Flashcards
Yearlies
Cards in this deck (53)
- 1Just laws- Equal
- Utilitarian
- Redress inequalities
- Minimise delay
- Not retrospective
- Known - 2Nature of justice- Equality
- Fairness (and justice)
- Access - 3Procedural Fairness vs Natural Justice vs Rule of LawPF: Fairness in processes resolving disputes
NJ: Right to be heard, right to have unbiased decision
ROL: No one is above the law - 4Common lawEquity: morals, individual circumstances
- Doctrine of precedent (binding, persuasive) - 5Adversarial vs InquisitorialADV: 2 parties prove their case, innocent until proven guilty, judge/jury decide, court as impartial referee. e.g. England, Aus
INQ: Court actively involved, judges investigate/decide qs/call on witnesses. e.g. Japan, Europe - 6State law hierarchyLow: Local, Children's, Coroner's
Medium: District
High: Supreme Court, SC Criminal Appeal - 7Federal law hierarchyLow: Federal Magistrate's Court (copyright, nothing criminal)
Middle: Federal (civil disputes, criminal offences) and Family (divorce, parenting)
High: High Court (appeals, law validity, Constitution) - 8Division of powers vs Separation of PowersDIV:
s51 - exclusive powers (Cth)
- (i) trade/commerce
- (xxvi) Indigenous referendum
SEP:
Arms: legislature (law making), executive (execute), judicial (interpret)
To avoid risk of dictatorship (tyranny)
In constitution Ch 1,2,3 (leg, ex, jud) - 9Parliament structureBicameral (2 houses) except QLD
NSW:
Lower: Legislative Council
Upper: Legislative Assembly
FEDERAL:
Lower: House of Representatives
Upper: Senate - 10Other sections of Constitution- Double dissolution power to gov gen (s57)
- High court (s71)
- Referendum required to change Constitution (s128) - 11ATSI Customary Law1967 Referendum - ATSI given right to vote
Circle sentencing - 12State sovereignty- No nation forced to sign treaty, join UN, go to ICJ
- Doesn't apply when jus cogens, R2P - 13Sources of Int'l LawInt'l Customary Law e.g. Hague/Geneva Conventions
Instruments (e.g. treaties, declarations, UNDRIP (2007))
- example is Family Law Act 1975 (Cth) --> CRoC
Legal decisions (ICJ)
Legal writings - 14UN Organs- General Assembly
- Security Council
- ICJ
- Secretariat
- Trusteeship Council
- Economic + Social Council - 15Courts and TribunalsICJ - 15 judges
ICC - Rome Statute, crimes against humanity
Individual tribunals e.g. ICTR (Rwandan genocide) - 16IGOs- UN (193 member states)
- EU (European Union)
- AU (African Union)
- Arab League
- NATO
- Commonwealth - 17NGOs- International Committee Red Crystal (ICRC) (Red Cross) (Geneva Convention)
- Greenpeace
- WWF (World Wildlife Fund)
- Amnesty Int'l (child soldiers, persecution)
- Expose issues that need attention, less likely to be govt biased - 18Int'l law and Australia- We can refer to it if we have no statute (e.g. In Mabo (No 2) 1992)
- Family Law Act 1975 --> CRoC
- Migration Act 1958 --> Refugee Convention - 19Public Law- Criminal
- Administrative (govt powers/decisions)
- Constitutional - 20Private law (civil)- Contract --> damages (compensation), injunction (perform/not perform)
- Tort (e.g. negligence, trespass, false imprisonment, defamation, nuisance)
- Property - 21Civil vs Criminal court personnelCriminal:
Prosecutor vs Defendant
Judge and Jury
Innocent until proven guilty
Civil:
Plaintiff vs Defendant
Judge and jury if requested
Beyond reasonable double - 22Common vs Civil Law SystemsCommon:
- custom
- informed by precedent
Civil:
- codified
- rules - 23Law reform is- Changing the law (passing legislation, creating new precedent)
- Amending existing law
- Removing irrelevant law - 24Conditions of Law Reform- Changing societal values (Anti Discrimination Act 1997 Cth)
- New concepts of justice (death penalty)
- New technology (DNA)
- Failure of existing laws
- Int'l laws/conventions - 25Agencies of Law Reform- Law reform commissions (ALRC, NSWLRC)
- Parliamentary committees (standing and select)
- Royal commissions
- Permanent advisory bodies (Aus Institute of Criminology)
- Media
- NGOs - 26Mechanisms of Law Reform- Courts
- Parliaments
- IGOs (UN etc) - 27Native Title - CAM- Terra nullius (1788)
- Tent embassy (1972)
- Aboriginal Land Rights Act (1976) (NT)
- Mabo v Qld (No 2) (1992)
- Native Title Act (1993) (Cth)
- NT Amendment Act 1998 (Cth) / 10pt plan - 28Double jeopardyConditions: New technology (DNA), inflexibility, cases unresolved
Agencies: Media, community, police, attorney general
Mechanisms: NSW amendment bill; R v Carroll (2002) - 29Rights and ResponsibilitiesFreedom of speech --> discriminate, defame
Right to vote --> vote responsibly
Right to religion --> respect others
- Moral vs legal rights
- Express rights (religion, vote, trial by jury)
- UDHR, Magna Carta - 30UDHR Twin Covenants- ICCPR (Int'l covenant of civil + political rights) -- voting, non-arbitrary detail
- ICESR (Int'l covenant on economic, social+cultural rights) -- food, shelter, jobs - 31Law enforcement agencies- NSW Police force
