HSC Legal Studies Preliminary Flash Cards

Court hierarchy

The order of importance and authority of courts in Australia

What is the highest court in Australia?

The high court

What are the roles of the high court

- It deals with cases concerning interpretation of the Australian constitution validity of laws

What appeals do the high court hear?

Appeals from the federal court, the family courts and the supreme courts

Explain the role of the local courts

Local courts deal with minor criminal matters and minor civil disputes.

Who hears cases in the local court

The magistrate hears cases and will set the punishment for criminal offenses

Summary offenses

Criminal offenses that can be dealt with by a single judge without a jury and do not require a preliminary hearing. E.g. loitering

Indictable offenses

Serious criminal cases that require an indictment and a preliminary hearing; they are typically tried before a judge and jury and are subject to a higher penalty. E.g. Murder or assault

Indictment

A formal written charge

Appellate Jurisdiction

The ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions

Committal hearings

Inquiries held in the local Magistrates' court to determine whether there is enough evidence against the defendant to warrant a trial to a higher court.

Supreme Court

Highest court in the state or territory hierarchy

What is the role of the Supreme Court

Deals with most serious criminal matters and civil cases involving large sums of money.
Also appeals from lower courts

Federal Magistrate's court

Deals with cases such as family law & child support, administrative law, human rights...

Appeals

An application to have a higher court reconsider a Lower courts decision, on the basis of an error on laws.

Precedents

Judge made law that creates a common set of legal principles.

Persuasive precedent

Precedent that does not need to be followed. It is influential but not binding. This precedent might come from lower courts in other jurisdictions

Binding Precedent

Decisions that must be followed. Lower courts must follow decisions of higher courts in the same jurisdiction.

Outline the characteristics of a just law

Binding, enforceable, discoverable and acceptable

Binding

A strong hold between two things that can't be broken

Enforceable

Capable to be enforced with consequences and exposed by the state

Procedural fairness

A term that is commonly used to describe a system that aims natural justice

What is the rule of law

The concept is that no person or group in society stands above the law and in theory, no one may break it without facing punishment.

Explain the importance of the rule of law

It is essential in a democratic society because it protects members of society from the abuse of power by the state

What is public law

The law related to the state and governance

What are the branches of public law

Administrative law, constitutional law and criminal law

Administrative law

The area of law that deals with government powers and decisions made by government bodies.

Constitutional law

The law related to an application and interpretation of the Australian Constitution

Criminal law

The law related to state powers in respect to criminal matters

The role of public law

It shapes the conduct of private citizens both in their interactions with each other as part of a larger society and also their interactions with the state

What is private law

The law between individuals/ private citizens such as corporations and institutions engaged in contracts and other aspects of private law

What are the branches of private law

Contract law, tort law, negligence, property law

Contract law

The law related to agreements between individuals and legal entities

Tort law

The law concerned with private wrongs and breaches of rights

Negligence

The law concerned with protecting people from 'foreseeable' dangers arising from a breach of duty of care

Property law

The law concerned with private property, ownership and possession. Includes 'real' property and other forms of property.

Civil law systems

- Codified law (legislations)
- inquisitorial system of trial
-judge can initiate investigations and interview witnesses in an active way

The role of the public prosecutor

The person formally conducting legal proceedings against someone accused or a criminal offense; they act on behalf of the state or crown.

Role of the legislature

Also known as parliament: the house of representations and the senate.
They make laws

The role of the judiciary

The courts which interpret and apply the law

Criminal cases

- the onus is on the prosecutor
- "beyond reasonable doubt"

Civil cases

- Onus is on the plaintiff
- "balance of probabilities"

Alternate dispute resolution

Dispute resolution processes such as mediation, arbitration and conciliation that do not involve courts

What is the purpose of ADR

Going to court can be expensive in terms of money and time

Role of Alternative Dispute Resolution

- Uses a variety of method to resolve disputes between parties without involving courts
- allows participants to have more control over proceedings

Negotiation

Any dialogue intended to resolve disputed and/ or produce an agreement on further courses of actions.

Negotiation (ADR HIERARCHY)

It is the first stage of resolving a dispute between parties. It only involved the parties and is low in cost

What is arbitration?

A form of ADR in which the disputing parties present their cases before an arbitrator.

What is the main difference of Arbitration and other ADR methods

The decision is binding.

When is arbitration useful?

When the subject matter requires an expert and/or when a court-like procedure is desired, but with a greater deal of confidentiality

What is a similarity between mediation and conciliation?

