Legal Studies First Exam Revision Flashcards
(110 cards)
1
Q
meaning of law
A
a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisations such as the police and/or the courts
2
Q
customs
A
customs are collective habits or traditions that have developed in a society over a long period
3
Q
rules
A
rules are regulations or principles governing procedure or controlling conduct
4
Q
values
A
values are principles or standards important within a society
5
Q
ethics
A
ethics are standards governing the conduct of people, the nature of right or wrong; conduct considered morally right
6
Q
characteristics of just laws
A
fair and impartial treatment of all people
fair outcomes
human rights recognised or respected
7
Q
justice - nature of justice
A
Justice is upholding rights and enforcing responsibility and equal outcomes for all
8
Q
equality - nature of justice
A
equality is the state of being equal, having some rights and status
9
Q
fairness - nature of justice
A
fairness is being free from bias, dishonesty or injustice
10
Q
access - nature of justice
A
access is the right or opportunity to make use of the legal system
11
Q
procedural fairness/doctrine of natural justice
A
defendants have the right to a fair and impartial hearing
defendant is presumed innocent until proven guilty
defendant has the right to know what the charge is
the defendant is guaranteed free from bias
the defendant will have all evidence disclosed to them
12
Q
rule of law
A
the principle that no one is above the law; this can be seen in the requirement that government authority must be with written, publically disclosed laws, for which established procedural steps (due process) have been taken in the adoption and enforcement
13
Q
anarchy
A
the absence of laws and government
describes a state of chaos and disorder resulting from the absence of rules and laws
violence and looting are early indicators that a society or group is on the verge of anarchy
can occur as a result of a revolution, a natural disaster or when law enforcement agencies can no longer function
14
Q
tyranny
A
the rule of a single leader holding absolute power in a nation-state
a tyrant is a single leader who has unlimited power over the people and involves severe punishments for any infringements of the law
15
Q
common law
A
common law refers to laws created in court; that is decisions made by judges
16
Q
precedent
A
precedent is a judgement that is authority for a legal principle, and that serves to provide guidance for deciding cases that have similar facts. Also known as stare decisis which is a Latin term meaning ‘the decision stands’, the doctrine that a decision must be followed by all lower courts. When a judge makes a decision it is made up of two parts: ratio decidendi; the legal reason for a judge’s decision and obiter dicta; the comments from a judge in a case that are not directly relevant to the case and, therefore, not legally binding
17
Q
what is equity
A
fairness, justice and based on moral principles
18
Q
what is an adversarial system of trial
A
an adversarial system of trial is a trial where the two sides involved (prosecution and defence) try to prove their version of the facts and disprove their opponents. The court and the judge are impartial and the judge controls proceedings to ensure that the rules are followed.
19
Q
what is the court heirachy
A
local, district, supreme or court of criminal appeal and then high court
20
Q
local court
A
local court deals with disputes up to $100 000, summary offences and does not take appeals as it is the lowest court
21
Q
what does the coroners court deal with
A
Coroner court deals with unexplained deaths and fires (no civil cases)
22
Q
childrens court
A
Children’s court deals with the care and protection of children and young people and criminal matters involving young people under the age of 18
23
Q
district court
A
district court deals with disputes between $ 100,000 and $1.25 million, indictable offences (robbery, sexual assault, drug offences) and takes appeals from the local court
24
Q
supreme court
A
supreme court (single judge) deals with disputes over $1.25 million and indictable offences (murder, manslaughter, drug importation) and does not take appeals
25
supreme court of appeal
Supreme Court of Appeal or Criminal Court of Appeal does not deal with civil or criminal cases, only takes appeals from the Supreme court
26
high court
high court deals with constitutional matters; cases brought by/against the Federal government, does not deal with criminal cases and takes appeals from the federal court, family court and the Supreme court
27
federal circuit and family court
Federal Circuit and Family Court of Australia does not take appeals, deal with divorce, children, child support, property, spousal maintenance (family division), administrative law, admiralty law, bankruptcy, copyright, human rights, migration, privacy and trade practices (federal division)
28
what is statute law
statute law refers to laws made by parliament
