Legal Studies Preliminary Syllabus Notes Flashcards

A comprehensive set of Q&A flashcards covering key concepts from Part 1 (The Legal System), Part 2 (The Individual and the Law), and Part 3 (Law in Practice) of the Legal Studies syllabus.

What is the basic meaning of law?

Laws are binding rules made by parliaments, courts and delegated legislation; they are written, accessible, govern issues of society, reflect rights and duties, regulate conduct, and carry consequences if breached.

Define customs, rules and laws.

Customs are unwritten, accepted behaviours; rules regulate conduct within groups; laws are formal, written rules enacted by authorities and enforceable by the state.

How are customs, rules and laws related?

Customs influence rules; rules reflect values; rules may become laws through formal legal processes; laws are known, applied equally, and enforceable.

What are values and ethics in law?

Values are societal moral standards reflected in law; ethics are the application of moral beliefs in actions; law tends to reflect common values and remains utilitarian over time.

What are the characteristics of just laws?

Just laws treat people equally, are utilitarian, aim to redress inequalities, are not retrospective, and must be known to be valid.

Nature of Justice: equality, fairness and access

Justice combines equality, fairness and access; legitimacy involves majority input when creating laws and balancing rights.

Doli incapax

Latin for 'incapable of wrong'; children under 10 cannot be legally charged or convicted of a criminal offence.

Procedural Fairness (natural justice) principles

Fair hearing (right to be heard) and no bias (unbiased decision-maker).

Rule of Law: two key aspects

The law should be known to all and applied equally; no one is above the law; government actions must follow the law.

Anarchy vs Tyranny

Anarchy is a society without laws or authority; tyranny is rule by an absolute ruler with no checks on power.

Common Law: origins and doctrine

Law made by courts based on precedent; judges interpret statutes; if no statute, a judge creates law; British origins.

Equity vs Common Law: key ideas

Equity supplements common law to correct injustices; focuses on merits and fairness; remedies include specific relief and flexible principles.

Doctrine of Precedent and related terms

Precedent is law established by decisions; ratio decidendi is the reason for the decision; obiter dicta are incidental remarks; stare decisis means to stand by decisions.

Adversarial System features

Each side presents evidence; witnesses tested by cross-examination; court does not investigate; outcomes by judge/magistrate or jury; jury decides facts.

Inquisitorial System

The judge actively conducts and investigates the case; common in civil law systems.

Court Hierarchy: original and appellate jurisdiction

Original jurisdiction handles cases for the first time; appellate jurisdiction hears appeals from lower courts.

Summary vs Indictable offences

Summary offences are minor crimes heard in local/ Magistrates Court; Indictable offences are serious crimes heard by a judge and/or jury in district or supreme courts.

Statute Law: role and structure of parliament

Statute law is law made by parliament (legislation); Australia has a bicameral parliament: Senate (upper) and House of Representatives (lower); government forms Parliament.

Legislative Process steps to pass a Bill

Need identified; draft Bill; First Reading; Second Reading; Committee stage; Third Reading; Upper House (repeat); Royal Assent; becomes Act.

Delegated Legislation: types and Ultra Vires

Types include Regulations, Ordinances, Rules, Bylaws; made by non-parliamentary bodies; saves time but can be invalid if ultra vires (beyond power) or unclear.

The Constitution: Federation and checks

A set of rules for how the nation functions; federation unites states; separation of powers and checks; amendment via referendum.

Division of Powers: Exclusive, Residual, Concurrent

Exclusive powers: federal; Residual powers: state; Concurrent powers: shared; federal law overrides state when inconsistent (s109).

External affairs power

Commonwealth power to implement international agreements; can override state laws to give effect to international law within Australia.

Referendum criteria (Section 128)

Proposal must pass both houses with an absolute majority; be put to electors within 2 to 6 months; majority of voters and majority of states approve; Royal Assent required.

Separation of Powers

Legislature makes laws; Executive enforces laws; Judiciary interprets laws; prevents the concentration of power and provides checks.

Role of the High Court

The highest court in Australia; seven justices; original and appellate jurisdiction; ensures governments act within the Constitution and allows appeals from lower courts.

Judicial Review

Court review of government actions to determine constitutionality and compliance with natural justice; can strike down ultra vires actions.

Aboriginal Customary Laws: key features

Diverse, land and kinship based; oral traditions; mediation and sanctions; influenced by Dreamtime and customary practices.

Terra Nullius

Latin for 'land belonging to no one'; used to justify colonisation; later overturned by Mabo (recognition of native title).

Dreamtime

Basis of Aboriginal spirituality; explains creation and responsibilities tied to land and water through songs, stories and rituals.

Circle Sentencing

An alternative sentencing method where magistrate, Aboriginal elders, victim and offender’s family collaborate to determine a sentence; aims to rehabilitate.

International Law sources

Customs, Declarations, Treaties, Legal Decisions, Legal Writings.

Role of United Nations organs

General Assembly, Security Council, International Court of Justice; main roles include promoting peace, human rights and international law.

Treaty ratification process

Adoption of treaty text; Signature to show intent; Ratification to bind; Enactment through domestic legislation reflecting treaty terms.

Mabo v Queensland 1992 and Native Title Act 1993

Mabo recognised native title and rejected terra nullius; led to the Native Title Act 1993 to recognise and regulate native land rights.

Wik v Queensland 1996

Ruling that native title can coexist with pastoral leases; but leases may extinguish native title in some circumstances.

Law Reform Agencies in Australia

Australian Law Reform Commission (ALRC) reviews Commonwealth laws; NSW Law Reform Commission reviews NSW laws; provides inquiries and recommendations.

Mechanisms of reform

Courts (precedent), Parliaments (bills), UN/IGOs (international law), NGOs, media; agencies provide information to drive reform.

Native Title Process steps

Federal Court application; NNTR assesses registration; mediation for consent determination; if not, trial; determination in court.

Public vs Private Law

Public law governs relationships between individuals and the state; Private (civil) law governs relationships among individuals/organizations.

Private Law areas: Contract, Tort, Property

Contract: legally binding agreement; Tort: civil wrong; Property: rights in land and other assets; includes IP.

Civil vs Criminal standard of proof

Criminal standard: beyond reasonable doubt; Civil standard: balance of probabilities (50%+1).

Criminal Trial Process steps

Indictment; plea; prosecution facts; examination in chief; cross-examination; closing addresses; judge’s direction; jury verdict; sentencing if guilty.

ADVOs: three mandatory conditions

Not to assault, harass or threaten; not to intimidate or stalk.

Domestic Violence Act 2007 (NSW) aims and ADVO process

Defines domestic relationship; process to obtain an AVO; protects victims; includes duration and breach provisions.