Preliminary Legal Studies Part I: The Legal System

A set of flashcards covering key concepts and definitions from Preliminary Legal Studies Part I: The Legal System.

Law

A system of rules recognised and enforced by the state to regulate behaviour, resolve disputes and maintain order.

Custom

A socially accepted behaviour developed through tradition or long practice.

Rule

A direction made by an authority within a specific organisation, group or context.

Difference between customs, rules and laws

Customs rely on social acceptance, rules rely on institutional authority, and laws rely on state authority and legal enforcement.

Values

Shared beliefs about what individuals or society see as important or desirable.

Ethics

Moral principles used to judge whether behaviour is right or wrong.

Difference between values and ethics

Values concern what society considers important, while ethics concern judgments about right and wrong behaviour.

A just law

A law that is fair, equal, enforceable, accessible and protects rights.

Fairness as a characteristic of just law

Laws should operate impartially and consider relevant circumstances.

Equality as a characteristic of just law

Laws should apply equally and give equal protection to all people.

Enforceability as a characteristic of just law

Laws must be capable of being practically enforced.

Accessibility as a characteristic of just law

People must be able to understand the law and use the legal system.

Protection of rights as a characteristic of just law

Laws should safeguard rights and provide remedies when rights are breached.

Justice

The fair and effective operation of the law.

Equality in the nature of justice

All people should have equal legal status and equal protection under the law.

Fairness in the nature of justice

Legal decisions should be impartial and take relevant circumstances into account.

Access in the nature of justice

People must be able to use the legal system and seek remedies.

Difference between equality, fairness and access

Equality means equal legal standing, fairness means balanced treatment, and access means the practical ability to use the legal system.

Procedural fairness

The requirement that legal decisions be made through fair procedures.

The hearing rule

A person must know the case against them and be given an opportunity to respond.

The bias rule

A decision-maker must be impartial and free from actual or perceived bias.

Rule of law

The principle that everyone, including government, is subject to the law.

Equality before the law

All people are subject to the same law and entitled to equal protection.

Supremacy of the law

Law is above arbitrary power and government must act according to law.

Independent judiciary

Courts must be free from political influence when applying and interpreting the law.

Anarchy

The absence of effective legal authority or enforceable rules in society.

Tyranny

Oppressive or arbitrary use of power by rulers or governments.

Sources of contemporary Australian law

The institutions and systems through which law is created, recognised and developed in Australia.

Common law

Law developed by judges through court decisions.

The British origin of common law

Common law developed in medieval England after 1066 through decisions made by royal judges.

The reception of common law in Australia

Australia adopted common law through British colonisation in 1788.

The development of common law

Judges develop legal principles when deciding cases and applying law to new facts.

Precedent

A legal principle from an earlier case that guides later cases with similar facts.

Binding precedent

A precedent that lower courts must follow.

Persuasive precedent

A precedent that a court may consider but does not have to follow.

The purpose of precedent

Precedent promotes consistency, predictability and stability in the law.

Equity

A body of law developed to reduce unfairness caused by rigid common law rules.

The purpose of equity

Equity provides fairness where common law remedies are inadequate.

Injunction

A court order requiring a person to do something or stop doing something.

Specific performance

A court order requiring a party to carry out a contract.

The adversarial system

A trial system where opposing parties present evidence and arguments before an impartial judge.

The key feature of the adversarial system

The parties control the case, while the judge ensures fairness and applies the law.

The inquisitorial system

A trial system where the judge takes an active role in investigating facts and questioning witnesses.

The difference between the adversarial and inquisitorial systems

The adversarial system is party-controlled, while the inquisitorial system is judge-led.

Court hierarchy

The ranking of courts from lower courts to higher courts.

Jurisdiction

The authority of a court to hear and decide a case.

Original jurisdiction

The power of a court to hear a case first.

Appellate jurisdiction

The power of a court to hear appeals from lower courts.

The Local Court

The state court that hears minor criminal matters and lower-value civil disputes.

The District Court

The state court that hears more serious criminal matters, larger civil disputes and appeals from the Local Court.

The Supreme Court

The highest state court, hearing the most serious criminal matters, major civil matters and appeals from lower state courts.

Federal courts

Courts that deal with matters involving Commonwealth law.

The Federal Circuit and Family Court of Australia

The federal court that hears family law matters and some other federal matters.

The Federal Court of Australia

The federal court that hears matters such as corporations law, taxation, migration and administrative law.

The High Court of Australia

The highest court in Australia, hearing appeals and interpreting the Constitution.

Statute law

Law made by parliament.

Legislation

Another term for statute law.

An Act of Parliament

A bill that has passed parliament and become law.

The relationship between statute law and common law

Parliament can create, change or abolish common law rules.

The effect of conflict between statute law and common law

Statute law prevails over common law.

Parliament

The law-making body of elected representatives.

The role of parliament

Parliament debates, makes, amends and passes laws.

The Federal Parliament

The House of Representatives, the Senate and the Crown.

A bicameral parliament

A parliament with two houses.

A unicameral parliament

A parliament with one house.

The House of Representatives

The lower house of federal Parliament, where the party or coalition with a majority of seats forms government.

The Senate

The upper house of federal Parliament, which reviews, amends or rejects bills.

Government

The party or coalition that has majority support in the lower house and forms executive government.

Opposition

The main political party or coalition that does not form government.

The Governor-General

The Crown’s representative at the federal level.

Royal Assent

The final formal approval needed for a bill to become law.

A bill

A proposed law presented to parliament.

The first reading

The formal introduction of a bill into parliament.

The second reading

The stage where the main purpose and principles of the bill are debated.

The committee stage

The stage where a bill is examined in detail and amendments may be made.

The third reading

The final vote on a bill in one house of parliament.

The upper house stage of a bill

The stage where a bill passes through similar readings and debate in the second house.

Delegated legislation

Laws made by bodies or people authorised by parliament under an Act.

The function of delegated legislation

Delegated legislation provides detailed rules that parliament does not make itself.

Regulations

Detailed rules made under the authority of an Act.

By-laws

Laws made by local councils or local authorities.

Rules in delegated legislation

Procedural laws made by courts or other authorised bodies.

Ordinances

Laws made for territories or specific regions.

A constitution

The fundamental set of rules that establishes how a country is governed.

The Australian Constitution

The supreme legal framework governing Australia.

The importance of the Australian Constitution

It establishes the federal system, creates key institutions and divides government power.

Division of powers

The sharing of law-making power between the Commonwealth and the states.

Exclusive powers

Powers that only the Commonwealth can exercise.

Concurrent powers

Powers that both the Commonwealth and the states can exercise.

Residual powers

Powers left with the states because they are not given to the Commonwealth.

Section 109 of the Constitution

The rule that Commonwealth law prevails where a state law conflicts with a Commonwealth law.

Separation of powers

The division of government power between the legislature, executive and judiciary.

The legislature

The branch of government that makes laws.

The executive

The branch of government that administers and enforces laws.

The judiciary

The branch of government that interprets and applies laws.

The purpose of separation of powers

Separation of powers prevents concentration and abuse of power.

The difference between division of powers and separation of powers

Division of powers concerns Commonwealth and state law-making power, while separation of powers concerns the three branches of government.

The High Court of Australia

Australia’s highest court and final court of appeal.

The role of the High Court in interpreting the Constitution

The High Court decides what the Constitution means and whether laws are constitutionally valid.

Judicial review by the High Court

The High Court can declare laws invalid if they go beyond constitutional power.