1
Q
What is a law? (1.1)
A
Set of rules impose on all members of a community which are officially recognised binding on all citizens and legally enforceable.
2
Q
what is statute law Common law? (1.1)
A
Statute law laws passed by parliament
Common law law arrived from old judicial decisions
3
Q
what are four examples of laws? (1.1)
A
-Online safety amendment act 2024
-Road rules 2014
-Road transport act 2013
-Crime act 1900.
4
Q
what does LCMDIS stand for? (1.1)
A
Legislation, cases, meteor articles, documents, international instruments and statistics.
5
Q
what is rearhamp? (1.1)
A
responsiveness, enforceability, accessibility, resource sufficiency, has just been served, application of the rule of law, meet societies needs, protection of individual rights.
6
Q
what is a custom? (1.2)
A
– Established patterns of behaviour in society
– Vary with culture, religion or history
– Not written down
– No legal requirement
– example (tipping your waiter)
7
Q
what is a rule? (1.2)
A
– Principles or regulations
- Are written down
– A breach can be enforced if broken but not legally
– Example school rules, sports rules.
8
Q
what is a law? (1.2)
A
– Formal rules of society
– Created by Parliament or courts
– Applied to everyone in that state/country
– Can lead to legal consequences
9
Q
what are values? (1.3)
A
– Principles, standards or qualities considered worthwhile within society
– Honesty, fairness, respect
10
Q
what are ethics? (1.3)
A
– Rules or standards governing the conduct of a person or group
– What is morally right and wrong?
11
Q
What are the characteristics of just laws? (1.4)
A
– Apply to all
– our accessible
– Take peoples rights into account
– Updated regularly
– Align with societies values
12
Q
what is the nature of justice? (1.5)
A
– The idea that people are to be treated impartially fairly and properly by the law
– Ensuring equal outcomes are achieved
– Values human rights
13
Q
what are the three elements of justice? (1.5)
A
– Equality, fairness, access
14
Q
what is equality? (1.5)
A
– All members of society have equal rights under the law
– All people are treated the same
– Some legal exceptions, children under 10 aren’t legally responsible for their actions.
15
Q
What is fairness? (1.5)
A
– Laws and legal processes must be free from bias
– Must be impartial
Rules and laws are occurred to be fair to those they affect
16
Q
what is access? (1.5)
A
– Refers to the ability of a society to understand and access the legal system
– All citizens are aware of the law and understand the rights and responsibilities involved
– Unequal access: low socio economic status, disability, non-English speaking background, women.
17
Q
what is the legal system? (1.5)
A
– System of courts, prosecutors and police
– Ensures that all citizens have equal access to the law
18
Q
what is procedural fairness? (1.6)
A
– Each process in the legal system is fair and free from bias
19
Q
what are the elements of procedural fairness? (1.6)
A
– The right to be heard into a fair hearing, the person has a right to tell their side of the story
– The right to have a decision made by an impartial and unbiased decision maker
20
Q
what is rule of law? (1.7)
A
– Principle that no one is above the law including those who make it and enforce it
– Procedural fairness must be adhered to in all hearings
21
Q
what are some issues with rule of law in Australia? (1.7)
A
– Cost for legal defence
– Mandatory detention of asylum seekers
– anti-terrorism laws which allow surveillance and prevent preventative detention of individual
– One of the few countries without a constitutional charter of rights, individual rights are only protected by laws which can be repealed.
22
Q
why do people obey laws? (1.7)
A
– Laws help people feel a sense of security
– Sets behavioural standards of what we expect from others
– Reinforces the values of society
– Fear of sanctions (a penalty imposed on those who break the law)
23
Q
why do people disobey laws? (1.7)
A
– They don’t agree with them
– They feel that the rule doesn’t apply to them
– They don’t fear the penalty
– They just didn’t know
24
Q
what is anarchy and when does it occur? (1.8)
A
– The absence of laws and government, no role of law
– Occurs when people believe the law has let them down
– Often happens during revolutions riots or natural disasters
25
what is tyranny? (1.8)
– Rule by a single leader holding absolute power
– Unlimited power with severe punishments for breaking the law
– Suppression of dissent (people with varied opinions) and opposition.