29
what are the 4 main functions of parliment
represent the people of Australia, where the government is formed, make or reform laws and examine the governments work
30
house of representatives
The House of Representatives is the lower house and people in an electorate vote for someone to represent them in the House of Representatives. It's where the government is formed and the leader of the government becomes the prime minister. represented in green (ties to the English legal system). government sit to the right of the speaker and the opposition sit on the left
31
the senate
The Senate is the upper house and is elected to represent states or territories. the president of the Senate sits at the front, the government on the right, opposition on the left. senators look at new laws, closely examine and propose changes to those laws. their main role is to monitor government actions and keep them accountable to rules. represented in red (ties to the English legal system)
32
what is the legislative process for government-sponsored bills
government-sponsored bills: legislative drafting, first reading, bill lies before Parliament between readings, second reading, committee stage, third reading, other house, if the law passes goes to the governor-general, the bill becomes an act of parliament and then that act becomes a law
33
what is the legislative process for private member bills
private members bills: first reading, bill lies before Parliament between readings, second reading, committee stage, third reading, other house, if the law passes goes to the governor-general, the bill becomes an act of parliament and then that act becomes a law
34
what is the first reading
first reading is where the clerk reads the bill and each member of parliament gets a copy of it
35
what is the second reading
second reading is where the minister (person advocating for the bill) discusses the bill; debate can occur; the clerk reads the bill a second time
36
what is the third reading
third reading is where a vote is taken. if it passes it moves to the other/upper house
37
what happens in the upper house
upper house is where the bill is read by members of the upper house and if they do not agree, then they send it back to the lower house and they can make changes to the bill and the process is repeated
38
what happens if a law is passed through the legislative process
if the law is passed in the upper house it is sent to the governor-general who is the king's representative. they are a symbolic role and cannot stop a law from passing. they give royal assent (sign off on the bill)
39
what is delegated legislation
legislation made by non-parliamentary or subordinate bodies, such as local councils
40
what are the four main types of delegated legislation
regulations, ordinances, rules and by-laws
41
what are regulations
(delegated legislation)
made by the Governor General, state governors or members of the executive council
42
what are ordinances
(delegated legislation)
laws made for territories of Australia such as the Australian Antarctic Territory, usually made by the body governing the territory
43
what are rules (delegated legislation)
made for government departments, usually by the departments
44
what are by-laws
(delegated legislation)
laws made under the Local Government Act 1993 (NSW). This act allows for local councils to make laws that apply within the boundaries of the local government area
45
section 51 of the constitution
Section 51- specific powers of the federal parliament e.g banking
46
section 52 of the constitution
Section 52- exclusive powers of the federal parliament e.g defence
47
section 51 (29) of the constitution
Section 51 (29)- external affairs power
48
section 109 of the constitution
Section 109- when a law of the state is inconsistent with a law of the Commonwealth, the latter shall prevail (federal has power to override the state)
49
section 128 of the constitution
Section 128- referendum
50
what is the role of the division of powers
One of the most important aspects of the constitution is its role in dividing power between the states and the Commonwealth parliaments.
51
exclusive powers
powers granted only to federal parliament. outlined in section 52 and include foreign relations e.g immigration, international trade and customs and defence
52
what is the division of powers divided between
exclusive powers, concurrent powers and residual powers
53
concurrent powers
matters shared between Commonwealth and State governments e.g healthcare, banking and taxation. Many of the specific powers in section 51 are areas over which the states can also make laws, but remember section 109
54
residual powers
matters remaining which the states can legislate on which are not referred to in the constitution e.g public hospitals, public transport and state crime
55
what is the seperation of powers
this prevents one person or group from having too much power and this civil liberties can be preserved.
