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Legal Studies SAC #1
Chapter 3
| Question | Answer |
|---|---|
| Parliament | is a formal assembly made up of representatives of the people who are elected by people who gather to make laws. |
| Bicameral Parliament | A parliament that consists of two houses or chambers. |
| Commonwealth Parliament | consists of the Senate (Upper House) and House of Representatives (Lower House). |
| Victorian Parliament | consists of the Legislative Council and Legislative Assembly |
| Laws made by parliament | referred to as legislation, statute or Acts of Parliament. |
| laws and the courts relationship | Laws are enforceable by the courts. |
| The Australian Constitution | a legal document that outlines the basic rules of governance and the law-making powers of the elected parliament. |
| The Australian Constitution outlines: | The structures of Australia’s central parliament (the Commonwealth Parliament). The division of law-making powers between Commonwealth Parliament and state parliaments. Establishes The High Court. |
| the rule of law | the pricnicple that everyone in society is bound by the law and must obey the law, and that laws shoulf be fair and clear so people are willing and able to obey them |
| government | the ruling authority with power to govern, formed by the political part or parties that hold the majority in the lower house in each parliament. The members of parliament who belong to this political party form the governement |
| principles designed to uphold the rule of law | -law must be clear, understood and enforceable -the law must uphold the right to be presumed innocence -hearing and trails are heard by independent adjudicators -the lae must be applied equally nd fairly |
| social cohesion | a term used to describe the willingness of members of society to cooperate with each other in order to survive and prosper |
| a functioning society... | is one where there is social cohesion and the rights of the individual are proetcted. |
| benefits of a cohesive society | members are unified, provided opportunities in work, in eductaion and in their social lives, people feel a sense of belonging and work together to challenged disharmony and to promote their and others welbeing, acceptance, poltical participation, equity |
| role of laws in social cohesion | guidelines on what is acceptable, fundamental to achieving social cohesion, establish a framework in which people live, set boundaries for behaviour, ,protect the rights of individuals, Conflict is inevitable, set out ways disputes should be resolved |
| social cohesion link to rule of law | laws apply to everyone, regardless of their position in society. this idea upholds the rule of law |
| role of the individuals in social cohesion | It is the responsibility of individuals in society to ensure they are aware of the laws and abide by them. Individuals are expected to respect human rights and act in a way that encourages harmony and unity in society. |
| ways individuals can assist in achieving social cohesion: | Using the legal system to resolve disputes Report crime Assist police with their investigations Be aware of the laws that govern activities that you undertake (for example driving or getting a licence) |
| The Role of the Legal System and Social Cohesion | aims to deal fairly and justly with individuals who have broken the law or breached someone’s rights. Parliament keeps up with changing attitudes by updating laws Courts and Tribunals help people settle disputes in a way that avoids further conflict. |
| legal system | a set of processes and institutions that makes, administers and enforces laws. The legal system includes courts, tribunals and enforcement bodies ( for example Victoria Police). |
| what to consider when defining justice | fairness, equality and access (used to determine whether justice has been achieved in a criminal case are civil dispute) |
| fairness | one of the princples of justice, means all people can participate in the justice system and its processes should be impartial and open |
| processes of fairness | all personnel in the legal system must be independent (no bias and decided based on fact)and there must be open processes and everyoen should be able to participate in a case |
| equality | one of the principles of justice, means people should be treated in teh same way but if the same treatment creates disparity and disadvantge, adequate measures should be implemented to allow all to engage with the justice system without it |
| Access | one of the principles of justice, means that all people should be able to engage with the justice sytem and its processes on an informed bases |
| 5 characteristics of an effective law | reflect societys values be enforceable be known be clear and understood be stable |
| laws must reflect societys values | if a law is in line with societys current values then members of society are more inclined to follow that law than disregard it, the police or other bodies must be willing to enforce it |
| substantive equality | sometimes treating people the saem cana ctually cause dispariyu therefore it is necassary to treat someone differently to ensure their is equality |
| laws must be enforceable | this means that is people break the law, it must be possible to catch and punish them, or sue them, if this isnt possible people are less inclined to follow the law |