26
what are the five sources of Australian law? (2.1)
– Common law
– Statute law
– Constitution
– ATSI customary law
– International law
27
what is Australia's legal heritage? (2.1)
– Based on British legal practices
– Indigenous customary law was ignored until recently
– Two main sources that influence Australian law
– Common law
– Statute law
28
what is the adversarial system of trial? (2.1)
– adversarial– opponent
– Used in civil and criminal court
– Two sides try to prove their version of the facts and disapprove the other version
– Accused his innocent until proven guilty
– The judge or magistrate is the impartial referee
29
what is the inquisitorial system? (2.1)
– Found in European Japan
– The judge must investigate the case and decide upon the outcome
– They decide on evidence allowed, witnesses to be called or investigate whether the police haven't
30
how is common law developed? (2.1)
– Laws made by judges when they make a decision in a case
Decision decisions lead to precedents
– Courts look at similar cases from the past to see how they were decided
31
what is the doctrine (belief or set beliefs held by a particular) of precedent? (2.1)
– A judgement that serves to provide guidance for deciding cases with similar facts
– If a similar case has been decided generally the court is bound to follow the earlier decision
– for: provide certainty and fairness
–for: limits the judges ability to use discretion, not all cases are exactly alike
32
what is the ratio decidendi and obiter dicta? (2.1)
– The ratio decidendi: the legal reason for the decision
– The obiter dicta: marks made by the judge regarding conduct of those in the trial
33
How are precedents affected by court hierarchy? (2.1)
– A precedent set in a higher court must be followed in a lower court if the cases are similar (binding precedent)
– Precedent-setting in a lower court does not have to be followed by a high court but may help them make the decision (persuasive precedent)
– Decision decisions made in other jurisdictions (UK, USA etc) are also persuasive presidents
34
when does precedent not have to be followed? (2.1)
– The fact or points of law significantly different
A lower court has ruled and should be overturned
35
(lower courts) what do lower courts do? (2.2)
– Lower court deal with summary offences (civil matters up to $100,000, Max two years prison time)
– 98% of matters dealt with by local courts
– no judge or jury, magistrate
– Also here is committal hearings – initial hearing to determine whether there is enough evidence to warrant a trial in a higher court.
36
(lower courts) What does the NSW coroners court do? (2.2)
– Investigate unexplained deaths (sudden death, fires explosions death inmates, etc)
-Investigate 6000 death a year
37
(lower courts) What is the children’s court? (2.2)
– Civil case cases regarding the care of children
– Criminal cases of those under 18 except murder
38
(intermediate courts) District Court of NSW. (2.2)
– Serious criminal matters indictable offences
Example, manslaughter,drugs crimes, against property
– Does not deal with murder, sexual assault or large scale drug cases
– Civil cases between 100,000 to 750,000
39
(superior courts) NSW Supreme Court (2.2)
– Highest court in the state
– Serious criminal matters (indictable offences) and high-level civil cases
– Criminal jurisdiction over murder, kidnapping, conspiracy and large scale drug cases
– Major breaches of corporate law
– Here is appeals from lower courts
40
Land and environment court (2.2)
– Interpreting and enforcing planning an environmental law
– Jurisdiction: zoning, illegal dumping, development approvals, pollution, illegal tree removal
41
What is an appeal? (2.2)
– If one of the parties was not satisfied with the decision in a lower court, they can appeal it to the next court in the hierarchy
– The highest court to appeal to is the High Court
42
What is original jurisdiction and appellate jurisdiction? (2.2)
– When a court here is a matter for the first time
– Any court other than the local court can hear appeals from lower courts
43
(federal courts) federal circuit Court of Australia (2.2)
– Civil disputes governed by federal law such as child custody and support
– Works to settle disputes involving human rights, bankruptcy, industrial law and migration
44
(federal courts) family court of Australia (2.2)
– Complex family law matters
– Divorce, custody
– Can hear appeals
45
(federal courts) High Court of Australia (2.2)
– Highest level of court
– Jurisdiction:
– The only court that can rule on constitutional interpretation
– Appeals from lower courts
– Disputes between the states
– Treaties between Australia and other countries
– Maritime law
46
What is statute law? (2.3)
– Laws made by parliament
– Statute law has supremacy over common law which can be overalled by parliament passing legislation
47
Where did parliament come from? (2.3)
– In 1215, King John signed the Magna Carta in England
– It reduces powers and increase the occasions in which he had to consult with his barons
