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Legal Foundations & The Presumption of Innocence Flashcards

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1
Q

What are non-legal rules?

A

Regulations, codes, or policies made by private individuals or groups in society

Examples include households, workplaces, schools, and sports games.

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2
Q

What is the origin of non-legal rules?

A

They do not originate from legal institutions such as parliament or the courts.

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3
Q

What is law?

A

Legal rules made by institutions such as parliaments or courts.

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4
Q

Where can laws arise from?

A
  • Parliament at commonwealth and state levels
  • Courts through verdicts reached in trials
  • Bylaws established for local municipalities
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5
Q

What is a federation?

A

A union of states or territories that establish a central government.

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6
Q

What does the constitution establish?

A
  • Parliament
  • Bicameral legislature
  • Lawmaking powers of states
  • Division of powers
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7
Q

What is the judicial role of the high court?

A

Only the high court can interpret the words of the constitution.

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8
Q

How can the constitution be changed?

A

Through a referendum.

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9
Q

What is parliament?

A

A formal assembly made up of representatives of the people elected by the people.

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10
Q

Who is the Governor General?

A

An appointed official who is not elected by the people.

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11
Q

What is social cohesion?

A

A term used to describe the willingness of members in society to cooperate with each other to survive and prosper.

It involves improving the wellbeing of all members in society, minimizing disparities, and avoiding marginalization.

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12
Q

What are the characteristics of social cohesion?

A

Looks like:
* Individuals feeling a sense of acceptance and belonging
* Being treated fairly and not discriminated against
* People being able to work and improve their education

These characteristics contribute to a harmonious society.

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13
Q

How does the law and legal system promote social cohesion?

A

Laws reflect acceptable behaviors based on prioritized values and set guidelines for what is acceptable.
They create boundaries to protect individuals and establish the rule of law.

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14
Q

What is the rule of law?

A

The principle that everyone in society is bound by the laws and must obey the law.
The law should be clear so people can obey it.

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15
Q

How do institutions support social cohesion?

A

By effectively creating, implementing, and enforcing the law.
Examples include parliament, the police, and the courts.

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16
Q

What is the responsibility of individuals in promoting social cohesion?

A

Individuals are responsible for following the law once they are aware of it.

This includes business owners not exploiting their workers and paying fair wages.

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17
Q

Fill in the blank: Social cohesion involves minimizing _______ and avoiding marginalization.

A

disparities

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18
Q

True or False: Social cohesion is only about individual success and does not consider the community.

A

False

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19
Q

List some actions individuals can take to promote social cohesion.

A
  • Respecting the rights of others
  • Not stalking or harassing others
  • Engaging in community activities

These actions help foster a supportive and inclusive environment.

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20
Q

What is fairness in the context of the justice system?

A

All people can participate in the justice system and its processes should be impartial and open.

Fairness requires that processes are transparent and that all personnel within the legal system act independently, without bias or discrimination.

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21
Q

What does impartial processes mean?

A

All personnel within the legal system must always act in a way that is impartial and independent, showing no bias or discrimination.

This ensures that all individuals are treated fairly within the justice system.

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22
Q

What are open processes in the justice system?

A

Court processes must be transparent, allowing media reporters and providing clear guidelines for sentencing and regulations regarding the selection and role of the jury.

Transparency helps maintain public confidence in the justice system.

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23
Q

What is required for participation in the justice system?

A

Individuals must be aware of the legal system’s charges against them, have time to prepare their case, and be informed of any evidence against them.

Effective participation is essential for a fair trial.

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24
Q

Define equality in the context of the justice system.

A

All people engaging in the system must be treated in the same way, with measures implemented if the same treatment creates disparity or disadvantage.

Equality ensures that all individuals can engage with the justice system without experiencing unfair disadvantages.

