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Legal yr 11 prelims
Legal prelims
| Term | Definition |
|---|---|
| law | formally legally enforced rules made by courts or parliaments, which establish guidelines for acceptable human conduct and behaviour. Laws apply to everyone, and if breached, come with consequences. |
| customs | socially accepted traditions, accepted way of doing things |
| customs examples | lining up to get on the bus. |
| rules | can be made by anyone, individuals or communities and usually only apply to a specific community |
| rules examples | soccer rules and school uniform rules = may come with consequences if breached. |
| values | what someone chooses to believe in, may reflect views of right versus wrong |
| values examples | religious, social, cultural values |
| ethics | moral principles that may influence how one behaves and treats other people |
| ethics examples | unethical for a teacher to discuss a student’s marks with another student |
| characteristics of just laws | ● Equal ● Based on widely held values, held by majority of society ● Utilitarian, ensuring greatest good for greatest possible number of people ● Aimed to redress inequalities |
| characteristics of just laws | ● Minimise delay- able to be resolved quickly, without having to wait a long time e.g. car accident, solve whose fault it was |
| characteristics of just laws | ● Must not be retrospective- e.g. law saying people with pierced ears in society was an offense, unjust because law wasn’t applicable when people got their ears pierced→ wrongly focuses on past, unchangeable event |
| characteristics of just laws | ● Must be known- legal system organised so people have opportunity to be informed of law e.g. NSW smoke detector laws in households, wasn’t implemented until 9-10 months of announcement |
| characteristics of just laws | Note: Law- equal treatment= just -Vary consequences for breaches -Take individual circumstances into consideration= just |
| characteristics of just laws | Fair go ● Everyone given a go, a chance ● Same opportunities ● Justice and rule of law → fair go= human rights ● A right everyone must have |
| nature of justice - equality | ● Not being discriminated against for differences |
| nature of justice - equality examples | Everyone being provided with same opportunities e.g. fair go ● “That’s not fair,” → “That’s not just,” Double standards e.g. gender pay gap |
| nature of justice - fairness | ● “Just treatment,” being treated rightfully and respectfully |
| nature of justice - fairness examples | ● a teacher refusing to teach their class and refusing to answer students’ questions would be unfair ● Playing fair- e.g. biding by rules in a game, not cheating |
| nature of justice - access | ● Ability to obtain justice regardless of status and barriers, race, gender, financial status etc. |
| nature of justice - access examples | human right of fair trial, mentality of “innocent until proven guilty” e.g. person having access to lawyer to defend them |
| procedural fairness (principles of natural justice) | Two main aspects: 1. Having a right to know what is alleged against you, a right to respond to allegation and correct information 2. Unbiased decision makers e.g. student number written on papers, driver’s computerised test versus instructor |
| procedural fairness (principles of natural justice) | • Proceedings should be conducted so that they are fair to all parties. • Each party to a proceeding is entitled to hear all that the other side says to the decision maker. • Justice must not only be done, it must be seen to be done. |
| procedural fairness (principles of natural justice) | ● Procedural fairness= natural justice, procedures, expected to be applied fairly |
| procedural fairness (principles of natural justice) | Alleged- without proof e.g. gossip Decision makers in court- judge, jury Decision makers in wider world- teachers |
| procedural fairness (principles of natural justice) | everyone is entitled to a decision by a disinterested and unbiased adjudicator (nemo judex in causa sua or in English, the hearing rule) |
| procedural fairness (principles of natural justice) | ; and that the parties shall be given adequate notice of the case against them, and a right to respond (audi alteram partem or in English, the bias rule). |
| procedural fairness (principles of natural justice) - examples of not receiving procedural fairness | ● Example of being treated without procedural fairness: detention, not knowing why you have it |
| rule of law | ● The law rules, no one is above it, applied to everyone |
| rule of law | 1. No one is above it, should be applied equally and not arbitrarily (not randomly, following processes and procedures) 2. No one can be punished except for breach of law, which is known in advance, they will be notified |
| anarchy | ● No law in operation ● Opposite of rule of law, since there is no law ● State of anarchy- rule of law is complete absent |
| tyranny | ● Cruel and oppressive law ● Law is unpredictable, harsh, unjust ● Tyrants often believe they’re above the law because they’re in charge like a T-REX ● Abuse of law/power |
| sources of contemporary australian law - british origins, including: - development of common law | 1. Made by judges, disputes in court (judge-made or case law) 2. Made by courts, opposed to law made by parliament |
| sources of contemporary australian law - british origins, including: - development of common law | ● Established by William the Conqueror, King of Courts ● Judges kept records, why they came to their decision, began to refer to their own decisions and other judges’ decisions regardless of location ● Law being common across land |
| sources of contemporary australian law - british origins, including: - development of common law | ● Consistency, consistent application of law leads to justice ● Legal principles applied across cases ● Judge or magistrate decides outcome, through application of principals of common law and its development |
| sources of contemporary australian law - british origins, including: - development of common law | ● Australia, British colony established 1788, NSW ● Colonists brought English law with them |
