legal studies sac unit 1

social cohesion

Social cohesion describes the willingness of members of a society to cooperate with each other in order to survive and prosper. It is a principle that ensures that community citizens thrive, get along, cooperate and are able to succeed, without discrimination, humiliation or fear.

a society that has social cohesion, individuals are able to do what

are free to make choices in society, feel like they belong, are not discriminated against, and cooperate with other members of society so that they live in harmony.

benefits of having a society that is socially cohesive

Its members are unified and are provided with opportunities in work , education and in their social lives. people feel a sense of belonging and individuals work together to challenge disharmony and to promote their and others' well-being

what are the five core areas of social cohesion

a sense of belonging, a sense of worth, social justice and equity, political participation, acceptance (or rejection).

the role of laws in achieving social cohesion

They establish a framework in which people live, set boundaries for behaviour and allow individuals to make choices about how they live. They also protect the rights of individuals For example, some laws specify what we must do, like pay for goods or services and some specify what we must not do like steal.

what is law

Legal rules made by a legal authority (Parliament / Courts) that are enforceable by the police and other agencies. They provide guidelines on what behaviour is acceptable and what behaviour is not acceptable. They set expectations for how individuals should behave.

what is rule of law

the principle that everyone in society is bound by law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

the role of individuals in relation to laws

it is the responsibility of individuals to ensure that they are aware of the laws and abide by them. Before taking any important action, a person needs to find out what the relevant law is

how can individuals help achieve social cohesion

by assisting the police with their investigations, by reporting crime, and by using the legal system to resolve their disputes when their rights have been infringed

the role of the legal system in relation to laws

The legal system is a set of methods and institutions that makes, administers (implements) and enforces laws. They have the role of updating our laws to ensure that they address new threats.

the role of the legal system in achieving social cohesion

it is the role of the legal system, particularly the parliaments, to update laws so that social cohesion is maintained and rights are protected

civil dispute

a disagreement between two or more individuals (or groups)in which one of the individuals (or groups) makes a legal claim against the other

what are the principles of justice

fairness , equality , and access

fairness principle of justice

Fairness means that all people can participate in the justice system. Factors of fairness are that fair legal processes are in place, and all parties receive a fair/unbiased hearing.

apprehended bias

a situation in which a fair-minded lay observer might reasonably believe that the person hearing or deciding a case (e.g. a judge or magistrate) might not bring an impartial mind to the case

the three features of fairness

open processes, participation, and equality

impartial processes

The first feature of fairness is that all personnels involved in the legal system including judges , magistrates, jury members and court personnel must be impartial and independent which means they should not show bias towards or against any party and the case must be decided based on facts and law not what a person thinks about a party in a case

open processes

The second feature of fairness is that there must be open processes. This ensures transparency in processes and it allows those processes to be examined by the community and reported in the media . Although there are some circumstances where a court may need to be closed, for example to protect young witnesses such as children

participation

the final feature of fairness is that all people should be able to participate in a case. A person defending a case must have the oppurtunity to know the facts that are raised against them, the person defending the case must have the time and facilities to prepare a defence and should have the oppurtunity to present their defence in court if they choose to do so, people should have the oppurtunity to engage a lawyer to enable the to participate, people should be able to engage and use an interpreter if they are not able to understand or communicate in English, and the case should be heard on time and without unreasonable delay

equality principle on justice

the second principle of justice which states that all people engaging with the justice system and its processes should be treated in the same way

formal equality

all people should be treated the same in the justice system regardless of who they are or their characteristics, such as their race, sexuality, gender identity or religion. That is, people should not suffer any disadvantage or discrimination, and should be given the same opportunities and the same treatment.

substantive equality

It is sometimes necessary to treat someone differently to ensure that there is equality. For example, a party to a case who has a mental impairment, and who does not understand the legal system as well as the other party, may need more assistance than the other party to understand court processes

access principle of justice

‘All people should be able to engage with the justice system and its processes on an informed basis’; that is, they should have the ability to pursue their case, be able to engage on an informed basis (understand the court system by being educated about and have access to information about their rights and court processes), and be able to engage with services to support those in the court system

an effective law must

reflect society’s values, be enforceable ,be known ,be clear and understood ,be stable

effective law - reflect societies values (accepted )