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25
What is formal equality?
Everyone is treated the same and given the same levels of support regardless of personal differences. This approach focuses on equal treatment under the law.
26
What is substantive equality?
Different treatment is applied when necessary to address disparities or disadvantages, allowing more people to participate effectively in the justice system. This acknowledges that equal treatment can sometimes lead to unequal outcomes.
27
What does access mean in the context of the justice system?
All people should be able to engage with the justice system and its processes on an informed basis. Access encompasses physical, financial, and educational aspects, including legal support services and representation.
28
What are the components of access to the justice system?
* Physical access (e.g., location of courts) * Financial access (e.g., affordability of legal services) * Informed basis (e.g., education about legal rights) * Access to legal support services * Legal representation. Each component is crucial for ensuring that individuals can effectively navigate the justice system.
29
What are the characteristics of an effective law?
Laws should reflect society’s values Laws should be enforceable Laws should be known Laws should be stable Laws should be clear and understandable
30
What is the role of the Commonwealth Parliament in Australia?
The Commonwealth Parliament consists of the King (represented by the Governor-General) and two houses: the House of Representatives and the Senate.
31
What is the House of Representatives?
The House of Representatives is the lower house of the Commonwealth Parliament, consisting of members representing electoral divisions.
32
How many electoral divisions were there in Australia as of 2023?
As of 2023, there were 191 electoral divisions.
33
What is the minimum number of seats required for a political party to form a government in Australia?
A minimum of 70 seats is required.
34
What is the role of the Cabinet in the Australian government?
The Cabinet is responsible for different portfolios such as education and health.
35
What is the role of members of the House of Representatives?
Members introduce and pass proposed laws, hold the government accountable, and the largest political party runs the opposition.
36
What is the Senate's function in the legislative process?
The Senate reviews bills passed by the House of Representatives, scrutinizes and debates them before either passing or rejecting them.
37
How many senators does each state elect in Australia?
Each state elects 12 senators every six years.
38
True or False: The Senate can introduce and pass revenue-raising bills.
False.
39
Fill in the blank: The House of Representatives introduces and passes proposed _______.
[laws].
40
What does the Senate ensure regarding representation from the states?
The Senate ensures equal representation from the states.
41
What happens to bills that have been passed through Parliament?
They are recorded by the Governor-General.
42
What are the components of the Victorian Parliament?
The king (the crown) represented by the Governor-General, the Legislative Assembly (the lower house), the Legislative Council (the upper house) The Victorian Parliament consists of these three key components.
43
What is the role of the Legislative Assembly (House of Representatives)?
Form government, introduce and pass proposed laws, hold government accountable The majority political party in the lower house forms the government.
44
How is the government formed in the Legislative Assembly?
By the political party with the majority of members This party's leaders form the cabinet and manage various portfolios.
45
What is the role of the Legislative Council (Senate)?
Review laws that have been passed by the Legislative Assembly, scrutinize and debate proposed laws, represent views of regional constituents The Legislative Council ensures laws reflect the needs of all Victorians.
46
True or False: The Legislative Assembly is responsible for introducing most laws.
True Majority of laws are introduced in the lower house by government ministers.
47
Fill in the blank: The second largest political party forms the _______ in the Legislative Assembly.
opposition The opposition plays a critical role in holding the government accountable.
48
What is the function of the regional representation in the Legislative Council?
Ensure that laws reflect the needs of Victorians residing in regional areas This helps maintain focus on the needs of residents outside metropolitan Melbourne.
49
What are 'Subordinate authorities'?
Organizations that may have been given authority to create laws or policies based on state parliament These authorities can be delegated powers to manage local issues.
50
What does 'hierarchy' refer to in the context of courts?
Ranking of courts based on their jurisdiction to hear various matters.
51
What type of matters are heard by higher courts?
Serious and complex matters.
52
