U1 - AoS1 (LS)

Human rights are the basic entitlements that belong to each and every one of us, regardless of our background, where we live, what we look like, what we think or what we believe.

• Individual rights:
• - The right to vote
• - The right to freedom of speech
• - The presumption of innocence
• - The right to a fair trial and to be tried without unreasonable delay
• - The right to silence if charged with a criminal offence

• Role of the legal system:
• Parliament's role: To create laws that are reflective of societies views.
• Court's role: To apply the law when a case comes before it. (e.g., issuing an injunction)
• Police's role (behalf executive gov.): To enforce the laws on behalf of the state. Cops rarely involved in right issues; left to individual to pursue their rights through courts.

• Role of laws:
• - Legal system and laws are intertwined; parliament (part of the legal system) creates laws that protect individual rights.
• - Laws have a role in making clear the right that is protected.
• - Laws have a role in establishing penalties for non-compliance.

• Role of individuals:
• - Individuals must comply with the laws (at it's most basic)
• - As police have less of a role in rights protection, individuals have to pursue their rights through the courts.
• - To speak out against perceived abuses on the rights or inaction from legal system when upholding this right.

• Social Cohesion:
• The willingness of members of a society to cooperate with each other in order to survive and prosper.

• - Communities being able to live together in peace/order/haromony
• - Done by recognising that all people have rights and responsibilities
• - When the right decisions are made, social cohesion is achieved.

• Benefits:
• - Members of a socially cohesive society are unified, and provided with opportunities in work, education and social lives.
• - Feel a sense of belonging
• - Work together to challenge disharmony
• - Work to promote wellbeing of all

• The role of the legal system:
• - To deal fairly and justly with those who have broke the law or infringed rights.
• - To achieve social cohesion and protect individual rights by EAE:
• ---Establishing the law
• ---Applying the law
• ---Enforcing the law
• - To provide a system of check and balances to ensure that the system is fair. Separation of powers ensure there are checks and balances against each bodies (courts, parliament and police - managed by the gov.)

• The role of laws:
• - To provide guidelines on acceptable behaviour by establishing a framework within which people live.
• - To set boundaries for acceptable behaviour
• - To protect the rights of individuals
• - Establish individual rights and indicate what happens if those rights are infringed
• - Set out how to resolve disputes in a peaceful way (as conflict in society is inevitable)
• - Demonstrate to other members of society that certain behaviour will be addressed

• Role of criminal and civil laws:
• Each type of law plays a different role in protecting rights and maintaining SC.
• Criminal laws play a much more active role in maintaining SC, while civil laws are more concerned with the protection of individual rights.

- Criminal Law - laws that govern society's behaviour. Prosecuted by police.

• - Civil Law - laws that govern the way people interact with each other. Civil action is taken when an individual believes their rights have been infringed by another person.
• --- Negligence: when a person does not satisfy their responsibility to another.
• --- Defamation: public statements that infringe upon the reputation of another.

• Role of individuals:
• - Ensure they are aware of rules and laws and abide by them
• - Individuals must ensure they inform themselves before undertaking important actions. (E.g., if setting up a business, ensure you do so in the proper manner)
• - Expected to respect individual human rights. Failure to do so may lead to disharmony
• - Assist police with investigations and reporting crimes
• - Use the proper channels to resolve disputes

Legal system aims to provide justice through FAE for all citizens. 

• Fairness:
• Involves impartial treatment for all people under the law without fear or favour - just legal processes are in place and all parties receieve an even-handed hearing.
• - All people can participate in the justice system and its processes should be impartial and open.

- Aus. criminal justice system uses impartial judges and juries to promote fairness. Impartiality is assured through requirement that jurors have no prior knowledge or connection to the parties in a trial.

• - Legal system achieves fairness through section 24 of the Charter of Human Rights and Responsibilities Act 2006 ('Human Rights Charter') as well as by the courts. 
• - Appeals process - ensures trials can be appeals to higher level court.
• - Legal aid for those who need it.

• Equality:
• - Involves provision of the same legal opportunities and even treatment for all citizens under the law - all people treated equally before the law with an equal opportunity to present case.
• - people should be treated the same, regardless of differences, laws should prevent discrimination.

- all people engaging with the justice system and its processes should be treated in the same way. If the same treatment creates disparity or disadvantage, adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage.

- Legal system achieves equality through the trail process. Each party expected to adhere to rules of evidence and procedure.

All parties in a civil trail receive the same treatment in the sense that everyone is equally entitles to legal representation.

• Access:
• - Involves provision of a range of methods and institutions to settle disputes within the legal system - understanding of legal rights and ability to pursue their case. 

- all people should be able to engage with the justice system and its processes on an informed basis.

- Access to justice is significantly enhanced when people are well informed of their rights. Informed = better able to engage with or make use of legal system.

• - Legal system achieves access through the availability of legal advice and assistance for those that cannot afford representation.
• - Information is provided about how to navigate the system.
• - Interpreters provided ensuring parties understand their case.

