Preliminary Legal Studies PAST QUESTIONS + ANSWERS

[georgiia]

1). Define the following terms:

Spoiler

Law – a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisation such as the police and/or courts. It is a set of rules made by the government
Values – principles, standards or qualities considered worthwhile or `desirable within a society.
Rules – Regulations or principles governing procedure or controlling conduct
Customs – Collective habits or traditions that have been developed in a society over a long period of time
Customary Law – Aboriginal Laws. Principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory.

2). What is the relationship between customs, rules and laws?

Spoiler

Customs becomes rules, and rules become laws.

3). What is justice? How do the concepts of equality, fairness and access relate to the concept of justice?

Spoiler

Justice – The legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved.
Concept of Justice – Involves the fair and impartial treatment for all persons, especially under the law.
Equality, fairness and justice are central concepts which allow us to distinguish good law from bad law. It is the task of the legal system that ensures all citizens have equal access to the law and that the law provides equality, fairness and justice to all members of society.

4). What is procedural fairness or natural justice?

Spoiler

Procedural fairness – refers to the idea that there must be fairness in the processes that resolve disputes.
Natural Justice – refers to the fact that everyone should be treated fairly in legal situations.
Two main principles of nature justice are:
The right to be heard – includes right to fair hearing
Right to have a decision made by an unbiased decision maker.
Procedural fairness/natural justice – body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia it generally refers to the right to present your case, right to freedom from bias by decision makers, and right to a decision based on logically relevant evidence

5). What is meant by the term ‘the rule of law’? Outline 2 ways the rule of law is ensured in Australia.

Spoiler

The Rule of Law means that no one is above the law, even the prime minister is not above the law.

6). Under what circumstances do people NOT obey the law?

Spoiler

People will not follow the law if they do not agree with them or feel that the rules have no connection to them.

7). What is the difference between anarchy and tyranny?

Spoiler

Anarchy – the state where there are no laws
Tyranny – where a state has a single ruler holding all the power

8 ). Briefly outline the development of the common law system in England.

Spoiler

The British legal system developed from a number of sources. In Anglo-Saxon England, questions about rights and obligations were decided on the basis of the local customs and disputes were dealt with by the local courts. After the Norman invaded England, they began a system of travelling judges who applied a common set of laws to all areas of England. Decisions made by judges provided precedents for later cases and laws applied became the basis of the British legal system.
Judges must resolve disputes on the basis of decisions made in similar cases. A judgement that is followed is called a precedent and it provides authority for the legal principle contained in the decision. The doctrine of precedent is also known as stare decisis – Latin for ‘the decision stands’. The purpose of precedent is to ensure that people are treated fairly and that the law develops in a consistent and coherent fashion.

9). How does the doctrine of precedent apply to today’s court structure in Australia?

Spoiler

The NSW local and district courts must follow the decisions of the NSW Supreme Court. All state and federal courts must in Australia are bound by the decisions of the High Court. Only the ratio decidendi (legal reason why a judge came to a particular decision) of the superior court is binding. The High Court usually follows its own decisions.

10). Explain the meaning of the common law in each of the following contexts:
Common Law V Statute Law:

Spoiler

-Common Law refers to laws created in court i.e. decisions made by judges.
-Statute Laws refer to laws made by parliament.

Common Law system V Civil law system

Spoiler

Civil Law System is a codified system that uses a set of rules (known as the code of law) that are applied and interpreted by judges. It is used in many countries. Judges apply the rule in the code of law to the various cases before them.
Common Law System was developed by customs. It began long before there were any written laws but continued to be applied by courts long after written laws came into use. It is the rules that were derived in part from specific court rulings.

Common Law court V Courts of equity

Spoiler

Court of Equity followed a set of loose rules to avoid the slow pace of change and possible harshness or inequity of the common law.
Common Law Courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy.

11). What is the difference between adversarial system of law and the inquisitorial system?

Spoiler

Adversarial system – a system of resolving legal conflicts used in common law countries such as England and Australia, which relies on the skill of representatives of each side who present their cases to an impartial decision maker.
Basically, in a trial, the two sides try to prove their version of the facts and disprove the other side.
Inquisitorial System – the court is actively involved in determining the way in which the competing claims are presented. The judge will conduct an inquiry into the truth of what occurred.

12). Explain the concepts of original and appellate jurisdiction and how they apply to each of the courts in the NSW court hierarchy

Spoiler

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.
Original jurisdiction – the ability or power of a court to hear a case in the first instance.

13). What is statute law? Outline the process of passing a bill through Parliament.