48
What are the three parts of parliament? (2.3)
1 – Governor general: Kings representative
2– upper house: Senate
3– lower house: House of Representatives
49
Bicameral parliaments (2.3)
– The federal parliament has two chambers
Lower house of reps
Upper house the Senate
– The NSW state parliament has two chambers
Lower house legislative assembly
Upper house legislative council
50
(Federal parliament) Lower house: the house of reps (2.3)
– Elected by people in each electorate every three years
– 151 representatives
– The majority political party becomes the government
– This makes getting legislation approved much easier
– Leader of the majority party is PM
Government can only be formed in the lower house
51
(Federal parliament) Upper house: the Senate (2.3)
– Known as the house of review
– Rollers to scrutinise bills and activities of the government
– 12 state representatives and two territorial representatives equals 76 total
– Elected every six years
52
(Federal parliament)
(executive branch) the cabinet (2.3)
– The Prime Minister has assistant who are responsible for special areas of government known as portfolios
– These ministers form the cabinet
– Senior members of government: they make the policy of the government and administer laws
53
(Federal parliament) The governor general (2.3)
– Governor general are appointed by the king on the advice of the Prime Minister
– His or her powers are controlled by convention thus they must act on the advice of Parliamentary ministers
– Their powers include:
– The summon parliament
– To dissolve parliament
– To control the executive government
– To command the armed forces
54
How are laws made in Australian parliament? (NSW state parliament) (2.4)
1– need for new laws identified
2– draft bill
3– first reading
4– second reading
5– committee stage
6– third reading vote taken if approved move to upper house
7– upper house above steps repeated if approved by both houses bill goes to Governor general for approval
8- Royal ascent: once signed Bill becomes an act
55
delegated legislation (second legislation) (2.5)
– A law made by a body other than parliament but with authority given it to it by parliament, example the treasury or Department of education
For:
– Saves time in parliament
– Developed by experts with better understanding
– Easier, quicker process
Against:
– Law made by unelected bodies without public consultation
56
What is party line, crossing the floor, conscious vote? (2.5)
– Party line: members of a political party caucus, and once a vote has taken they must uphold the party line
– Crossing the floor: if an MP disagrees with a caucus vote, they can vote with the opposition but risks getting kicked out out of the party
– Conscious votes: some matters are so sensitive that party leaders allow MPs to vote with their consciousness with no penalty; example abortion
57
what is the constitution? (2.4)
– Set of rules which govern Australia
– Highest law (state law cannot contradict)
– Began in Australia on 1/1/1901 when Federation was achieved
– Can only be changed by a referendum
58
Features of the Constitution (2.4)
– Created by parliament and gave it the power to make laws
– Division of powers between federal and state governments
– Separation of powers
– Established the High Court
– Limited individual rights
– Write to vote, write to trial, some protection of freedom of religion
59
division of powers (2.6)
The division of legislative power (power to make laws) between the federal government and the state governments
60
Residual powers (2.6)
Anything not mentioned in section 51 is given to the states
– Education, police, transport, local government
61
Examples of division of powers (2.6)
Federal:
– Taxation, defence, foreign policy, citizenship, currency, Medicare, welfare payments, pensions, immigration, climate change
States:
– Schools, hospitals, police, ambulance, consumer protection, major roads, buses, trains, trams
Local council:
– Local libraries, swat facilities, playgrounds, footpaths, rubbish, local roads, local planning roles, health inspectors, animal control, parking inspectors
62
Separation of power (2.7)
– Separates power into three separate and independent branches of government
– To prevent the abusive power, checks and balances
63
Three branches of government (2.7)
– Legislative: parliament, makes laws
– Executive: cabinets and bureaucracy, administered his law
– Judicial: court system, interpret and applies laws
64
High Court judges (2.8)
– Contains one chief justice and six other judges
– Must retire at age 70
– Chosen by Governor general
65
Features of ATSI customary law (2.9)
– No single system of law
– Separate tribes have own law
– Laws are spiritual base and are linked to the land
– Based on tradition
– Around for tens of thousands of years
66
Difference between customary law and British legal tradition (2.9)
– Land ownership: the right possessed property is key in British system. For ATSI people, land is secret and cannot be owned.