If a law is in line with society’s current values, then members of society are more inclined to follow that law, rather than disregard (ignore) it. This means that laws need to change when society’s values change.

effective law -enforceable

if people break the law, it must be possible to catch and punish them, or sue them. If this is not possible, people may be less inclined to follow the law. - more likely to be visible to police officers and members of society

effective law- must be known

The public must know about it. If people do not know about a law, they cannot follow it. It is the responsibility of individuals to find out what the law is on a matter that affects them. If someone breaks a law, then saying ‘I didn’t know I was breaking the law’ is not an acceptable response. This principle is commonly expressed as ‘ignorance of the law is no excuse’. However, lawmakers also need to keep the public informed of any new laws that are passed by parliament

effective law - must be clear and understood

It is important for a law to be written in a way that people can understand it, so the intent of the law is clear. If a law is ambiguous, unclear, or written in language or jargon that people do not understand, it is possible that people will not follow it and the law will therefore be ineffective

effective law - must be stable

For a law to be effective, it must be stable. If a law is constantly changing, people may be uncertain as to what the law actually is, and it may therefore not be as effective as a law that has remained constant for some time.

the nine parliaments in aus

one federal parliament

• six state parliaments

• two territory parliaments.

The main role of parliaments is to make law

commonwealth parliament

The Commonwealth Parliament also called the Parliament of Australia or the Federal Parliament, is a bicameral parliament. It consists of:

• the King (often referred to as the Crown), represented by the Governor-General

• the House of Representatives (the lower house)

• the Senate (the upper house).

bicameral parliament

is a system of government where the legislature is divided into two separate assemblies or chambers, typically known as an upper house and a lower house.

the purpose of bicameral parliament

is that there are two groups of people who form parliament and who decide whether a law should be made. This avoids having only one group of people with the power to make laws.

the role of the commonwealth parliament

The role of the Commonwealth Parliament is to pass laws for the good government of Australia in its area of law-making powers. These include laws in areas such as migration, defence, currency and taxes.

What is the House of Representatives and how is it structured?

• The House of Representatives is the lower house of Australia’s Commonwealth Parliament.

• Australia is divided into 151 electoral divisions (as of 2023).

• Each division has roughly the same number of voters.

• Each division elects one representative (MP).

• Members serve a term of up to 3 years.

the role of the house of reps

form government - The political party with the majority in the lower house forms government, while the next largest party forms the opposition. The leader of the political party that forms the government will become the prime minister.

Represent the people when debating issues and making laws. Proposed laws should reflect the views and values of the majority.

Introduce and pass bills (proposed laws).

Reviews bills passed by the Senate.

What is the Senate and how is it structured?

• The Senate is the upper house of Australia’s Commonwealth Parliament.

• It has 76 senators.

• Each of the 6 states elects 12 senators.

• The Northern Territory and Australian Capital Territory each elect 2 senators.

• State senators serve 6-year terms.

• Territory senators serve 3-year ter

the role of senate

• Reviews bills introduced and passed by the House of Representatives.

• Acts as a ‘house of review’ by scrutinising and debating bills.

• Can reject or pass bills.

• Ensures equal representation of the states (each state has the same number of senators).

• Can also introduce and pass bills.

What is the structure and role of the Victorian Parliament?

• The Victorian Parliament consists of:

  • The King (represented by the Governor of Victoria)

  • The Legislative Assembly (lower house)

  • The Legislative Council (upper house)

The role of the Victorian Parliament is to pass laws for the good government of Victoria in its area of law-making powers. This includes in areas such as health, education, roads and transport, and criminal law.

What is the structure of the Legislative Assembly in Victoria?

• The Legislative Assembly is the lower house of the Victorian Parliament.

