Legal Studies

Magna Carta

Magna Carta

• turned the UK from an absolute monarchy into a constitutional monarchy

• constrained the power of the monarch

• states the law is above all men and applies to everyone equally

Limits on government

the idea that the Monarch/government must always obey the law

Government by consent

idea that a government can only govern with the agreement and support of the people

The rule of law

• idea that all people and institutions are subject to and accountable to laws

• consequences of breaking the law should be predictable

• right to

  • be told what they have been charged without delay

  • to have a public trial

Justice

the idea that the justice system should treat everyone fairly and equally

The right to a fair trial

the courts should be free of bias

court of law

a public place where members of the judicial branch examine evidence to determine a person’s guilt or innocence

judge

• officer of the court who ensures the trial proceeds correctly without any bias

• ensures the law is applied correctly.

Lawyer

• practises and studies the law professionally

• represent your best interest

prosecution

• initiates the lawsuit

• wants to prosecute

defendant

defends the claim

juror

• has to be open-minded, fair and impartial

• decides on guilty or not guilty

• not involved in the actual sentencing

• not allowed to talk to others about the case or seek additional information outside the courtroom

Presumption of innocence

• guarantees that any person accused of a crime will be treated as innocent until the charge has been proved beyond reasonable doubt

burden of proof

• requires prosecution to prove their claim beyond a reasonable doubt

• innocent until proven guilty

Responsibilities

• something that a person is obligated to do

• 2 roles

  • witness

  • juror

witness

• has knowledge of event

• can not refuse to be a witness

• questioned by both sides

• HAS TO TELL THE TRUTH

• has to do oaths and affirmation

  • oaths for religious

  • affirmation for non-religious

• types:

  • character witness

  • expert witness

Access to Justice

if you can’t afford legal representation one will be provided to you, if you meet the conditions:

• in the interests of justice

• do not have sufficient means

Legal Assistance

• legal aid

  • provided by government

  • generally free

  • includes

    • education about the law

    • legal information

    • legal advice

• community legal centres

  • minor or one-off legal assistance

  • advice and information sessions

  • receive funding from the state and federal governments and donation

    • very largely or entirely staffed by volunteers

• Indigenous Legal Assistance Program

  • funded by federal government

  • ensure Aboriginal and Torres Strait Islander peoples receive the support needed

  • program funds 7 organisations

    • for each state (nsw and act share one)

law

• system of rules and regulations that govern people’s actions

• governments create and enforce law

civil law

• private disputes between people or organisations

• instead resolve disputes and/or decide on compensation (usually money)

• includes contractual disputes and family law

common law

• made by judges in a court using precedent cases to decide how they will judge a case

precedent

decisions made in previous similar cases

criminal law

• Criminal law refers to the body of law that relates to crimes, where crimes are offences against the public.

• involve government accusing someone of a crime.

• purpose: to punish offenders for their offences against the public

• summary offences and indictable offences

summary offences

• lowest form of criminal offences

• maximum penalty is 2 years imprisonment

• includes traffic offences and minor drug offences

Indictable offences

• more serious than summary offences

• broken into 2 offences:

• Minor indictable offences:

  • maximum 10 years imprisonment

  • theft, stalking

• Major indictable offences:

  • maximum sentence of life imprisonment

  • murder, rape, armed robbery

statutory law

• takes precedence over the common law

• evolved from Magna Carta

• created by the legislative

• involves bills passing into law (acts)

• has to go through both houses of parliament

binding precedent

• made by higher courts

persuasive precedent

• involves precedents set by the same court, lower courts or courts in other places.

executive law

• AKA delegated or regulatory law

• made by ministers, government agencies and other authorised bodies

• parliament can delegate limited law-making powers to minsters and agencies

  • allows ministers, experts working in a given field and other officials the power to make detailed rules surrounding a piece of legislation.

  • easier to understand as they are more specific

  • doesn’t have to go through parliament’s legislative process; more easily changed

• must be approved by the Governor-General and state governors

Indigenous Customary Law

• the Indigenous Australians developed and maintained complex systems of customary law that helped to organise indigenous societies

• diverse and varies from place to place

• most indigenous cultures have councils of Elders decide on matters of guilt and punishment instead of courts

• punishments include

  • public shaming

  • teaching or initiation into new forms of knowledge

  • spearing

• passed through oral tradition

  • records the law but also taches the law to new generations

Rights

• moral or legal entitlement to have, do or not do something

• 3 groups

  • natural

  • human

  • legal

• the rights to a fair trial and the presumption of innocence are considered legal and human rights

Legal/Civil/Statutory rights

• based on country’s laws, customs and policies

• specific to the society for which they are created

Natural/Moral Rights

• universal

• independent of society and apply to all people

Human Rights

The Universal Declaration of Human Rights contains most of the things that are considered human rights

examples of rights

• rule of law

• rights regarding timing

  • to a trial without undue delay

  • right to time to prepare defence with a counsel of their choosing

• rights to a lawyer/counsel

• right not to testify against yourself

• prevention of double jeopardy

  • punished for the same offence more than once