They involve an independent and neutral third party who helps negotiate and reach a decision.

Outline aspects of Conciliation that mediation do not have.

• The third party helps the parties to identify the issues, consider alternative options to solve the dispute, and reach an agreement.
•The Conciliators May advise parties and act as an umpire

Why are precedents important?

•So that the law can develop in a consistent and coherent fashion.
•Old cases retain authority and their decisions can be used as the basis for decisions.

What is the Doctrine of Precedent also known as?

"Stare Decisis" - it is Latin for "the decision stands"

What is the role of the Doctrine of Precedent?

•Works to limit a judges ability to be creative when it comes to making a decision
•Makes sure that common law remains relatively stable.

What are administrative and other tribunals?

Bodies that review specific administrative decisions of government agencies.

What to administrative and other tribunals offer?

A time efficient, low cost means of resolving disputes and problems.

How do tribunals differ from courts?

Tribunals have narrow areas of jurisdiction, are less formal, usually do not allow legal representation and are not bound to the rules of evidence - meaning they take into account a variety of factors in finding a solution

What is the role of the office of ombudsman

The office acts as a formal external control, with legal power to investigate complaints made by citizens

Who can use the office of Ombudsman

Any citizen can make a complaint, but only if prima facie case exists - that is, if the complaint would raise concern on 'first review'

Describe the powers on the office of Ombudsman?

They don't have the power to impose any punishment or fine.
They can only make recommendations to the department in question or to NSW parliament

Judicial review

•Refers to a process whereby a court with the relevant jurisdiction can review a decision made my a government department only on the basis of whether the decision was lawfully made.

What happens if decisions are flawed?

If a decision is found flawed, the remedies the courts can issue will depend on the nature of the error that was made by the decision making.

What are the disadvantages to using courts to resolve disputes?

•Proceedings can be expensive
•Matters can take a long time to process and resolve
•Accessibility is limited

Define rights

Basic and fundamental entitlement of people that arise by virtue of being human, they cannot be taken away.

What are the characteristics of rights

Universal, indivisible, inherent and inalienable.

Rights and the laws relationship

•Laws only protect people when they law protect their rights.
E.g. Right to education has led to the building of schools

Give an example of a legal right

Only citizens over 18 have the legal right to vote

Define responsibilities

Are duties or obligations, that is, they are things that people should do

What is a legal responsibility

Obligations requires by the law.

What are non-legal responsibilities

Duties or obligations that have a source outside of the law. E.g culture, family, school or sport

What is the difference between legal and moral rights

People can argue from different ethical viewpoints about whether a certain moral right exists, whereas legal rights are contained in statutes

How can legal and moral rights NOT concide?

You can believe that something is morally right but is not legally right.
e.g. The right to die

Responsibilities And common law

"duty of care"

Domestic law

The law of a nation

Sovereignty

Means that the state has the authority to make rules for it's population and the power to enforce these rules.

What is international law?

International law governs the relationships between nation states.

What does international law enable?

Enables nations to participate in trade and commerce and provided mechanisms for the maintenance of peace and security and the reduction of conflict.

What is the main criticism of international law

It lacks law enforcement

Treaties

An international agreement concluded between states in written form and governed by the guidelines of international laws.
Also known as conventions.

Bilateral treaties

Between two nations.
E.g. agreement between Indonesia and Australia on the framework for security cooperation

Multilateral treaties

Between many nations
E.g. The charter of the United Nations

When does a document become a treaty?

A document will only become a treaty if all parties have the intention of being bound by it's provision and obligations of the time of signing.

What is a deceleration

A formal statement is of a party's position on a particular issue.
They are not legally binding under international law.
E.g. The universal deceleration on Human Rights

When does a treaty become binding?

When the nation ratifies it - that is, confirm it intends to be bound

Ratify

To formally confirm that the country intends to be bound by the treaty.

What is the main limitation of treaties?

Countries may not create domestic legislation that fully give effect to the treaty

What is the main limitation for declarations?

A nation is not bound to ratify these into domestic law

"soft laws"

Declarations are considered this as countries that sign these documents merely 'declare' their support of the statement.

"hard laws"

Treaties are rehearsed as this as countries which are parties to the treaties after to fulfill certain requirements as set out in the document.

Internal review

Occurs when a decision made by a member or officer of an agency is revised by another person in the agency.

External review

Is review of a decision by a person of body outside the agency that made the decision

What are some methods or challenging state power?

The media, members of parliament, trade unions