• Victoria is divided into 88 electoral districts.

• Each district elects one member, so there are 88 members in total.

• Members serve a fixed 4-year term.

the main role of the legislative assembly

form government, represent the people in its roles,introduce and pass bills, review any bills passed by the Legislative Council

What is the structure of the Legislative Council in Victoria?

• The Legislative Council is the upper house of the Victorian Parliament.

• Victoria is divided into 8 regions (each made up of 11 districts).

• 5 members are elected from each region.

• There are 40 members in total.

• Members serve a 4-year term.

main role of the legislative council

review bills that have been introduced in and passed by the Legislative Assembly, introduce and pass bills

How is government formed and what is the role of the opposition?

• The political party (or coalition) with the majority in the lower house forms government.

• The next largest party forms the opposition.

• The opposition’s role is to challenge and question the government’s policies.

• Parliament includes all members of both houses plus the King’s representative

What is Cabinet and what does it do?

• The Prime Minister (federal) or Premier of Victoria (state) selects senior elected members (ministers).

• Each minister is responsible for a portfolio (e.g. health, education).

• These senior ministers form the Cabinet.

• Cabinet decides the government’s policies and what bills are introduced to parliament.

• Federal Cabinet = Prime Minister + senior ministers.

• State Cabinet = Premier of Victoria + senior ministers.

What is the difference between Parliament and Government?

The government is formed by the political party (or coalition of parties) that has the majority of seats in the lower house. Parliament, on the other hand, consists of all elected members of both the upper house and lower house, together with the King’s representative. The main role of parliament is to make the law, whereas the main roles of the government are to develop policy, decide what bills should be introduced, and put existing laws into action.

law made by parliament is called what

statute law, Acts of Parliament or legislation

what is supremacy of parliament

parliaments can override laws made by other bodies (including courts).

Who decides and who passes laws?

• The government usually decides what laws should be made.

• The whole parliament is responsible for passing laws.

How does a bill become a law?

• A bill must pass through both houses of parliament.

• It goes through several stages in each house.

• It must receive a majority vote in both houses.

• It is then given to the King’s representative for royal assent.

• After royal assent, the bill officially becomes law.

the main victorian courts are

the Magistrates’ Court

• the County Court

• the Supreme Court, which is divided into two divisions –

the Trial Division and the Court of Appeal.

high court

There are also two specialist courts in Victoria:

• the Coroners Court (which investigates suspicious deaths

and fires)

• the Children’s Court (which deals with criminal and family

matters involving children).

victorian court hierarchy

The main Victorian courts are - the magistrates’ court, the county court, the Supreme Court(trial division), the Supreme Court (court of appeal), high court of Australia. The higher courts hear more serious and complicated cases, and the lower courts deal with less serious cases. Each court has its own jurisdiction (the power of a court to hear or deal with particular cases).

reasons for a court hierarchy

enables the parties to a court case to lodge an appeal with a higher court if they are not satisfied with a lower court’s decision, where it can be reviewed and potential errors can be corrected. Allows for administrative convenience or efficiency which will ensure that those cases which are less complex and time consuming can be heard swiftly by the Magistrates' Court, which will manage and deal with smaller claims using more streamlined processes.it ensures cases are dealt with in consistent and predictable manner. The doctrine of precedent ensures that similar cases are dealt with in a similar way and any previous decisions already decided by a previous judge in a more superior court.

What is the primary and secondary role of the courts?

• Primary role: Resolve criminal and civil cases by applying existing laws to the facts by applying exisisting laws to the facts in cases brought before it and ecide the cases based on those laws

• Secondary role: Make law through their determination of cases

common law

law made by judges through decisions made in cases

How can courts make law?

• Statutory interpretation – interpreting the meaning of words in an Act of Parliament when applying it to a case.

• Setting a precedent – deciding a new issue where there is no legislation, or expanding an existing legal principle to apply to a new situation.

Statutory interpretation

• Statutory interpretation is the process by which the courts interpret and apply legislation.