– ATSI people view their role as custodians looking after it for the future generations
–: Lamb belonged to no one, declared when Australia was settled. Later declared legally invalid in Mabo v Queensland.
67
The dreaming (2.10)
– Basis for ATSI law
– Creation story
– Notice distinction between physical and spiritual world
– Lauren religion are closely related
– Those in rural areas are more likely to follow customary law
68
Kinship (2.11)
– Family relationships including all extended family relationships: an important part of indigenous cultures and values which dictate how all people in the group behave towards each other
69
Elders (2.11)
– Older men and women of recognised wisdom and authority, who are keepers of tradition, knowledge within indigenous communities: they’re responsible for such things as initiations and handing down of punishments when customer Law is broken
70
Rituals and oral tradition (2.12)
Rituals
– Important part of ATSI culture
– Most important ritual: initiation into adulthood
Oral tradition
– Customer law was not written down, but got passed down from generation to generation through stories
– Elders served as the bridge between pass and present
71
Mediation , consultation, sanctions (2.13)
– Mediation: elders discussed possible resolutions to the problem
– Consultation: elders discussed the issue with the offender to change their behaviour
– Sanctions punishments imposed on the offender: varied from nation to nation
Made so the functioning of the clan could return to normal
72
Relevance of ATSI customary law (2.14)
– Greater recognition in the last 20 years
– Customary Laura is reflected in current policy on sustainable development in relation to environmental laws
73
Case study: circle sentencing (2.14)
– Alternate sentencing court for adult aboriginal offenders
– Aim is to include the wider community, allows greater aboriginal involvement in criminal justice system
– Magistrate works with a group of aboriginal elders, victims, police
– Has proven successful in preventing re-offenders
74
Domestic law (2.15)
Domestic law:
– Laws of individual countries/nation/states
– Only pertain the citizens of that country
– Created by statute in Common law
– Enforced by police and judicial system
75
State sovereignty (2.15)
– The state has the authority to make the rules for it citizens and the power to enforce the rules
– Definition of a sovereign state
– Define territory
– Permanent population
– Functioning government
– Capacity to enter into international negotiations
76
International law (2.15)
– Govan’s relationships between countries, mostly through treaties and UN resolutions
– Allow states to participate in trade and commerce
– Provides mechanisms for the maintenance of peace and security and reduction of conflict
77
Issues with international law (2.15)
– No supreme lawmaking body
– UN is not a lawmaking organisation, it’s resolutions are not legally binding
– Treaties only apply to countries that have signed and ratified them
78
Responsibility of sovereign states (2.15)
– Wall state sovereignty allows the state to do anything it likes within its own waters. It has a responsibility to protect citizens from:
– Genocide, war crimes, crimes against humanity, ethnic cleansing
79
Customary International law (2.16)
– Based on traditions, not written down
– Accepted is being fair and right
– Develops overtime
– Requires constant and uniform practice
– Most customer law has now been formally codified in treaties
–Opinio juris sive necessitates: opinion that an act is necessary by rule of law example children under the age rating cannot be executed
80
Issues of customary international law (2.16)
– Time lag in acceptance
– More nations to contend with
– Rapid rate of change in the world
– preference for treaties than signing binding acts of international customer law
81
Treaties (2.16)
– Treaty: an international agreement between states in written form and governed by international law
– Makes laws and controls conduct
– May establish an international organisation
– Established through direct negotiations
82
Types of treaties (2.16)
Bilateral – between two nations
Multilateral – between many nations
83
How effective a treaties? (2.16)
Two steps to treaties becoming official law
– Signed: agreement is signed by all parties who are bound by its provisions and obligations
– Treaty is not binding until it’s officially ratified by its domestic legislature
84
Declarations (2.16)
– State or clarify a position of an issue
– Not legally binding 
85
The United Nations (2.18)
– Established in 1945, currently 193 members
– Maintains global peace
– Pro promotes sustainable development
– Protects human rights
– Upholds international law
– Deliver humanitarian aid
86
The general assembly (2.18)
– Made up of representatives of all 193 member nations
– Functions:
– Debate and vote on matters of international peace
– Make recommendations on how to resolve conflict
– Elect temporary members of security council
– Headquarters are in NYC
87
