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LEGAL PRELIM
Term | Definition |
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Define law | a set of rules imposed on all members of a community that are officially recognised, binding and enforceable by persons or organisations such as the police and/or courts |
Describe characteristics of just laws | It is equal, it is based on widely held values, it is utilitarian |
Describe the nature of justice | The task of the legal system to ensure and that the law provides equality, fairness and justice |
Define procedural fairness | Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes. The right to a fair hearing The right to have a decision made by an unbiased decision maker |
Define the rule of law | No one is above the law including those who make the law |
Define anarchy | The absence of law and government. This may happen after a natural disaster |
Define tyranny | Rule by a single leader holding absolute power in a state |
Outline the origin of common law | A system of travelling judges who applied a common set of laws in all areas |
Role of equity | the body of law that supplements the common law and correct injustices by judging each case on its merits and applying principles of fairness . Decides what is fair or just in particular circumstances |
Role of precedent | that serves to provide guidance for deciding cases that have similar facts the purpose of precedent is to ensure that people are treated fairly and the law develops in a consistent and coherent for fashion |
Ratio decidendi | The legal reason for a judges decision |
Obiter dicta | Comments from a judge in a case that are not directly relevant |
Binding precedent | lower courts are bound to follow decisions of superior courts, regardless of whether the judge believes a decision of the higher court is correct |
Persuasive precedent | superior courts do not have to follow decisions made in lower courts. They may, however, use them to help make a decision |
Adversarial system of trial | The opponent. In a trial two sides in the case must trial and prove their version of facts. Used in Australia and England |
Inquisitorial system of trial | The judiciary helps uncover and their job to help bring facts to the case. |
Role of the court hierarchy | The hierarchy allows for specialisation of courts in different areas of the law and varied levels of seriousness of criminal or civil proceedings within fed/state jurisdictions Allows for creation of precedent. provides consistency in application of law |
Outline the role of parliament | Debates proposed legislation, passes or rejects its and amends legislation. |
Outline the structure or parliament | upper house called senate and lower house called house of reps Queen is represented by the 'governor General' |
Outline the legislative process | 1. Need for law identified 2. draft bill 3. first reading lower house 4. second reading by the clerk 5. committee stage examined, debated, change if need 6. third reading vote is taken if passed moves to senate 7. upper house process 8. royal assent |
Describe the function of delegated legislation | Delegated legislation is legislation made by non-parliamentary bodies. The act that authorises a body to make delegated legislation is called the ‘enabling act’. frees up parliamentary time it is more flexible, easier to amend. |
Explain division of powers | Dividing governments- powers between commonwealth and states The three levels; federal, state, local |
Explain the separation of powers | The legislature - the law makers in Australia The executive - minister sand governments who enforce laws, for example the police The judiciary- the courts which interpret and apply the law |
Examine the role of the High Court in the interpretation of the constitution | Matters relating to the interpretation of the constitution fall under section 76(i), this is a role of the high court . Love v Commonwealth of Australia [2020] faced deportation due to criminal convictions |
Examine the characteristics of ATSI peoples’ customary laws | They had sophisticated systems of agriculture , domesticated plants where each system varied between several communities What is value for them can be against the law therefore customary law is in place to protect their values |
Define Terra Nullius | ' to belong to no one' |
What is international law | focus on rights and responsibilities |
impact of state sovereignty | State sovereignty is the ability of a nation state to make laws for its citizens without external interference. The impact that state sovereignty has on human rights influences |
example of a sovereign state | May recognise the fundamental human rights as listed in the Universal Declaration of Human Rights and then enact them into domestic legislation as seen in the Australian Racial Discrimination Act 1975 (Cth) |
Examine the sources of international law | treaties- an international agreement concluded between states legal decision/ writings - writings of respected international lawyers, judges and academics have an important part to play in guiding decision making and treaty formation. |
Describe the role of UN | - Objectives are to obtain global peace and security -To develop good relationships between states - Recognise equal rights |
Describe the role of Courts and tribunals | The ICJ (International court of justice) can only hear disputes if the nations involved accept the jurisdiction of the court |