56
what are the different seperations of powers
legislature, executive and judiciary
57
what is legislature
(parliament)- power to make and amend the law. chapter one of the constitution outlines how this power belongs to parliament as the sole body with the ability to pass legislation e.g GG, House of Representatives and the Senate
58
what is executive
ministers and government departments which administer the law and the police that are recoursed to enforce the law
59
what is judiciary
(courts)- applying the law when a dispute arises. chapter three of the consitution outlines that this power belongs to the courts
60
role of the high court
has both an original and appellate jurisdiction
61
what is appealate jurisdiction
appellate means they hear appeals; the court must give ‘special leave’ for a case to be appealed here. it is the final court of appeal in australia
62
what is original jurisdiction
original means they hear cases that interpret the constitution; only court that deals with constitutional matters
63
diverse nature of ATSI customary laws
more than 200 distinct languages
no one law; seprate ATSI nations developed their own laws, but there are common aspects among groups
there is commonality in legal processes in customary laws e.g insulting an elder
64
spiritual basis, significance of land and water ATSI customary laws
the dreaming is the basis of much ATSI law; history of ATSI peoples, their creation and stories
it has a strong spiritual and religious connection
close links to land; no ownership of land. losing land means losing culture and history
ATSI peoples have strong links to bodies of water aswell. these are not owned but are cared for by the group under customary law; responsible for caring and conserving
65
family and kinship ATSI customary laws
family and extended family play a role in passing laws to the younger generation
kinship; family relationships
66
ritual and oral traditions ATSI customary laws
laws passed on through word of mouth and rituals like dance and ceremonies
the law is an integral part of the values, customs and ethics developed over thousands of years
67
mediation ATSI customary laws
mediation has an important role in dispute resolution; neutral third part helps to resolve dispute
where sacred law has been broken, elders are often directly involved in applying sanctions; a penalty imposed on those who break the law
resolving disputes requires a discussion and dialouge
68
sanctions ATSI customary law
sanctions vary from place to place and in severity e.g ridicule/shaming —> spearing
69
relevance of ATSI customary laws to contemporary Australian law
have been integrated into Australian law e.g koori court and circle sentencing
70
how does international law become a law in Australia
sign the treaty
ratify the treaty
enact domestic legislation
71
what are non-government organisations
assosiations based on common interests and aims, which have no connections with any government. they make contributions in a wide range of areas from world peace, disaster relief and environmental protection to promoting education and alleviting poverty
72
what are intergovernmental organisations
organised groups of states established to pursue mutual interests in a variety of areas
73
example of intergovernmental organisations
examples include the UN, the International Labour Organisation and the European Union
74
what is the ICJ
ICJ deals with disputes between states on which the court produces legally binding rulings and deals with advisory proceedings in which the GA or the SC requests the courts opinion on any legal question
75
what is the ICC
ICC is a permanent court established to deal with persons charged with crimes against humanity, genocide and war crimes
76
what are the main organs of the UN
General Assembly, Security Council, ICJ and ICC
77
what is the UN
the UN is an organization involved in international law established in 1945 by the Charter of the United Nations
78
what is the general assembly
General assembly is made up of all members of states and is the main forum for multilateral discussion on all international matters such as human rights, the environment and political cooperation
79
what is the security council
Security Council is the most powerful part of the UN. primary responsibility is to maintain international peace and security
80
what are legal decisions
legal decisions are decisions from the International Court of Justice
81
what are legal writings
legal writings are the writings of respected international lawyers, judges and acedemics which have an important role to play in guiding decision-making and treaty formation
82
what are declerations
decleration are international instruments that state and clarify the parties’ position on particular issues, but do not impose legally binding provisions that must be followed
83
what are treaties
treaties are an international agreement concluded betweeen states in written form and governed by international law. these are legally binding
84
example of decleration
famous example of a decleration is the Universal Decleration of Human Right (1948)- the first universal statement on the basic principles of human rights
85
multinational and bilateral treaty
bilateral treaty is between two nations and a multinational treaty is between many states
86
how does a treaty become binding
a treaty becomes binding when the state ratifies it; formally confirms that they intend to bound by the treaty
87
what are criticisms of international law
can be difficult to enforce; countries can refuse to implement an international law into state law
88
what is customary international law
based on long-established traditions or common practices follow by many states to the point where they are accepted as being fair and right by the international community
89
what are criticisms of international customary law
criticisms include that it can be difficult to establish that it exists and the time lag involved in its being acceptable as law has rendered its secondary to treaties and conventions as a source of international obligations
90
what is state sovereignty
the ultimate law making power of a state over its territory and population, including independence and freedom from external influence
91
what is domestic law
domestic law is the law of a state
92
difference between international and domestic law
international law deals with relations between sovereign states and organizations, while domestic law governs within a state’s jurisdiction, with enforcement differing significantly due to the principal of state sovereignty.