| sources of contemporary australian law -british origins, including: - equity | ● Equity- body of law developed in England, provide remedy in situations where if common law was used, it would be an injustice ● Developed by Court of Chancery |
| sources of contemporary australian law -british origins, including: - equity | ● Equity law meant remedy suited individual circumstances of each specific case |
| sources of contemporary australian law -british origins, including: - equity | ● Principles of equity developed: ● Equity and common law- provide alternative outcomes for same dispute, this was resolved in 1615, when King James I decided when conflict arose, equity took precedence over common law |
| sources of contemporary australian law -british origins, including: - equity | ● Equity more important than common law, superior ● Equity not same as equality |
| sources of contemporary australian law -british origins, including: - equity - example | James’ equity case- common law wouldn’t have been fair because Emma and her two sons could be kicked out of house by brother John, this is why equity is important |
| sources of contemporary australian law -bristish origins, including: - equity - differences between common law and equity law | ● Equity- more flexible, responsive to individual circumstances, there are discretions ● Common- rigid, must follow previous decisions |
| sources of contemporary australian law -bristish origins, including: - equity - differences between common law and equity law | ● Main common law remedy is damages- money, court order that party must give a specified amount as compensation for harm suffered by other party |
| sources of contemporary australian law -bristish origins, including: - equity - differences between common law and equity law | ● Equity has other remedies e.g. specific performance, injunction - adversarial system of trial |
| sources of contemporary australian law -bristish origins, including: - equity - differences between common law and equity law | ● Most legal systems settled in court, adversarial system |
| sources of contemporary australian law -british origins, including: - equity - differences between common law and equity law / pt 1 | ● Key features: - People who are adverse to each other, opposing parties - Each side gives evidence for their case |
| sources of contemporary australian law -british origins, including: - equity - differences between common law and equity law / pt 2 | - Can challenge evidence from other party→ procedural fairness, thoroughly tested evidence - Judge/magistrate controls it, like a referee to make sure rules followed - Decision made by judge/magistrate or jury, if there is one |
| sources of contemporary australian law -bristish origins, including:- equity - differences between common law and equity law | ● E.g. Donoghue v Stevenson “v” shows two opposing sides, versing each other ● AC= Appeal Cases ● R= Rex, Latin for king/queen |
| sources of contemporary australian law -bristish origins. including: - equity - differences between common law and equity law | ● First person named is the person who is taking appeal to court ● “Queen”- case held in High Court |
| sources of contemporary australian law -british origins, including: - equity - differences between common law and equity law | ● Letters after names of parties involved in case mean the court the case was heard in or name of the law report series |
| sources of contemporary australian law -british origins, including:- precendent | The ‘doctrine of precedent’ is the rule that a legal principle that has been established by a superior court should be followed in other similar cases by that court and other courts |
| sources of contemporary australian law -british origins, including:- precendent | The doctrine of precedent was developed to promote consistency in decision-making by judges, on the basis that like cases should be determined in a like manner |
| sources of contemporary australian law -british origins, including:- precendent | This system is complex and difficult to understand but it allows the law to function with consistency while retaining enough flexibility to accommodate change and development. |
| sources of contemporary australian law -british origins, including:- precendent - effective functioning of precedent | The effective functioning of precedent requires three things. First, it needs a clear and well-defined court hierarchy, so the function and status of each court are clear |
| sources of contemporary australian law -british origins, including:- precendent - effective functioning of precedent | Second, it needs close adherence to the principle of stare decisis by judges and magistrates. |
| sources of contemporary australian law -british origins, including:- precendent -effective functioning of precedent | Third, it requires a thorough system of law reporting, so that records about other decisions and precedents are available to all judges |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - binding precedent obliges a court to follow its decision - A precedent is ‘binding’ on a court if the precedent was made by a superior court that is higher in the hierarchy of courts |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - A binding precedent must be followed if the precedent is relevant and the circumstances of the cases are sufficiently similar |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - For example, decisions of the High Court are binding on all courts in Australia, but a decision of the Supreme Court is not binding on the High Court, and a decision of the District Court is not binding on the Supreme Court |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - This type of precedent is called a ‘mandatory precedent’ in some court systems |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - A binding precedent requires all inferior courts to follow the ratio decendi of superior courts when the facts of a case are the same or similar |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - Note that precedents can only be binding in the same jurisdiction, such as State court hierarchies. Precedents established in the Federal Court, for example, are not binding on court hierarchies in any of the States |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - Within Victoria, the Supreme Court’s Court of Appeal – being the highest court in that jurisdiction – establishes the greatest number of precedents |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent | - These precedents are binding on the Supreme Court, the County Court, the Magistrates’ Court and the various specialised courts. |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent -precedents established in the court | - Precedents established in the Court of Appeal are not necessarily binding on other Court of Appeal cases, however, they are generally followed by convention |