- AFP (Aus Federal Police)
- ACC (Australian Crime Commission)
- ASIO (Australian Security Intelligence Organisation) - 32Dispute resolution (indv x indv)- Negotiation
- Mediation
- Conciliation
- Arbitration
- Courts + Tribunals - 33Mediation vs ConciliationMediation: mediator helps process, no advice
Conciliation: may advise both parties, can have legal reps - 34Non-legal dispute resolution (indv x state)- Trade unions
- Media (change.org)
- Politician
- Interest groups (Greenpeace) - 35Legal dispute resolution (indv x state)- Internal Review
- Administrative tribunal (specific admin decisions of govt agencies)
- Judicial review
- Ombudsman
- Stat bodies (royal commissions, ICAC (Margaret Cunneen), AHRC) - 36S&S - Legal implications/impacts- Increased accessibility + affordability
- Protects from criminal activity e.g. espionage, terrorism
- Increased after WWI --> threatens individual rights
- Article 12 UDHR --> arbitrary interference - 37Difficulties enforcing rights- Threatens personal rights
- "As surveillance gets smart, hackers get smarter" - The Conversation
- Difficult to enforce CCTV rules (how long they're kept, uploaded to internet) - 38Law Reform- Privacy Act 1988 (Cth)
- Surveillance Devices Act 2004 (Cth) - limitations, how long they're stored
- Telecommunications (Interception and Access) Amendment (Data Retention) Act 2014 (Cth) - number of govt agencies can access telecommunication info
- National Security Legislation Amendment Act 2014 (Cth) - ASIO can infiltrate computer networks - 39Juvenile Detention (NT)- Don Dale centre in Darwin, NT
- "Youth workers" abusing rights
- Children in detention in NT 3x higher - 40JD Rights breached- Convention on the Rights of the Child (CROC) (1990)
- Care and Protection of Children Act 2007 (NT)
- UDHR (1948) - 41JD Non-legal responses- ABC's Four Corners July episode --> leaked footage (catalyst)
- Nationwide outrage
- Other news articles e.g. news.com, SMH - 42JD Legal responses- M Turnbull - royal commission
one day after the release of footage
(hasn't happened yet)
- NT leadership ensured it wouldn't keep happening
- Mention 25yr royal commission into Aboriginal Deaths in Custody hasn't resulted in improved outcomes --> new royal commission effectiveness? - 43Recreational drug use Aus- Increased availability + accessibility
- Risk to workplace, driving, social --> changes perceptions, limits thinking + practical abilities - 44Drug use laws + mechanisms- Drug Misuse and Trafficking Act 1985 (Cth)
- Work Health and Safety Act 2011 (NSW)
- Random Breath Testing (RBT)
- Mobile Drug Testing (MDT) - 45Drug testing (workplace) objections- Privacy Act 1988 (Cth) -- bodily privacy
- AWU -- drug testing about safety of work
- Driving, heavy equipment, other ppl
- 20-25% workplace accidents related to drugs
- Urine test detects drugs weeks after use
- Equity, imperfect
- Test patterns of usage over impairment - 46Drug testing (workplace) non legal responses- Trade unions pushing for saliva (successful in 2014 Energy Endeavour)
- NSW RailCorp strike - want official policy
- "Drug testing at work: wee in the cup, please" 2010 ABC --> justifiable in safety critical areas - 47Drug testing (workplace) effectiveness- Curbs abuse: fear of getting caught, consequences
- Brought issues to light --> little legislation change --> limited effectiveness - 48Drug testing (driving) reasons- Good judgment, sharp concentration needed for safe driving
- Increased usage + availability
- Illicit driving more prevalent and mixing with drunk driving - 49Drug testing (driving) Cases + Legislation- Road Transport Act 2013 (NSW)
- Drug Misuse and Trafficking Act 1985 (Cth)
- Police v Carrall 2016 - 9 days cannabis - 50Drug testing (driving) non-legal responses- Media speculation on MBT - unreliable, mysterious, 3 certain drugs, false readings, too expensive, impairment vs presence
- Greens MP David Shoebridge - "ineffective and inaccurate"
- Huffington Post 2016 article - deterrent factor is strongest - 51Drug testing (driving) - effective vs ineffective- MDT uses saliva samples, when the drug is psychoactive
- Positive readings go through lab tests
- Doesn't test for impairment only presence
- Only 3 types of drugs, not prescription - 52Drug testing (sniffer dogs) positives- Deterrents for drug carriers
- Cost of losing one life > cost of dogs
- False readings --> ppl in contact --> scare them - 53Drug testing (sniffer dogs) negatives- Average $9m spent on them each year
- 74% searched in 2014 had no drugs
- NSW Labor MP Jo Haylen - wrong 3/4 of time (stat from NSW Ombudsman), scare young people into overdose, LGBQT
- Targets recreational users > drug traffickers
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- Legal Studies Flashcards on Yearlies, created by Ellie Yiasemides on 08/09/2016.
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- Ellie Yiasemides
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