• The interpretation becomes part of the law.

• It can be binding on other courts under the doctrine of precedent.

Precedent

is a legal principle where courts rely on past judicial rulings to decide current cases with similar facts or legal issues. It forms the foundation of the "common law" system, ensuring that similar cases are treated consistently, predictably, and fairly.

• The key part of a judgment is the ratio decidendi (the reason for the decision).

• Lower courts must follow the ratio decidendi in similar cases (stare decisis = “let the decision stand”).

Binding precedent

• A binding precedent must be followed by lower courts in the same hierarchy.

• It applies when:

  1. The material facts of the precedent are similar to the new case.

  2. The precedent was set by a higher court in the same court hierarchy.

Persuasive precedent

• Persuasive precedents do not have to be followed, but courts may choose to follow them.

• A precedent is persuasive when:

  1. It was set by a court in another state or country.

  2. It was set by a lower court.

  3. It was set by the same court.

4 main wayss in which courts can develop or avoid earlier precedents

Distinguishing a previous precedent (if the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent) . Overruling a previous precedent (a precedent can be overruled by a higher court in a different case. A higher court sets a new precedent in a different case. The new precedent replaces the old precedent.).Reversing a previous precedent (a precedent can be reversed when the same case is taken to a higher court on appeal). Disapproving a previous precedent (when a court officially expresses its disagreement with an earlier legal decision, but does not formally overturn it)

How do parliament and courts work together, and what are the key features of their relationship?

• They work together to ensure laws are workable and enforceable.

• Four key features of their relationship:

  1. Statutory interpretation

  2. Codification of common law

  3. Abrogation of common law.

  4. Courts influencing parliament –

•Statutory interpretation

• Judges give meaning to the words or phrases in an Act of Parliament.

• This allows the statute to be applied to resolve a case before the court.

•Codification of common law

When parliament passes an Act of Parliament that reinforces (confirms) a principle established by a court

•Abrogation of common law

When parliament passes an Act of Parliament that overrides (abolishes) a principle established by a court

•Ability of courts to influence parliament

Courts can influence changes in the law made by parliament through the comments judges make during court cases

criminal law

Criminal law is the body of law that protects the community by establishing crimes and setting sanctions for people who commit crimes.

what is a crime

is an act or omission that breaks an existing law, is harmful to an individual or to society as a whole and is punishable by law

accused

used to refer to someone who is accused of committing a crime , but has not been found guilty.

offender

is used to refer to someone who is found guilty or has pleaded guilty

Civil law

• Civil law regulates disputes between individuals or groups and enforces rights where harm has occurred.

civil disputes

are private disputes and do not involve the police or the state

the two parties to a civil dispute

the plantiff which is the party who makes the claim and the defendant the person defending the civil dispute

The relationship between criminal law

and civil law

The same behaviour can give rise to both a criminal case and a civil dispute. For example, a person who hits another person can be charged by the police with the crime of assault.

The distinction between criminal law and civil law

• Criminal law:

  • Aims to protect society and sanction offenders who have committed a crime

  • Consequence for guilty: sanction (e.g., fine, imprisonment).

  • person defending the action is the accused

  • civil law

  • Aims to regulate conduct between parties and remedy a wrong.

  • Consequence for liable defendant: remedy (e.g., damages).

  • person defending the action is defendant

civil vs criminal case

Criminal cases involve government prosecution of individuals for breaking laws, aiming to punish offenders (fines/jail), with a high "beyond reasonable doubt" standard. Civil cases are private disputes between individuals or organizations over rights, aiming to resolve issues or award compensation, requiring proof on the "balance of probabilities"

distinguish between common law and statue law

Statutory law consists of written laws enacted by legislative bodies (like Parliament or Congress), while common law is "judge-made" law built on precedents and traditions

against an existing law

For a person to commit a crime, they must undertake an action that is prohibited by a current law. The parliament and the courts establish laws that define which actions are prohibited and are considered to be crimes