| laws must be known | the public must know about the law, it is the responsibility of the individial to find out what the law is on teh matter that affects them, however law makers do need to keep public informed of any new laws |
| laws must be clear and understood | laws must be written in a way that people can understand it, so teh intent of the law is clear, if a law is ambiguos, unclear or written in language that people do not understand, it is possible that people will not follow it |
| laws must be stable | if a law is contantly changing people may be uncertain as to what the law actually is and it may not be as affective |
| how many parliaments in aus | one federal, 6 state, 2 territory |
| statute law | law made by parliament also known as Acts of parliament or legislation |
| commonwealth parliament | also known as parliament of australia or the federal parliament is a bicameral parliament and consists of the king (represented by the governor generel), the house of reps (lower house), the senate (upper house) |
| role of the commonwealth parliament | to pass laws for the good government of australia in its area of law making powers, these inclide areas such as migration, defence, currency and taxes |
| House of reps | lower house, which is divided into electorates, each voter in each division elect their represenatives who take the seat in the house of reps there are 150 members and they are elected every 3 yea |
| role of the house of reps | form the government (the political party with the majority of members in the lower house forms the government and the next larges party forms the opposition) represent the pople introduce and pass proposed laws (bills) review bills passed by the senate |
| coalition | an aliance of joing together of two or more political parties usually to form government |
| the senate | upper house, consists of 76 members, each 6 states in aus is represented in the senate in the senate by 12 senators and each of the two territories is represented by 2 senators, all senators are ellected for 6 years except territory senators who are for 3 |
| roles of the senate | review bills taht ahve been introduced by the house of reps "house of reveiw" ensure equal representaion of teh states in teh senate intrudice and pass bills |
| supremacy of parliament | the concept that the final law making power rests with parliament which can repeal and amend its own statutes and pass legislation to ovveride common law (able to ovverride laws made by other bodies) |
| stages of a bill through parliament | intro and first reading to the lower house second reading third reading and voting the bill passes the lower house same procedures in the upper house the bill passes teh upper house royal assent the act becomes a law |
| victorian court hierarchy | high court supreme court (court of appeal) supreme court (trial division) county court magistrates court |
| 2 specialists court | the coroners court (investigates suspisious deaths and fires) and the childrens court (criminal and fimaily matters involving children) |
| reasons for court hierarchy | appeal, specialisation and expertise, administartive conveniance and doctrine of precedent |
| specialisation and expertise | differnt courts specialise in siffernt types of cases and devlop expertise in dealing with such cases eg minor and serious offences |
| appeal | the courts hierarchy enbales the parties to a court case to loadge and appeal with a higher court if they are not satisified with a lower courts decision |
| appeal def | an application to have a higehr court review a ruling(decision) |
| administrative conveniance | the courts have different jurisdictions to hea differnt matters nad this allows smaller and minor cases to be heard in magistrates and more extreme to be heard in supreme this allows for efficiency and conveniance with teh way they are heard |
| doctorine of precedent | the process of law making depends on a decision being made in a higher court that is binding on lower cousrts this enables individuals and lawyers to predict the liekly outcome of a case as lower judge are guided by more experinced judges |
| doctorine of precedent def | the rule that the reasons for the decisions of higher courts are binding on courts ranked lower in the hieracrhy in cases where the material facts are similar |
| role of the courts | the primary role is to resolve cases, to do this courts apply existing laws to facts in cases brrought before them and decide the cases based on those laws the secondary role is to make law as part of thier determination of cases (common law) |
| common law | law made by judges through decisions made in cases also known as case law or judge made law |
| what are the two situations a court makes a law | interpreting the meaning of the words in a statute when applying the statute to a case the court is haring by deciding on a new issue that is brought before the court in case where there is no legislation in the area are expanding of the law (precedent) |
| statutory interpretation | the process by which judges give meaning to the words or phrases in an act of parliament so it can be applied to resolve a case before the court, this then forms part of the law and can become binding on other courts as part of the doctorine of precedent |
| precedent | a principle established in a legal case that should be followed by courts in later cases where the material facts are similar, they can eaither be binding or persuasive |