• - Reflects societies values (the community agrees with it)
• - Is enforceable (police and individuals are able to protect their rights under the law)
• - Is stable (remains the same for a significant period of time)
• - Is clear (is easy to understand)
• - Is known (people are aware of the law)

Statute Law:

• Parliament:
• - Main role is to make laws
• - Laws are referred to as statutes, legislation, acts of parliament.
• - Is the supreme law-maker and can override bodies such as as courts. Concept known as supremacy of parliament.

• Houses:
• Lower House:
• - represents the people
• - introduces and passes most bills and is the only house that can introduce monetary (appropriate bills).
• - Review bills passed by upper house
• - determines which party forms the government. 

• Upper House:
• - represents the interest of the state and territories
• - Introduces and passes bills
• - generally reviews bills passed by the lower house

• Common Law:
• A law that is made by the courts.

• Role of Courts:
• - Main role is to settle legal disputes by applying the law.

• 1. decide the fact of the case (what happened)
• 2. decide what law applies
• 3. apply the relevant law to the facts
• 4. reach a decision.

• - at both state and federal levels, courts are arranged in a descending hierarchy. 
• - they are independent of the parliament so judges resolve cases without interference from the politicians, ensuring fairness within the case. 

• Interpreting Statutes:
• - Acts of parliament can be in general terms to apply to multiple situations.
• - Judges are able to clarify or interpret the laws written by parliament. (statutory interpretation).

• Precedent:
• - When a court makes a decision that is the first of its kind, and creates a legal principle. 
• - Based on the principle of stare decisis which is when judges stand by previous decisions to ensure common law is consistent and predictable.
• - Precedent is the reason for the given decision.

• - Only courts of superior record can make law (Supreme Court and above)
• - Are the reasons that judges give for their decision - the precedent does not apply to sentences

• Consists of:
• - Ratio decidendi is the legal reasoning behind a court decision (the binding part of the decision)
• - Obiter dictum - statements made by the way that do not form core reasoning of the decision, but may be used as persuasive in other cases.

• Binding Precedent:
• - A precedent that must be followed by courts if the facts of current case and similar to previous case where precedent was set, and if it was set in a higher court in the same hierarchy.
• Binding precedent (must follow reasons for deciding ratio decidendi = Higher court + same hierarchy (e.g., Victoria )+ similar facts

• Persuasive Precedent:
• - When a court is not bound by precedent, where but can choose to be influenced by it if;
• -- a court in another state or country established the precedent (not in the same hierarchy)
• -- a lower court set the pre
• -- the same court set the pre

• The supremacy of parliament:
• Parliament is the supreme law-making body. Another term used to describe this is ”parliamentary sovereignty”.

• This means that:
• - Parliament is the highest law-making authority. 
• - Parliament can pass a law that overrides judge-made law.

• The interpretation of statutes by courts:
• Parliament creates statues and courts interpret them

Courts have to apply statutes to the cases before them for legislation to be effective

• Decisions made by having to interpret statute then become precedent
• - in effect, they form laws that need to be followed in the future.

• The ability of courts to influence parliament:
• - can influence changes in the law by comments they make during cases.
• - They can make parliament aware of a need for a change in the law through their decisions
• - Courts may choose to uphold statute law but disagree with the law itself

- Courts can choose to interpret statute broadly which then changes the law (we call this judicial activism

The codification of common law:

• - It can make law that confirms a precedent set
• - Parliament does so by passing an Act of Parliament to reinforce the principles the court established
• - ensures that a future court does not change the precedent.

• The abrogation of common law:
• Parliament is able to change, override or invalidate common law. 
• This means that the precedent developed through the courts is superseded by a statute passed by parliament.

• May do this for a number of reasons:
• - courts develop a precedent in a way that parliament disagrees with.
• - courts interpret meaning of words in ways which were not intended by parliament, or does not reflect the current meaning.

• Overview:
• - ranked based on the severity and complexity of the cases they can hear.
• - Each court has its own jurisdiction or power to hear specific types of cases
• - Courts have both appellate and original jurisdiction (the Magistrates Court does not have appellate jurisdiction)

• Reasons:
• 1. Specialisation
• - courts develop expertise in hearing certain types of cases so they should become proficient in delivering fair and just outcomes

• 2. Allows doctrine of precedent to operate
• - courts have to follow earlier decisions in higher courts in their own hierarchy involving similar material facts. Without a hierarchy, courts would not know whose decisions they have to follow.

• 3. Facilitates appeals
• - a person who believes an error has been made by a court can appeal to a higher court to review the decision. Without a hierarchy, parties would not know to whom they could appeal.

• 4. Administrative convenience
• - cases can be heard more efficiently as more frequently occurring minor matters are heard in the Magistrates’ Court.
• - The smaller number of more serious and complex cases are heard in the superior courts.
• - The progress of more complex and significant cases is not caught in a backlog of smaller and simpler cases.