93
what does international law rely on
internation law relies on countries consenting to cooperate in the enforcement of these laws and that law is adhered to not simply because it can be enforced but because it is generally accepted by the wider community meaning not all countries will agree with all international laws and may ignore a law if they feel tht it is not in their national interest to do so
94
how does international law impact australian law
while australia is a party to and has signed many international treaties and conventions, they do not directly affect australian courts unless their provisions are formally adopted into national law. however, international law can still influence australian law indirectly, such as through influencing the development of common law or through its use in interpreting legislation
95
what is the impact of state soverignty
state sovereignty impacts human rights influences whether there is recognition, protection or enforcement of such rights
96
what is the relationship between international law and states
international law governs the relationships between states. it enables states to participate in trade and commerce and provides mechanisms for the maintenence of peace and security and the reduction of conflict
97
how has ATSI customary law been integrated into australian law
koori court
circle sentencing
mediation and sanctions have been integrated into these atsi courts to reduce recidivism and increase links to culture
98
to what extent has atsi customary law been integrated into australian law
to a limited extent
99
what is the difference between the seperation of powers and the division of powers
the seperation of powers (legislative, executive and judiciary) prevents any one from becoming too powerful. division of powers (exclusive, concurrent and residual) distributes government authority between different levels of government
100
what did the amendment of the Criminal Procedure Act 1986 (NSW) to the Criminal Procedure Amendment (Evidence) Act 2005 (NSW) allow for in the R v Skaf case
this allowed for transcript evidence to be used in certain types of trials - victims of skaf's attacks did not have to retestify and relive the pain after retrials
101
what are key facts about the R v Bilal Skaf case
leader of a gang that raped several young women in the 2000s
was sentenced in 2002 to 55 years in jail for leading these gang rapes
102
how was justice achieved in skafs case (nature of justice- equality, JUSTICE, access)
legislative reform- use of transcript evidence allowed for justice for the victims
2006 when skaf appealed 55 year sentencing, justice was achieved in a reduction in sentence to 31 years due to severity of sentence
103
how does the skaf case link to nature of justice
access to the legal system and law reform
law reform provided justice for victims and jury
appeal of sentencing provided justice for skaf
104
what elements of procedural fairness are relevant in the frank button case
he was not presumed innocent until proven guilty - description different from one given by the girl
no freedom from bias - all white jury,
evidence was withheld - evidence not thoroughly tested, no scientific evidence used, bed sheets not tested
105
links of chris dawsons case to procedural fairness
due to media attention to his case from the teachers pet podcast, dawson asked for the case to be permanently stayed. the judge ruled for the trial to be permanently stayed given the extent of publicity in the case and reduce his fundemental right to a fair trial - jury bias
106
background information to the chris dawson case
accused of murdering his wife lynette dawson on or about january 8, 1982
arrested in 2018, pleaded not guilty
media attention at the time from teachers pet podcast to the case that has been untouched for 36 years
was having affair with student, former high school teacher
107
chris dawsons trial grantifications
chris was granted a judge alone trial due to bias and media attention
was granted a temporary stay until media attention died down from the podcast
108
backgroud information on einfelds case - rule of law
In January 2006, Einfeld's car was caught by a speed camera doing 60kmh in a 50kmh zone. Rather than accept the $77 fine at his court hearing in August 2006, Einfeld said a friend of his, Teresa Brennan, had been driving the car. It later emerged that she had died three years before the speeding offence took place.
109
Kony 2012
released march 5 to make ugandan war criminal and icc fugitive joseph kony globally known in order to have him arrested by december 2012. was successful and influential in raising awareness, educating the public and influencing public opinion
110
how does koori court provide recource efficiency
with the amount of ATSI people being incarcerated, the cost is high, the cost of koori court is significantly less and keeps ATSI peoples out of jail, thus reducing the cost of incarceration
