Unit One - Guilty Flashcards
(57 cards)
What is the main role of the Parliament?
Represents people of Australia, makes and proposes Australian law, scrutinizes actions of thr government and is where thr government is formed
what is the role of individuals in achieving social cohesion?
engaging their communities, building partnerships with stakeholders, report and prevent incidents, strategically plan for the future of their community ect.
what is the role of the legal system in achieving social cohesion?
civil law aims to resolve legal incidents that impact everyday life, the general law acts as a guideline to keep society in order, prevents conflicts in social groups, three main functions are social control, dispute resolution and social change.
what is the role of laws in achieving social cohesion?
exist to promote safety in communities, keep society in order, ensures citizens rights against abuse by the government, organisations or individuals.
principles of fairness, equality & access
fairness: there are fair legal processes in place and all parties receive a fair hearing
equality: all people are treated equally before the law with an equal opportunity to present their case
access: people all have an understanding of their legal rights & ability to pursue their case
what are the characteristics of an effective law? (describe briefly)
Reflects society’s values - the law has to be able to please everyone and reflect common beliefs of society
Be enforceable - the law has to be practically enforceable i.e. not controlling thoughts, not controlling beliefs ect.
Be known - the law has to be widely known and validated as a law
Be clear and understood - the law has to make sense so that everyone can understand
Be stable - the law must be stable as if it is not people will find loopholes and ways around it
name and outline the two main sources of law
- Case Law
Law that is based on juridicial decisions rather than law based on constitutions, statutes or regulations - Common Law
A body of unwritten laws based on legal precedents established by Courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries
name the rules that make up the doctrine of precedent
- a judge follows the law declared by judges in higher courts in the same jurisdiction in cases with similar facts
- a court must give reason for its decisions, the reason has to include an explanation of why the court has chosen to follow/not follow a previous decision which is similar to the case before it. when an earlier decision isn’t followed it is said to be distinguished from the earlier case
- most courts are not bound to follow their own decisions although the often they do.
- the decisions of courts outside Asutralia are not binding on Australian courts, although they can be used to assist or guide Aus Courtd in making decisions or new facts.
- the decision of the highest court within a particular jurisdiction is final,
define codification
the process of codifying or codification is where parliament passes legislation that incorporates common law principles in statutes or ‘codes’
how does the parliament make law
parliament drafts legislation after it has been tabled in parliament by an MP (making law is the primary role of the parliament)
how do courts make law?
The courts can make and develop the law in 2 main ways: Statutory interpretation (the process in which courts interpret and apply legislation) Establishing precedent (to decide something that will be used as an example or rule to be followed in the future)
what are the strengths of law making through courts
ability to make law relatively quickly, fill in the gsos left by parliament, provide a level of consistency through doctrine of precedent, maintain flexibility in the law, not subject to political pressures, expertise, appeals process
how can the process of judicial decision making influence parliament?
when adjudicating cases, judges may make comments obiter dicta about relevant legislation and how it should be applied, notifying parliament of possible amendments and developments of the law
what are some weaknesses of law making through courts?
Restricted in their ability to make law, mus wait for an appropriate test case, law is slow to develop, difficulty accessing precedent, unelected law makers, limited resources, retrospective law makers, precedents can be abrogated
what are some interactions between parliament and the courts in law making
Parliament passes legislation that establishes the court system
Legislation is applied and interpreted by the courts on a case by case basis
Parliament can amend/abrogate common law at any time
Parliament can codify laws made by Courts
Process of judicial decision making can influence parliament
how is legislation applied and interpreted by the courts on a case by case basis
Statutory interpretation allows the courts to ‘fill in tne gaps’ left by parliament so that they can have application to real life cases
Essentially, courts interact with Parliament so that laws can be enforced in society
what is the primary role of the judiciary?
to resolve disputes (they refer to decisions from previous cases to guide them)
define appeal
an application to have a higher court review a ruling made by a lower court
what are judicial institutions?
federal and state courts
what are some laws made by judges? (define)
what is judicial independence? (& features)
a principle connected to the seperation of powers that the judiciary is completely seperate from the legislative and executive arms of government
features are fixed salary, permanent tenure, appointed by executive, judicial privilege, separation of powers
what is original jurisdiction?
the authority of a court to hear a matter in the first place
define appellate jurisdiction
the authority of a court to hear an appeal from a lower court
what is high court jurisdiction?
original - interpret the constitution
appellate - appeals from state superior appellate courts
