Legal Studies Half Yearly

Front 1

Meaning of Law

Back 1

- set of rules
- imposed on all members of a community
- officially recognised, binding and enforceable
- by persons or organisations

Front 2

Customs, Rules and Laws

Back 2

- Customs are collective habits/traditions that form in a society over a long period of time.
- Rules are prescribed directions of conduct.
- Laws reflect customs, values and ethics in society.

Front 3

Values and Ethics

Back 3

- Rules developed on an individual basis founded on background and experience by which we try to live our lives.
- 'Morally Right'

Front 4

Characteristics of Just Laws

Back 4

- Everyone
- Fair treatment and outcomes
- Human rights recognised and respected

Front 5

Justice

Back 5

- Upholding generally accepted rights
- Enforcing responsibilities
- To receive equal outcomes

Front 6

Natural Justice

Back 6

Equality: Being equal (Same rights/status)
Fairness: Free of bias, dishonesty, injustice
Access: Not restricted financially/globally

Front 7

Procedural Fairness (principles of natural justice)

Back 7

- Right to be heard (fair hearing)
- Right to have decisions made by an unbiased decision maker

Front 8

Rule of Law

Back 8

- No one is above the law
- Govt authority is exercised through legally recognised law
- Independent Judiciary
- Legal system monitor police process
- Accused not forced to incriminate themselves
- Citizens free from moral influences
- Criminal law not retrospective

Front 9

Anarchy

Back 9

- Absence of laws and government
- May occur after a natural disaster or revolution
e.g. Hurricane Katrina (New Orleans, 2005)

Front 10

Tyranny

Back 10

- Rule by a single leader holding absolute power e.g. Hitler, Stalin, Hussein

Front 11

Common Law

Back 11

Court made law

Front 12

Development of Common Law

Back 12

- Anglo-Saxon English background
- Rights and obligations decided upon local customs and disputes settled locally
-6th-11th century law: law enforced by local bodies e.g. church, landlords
- 'Trial by Ordeal'- Supernatural forces saves innocent, guilty harmed
- Norman invade England (11th century William the Conquer) travelling judges and common law set for whole of England
- Henry II: Royal Justice (e.g. punishments, hearing disputes)
- Uniform laws developed all throughout England

Front 13

Equity

Back 13

- Decision based not on precedent, but achieving the fairest outcome.
- Modify a common law that is deficient/create new
- Develop remedies common law doesnt recognise
- Equity prevails in conflict
- Two systems joined under Judicature Act 1873

Front 14

Basis of Precedent

Back 14

Judges resolves disputes based on decisions made in similar cases to ensure fair treatment and that the law develops consistently

Front 15

Binding Precedent
Persuasive Precedent

Back 15

Binding: Court must follow whether they believe correct decision or not
Persuasive: May influence a decision, but not bound to follow

Front 16

Obiter Dicta
Ratio Decidendi

Back 16

Obiter Dicta: other statements made by judges such as personal opinions that make no immediate precedent but can later justify a decision
Ratio Decidendi: Judges reasoning creates precedent

Front 17

Adversarial System of Trial

Back 17

- Defendent and Prosecution both present facts of the case
- Defendant is innocent until proven guilty
- Judge and sometimes jury makes a decision

Front 18

Jurisdiction
Original Jurisdiction
Appellate Jurisdiction

Back 18

Original: Completely new cases a court hears
Appellate: A court hears a case from another court on appeal

Front 19

Local Court

(STATE)

Back 19

- Minor criminal (summary) and civil (under $100 000)
- Criminal: single judge, does not need a preliminary hearing e.g. petty theft, shoplifting, traffic
- Committal Hearing: magistrate decides whether prosecution has strong enough evidence

Front 20

Coroners Court

(STATE)

Back 20

- Ensures that unexplained/suspicious deaths, fires and explosions are properly investigated
- 'Coronial Inquest' (investigation) are carried out or passed to higher court for trial.

Front 21

Court doesnt have to follow precedent when

Back 21

- Facts/relevant points significantly different
- Precedent made by lower court

Front 22

Childrens Court

(STATE)

Back 22

- Civil matters: care/protection of young people
- Criminal: involving person under 18 at offence
- Can prosecute up to 21 years if under 18 at time of offence

Front 23

Land and Environment Court

(STATE)- Superior

Back 23

- Superior specialist court
- Widespread jurisdiction concerning planning (e.g. zoning & parkland), environ offences and local council ruling appeals

Front 24

District Court

(STATE)

Back 24

- More serious criminal matters e.g. sexual assault, armed robbery, fraud, manslaughter
- Unlimited jurisdiction in damage claims for motor vehicle accidents
- Civil: $100 000 to $750 000

Front 25

Supreme Court

(STATE)

Back 25

- Most serious criminal matters e.g. murder, sexual assault, kidnapping, conspiracy
- Civil Matters: no upper monetary limit e.g. personal injury, breach of contract, personal negligence, defamation

