The main duties of a solicitor include the preparations of wills, family law issues, conveyancing (handling the sale and purchase of real estate) and the drawing up of legal documents. The main role of a solicitor is to prepare the case, known as a brief, for the barrister.

Answer 121

Australia’s legal system is often referred to as a common-law system. A key part of this system is the ability for judges to make laws or set precedent. Australia’s adversarial system allowed for judges to act as a neutral party and to make decisions on the evidence presented to them rather than seeking out evidence.

Answer 122

Laws in the civil law system are almost entirely derived from statute law meaning that there is no room for the development of judge made laws. Judges in this system are also required to carry out an investigation (known as the inquisitorial system).

Answer 123

Internal review; decisions reviewed within the agency External review; independent body reviews the decisions Judicial review; courts check if decision was lawful, fair and rational

Answer 124

Decisions made by the judge requiring 1 or both parties to fulfil the obligations on a contract. For example if there is a contract to build the house, the builder must finish the building

Answer 125

Order by the judge preventing someone from doing something. For example firing someone while a civil case between an employer and employee is going on.

Answer 126

Damages (money to put plaintiff in the position they would’ve been if the contract was followed)

Legal Flashcards

(151 cards)