Describe the role of Intergovernmental Orgs. | IGOs are organised groups of states that are established to pursue mutual interests in a variety of areas - aim for fair and safe treatment of workers Play an important role in international decision making example → European Union |
Describe the role of NGOs | - They contribute in a wide range of areas such as; world peace , disaster relief and environmental protection - no connection to the government - Amnesty international |
Examine how international law impacts on and is incorporated into Aus. law | treaties influence Australian law in the development of common law therefore it remains significant. Ratifications of treaty does not automatically make it a part of Australian law |
Outline 3 public laws | Administrative, constitutional and criminal |
Outline 3 private laws | tort law, contract law and property |
civil court proceedings | Civil proceedings are initiated by individuals or organisations rather than the state. Civil proceedings manage matters such as breach of contract, property disputes and negligence. |
Criminal court proceedings | If a person is found guilty of a crime, usually a conviction and punishment is handed down, such as a fine or imprisonment. The two main types of criminal hearings are summary hearings, and trial by jury. |
Identify the role of legal personnel involved in the court processes | - put forward both sides of the case judge will consider the decision in favour - The legal process in which a person accused of a crime is prosecuted. If the person is found guilty then the accused is convicted. |
Examine the conditions that give rise to law reform | new tech contributes to changes that may be either radical and sweeping. The use of DNA evidence is in criminal matters has led to convictions where previously, without other physical evidence, that would have been no conviction. eg identity theft |
Describe the role of agencies involved in reform ALRC | The Australian Law Reform Commission (ALRC) was established in 1975 and operates under the ALRC act 1996 (Cth). Role of ALRC to review Commonwealth laws relevant to matters referred by attorney general advise the gov on how law can be changed for better |
Describe the role of agencies involved in reform The media | This means that the government is not able to influence what is reported and how it is reported, so stories that reach the public are an accurate account of what is really happening. |
Name some mechanisms for law reform | parliament, courts, United nations, IGOs |
Define IGOS | These bodies are established to meet and decide on certain international issues.To this extent, they contribute to international Law Reform on a global and on a regional scale through the promotion and development of multilateral and bilateral Treaties. |
Explain why terra nullius was an obstacle to achieving native title | Terra Nullius became an obstacle in achieving Native Title as for the Aboriginals to prove that that they were the traditional owners of the land, they needed proof that they had maintained an ongoing spiritual and cultural connection with it. |
what is appellate jurisdiction | to hear appeals from matters heard in Federal and supreme courts |
Outline the responsibilities of citizens within a society | There are responsibilities to act in particular ways, as well as responsibilities to refrain from certain acts. Eg all persons have a responsibility not to commit criminal and tortious acts. |
Name some law enforcement agencies | State police, Australian border force,ASIO, Security and intelligence organisations, criminal intelligence commission ACIC |
Name some methods of resolving dispute (ADR) | Negotiation, mediation, arbritration |
Some legal methods of enforcing rights | tribunals, courts |
what is a tribunal | offer less formal and expensive methods. have a specialist rather than expert representing them |
Courts - method of resolving dispute | If the individuals involved in a dispute cannot resolve it by way of alternative methods, they will need to take them to litigation. One example of a court that deals with disputes between individuals is the NSW Land and Environment Court (LEC) |
Some non legal methods of enforcing rights | media, trade unions, NGOs |
role of the media in resolving disputes | By writing letters, sending emails, calling television and radio stations or posting status updates on social media, citizens are able to inform the community of a decision they think is unfair, unjust or harsh. |
role of media in resolving disputes | citizens within an electorate are able to contact the office of their representative & speak to the MP about the issue that may trouble them.The MP may take this issue back to parliament in Canberra& discuss it with other MP or the party that's in power. |
Explain the difficulties with enforcing rights (with respect to issues involving technology) | - rate of change rights to privacy, digital media allowing spread on wider scaler. Anonymity making accountability difficult |
Discuss the legal implications of the use of technology and its impact on the individual | Even in cases where jurisdiction is clear, there are difficulties with enforcement of the law in cyberspace. Criminal and civil wrongs in cyberspace can sometimes be classified into the familiar categories, but they might also take on new characteristics |
examine one contemporary issue | Lindt cafe siege |