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38 Cards in this Set
- Front
- Back
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The meaning of law |
Law refers to the rules and regulations thatexist in a society. It attempts to control behaviours and aims to create a safeand civil society that operates in a predictable and consistent way. |
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Customs, rules and laws |
Customs: collective habits/established patterns or traditions that have developed in asociety over long a period of time. Rulesare the regulations or principles governing procedure of controlling conduct. Laws area set of rules officially recognised,binding and enforceable by persons or organisations such as the police and/orcourts. |
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Values and Ethics |
Values are principles, standards or qualities considered worthwhile or desirable within a society. Ethics are rules or standards governing the conduct of a person or the members of a profession. |
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Just Laws |
Just laws are laws that allow everyone toreceive fair treatment and outcomes to ensure that human rights are recognisedand protected |
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Natural Justice |
Equalityis the state or quality of being equal; having the same rights or status. Fairnessis the freedom from bias, dishonestly or injustice; a concept commonly relatedto everyday activities. Accessis the right of opportunity to make use of something. |
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Procedural Fairness |
The body of principles used to ensure thefairness and justice of the decision making procedures of courts and legalprocedures. |
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Rule of Law |
The rule of law is theprinciples that no one is above the law |
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Anarchy |
No laws or laws not being enforced |
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Tyranny |
Ruled by a single leaderholding absolute power in a nation state. Tyrants or tyrannical governmentsusually; ignore the rule of law, procedural fairness, separation of powers. |
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Common Law |
Common law refers to laws created in court- thatis decisions made by judges, legal process and practices. |
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Equity |
is the body of law which supplements the common law and corrects injustices by correcting each case and applying principles of fairness. |
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Precedent |
Precedent is a judgment that is authority for alegal principle and that serves to provide guidance for deciding cases thathave similar facts. Precedent ensures that people are treated fairly and thatthe law develops in a consistent way. Present also limits a judges ability tobecome creative when making a decision. |
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Theadversarial system of trail |
In a trail, the two sides of the case try toprove their version of facts and disapprove the version of the other side. |
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CourtHierarchy |
State Lower courts; the localcourt, coroners court, children’s court, land and environment court. Federal Lower court; federalministrants court of AustraliaState intermediate courts;district courtFederal specialist court;family court of Australia Federal Court of Australia, Supreme court of NSW, High court of NSW |
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Statutory Law |
the term used to define written laws, usually enacted by a legislative body- law made by parliament |
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Role and structure of parliament |
Parliamentis a body of elected representatives. It debates proposed legalisation, passesor rejects it and amends legislation. Besides Queensland and territories, allstate parliaments and the federal parliament is bicameral- have two houses, oneupper and one lower. |
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Legislative Process |
A new piece of legalisation is present, usually inthe lower house, in the form of a bill. It is then discussed, made available bya parliamentary committee before being resubmitted and then passed to the upperhouse. In the upper house, it undergoes the same process. When paused, it isgiven royal assent by the governor general (at federal level) for the governor(at state level). |
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Delegated legislation |
Delegated legislation islegalisation made by non-preliminary bodies/ subordinate bodies such asgovernment departments (eg. ATO and RTA) and local councils). The four maintypes are; regulations, ordinances, rules and bylaws. |
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Division Of Powers |
Theallocation/division of powers between the federal and state government Exclusivepowers are those that can only be executed by the federal government. Concurrent powers are those held by both federal government and thestate governments. Residual powers ie. The remaining mattersthat the state can’t legislate on and are not referred to the constitution. |
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The separation of powers: |
The separation of powers refers to theseparation of power between the three arms of government ie, Legislative(parliament/parliamentarians), the judiciary (court/judges) and the executive.Each arm of government cannot influence another arm of government to make a decision;they must stay independent of each other. |
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The role of the high court |