The security council (2.18)
– Most powerful human human body
– Main role is to maintain international peace and security
– Final say an ultimate responsibility
– All decisions must be unanimous however five permanent members have veto power: United Kingdom, USA, Russia, China and France
– 10 non-permanent members rotated every two years
88
International Court of Justice (2.18)
– The principal judicial organ of the UN
– Asked to settle disputes submitted to it by states and provide legal advice to general assembly
Located in Hague
89
International criminal Court (2.18)
– Prosecute the most serious international crimes: genocide, war crimes, crimes against humanity etc
90
Challenges of the UN (2.18)
– Reform is required to remain relevant
– State sovereignty is a problem
– The structure should be re-examined
– Effectiveness is very dependent on the political will of the nation states
91
What’s genocide? (2.18)
– acts committed with the intent to destroy a national, ethnic or religious group
– killing, causing serious harm, subjected to in human conditions, preventing birth, removing children
– Criminal by the UN in the convention of prevention of crime and punishment of the crime of genocide (1948)
– Courts need to prove the act were intentional
92
Enter government organisations (2.18)
– IGO’s are organised group groups of nation states established to pursue mutual interest in a wide variety of areas
– Example examples NATO, world trade organisation, European Union
93
Non-government organisations (2.18)
– NGO’s are nonprofit organisations based on common interest and aims
– They are independent of government
– Due to their independence they’re free to speak out and advocate for change
– Example examples Red cross, green piece, doctors without borders
94
Impact of international law on Australian law (2.19)
– Only federal government has authority signed treaties
– Treaties must be signed and ratified to be legally binding
– Australian law cannot contradict international treaties
95
Public law (3.1)
– The body of law governing relationship relationships between individuals in the state
– Deals with the power and obligations of government and citizens
– Three main areas: criminal, administrative and constitutional
96
Criminal law (3.1)
– Body of law were omissions are punished by the state
– Maintain public order and safety
– Crimes are committed against the community even if only one other person
97
Administrative law (3.1)
– Deals with government powers and the way they are administered under the various departments
– For example, challenging a tax assessment
98
Avenues of action for administrative law
– Internal review: decision made by a member of a government agency is assessed by another member of the agency
– External review: decision is made outside of the agency
– judicial review: provided by the courts who can only rule under points of law
99
Constitutional law (3.1)
– Focuses on the rules governing the executive, legislative and judicial functions of government
– If laws violate the constitution, the case goes to the High Court
100
What is private law (civil law) (3.2)
– Regulates relationships between persons, companies and organisations
– Three areas are contract, tort and property law
101
Contract law (3.2)
– An agreement between two parties recognised by the law
– Recognises the agreement and act to enforce it
– Damages: monetary compensation for Harmer loss suffered
– Plaintiff: the person initiates the civil action
102
Plaintiff remedies (3.2)
– An injunction: directing a party not to do something or undo something they have done
– Specific performance: directing the breaching party to perform what is required in the contract
103
Tort law (3.2)
– Civil wrongs
– Situations in which someone has done something to interfere with the rights of someone else
– Tries to restore the plaintiff to the position they were in before the wrong was committed
104
Property law (3.2)
– Relations and interest of what can be owned and have a commercial value
– physical objects or shares in a company
– Includes intellectual property
– Property rights:, legal right to possess, can take place in civil or criminal court
105
Prosecutor, plaintiff, defendant, the state, onus, standard of proof, beyond reasonable doubt, balance of probabilities (3.3)
– Prosecutor: the person formally conducting legal proceedings against someone accused of a criminal offence
– Plaintiff: the party who initiates court action in a civil case
– Defendant: the person who is accused of a crime or civil wrong
– The state: a term that is used to refer to the government and the people that it governs
–onus: the burden or juicy of proving the case to the court
– Standard of proof: the degree or level of proof required in order for the plaintiff or prosecutor to prove that case – beyond unreasonable doubt: the standard of proof required in a criminal case – balance a pro abilities: the standard of proof required in a civil case
Kai Nudes
flashcards
Decks in class (1)
# Cards
