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1374745695 2012 Legal Studies Notes Essay

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JUST LAWS
Equal, applied fairly, does not mean result will necessarily be equal as punishment can affect others differently Based on widely held values
Utilitarian
Address inequality
Minimise delay, major criticism- trials take years
Not to be retrospective, for future
Must be known before enforced, publicized
NATURE OF JUSTICE
Equality, fairness and access
Most societies symbolized by ‘lady justice’- Blindfold-Impartiality, Scales-weigh evidence, Sword-decision EQUALITY
Non-discriminatory
Applied equally
Equal enforcement
FAIRNESS
Ensuring that it doesn’t have harsh effects
Right to appeal
Some argue that in bid for fairness equality has been lost
ACCESS
Ability to access the law
Access to legal information & assistance and understand law
Legal Aid representation requires fulfillment of strict criteria in Australia, meaning that some self-represent with limited legal knowledge and training, thus inhibiting fair trial.

PROCEDURAL FAIRNESS
‘Natural Justice’
RIGHT to participate in legal proceedings
RIGHT of accusation to be known
RIGHT to hearing
RIGHT impartial court
RIGHT to test presented evidence, ‘cross examination’
RIGHT to not have previous criminal convictions brought up, ensuring evidence relating to current case in used to make decision

RULE OF LAW- key principle in democratic society
Restriction of arbitrary law
Governments act strictly within powers
Law must be known
Applied fairly
KEY FEATURES
Independent judiciary
Enforcement agency regulations
Accused’s defence free to operate without interference
Informed of allegations
Never retrospective
Government bound by constitution
Human rights protected and maintained
ANARCHY
When society is left without effective legal system and enforcement inoperable constituents acts arbitrarily, usually after war or natural disaster. TYRANNY
No limit on power of law enforcement
No rule of law as constitution is not present or disregarded ‘Police States’
No distinction between law makers, enforcers and courts, all are same organization, therefore justice is impossible.

COMMON LAW
Derived from England
When no statute law is in place, judges look to common-law to make decisions Collection of legal principles and rules from higher courts- PRECEDENT Statute always has precedence
EQUITY- Part of Common Law system
Punishment is usually injunctions or specific performances
Based on keeping with concept of fairness
Modify a remedy in common law that’s deficient
Develop remedies for cases common law does not recognize
PRECEDENT- Main factor of Common Law
‘A judgment made by a court establishing a point of law’ Legal process of following, ‘stare decisis’ = ‘to stand by a decision’ Discretion to overrule is limited
Created when there is no statute or precedent in place
Derived from common sense & principle of law in making decisions How judges interpret legislation
Only applies if case is sufficiently similar.
BINDING PRECEDENT-Rule
When in same jurisdiction, court must always follow regardless of opinion NSW precedent is always binding
‘Ratio Decidendi’- reason for decision, always bound
‘Orbiter Dicta’- other statements made by judges about case, may be taken into account, but not bound. PERSUASIVE PRECEDENT- Rule
May influence, but not bound
Judicial statements or decisions made by courts in other jurasdictions Judges eminence and level of court will determine persuasion

AVOIDING PRECEDENT
Avoid when provably unjust
‘Distinguishing the Case’- Facts are sufficiently different ‘Reversing a Judgement’- If an appeal is upheld in higher court ‘Overruling a Decision’- If a higher court rules differently to a lower court on two occasions ‘Disapproving a Decision’- Case from another jurisdiction referred for consideration but refused by judge

ADVERSARY SYSTEM
English & Australian systems
Two opposing sides argue before court presided by third party Both have control of evidence
Test opposing through ‘cross examination’
Presider or jury decides
Main criticism is that most persuasive wins rather than evidentiary links COURT HIERARCHY
State & Federal with each having structure
Constitution grants power respectively
STATE COURT- Inferior, Intermediate & Superior Courts
INFERIOR- Local-Coroner’s- Children’s-Land & Environmental LOCAL COURT
Cheap and quick
Criminal Jurisdictions- Summary Offences & Committal Proceedings- prelim hearings for indictable offences, establishing ‘prima facie’. Civil Jurisdictions- Minor matters, up to $60 000
CORONER’S COURT
Investigate unexplained deaths and fires
CHILDREN’S COURT
Summary or Indictable matters, $750 000

Appellate Jurisdiction- Supreme court appeals
FEDERAL COURTS
FEDERAL MAGISTRATES SERVICE
Areas of Family Law
Bankruptcy & Trade Practices Law
Commonwealth Tribunal Appeals
FAMILY COURT OF AUSTRALIA
Family matters
Divorce
Custody
Maintenance
Division of property
FEDERAL COURT OF AUSTRALIA
Broad Jurisdiction
Trade, Industry
Intellectual Property
Taxation
Immigration
HIGH COURT
Constitutional matters

ROLE AND STRUCTURE OF PARLIAMENT
Pass Statute laws
Representative from electorates, representing people in a geographic location LOWER HOUSE- House of representatives
UPPER HOUSE- Senate
HOUSE OF REPRESENTATIVES
Most powerful, majority, PM
150 members, each representing electorate
Key role is to make new laws and amend existing
Key role is to make laws and amend existing
SENATE- ‘State’s House’
12 senators each state and 2 for territories
Reviews House of Rep. proposed legislation
Not allowed to amend ‘Money Bills’- Taxes, Govt. expenditure GOVERNOR GENERAL
Queen’s rep in Aus
POWER to elect prime minister in hung parliament
POWER to dismiss Prime Minister who’s lost confidence
POWER to dissolve House of Reps
Ensures that Federal Executive Council acts lawfully
‘Royal Assent’- Last phase in cementing bill.
DELEGATED LEGISLATION
Legislation made by bodies subordinate to Parliament e.g. Govt departments & Local Councils. Authority only extends so far through ‘enabling act’
REGULATIONS
Legislation made by Governor General, State Governments or Member of Executive Council ORDINANCES
Laws made for territories, usually by Governing bodies

RULES
Delegated legislation regulating Government departments.
BY-LAWS
Laws made in accordance with ‘Local Government Act 1993’, where councils have laws made to only apply to a Local Govt. area.

CONSTITUTIONAL LAW
Document outlining rules that a nation’s governing body must adhere to. Controls and regulates power, authority and operation of parliament Constitution aims to create a distinction between Commonwealth Government and State Governments- Division of Power All bound

CONSTITUTIONAL DIVISION OF POWER
Dividing power between the states and Commonwealth Parliament- MAJOR ASPECT So that one level does not ha...

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