VCE Legal Studies Unit 1

Social Cohesion

Existence of a social environment where the law, general public, and individuals all work together to respect individual rights and prioritise ethical values within society

Role of Laws

To discourage dangerous behaviour, protect individual rights, and uphold strict guidelines for peace.

Role of Individuals

To be aware of the laws, and follow them, and instigate social change

Role of Legal System

To enforce laws, make laws, and administer laws.

Justice

-Hard to define, without a single accepted definition.

-Often a very subjective concept

Principles of Justice

Fairness, Equality, Access

Fairness

Case is heard in impartial manner and that the legal system should be an open process.

Equality

everyone engaging with the justice system must be treated without any disparity or disadvantages

Access

everyone must be able to interact with the legal system on an informed basis.

What is the Victorian Charter of Human Rights and Responsibilities Act 2006?

-Victorian Statute

-Aimed at protection and promoting human rights

-Declares that every Victorian is equal before the law and entitled to equal protection by the law.

Characteristics of an Effective Law

-Clear & Understood

-Accepted by society

-Known

-Enforceable

-Stable

What Does the Federal Parliament make laws about?

-Defence

-Immigration

-Employment

-Income and company taxes

-Airports and air safety

-Post and telecommunications

Bicameral Parliament

Made up of two houses, except for QLD and territories.

House of Representatives (Lower House)

-Represent the people, introduce and pass laws, review bills passed by the senate, form government.

-Made up of 150 members, elected for 3 years.

-Green

Hung Parliament

No political party holds a majority in the lower house.

Gives power to smaller parties and independents.

The Senate (Upper House)

-Reviews bills introduced in the lower house

-Prevents bigger states dominating smaller ones

-Can't initiate money bills

-76 members, elected for 6 years

-Red

What does the State Parliament make laws about?

-Motor Rego

-Roads

-Schools

-Law making

-Forestry

-Local Government

-Crime

-Education

Legislative Assembly (Lower house)

-Represent the people, intro and pass laws, review bills by the legislative council, and form government.

-88 members, 4 years.

-Green

Legislative Council (Upper House)

-House of review, bills from lower house are scrutinized in council.

-40 members, 4 years.

-Red

Government

-The party with majority in lower house.

-Coalitions can be formed

-Govt does not pass laws,

Opposition

-Next largest party will form opposition.

-Challenges the government's policy.

-Shadow ministers hold the government ministers accountable for their decisions.

The Court

-Apply the law to resolve cases and disputes.

-Federal and state courts

-Independent of parliament, judges can interpret and apply law without govt intervention.

Federal Court Hierarchy

High Court

Federal Court Family Court

Federal Circuit Court

State Court Hierarchy

1. Supreme court of appeal

2. Supreme Court- trial division

3. County court

4. Magistrates court

5. Koori court, Coroner's court, Children's court

Statute law

-Law made by parliament

-AKA Acts of Parliament, Legislation or statutes.

-Main function of parliament is to make laws, it is the supreme law making body, can abrogate/override court made law.

Process of creating a new law

1. 1st Reading - Introduces bill to house

2. 2nd Reading - Bill is explained, debated and voted on. Checked against Victorian Charter of Human Rights and Responsibilities.

3. Committee stage - Bill is scrutinized, clause by clause, amendments are most likely to be made here.

4. Third Reading - Bill is voted on in its final form.

5. Bill passes first house

6. Same procedure in second house

7. Bills passes second house.

8. Royal Assent - Bill goes to governor (state) or governor general (federal) to be approved.

9. Proclamation - The act comes into operation and is announced to the public.

10. The act becomes law.

Common Law

-AKA Judge made law, Case law

-Law made through courts

(First role of courts is to apply the law, secondary is to make laws.)

How do courts make law?

1. Deciding on a new issue that is brought before them

2. Statutory Interpretation, interpreting the meaning of the words in an act and applying them to a case.

How is common law created?

Common law is created through the reasons for decisions of the courts - which are followed in future cases where facts are similar.

Statutory interpretation is needed when?

Acts are written in general and are at time ambiguous or unclear.

Deign v Tarola 1993 (Studded Belt Case)

Deign was arrested for wearing a studded belt and charged by the magistrates court for possessing a weapon.

He appealed to the supreme court, which decided that he possessed a 'lawful excuse' for possession of the belt, as it was used to hold up his pants.

The Doctrine of Precedent

A precedent is the reasoning behind a court decision, it establishes a principle or rule of law that must be followed by other courts that are lower in the same hierarchy when deciding future cases that are similar.