harmful to an individual and to society

A criminal act or omission has an impact on both the victim and the wider community. Crimes can impact a victim by causing physical, financial or psychological harm. Crimes can also negatively impact the whole of society by decreasing the community’s sense of wellbeing and safety, and increasing the need for expensive resources such as the police, courts, prisons and hospitals

punishable by law

Crimes are punishable by the state. This means that a person who is guilty of committing a crime can have a penalty imposed on them. In Victoria, penalties for criminal offences are typically imposed by the courts, but they can also be imposed by other authorities that are given the power to do so

purposes of criminal law

protect individuals, protect property , protect society, protect justice

protecting individuals

criminal law aims to protect individuals by establishing crimes and processes to deal with people who commit these crimes. for example laws that make murder theft , rape , arson and robberies crimes are aimed at protecting individuals from these types of behaviours

protecting property

criminal law aims to protect privately owned and public property, This includes protecting land and the environment and personal goods. For examples it is an offence to trespass on or take without permission another persons property

protecting society

Criminal law aims to protect the community as a whole by setting standards and making it clear what behaviour is not tolerated by the community and the legal system. This helps to maintain public order and community safety. For example, laws prohibiting drug offences and terrorism offences help to protect society.

protecting justice

Criminal law aims to promote justice by providing processes to deal with offenders and to enforce the law. Having the state enforce criminal law helps prevent victims of a crime, and their family and friends, from taking the law into their own hands and imposing their own punishment on an offender.

presumption of innocence

the right of a person accused of a crime to be presumed not guilty until the charge has been proved beyond reasonable doubt

beyond reasonable doubt

the standard of proof in criminal cases. This requires the prosecution to prove there is no reasonable doubt that the accused committed the offence. It is a guarantee by the state to its citizens that if they are accused of a crime they will be considered and treated (as far as possible), as being not guilty until the charge has been proved beyond a reasonable doubt. In a criminal case, the prosecution is required to prove that the accused is guilty beyond a reasonable doubt, rather than the accused being required to prove their innocence.

how is the presumption of innocence protected

the burden of proof, standard of proof, Police officers required to reasonably believe a person has committed a crime before arresting them and must have a good reason to arrest a person. A person who has been arrested and charged has the right to apply for and be granted bail uless there are good reasons why they should be denied their freedom and be held in custody while waiting for their court hearing.An accused has the right to legal representation in court.An accused has the right to silence – this means an accused does not need to answer any questions, and is not required to give evidence in court, and this ‘silence’ is not to be interpreted as a sign of their guilt.As a general rule, the accused’s previous convictions cannot be revealed in court until the sentencing process begins (i.e. after they have been found guilty), this is so that the person is not presumed’ guilty because of things they have done in the past.

burden of proof

The burden of proof in a criminal case is on the prosecution – this means the prosecution must present evidence to the court to prove the guilt of the accused, rather than the accused being required to prove their innocence.

standard of proof

The standard of proof in a criminal case must be met – to succeed in a criminal case, the prosecutor is required to present sufficient evidence to the court to prove that the accused is guilty beyond reasonable doubt.

the elements of crime

actus reus and mens rea

actus reus

‘guilty act’: the physical element of a crime. For a person to be found guilty of committing a crime, the prosecution must prove the person physically did the wrongful action (or inaction).

mens rea

guilty mind’: the mental element of a crime. For a person to be found guilty of committing a crime, the prosecution must also prove that the person knowingly or intentionally committed the wrongful action (or inaction).

strict liability

actus reus and mens reas does not be present in the crimes of strict liability .This means that for strict liability crimes, the prosecution is not required to prove that the accused had the intention to commit the crime. To establish that the accused is guilty, the prosecution is only required to prove that the accused committed the wrongful action (or inaction) (i.e. the actus reus).Strict liability crimes include consuming intoxicating liquor (alcohol) while driving, fare evasion on public transport, and failing to display ‘P plates’ when driving on a probationary driver licence.- summary offences