U1AOS1: Legal Foundations

Question 1

Rule

Answer 1

Made by private individuals/groups. Only apply to a specific group of people and enforcement can vary.

Question 2

Law

Answer 2

Made by legal institution such as parliaments and the courts. Apply to all of society and are enforceable by the courts and the police.

Question 3

Date of Federation

Answer 3

January 1st, 1901

Question 4

Parliament

Answer 4

A formal assemble composed of elected representatives who make laws, with the exception of the Governor-General who is appointed.

Question 5

Significance of the Constitution

Answer 5

-Establishes parliament
-Establishes the lawmaking powers of Cth +States
-Establishes the judicial role of the HC
-Establishes how the constitution can be changed

Question 6

Social Cohesion

Answer 6

Willingness of members of a society to cooperate with each other in order to survive and prosper

Question 7

Role of individuals in SC

Answer 7

By following the law- ‘everyone doing their bit’
By using offical methods of reform law if viewed as unjust

Question 8

Role of law in SC

Answer 8

Set up guidelines, create boundaries to protect individuals, establish rule of law

Question 9

Role of LS in SC

Answer 9

Ensuring that institutions exist to effectively create, implement and enforce the law
Include: parliament, the police, courts and flexibility to sanctions

Question 10

Fairness:

Answer 10

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

Question 11

Formal Equality

Answer 11

-Everyone receives same treatment regardless personal differences/characteristics
-One size fits all approach

Question 12

Substantive Equality

Answer 12

-Adjustments put in place when formal equality X work + create disadvantage/ disparity

Question 13

Access:

Answer 13

Ability to engage with LS and its processes on an informed basis

Question 14

Characteristics of an effective law: Reflect society’s values

Answer 14

-Belief, principle/idea re. how we should behave + treat others
-Laws must change to align w/ current societal values eg, same sex marriage + legalising cannabis

Question 15

Characteristics of an effective law: Enforceable

Answer 15

-Breaking -> can be apprehended + charged in a criminal case/sued in civil proceedings
-enforced by courts, various govt agencies (EPA + VicRoads) + police

Question 16

Characteristics of an effective law: Known

Answer 16

-Ignorance of the law is no excuse
–Public must be kept informed of new laws/ major changes to laws eg through ad campaigns + media debate

Question 17

Characteristics of an effective law: Clear and Understood

Answer 17

-Must be consistent + precise so law can be interpreted +understood clearly by ppl in society
-unclear, w/ jargon –> less likely to be followed

Question 18

Characteristics of an effective law: Stable

Answer 18

-Cannot be constantly changing
-Law makers should attempt to forecast change b4 happens

Question 19

Structure of Cth Parliament

Answer 19

-Made of HoR (lower house) -> forms govt + mostly introduces bills
-Senate (upper house) -> house of review + mainly debates + amends bills
-GG gives royal assent after bills are passed

Question 20

House of Representatives

Answer 20

Composition: 151 seats (from 151 electorate, ~ 1 seat/ 100 000 ppl), made from govt (forms cabinet + ministers), opposition (forms shadow ministers) +crossbench
Role: Introduces + pass proposed laws, rep ppl’s interest + opposition holds govt accountable

Question 21

Senate

Answer 21

Composition: made of 76 senators, 12 from each state + 2 frm each territory
Role: review bills passed by HoR, ensures equal rep of states, introduces + passes proposed laws

Question 22

Governor-General

Answer 22

Gives bills royal assent to become laws

Question 23

Statute Law

Answer 23

Law made by parliament. Also called Acts of Parliament/ legislation

Question 24

Legislative Assembly

Answer 24

-88 members re elected every 4 yrs
-maj party forms govt + leader becomes premier
-ministers chosen to form cabinet + opposition= shadow ministers

Question 25

Structure of the Victoria Parliament

Answer 25

-lower house= legislative assembly -upper house= legislative council -leader of govt= premier -head of state= governor of victoria

Question 26

Legislative Council

Answer 26

-4 regions + 11 districts -> 40 members -scrutinise/ debate bills but can also introduce

Question 27

Subordinate Authorities/ Delegated Bodies

Answer 27

-when power is delegated through legislation to lower authorities to make minor laws in their area of expertise -eg Domestic Animals Act delegates powers to subordinate authorities to make laws in constituency eg CoB has Domestic Animal Management Plan

Question 28

Common Law

Answer 28

Made through statutory interpretation and the setting of precedent Also called common law, case law or judge-made law

Question 29

Doctrine of Precedent

Answer 29

Legal principle established by judges that should be followed by courts in later cases where similar facts arise. Created through statutory interpretation or when a court decides a case that is the first of it kind

Question 30

Binding and Persuasive Precedent

Answer 30

Binding precedent - must be followed -set by a higher court in the same hierarchy -facts of the case are similar Persuasive precedent -doesn't have to be followed -dif court heirarchy -set by a lower / same court in same heirarchy

Question 31

Ratio decidendi and obiter dictum

Answer 31

Ratio decidendi - 'reason for decision' - binding part of judgement Obiter dictum - 'by the way' - persuasive part, can include suggestions for judges / future law makers

Question 32

Donoghue v Stevenson

Answer 32

Donoghue drank half of a ginger beer purchased for her by a friend that contained a decomposed snail + developed sever gastroenteritis. Later sued Stevenson (manufacturer) + won case on appeal est. legal principle of duty of care b/tw manufacturer + final consumer + negligence tort

Question 33

Statutory Interpretation

Answer 33

Judges are often called upon to interpret the meaning of words in a statute when applying it to a case before the court

Question 34

Codification

Answer 34

As the supreme law-making body, parliament can make legislation that codifies (reinforces, confirms) precedent set by a court.

Question 35

Abrogation

Answer 35

As the supreme law-making body, parliament can make legislation that abrogates (overrides, abolishes) a common law principle -Statute may not alight with parli's intent / reflect current meaning of act -precedent created / applied that parliament does not agree with

Question 36

Judicial Influence

Answer 36

In their judgements, courts may influence parliament to change the law by commenting on the need for reform -courts are bound by unjust / unfair precedent -judges believe parli better suited to change law