Ratio Decidendi

-Judge decisions and reasoning form precedent

-The most important part of a judge's decision in the reason for the decision.

Why are precedents useful?

-For consistency and predictability

-So judges decisions aren't ignored and follow the same interpretation of law.

Binding Precedent

A decision of a higher court that must be followed by lower courts in the same hierarchy.

Stare Decisis

'To stand by what had been decided'

When a lower court follows the reasons for the decisions of a higher court.

Donghue v Stevenson 1932 UK (Snail in a bottle case)

-Prior to this case buyer beware was in place. Manufacturers weren't responsible for defects.

-Donahue (Plaintiff) found snail in bottle, took (Defendant) stevenson to court because she got sick.

-Judge introduces the 'neighbour principle' and 'duty of care'.

-Establishes concept of negligence.

Persuasive precedent

Not binding, may help in deciding the outcome of a case, set by courts in other states or hierarchies.

Obiter Dictum

Comments made by the judge that are passed down to the parliament

Grant v Australian Knitting Mills 1936 (Itchy Undies Case)

-Grant bought undies, gave him a rash and he was unable to detect the defect in the product.

-Sued AKM, judge followed precedent from Donoghue v Stevenson.

-Grant was owed duty of care from AKM.

Reversal of Precedent

When a case is appealed and sent to a higher court and the decision of the lower court is changed by the new judge.

Overruling precedent

Higher courts can decide to overrule any precedents established in a lower court and make a new decision.

Distinguishing from Precedent

If a court decides the facts of a case are sufficiently different to the binding precedent, it distinguishes the current case from the binding precedent, allowing it to be avoided.

E.g. Drunk driver with intent to drive, and guy sleeping in car with engine on to keep warm.

Disapproval of Precedent

When a lower court must follow a binding precedent, but they express disapproval of the precedent.

E.g. State Govt Insurance Commission v Trigwell Case.

Parliament and Courts

-Complimentary relationship

Courts interpret statutes and influences law making in parliament

Parliament can codify common law, abrogate/overrule common law,

Codification

When common law is codified and put into a statute.

Abrogation

Parliament can change/override the common law.

Courts influence on Parliament

Court can make interesting decision/comments which inform new legislation.

Definition of a Crime

An act or omission against an existing law that is harmful to an individual/society and is punishable by law.

What does criminal law involve?

-Protects the community

-Acts or omissions against society

-When such a law is broken the main aim is to:

apprehend, prosecute, punish and deter future offenders.

Criminal Offences

Crimes against:

Person - Murder, assault

Property - Theft, trespassing

Morality - Drugs, prostitution

Legal System - Perjury, contempt of law

State - Treason

Criminal Law Vocab

Prosecution/Crown/State - the party bringing the case on behalf of the state.

Accused/offender - the person being charged

Suspect - someone suspected of committing the crime

Guilty/Not guilty - the person charged as guilty or not guilty.

Charge - when the police formally allege that a person has committed a crime.

Sentence - the penalty handed down by the court.

Conviction - when an offender has been guilty.

Civil Law

-Protects individuals rights

-Relates to private disputes between two parties (not police or state)

-If your rights have been infringed upon you sue the other person for damage.

Main aim of Civil Law

To return the person whose rights have been infringed to their original position.

Most commonly achieved through paying compensation for loss or damages.

Examples of Civil Law

Tort Law - nuisance, trespass, defamation

Family Law - marriage, divorce, adoption, de facto relationships

Industrial workplace law - OHS, work conditions, contracts

Consumer law - tenancy agreements, sale of goods, negligence / duty of care.

Property law - wills, planning laws, real estate purchases.

Civil Law Key Vocab

Plaintiff - the person bringing the case

Defendant - the person defending the case

Sue - taking civil action against another

Compensation - what the plaintiff seeks

Damages - a civil remedy

Civil wrong - a tort

Defamation - a civil law, under which a person can claim their reputation has been damaged.

Negligence - a person being injured as a result of someone acting negligently towards them.

Jurisdiction

Power of court to hear different types of cases

Original jurisdiction - The power of a court to hear a case for the first time.

Appellate Jurisdiction - The power of a court to hear a case on appeal.

Reason for court hierarchy

Specialisation

Appeals

Administrative Convenience

Consistency

Problems with court hierarchy

- Precedents may be binding and not perfectly apply to a lower court's case.

- There might be too many appeals.

- More administrative personnel needed to run the different courts.

- Too many courts

- Parties to cases in lower courts are not receiving the same high level of judicial expertise as parties in higher courts.