Spoiler

Statute Law is laws made by the parliament. It is also known as ‘legislation’ or ‘Acts of Parliament’.

14). What is delegated legislation?

Spoiler

Delegated Legislation is legislation made by non-parliamentary bodies. It involves ‘less important’ laws that parliament does not have time to draft, consider and pass, and so delegates the responsibility to ‘subordinate’ bodies, such as government departments or local councils.

15). What is the Constitution of Australia? Which piece of legislation formed in the Constitution in Australia?

Spoiler

A Constitution is a set of rules that may apply to a social club, a large-scale organisation or even a nation. The Constitution of Australia is the Commonwealth.

16). How can the Constitution be changed?

Spoiler

By a referendum of Australian voters.

17). Explain the Division of Power as outlined in the Constitution

Spoiler

Division of Powers means that legislative, executive and judicial powers are divided between the states and the federal government. The state has control over some areas such as police while the Commonwealth controls others such as migration.
States retain the law-making powers they had before the Federation unless the Constitution has given those powers to the federal government. The division of power between the states and the federal government has changed over the years with the federal parliament gradually gaining more power.

18). Explain the concept of the separation of powers. Why is it important in ensuring the rule of law?

Spoiler

Separation of Powers doctrine was developed by the 18th century by a French political philosopher. The separation of power does not exist in pure form in Australia as some members of the executive are members of the legislature. For a true democracy to operate and in the interest of justice, it is imperative that there be no overlap between judicial and non-judicial arms of government. Key organs of government are:
The legislature – law makers
The executive – ministers and government departments who administer the law made by parliament
The judiciary – courts which interpret and apply the law

19). What is the role of the High Court?

Spoiler

One of the exclusive functions of the High Court is to interpret the Constitution by deciding disputes on constitutional matters. The High Court often reviews Commonwealth legislation which involves interpreting the words of the Constitution. Elements of the High Court’s involvement with the Constitution are:
Judicial review – It is empowered by the Constitution to review Commonwealth legislation if a constitutional dispute is brought before it. Disputes occur when a person, organisation or government challenges the validity of a state or federal law.
Constitutional interpretation – Must interpret the words of the Constitution when resolving constitutional disputes.
Transfer of power to federal parliament – There has been a gradual shift in power from the states to the Commonwealth.
State/Federal agreements – State and federal governments have reached agreement on many issues so that standard laws apply across Australia.
The High Court may not give opinions or declare laws valid or invalid unless it is deciding a dispute.

20)What is the role of the United Nations?

Spoiler

The United Nations (UN) was established by the Charter of the United Nations in 1945. It was formed directly after the international breakdown of World War Two.
It was established to oversee world affairs. The chief goal is to maintain global peace and security. It is not a law-making body.
The UN begun to interfere with matters that concern general peace or human rights.
The six main organs of the United Nations are:
The General Assembly (UNGA) which contains representation from all member nations. It can:
pass resolutions
create organisations
discuss customary international law
The General Assemble meets every year and can be called upon at any time. It works on agreement and consensus between its members.
The Security Council is the executive and most powerful section of the UN. It can have the final say over the security and peacekeeping activities of the General Assembly.
It has the right to stop or ignore the General Assembly decisions.
It has five permanent members: the USA, UK, France, Russia and China.
Has ultimate control over the UN peacekeeping corps, its armed forces. The Council is the only body which can enable the UN to be sent into areas of conflict. Because of this power, the Security Council is a very important and often criticised body.
The Secretariat is the administrative and coordinating organ of the UN. It is under the control of the UN-elected Secretary-General.
The Economic and Social Council (ECOSOC) is an example of intergovernmental body. ECOSOC has 54 member nations who are elected for a three-year term. It examines international economic, social, health and educational issues and any other concern to which it is directed by the General Assembly.
The Trusteeship Council is the organ of the UN that works to help nations become independent and self-governing.
The International Court of Justice

21). What is the difference between international and domestic law?

Spoiler

Each country has laws for its own people, known as domestic law. International law governs the relationship between nation-states. It enables nations to participate in trade and commerce and provides mechanisms for the maintenance or peace, security and reduction in conflict. It also covers fundamental human rights. 

22). What is meant by the concept of state sovereignty? What impact can state sovereignty have on the enforcement of international law?

Spoiler

There are many examples around the world of nation-states breaching international law as result of state sovereignty, especially in the area of human rights.
Sovereignty means that the state has authority to make rules for its population and power to enforce these rules.

[jamonwindeyer]

Thanks so much for posting these georgiia! I've put them all up the top and into spoilers for you to make it look more pretty, thanks for the great resource!