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47 Cards in this Set
- Front
- Back
Meaning of Law
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- set of rules
- imposed on all members of a community - officially recognised, binding and enforceable - by persons or organisations |
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Customs, Rules and Laws
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- 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. |
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Values and Ethics
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- Rules developed on an individual basis founded on background and experience by which we try to live our lives.
- 'Morally Right' |
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Characteristics of Just Laws
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- Everyone
- Fair treatment and outcomes - Human rights recognised and respected |
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Justice
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- Upholding generally accepted rights
- Enforcing responsibilities - To receive equal outcomes |
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Natural Justice
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Equality: Being equal (Same rights/status)
Fairness: Free of bias, dishonesty, injustice Access: Not restricted financially/globally |
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Procedural Fairness (principles of natural justice)
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- Right to be heard (fair hearing)
- Right to have decisions made by an unbiased decision maker |
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Rule of Law
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- 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 |
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Anarchy
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- Absence of laws and government
- May occur after a natural disaster or revolution e.g. Hurricane Katrina (New Orleans, 2005) |
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Tyranny
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- Rule by a single leader holding absolute power e.g. Hitler, Stalin, Hussein
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Common Law
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Court made law
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Development of Common Law
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- 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 |
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Equity
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- 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 |
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Basis of Precedent
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Judges resolves disputes based on decisions made in similar cases to ensure fair treatment and that the law develops consistently
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Binding Precedent
Persuasive Precedent |
Binding: Court must follow whether they believe correct decision or not
Persuasive: May influence a decision, but not bound to follow |
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Obiter Dicta
Ratio Decidendi |
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 |
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Adversarial System of Trial
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- Defendent and Prosecution both present facts of the case
- Defendant is innocent until proven guilty - Judge and sometimes jury makes a decision |
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Jurisdiction
Original Jurisdiction Appellate Jurisdiction |
Original: Completely new cases a court hears
Appellate: A court hears a case from another court on appeal |
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Local Court
(STATE) |
- 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 |
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Coroners Court
(STATE) |
- Ensures that unexplained/suspicious deaths, fires and explosions are properly investigated
- 'Coronial Inquest' (investigation) are carried out or passed to higher court for trial. |
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Court doesnt have to follow precedent when
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- Facts/relevant points significantly different
- Precedent made by lower court |
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Childrens Court
(STATE) |
- 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 |
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Land and Environment Court
(STATE)- Superior |
- Superior specialist court
- Widespread jurisdiction concerning planning (e.g. zoning & parkland), environ offences and local council ruling appeals |
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District Court
(STATE) |
- 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 |
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Supreme Court
(STATE) |
- 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 |
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Court of Criminal Appeal
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- 3 judges: majority prevails
- to appeal higher, permission by HC - Highest court in each state/territory |
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Federal Court
(FEDERAL) |
- 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 |
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Family Court
(FEDERAL) |
- 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 |
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The High Court
(FEDERAL COURT) |
- 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 |
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Statute Law
What is a bicameral parliament? |
Parliament made law (acts of parliament/legislation)
two houses of parliament |
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Lower state house:
Upper state house: Federal Parliament lower house: Federal Parliament upper house: |
LS: Legislative Assembly
US: Legislative Council LP: House of Reps UP: Senate |
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Queens Role
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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 |
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House of Representatives
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- 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 |
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Senate
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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' |
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Legislative Process
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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 |
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Delegated Legislation
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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) |
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Key features of the Constitution
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- 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 |
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Division of Powers
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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 |
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Separation of Powers
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- 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 |
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Role of the High Court
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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 |
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Judicial Review
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- 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 |
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Customary Law
Relevance of Customary Law today |
- 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 |
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Main differences between Abo and British law
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- Right to possess land/property
- Aboriginals believe the land is sacred and cannot be owned - Collective Guardianship (customary law) |
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Domestic Law
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- 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 |
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International Law
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- 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 |
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State Sovereignty
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The state has the authority to make rules for its population and the power to enforce these.
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Sources of International Law
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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) |