part 1 - the legal system

What does law mean?

A set of rules officially recognised by the government to govern behaviour in society

What are rules?

Regulations or principles governing conduct within a group

Rules vs law

Laws apply to all, made by parliament/courts, enforced by courts with legal sanctions; Rules apply to groups, enforced by rule-makers with lesser consequences

What are customs?

Long-standing social practices that may develop into laws

What is anarchy?

Absence of law leading to disorder

What is tyranny?

Rule by a single leader with absolute power

What is procedural fairness?

Right to be heard, absence of bias, decisions based on evidence

What is rule of law?

All individuals are subject to the law

Characteristics of just laws

Fairness, equality, protection of rights, minority representation

What is equality?

Equal rights and status under the law

What is fairness?

Absence of bias and injustice

What is access to law?

Ability to understand and use the legal system

Barriers to access to law

Cost, language, disability, discrimination

What is common law?

Law made by judges through precedents

Adversarial system

Parties present cases to an impartial judge/jury

Inquisitorial system

Judge investigates and directs the case

What is equity?

Fairness applied where common law is too rigid

Doctrine of precedent

Courts follow previous decisions

Stare decisis

Binding precedent must be followed

Ratio decidendi

Reason for a decision (binding)

Obiter dicta

Non-binding judicial comments

What is a precedent?

A past case guiding future decisions

Court hierarchy

High Court → Supreme → District → Local

What is an appeal?

Request for higher court review

Summary offences

Minor offences heard by a judge alone

Indictable offences

Serious offences heard with jury

Local court jurisdiction

Minor criminal, small civil matters, committals

District court jurisdiction

Serious criminal offences excluding murder

Supreme court jurisdiction

Most serious offences including murder

Levels of parliament

Federal, state, local

What is statute law?

Law made by parliament

Sources of new law

Courts, parliament, media, protests

Bicameral definition

Two houses of parliament

Legislative process

Bill → readings → committee → vote → royal assent

Delegated legislation

Law made by non-parliament bodies

Types of delegated legislation

Regulations, ordinances, rules, by-laws

Advantages of delegated legislation

Expertise, efficiency, flexibility

Disadvantages of delegated legislation

Less scrutiny, inconsistency

When did Constitution begin?

1 January 1901

Division of powers

Power split between federal and state

Types of powers

Exclusive, concurrent, residual

Separation of powers

Legislature makes law, executive enforces, judiciary interprets

Role of High Court

Interpret Constitution, hear appeals, judicial review

What is domestic law?

Law within a country

What is international law?

Law between nations

Advantages of international law

Promotes cooperation, peace, human rights

Disadvantages of international law

Weak enforcement, relies on consent

State sovereignty

Right of a state to govern itself

Sources of international law

Customs, treaties, declarations, court decisions

What are treaties?

Binding agreements between states

What are declarations?

Non-binding statements

What is public law?

Law between individuals and the state

What is private law?

Law between individuals

What is criminal law?

Maintains public order

What is administrative law?

Controls government actions

What is constitutional law?

Defines government powers

What is contract law?

Legally binding agreement

What is tort law?

Civil wrong causing harm

Trial process order

Indictment → opening → evidence → closing → verdict

Role of judge

Ensures fairness, applies law, sentencing

Role of jury

Determines verdict

Plaintiff/prosecutor

Brings case

Defendant

Defends case

Solicitor role

Legal advice and preparation

Purpose of law reform

Update laws to reflect society

Causes of law reform

Social change, technology, new values

Role of courts in reform

Create precedent

Role of parliament in reform

Pass/amend laws

Role of media in reform

Raise awareness and pressure

Role of law reform commissions

Review and recommend changes

What is jurisdiction?

Authority of a court to hear a case

What is enforcement?

Ensuring laws are followed

What is justice?

Fair and unbiased treatment

Core principles of justice

Fairness, equality, access

What is precedent (binding vs persuasive)?

Binding must be followed; persuasive may influence

What is original jurisdiction?

Hear case first time

What is appellate jurisdiction?

Hear appeals

What is the UN?

International organisation promoting peace

What is the ICJ?

Resolves disputes between countries

What is the ICC?

Tries individuals for international crimes

Integration of international law

Must be enacted into domestic law