Front 26

Court of Criminal Appeal

Back 26

- 3 judges: majority prevails
- to appeal higher, permission by HC
- Highest court in each state/territory

Front 27

Federal Court

(FEDERAL)

Back 27

- Est. by Act of Parliament in 1976
- Civil disputes governed by fed law e.g. industrial relations, intellectual property)
- Criminal offences e.g. tax, immigration
- Mostly single judge, however appeals can be held by full court of 3

Front 28

Family Court

(FEDERAL)

Back 28

- Family Law Act 1975 (cth)
- Rules on cases related to specialised areas of family law e.g. divorce, parenting orders, division of assets
- most heard by single judge, some heard by full bench

Front 29

The High Court

(FEDERAL COURT)

Back 29

- Est. 1901 under section 71
- Interpretation of the constitution and the constitutional validity of laws
- Appeals from: Federal court, family court, State/territory Supreme court

Front 30

Statute Law

What is a bicameral parliament?

Back 30

Parliament made law (acts of parliament/legislation)

two houses of parliament

Front 31

Lower state house:
Upper state house:

Federal Parliament lower house:
Federal Parliament upper house:

Back 31

LS: Legislative Assembly
US: Legislative Council

LP: House of Reps
UP: Senate

Front 32

Queens Role

Back 32

Represented federal by Governor General (Peter Cosgrove), state level by Governor (Marie Bashir)
Can appoint a PM during hung parliament, dismiss a PM who has acted unlawfully/lost confidence, dissolve house of reps at PM request

Front 33

House of Representatives

Back 33

- Party that holds majority becomes government
- 150 members each representing constituents in an electorate (approx 80,000 voters)
KEY ROLE: make new laws and amend existing ones

Front 34

Senate

Back 34

Role: represent each of the states/territories
- States have 12 senators, Territories have 2
- 6 year term, half senate retires every 3 years
- Reviews proposed legislation by house of reps
- Senate can request change before its passed (no power over 'money bills'

Front 35

Legislative Process

Back 35

1. Need for new law identified
2. Draft Bill
3. First Reading
4. Second Reading
5. Committee Stafe
6. Third Reading
7. Upper House
8. Royal Assent

Front 36

Delegated Legislation

Back 36

LEGISLATION MADE BY NON-PARLIAMENTARY BODIES
- Legislation 'Enabling Act'
Four types-
Regulations: made by governor general, governors, executive council members
Ordinances: made for territories e.g. Aus Arctic
Rules: Made for Govt departments
By- Laws: laws that apply within a local government area
Adv: experts, frees parliament time, easy to amend
Dis: Unelected bodies making law, little publicity (no public voice/opinions)

Front 37

Key features of the Constitution

Back 37

- Federated nation 6 states
- Bicameral Aus Parliament
- HC oversees courts & provides final and conclusive judgement on appeals
- Outline division and separation of powers
- Only amended by referendum

Front 38

Division of Powers

Back 38

The division of powers between FEDERAL and STATE
Exclusive Power: only Federal e.g. immigration, tax, defense, trade
Residual Power: only State e.g. hospitals, roads, crime, public tansport
Concurrent Powers: held by both e.g. education

Front 39

Separation of Powers

Back 39

- protects 'civil liberties' and ensures no branch abuses its power
- power divided between the executive, the legislature and the judiciary
- Distinction between judiciary and others represents democracy and justice

Front 40

Role of the High Court

Back 40

DECISIONS ARE FINAL AND BINDING ON ALL OTHER COURTS
- each judge makes decision, majority wins
- must contain 1 chief justice and min 2 other judge
- appointed by governor general in council and must retire at 70
- protect consitution, exercise original jurisdiction and act as a final court of appeal

Front 41

Judicial Review

Back 41

- Reviewing the actions of a govt official/department by court of law to investigate the legality of the decision or action
- HC exercises judicial review whenever they make decision about constitutional validity of laws

Front 42

Customary Law

Relevance of Customary Law today

Back 42

- A system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people.
- Law Reform 1986 'The recognition of aboriginal customary law'
- Aspects embodied in Aus legal system e.g. mediation
- Elders may be involved in sanctions

Front 43

Main differences between Abo and British law

Back 43

- Right to possess land/property
- Aboriginals believe the land is sacred and cannot be owned
- Collective Guardianship (customary law)

Front 44

Domestic Law

Back 44

- Each country has laws for its own people
- A state is an independent legal entity and requires a defined territory, permanent population, effective govt and the ability to enter into international negotiations

Front 45

International Law

Back 45

- Enables countries to participate in trade and commerce, maintains peace and security, covers human right protection
- States may ignore if they feel if its not in their countries interest

Front 46

State Sovereignty

Back 46

The state has the authority to make rules for its population and the power to enforce these.

Front 47

Sources of International Law

Back 47

1. Customs
2. Treaties & Declarations
3. Legal Decisions (ICJ, no stare decisis precedent)
4. Legal Writings (experts, lawyers, judges writings guide decision makin gin ICJ and treaty formation)