| when are precedents made | when a court decides a case is teh first of its kind and in doing so estalishes pr creates a legal principle and the court is said to be setting a precedent, it could also be after a statutory interpretation |
| legal precedents are stablished through court decisions | the most important part od a jusgement is the reason for the decision |
| ratio decidendi | the latin term meaning 'the reason' , the legal reasoning behind the judges decision, forms the binding part of the precedent, future judges will look to teh ratio decidendi to determine if the precedent established will now apply to the case before them |
| satre decisis | the basic principle underlying the doctorine of precdent, the operation if precedent means that the lower courts will follow the ratio decindendi in similair cases |
| obiter dictum | in passing, s tatement made by the jusge that is not part of their reason for their decision but is important relating to the main issue of the case, only ever persuasive |
| binding precedent | the legal reasoning for a decision of a higher court that must be followed by a lower court in teh same jurisdiction, te material facts mjst be similair |
| persuasive precedent | the legal reasoning behind a decision of a lower or equal court within the same jurisdiction or a court in a differnnt jusidiction that may be considerd evrn though it is not binding, a court could be from another country or state, the saem court sets it |
| 4 ways in which a court can develop or avoid precedents | distinguising, overruling, reversing, disaproving |
| distinguising a previois precedent | if the material facts of a case are sufficianly different from the material facts in a binding precedent, a lower court does not have to follow the precedent and instead may distingush the material facts in the present case and make a different decision |
| overruling a previois precident | a precedent can be overruled by a higher court in a different case |
| reversing a previous precedent | a precedent can be reversed when the same case is taken to higher court on appeal and the precedent will no longer by applied |
| dissapriving a previous precedent | sometimes, a court is bound by a precedent but expresses its disagreement with the precedent, it does not change the precedent but a higher court when deciding a later case, amy choose to agree with teh court that diaproved and decide to ovverrule it |
| relationship between parliament and the courts | complementory rleationship, parliament makes laws and courts use them to resolve disputes and they need to work together to ensure that laws are workable and enforceable |
| 4 main features of the relationship between parliament and courts | interpretation of statutes by courts (statutory interpretation) the codification of common law the abrogation of common law the ability of courts to infleunce parliament |
| codification of common law | parliament can make laws that confirm precedents, to codify a precedent, parliament passes an Act of Parliament that reinforces a principle established by a court |
| abrogation of common law | parliament can change or override and abrogate common law. they abrogate common law by passing an Act of Parliament taht specifically abolishes the particular common law principle |
| reasons for abrogation | court may interprey the words in a staute in a way that does not reflect the current meaning of the Act or intention of parliament, courts may also devlelop a precedent that parliament does not agree with |
| criminal crime | an area of law that defines behaviors and condcut that are prohibited and outlines sanctioins for people who commit them |
| crime | an act or ommision that is against an existing law, harmful both to and individual and to society and punishavle by law (by the state) |
| sanction | a penalthy imposed by a court on a person guilty of a criminal offence |
| parties of a criminal case | prosecution (representing the state or the crown) and the accused who is accused of the crme |
| example of crime | crimes agaisnt the person, crime against property, drug offences, public order and security offences, justice procedure offences |
| civil law | an area of law that defines the rights and responsbilities of individuals groups and organisations in society and reguates private disputes |
| 2 parties of a civil case | plaintiff (the party who makes the claim) and the defendent (who the plaintiff alleges has infringed the plaintiff's rights) |
| aim of civil law | rectify a civil wrong by returing the person whose rights have been infringed to their orgianl position |
| remedy | any order made by a court or tribunals that is designed to adress a civil wron or breach, should provide a legal soltution for the plaintiff for a breach of the civil law by the defendent eg damages |
| examples of civil law | tort law (negligence, degamation ext) industrial and workplace laws, consumer law, property law |
| relationship between civil and criminal | the same behaviour can give rise to both criminala nd a civil dispute |
| the distinction between civil and criminal law | the aim of criminal law is proetct society, sanction offenders whereas cicil law aims to regulate the conduct between parties to a dispute and to remedy a wrong that has occured, the conseqeunces, person bringing action, person who has teh burden of proof |
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