| sources of contemporary australian law -british origins, including:- precendent - binding precedent -precedents established in the court | This means that Court of Appeal judges can establish a new precedent if they believe there is a pressing reason to do so. |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - persuasive precedent can influence or inform a decision but not compel or restrict it - A precedent is ‘persuasive’ if it was established by a superior court that is not higher in the hierarchy of courts |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - This means that the precedent should be seriously considered, but is not required to be followed |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent - example | a precedent established by the Supreme Court of New South Wales is persuasive but not binding on the Supreme Court of Victoria, since these courts are not in the same hierarchy and are of equal authority |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - Decisions of superior overseas courts, particularly the superior courts of the United Kingdom, are persuasive precedents in Australia |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - While the decisions of lower courts or courts in other jurisdictions can never be binding, they can certainly influence the decision of a court |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - Judges can examine the precedents established in these courts for guidance and information |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - They may study the precedent of an inferior court or a court in another hierarchy (the ratio decendi of a South Australian District Court, for example, may provide a persuasive precedent for a judge in the County Court of Victoria) |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - Or they may develop a new precedent that is informed or shaped by these persuasive precedents |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - There may be no scope for a persuasive precedent if there is a binding precedent that must be applied |
| sources of contemporary australian law -british origins, including:- precendent - persuasive precedent | - A court can only choose to follow a persuasive precedent if no relevant binding precedent exists in its own hierarchy |
| sources of contemporary australian law -british origins, including:- precendent - Obiter dictum | - Also worth noting is the possible impact of obiter dictum remarks on the development of a judgement |
| sources of contemporary australian law -british origins, including:- precendent - Obiter dictum | - Obiter dictum (‘by the way’) statements are made in a judgement but do not constitute part of the ratio decendi, therefore they are not part of any precedent |
| sources of contemporary australian law -british origins, including:- precendent - Obiter dictum | - Instead, obiter dictum remarks may provide some insight or explanation into how the judge interpreted the facts and legal principles, in order to reach his or her decision |
| sources of contemporary australian law -british origins, including:- precendent - Obiter dictum | - They are not binding or persuasive precedents but can provide important information and guidance for future judges |
| sources of contemporary australian law -british origins, including:- adversarial system of trial pt 1 | role of judge - referee/umpire role of barristers - competitors representing a side style of trial - confrontational focus of trial - procedural fairness (follows rules of evidence) reliance on precedent - yes (strong) |
| sources of contemporary australian law -british origins, including:- adversarial system of trial pt 2 | judge as law maker - active and creative settlement of cases - can be settled out of court used in - Australia, UK, US |
| sources of contemporary australian law -british origins, including:- adversarial system of trial | An adversarial system is that where the court act as a referee between the prosecution and the defence. The whole process is a contest between two parties |
| sources of contemporary australian law -british origins, including:- adversarial system of trial | As regard crime these two parties are the state & the person accused .In this process court takes a non partisan role |
| sources of contemporary australian law -british origins, including:- inquistorial system of trial pt 1 | role of judge - inquires role of barristers - assisting judge style of trial - collaborative focus on trial - find facts reliance on precedent - no (weak) judge as law maker - passive and technical settlement of cases - all go to court |
| sources of contemporary australian law -british origins, including:- inquistorial system of trial pt 2 | used in - France, Germany, Indonesia |
| sources of contemporary australian law -british origins, including:- inquistorial system of trial | An inquisitorial system is a legal system where the court is actively involved in proof of facts by taking investigating of the case. This system resolving disputes and achieving justice for individuals and society |
| jurisdiction | Jurisdiction exercised by Australian courts is either federal jurisdiction or state or territory jurisdiction |
| jurisdiction | Federal jurisdiction is the authority to exercise the judicial power of the Commonwealth |
Created by:
maddie03
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