What type of matters are heard by lower courts?
Less serious matters.
53
List the courts in the Victorian court hierarchy from most superior to least superior.
* High Court of Australia * Supreme Court - Court of Appeal * Supreme Court - Trial Division * County Court * Magistrates' Court
54
The role of the courts
The main role of a court is to uphold social cohesion through applying the law to determine criminal cases, or resolve civil disputes
55
Reasons for a court hierarchy?
1.Specialization 2.Appeal 3.Administrative convenience 4.Precedent
56
Specialization
To develop expertise or thorough knowledge in an area. Eg each court has its own jurisdiction to hear certain cases. Mag court = less serious offences and t/f do this multiple times a day allowing their decision making to be made fairly and consistently
57
Appeal
Appeal= to seek review of a decision from a higher authority Eg county court has made an incorrect decision, there are higher avenues to seek an appeal/ a review of the trial judge’s decision
58
Administrative convenience
The systematic benefit derived from legal matters being distributed among the courts according to their complexity and severity Eg adequate resourcing of courts
59
Precedent
A legal principle established by superior courts through presiding if cases that should be applied to similar-like caes in future Eg without a ranking of the courts, there would be no superior courts to establish a precedent. If all existed on the same level there would be no superior courts to establish common law and these would not be applied to lower courts in future cases which prevents consistency and predictability of outcomes
60
What does statute law refer to?
Laws made by parliament, also known as legislation.
61
Define common law.
The body of law derived from judicial reasoning and decisions in past cases.
62
What is statutory interpretation?
When judges apply meaning to words within Acts made by parliament to resolve a dispute.
63
Why do judges need to interpret laws?
Due to unclear wording, changing nature of words, and to clarify words in emergency situations.
64
Name two ways common law can be made.
* Statutory interpretation * Precedent
65
What is precedent in common law?
Judges decide a case based on previous decisions when there is no statute relevant to the case.
66
What happens if there is a similar case in court?
The judge may apply the same ruling to ensure consistency.
67
Does applying a similar case create precedent?
No, it does not create precedent.
68
What does a judge do if there is no similar case?
The judge will create a ruling, which can establish a common law precedent.
69
When does a ruling create a precedent?
When there is no current Acts of parliament applicable to the case.
70
Fill in the blank: Statute law is also known as _______.
[legislation]
71
True or False: Common law is established solely through new legislation.
False
72
What does it mean when wording or phrases are narrowed in statutory interpretation?
The parameters or scope of certain words have been constricted. Example: 'public place' does not include schools because the area is limited to only students, parents, and teachers.
73
What does it mean when wording or phrases are broadened in statutory interpretation?
The parameters or scope of certain words have been expanded. Example: 'man' can include individuals that were not born biologically male.
74
What is established by a precedent in statutory interpretation?
A binding or persuasive precedent is formed on future cases depending on the position of the court where the precedent was set.
75
What allows the meaning of words to be updated efficiently in legal contexts?
Judges resolving disputes in courts apply meaning to words to resolve cases. ## Footnote This process updates legislation more timely than waiting for Parliament to amend laws.
76
Why might judges have more freedom in their rulings compared to elected officials?
Judges are not elected and therefore can rule without political pressure. ## Footnote This allows them to make decisions based on legal expertise rather than public opinion.
77
What is the role of judges in the interpretation of law?
Judges are experts on the law and apply meaning to words based on their experience. ## Footnote This expertise increases the likelihood that their interpretations will be accepted.
78
What is a weakness of judicial interpretation in relation to democracy?
Judges may not reflect the views and values of the people. ## Footnote Unlike Parliament, which is elected and can represent public opinion.
79
What can happen to the impacts of statutory interpretation?
They can be reversed or overruled by a higher court. ## Footnote A decision made in a Supreme Court can be reversed by a higher court.
80
How can Parliament influence court decisions?
Parliament can amend legislation to override court decisions. ## Footnote This power allows Parliament to abolish judicial interpretations it disagrees with.
81
Fill in the blank: Judges resolving disputes apply meaning to words to _______.