Hears the appeals from other courts and dealswith constitutional matters. It interpretdisputes concerning the constitution, stipulates what areas the commonwealth can legislate onand what areas belong to the states. Thehigh court makes statements on how each level of government can use its powersand outlines any limits on such powers. |
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Diverse nature ofcustomary law |
Aboriginal and Torres Strait islander law is tribal and difficult groups have their own variations of customary law. |
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Relevance of customary law to Australian contemporary law |
Although the federal and state legislation andcommon law govern Australia, many indigenous people,particular those who live in remote areas, still follow their own customarylaw. Some areas of ATISP customary law have been embodied into Australian contemporarylaw eg. Sustainable development and circle sentencing. |
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Domestic and international law |
Domestic law- In Australia,laws are called legislation acts and/or statues. They areenforced by the state and bind all members of society. Internationallaw is law that attempts to make all nations around the world agree on how toact and interrelate with each other. International law is basically acollection of agreements called treaties, conventions and declarations. |
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State sovereignty |
The right of a nation to govern itself anddetermine its own destiny, without interference from other nations and the internationalcommunity. The state has the authority to make rules for its population and thepower to enforce these rules. |
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Sources of International Law |
International customary law: based on long established traditions or commonpractices that are seen as fair by the international community. Instruments (declarations/treaties): Declarations not legally binding butclarify the nations position. Treaties are written agreements betweencountries. Legal decisions, writings: Thedecisions are not binding in other cases but they are persuasive. |
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Role of United Nations |
Maintains global peace and security; to develop friendly relations among states based on respect for equal rights and each stages right to govern its own political, economic, and social development. Consists of 6 organs; general assembly, the security council, the economic and social council, the trusteeship council and the international court of justice and the secretariat. |
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Intergovernmental organisations |
Intergovernmental organisations are organised groups of states, established to pursue mutual interests in a wide variety of areas. Many IGO’s are subsidiary agencies of the UN however, other have been formed tomake collective decisions about international issues. |
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Non-government organisations |
Non-government organisations are associated based on common interests and aims,which have no connection with the government. They make contributions to a widerange of areas, from world peace, disaster relief, environmental protection andeducation. |
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Public Law Public law is the body of law governingrelationships between individuals and the state and the structure of governmentitself |
Criminallaw: The body of law that deals with illegal acts. Punishable by the state. Administrative law: Deals with governmentpowers and their decisions (taxation, immigration). Constitutional law: Focuses on the rulesgoverning the executive parliament and the judiciary, as set out in the constitution. |
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Private Law Private law is also known as civil law. Itsettles disputes between private individuals and businesses with the aim ifawarding civil remedies |
Contractlaw: Deals with agreements or promises between 2 or more parties. Tortlaw: deals with situations in which someone has done something to interferewith the right of someone else. Propertylaw: govern relations involving things that can be owned and have value. |
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Conditions that give rise to law reform |
Changing social values New concepts of justice New technology |
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Role of law reform commissions |
Australian Law reform commission (ALRC) is a federal agency that reviews Australian laws to ensure they provide justice for all Australians by making laws more equitable, modern, fair and efficient. The NSW (state) Law reform commission consider the laws of NSW with a view to eliminating aspects of law that are out of date, unnecessary, too complex or defective. |
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Agencies of Law Reform |
Law reform commissions Parliamentary committees The media Non-Governmental organisations |
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Mechanisms for reform |
Courts Parliament United Nations Intergovernmental organisations |
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Terra nullius |
“Land belonging to no one” refers to notonly unhabituated territory, but also territory that have no recognisablesystem of law, or social or political organisation. |
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Role of the high and federal court in relation to Native Title |
Withrespect to native title claims, the court must hear appeals about decision madein other court of Australia. Must determine on whethernative title exists.Parliamentsrole in recognising native title is to enact legislation to protect propertyrights of Aboriginal and Torres Strait Islander peoples. |
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Major Native Title Decisions |
The Mabo Case The Wik Case |