resolve cases.
82
True or False: The impacts of statutory interpretation cannot be abolished by Parliament.
False.
83
What is a precedent?
A legal principle established by judges that should be followed by courts in later cases when similar facts arise. ## Footnote Precedents are important for ensuring consistency in law and providing guidelines for predicting outcomes in legal cases.
84
When is a precedent established?
When judges apply meaning to words through statutory interpretation or preside over a case that is the first of its kind (test case). ## Footnote Test cases often set important legal standards.
85
What does 'stare decisis' mean?
'Stand by what has been decided' - when a court follows a precedent set by a higher court. ## Footnote This principle promotes stability and consistency in the law.
86
What are the reasons for following precedents?
* To ensure consistency and stability of the law * To provide guidelines and predictability for parties involved ## Footnote Parties can search previous precedents to determine likely outcomes in their cases.
87
What is a binding precedent?
A precedent that must be followed because it is set by a higher court and contains material facts that are similar. ## Footnote Binding precedents are crucial for maintaining a uniform application of the law.
88
What is a persuasive precedent?
A precedent that does not have to be followed, often set by a lower court or a different court in the same hierarchy. ## Footnote Persuasive precedents can influence decisions but are not obligatory.
89
What does it mean to reverse a precedent?
A higher court changes the decision of a lower court, creating a new binding precedent. ## Footnote Reversing a decision often reflects a change in legal interpretation or societal values.
90
What does it mean to overrule a precedent?
A higher court states that a decision made in a lower court in a different case no longer applies. ## Footnote Overruling can significantly impact the application of law in future cases.
91
What does distinguishing a case involve?
Identifying that material facts in a new case are sufficiently different from those in the binding precedent. ## Footnote This allows courts to avoid following a precedent that may not be applicable.
92
What does disapproving a precedent mean?
A court follows a binding precedent but expresses disagreement with its obiter dictum statements. ## Footnote Obiter dictum refers to comments made by judges that are not essential to the decision and are not legally binding.
93
What is the role of Parliament in the creation of Acts and legislation?
Parliament creates Acts and legislation as the supreme law-making authority. ## Footnote This establishes Parliament's primary role in shaping legal frameworks.
94
How do courts complement the role of Parliament?
Courts can add meaning and change the scope of words in legislation to carry out the intent of Parliament. ## Footnote This process helps interpret and apply laws effectively.
95
What is the relationship between court decisions and Parliament?
Courts establish precedents through resolving disputes, which Parliament can absorb into legislation. ## Footnote This strengthens the laws by incorporating judicial interpretations.
96
What does 'abrogation' refer to in the context of Parliament and court decisions?
abrogation refers to Parliament preventing a court's precedent from being applied in the future. ## Footnote This can be done by changing laws or creating new legislation.
97
What action can Parliament take if it disagrees with a court's precedent?
Parliament can abolish the precedent by changing Acts or legislation. ## Footnote This reflects Parliament's authority to modify legal interpretations established by courts.
98
What is meant by judicial influence on legislation?
Judicial influence occurs when courts comment on the need for reform or changes in the law. ## Footnote Judges' comments can lead to legislative changes initiated by Parliament.
99
True or False: Judges can change the law independently without Parliament's involvement.
False. ## Footnote Judges can suggest changes, but only Parliament can enact legislative amendments.
100
Fill in the blank: The relationship between courts and Parliament involves _______ where courts establish precedents.
precedents. ## Footnote Precedents are legal principles established in previous court cases that guide future decisions.
101
What is the significance of judicial comments in relation to Parliament?
Judicial comments may prompt Parliament to agree with judges and initiate changes in legislation. ## Footnote This highlights the collaborative nature of law-making between the judiciary and legislature.
102
How can Parliament strengthen legislation based on court decisions?
By absorbing court decisions into Acts of Parliament, thus reinforcing the legal framework. ## Footnote This process helps ensure laws reflect judicial interpretations and societal needs.

Legal Studies (4 decks)

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