Legal Studies - Unit 1 - Topics 1 and 2 - Year 11 QCAA

What is the definition of law?

Law is a system of rules created and enforced by the government to regulate behaviour within society. Laws are enforceable, apply to everyone, and have legal consequences if broken.

What is the difference between a rule and a law?

Rules apply to specific groups (e.g., school or sports clubs) and are not legally enforceable, whereas laws apply to everyone and can result in legal consequences if broken.

Why do societies need laws?

Laws provide order, protect rights, resolve disputes, and maintain social cohesion by regulating behaviour and ensuring justice.

What are the characteristics of a just law?

• Clear and understandable – People must know what is legal or illegal.

• Consistently applied – Laws must be enforced fairly and equally.

• Protects human rights – Laws should safeguard fundamental freedoms.

• Adaptable – Laws must evolve with societal changes and advancements.

• Enforceable – The legal system must be able to ensure compliance.

What does the ‘rule of law’ mean?

The rule of law means that everyone, including the government, is subject to and accountable under the law. Laws must be clear, publicised, and applied fairly.

How does the rule of law prevent government overreach?

By ensuring that laws apply equally to all, limiting government power, and providing legal mechanisms (e.g., courts) to challenge unfair treatment.

What are the rule of law principles in Australia?

• No one is above the law

• The law is applied equally and fairly

• The law is known and accessible

• Presumption of innocence

• Open, independent and impartial judiciary

• No retrospective laws should be made

• Laws are made in an open and transparent way by the people

• Government agencies to behave as model litigants

• Fair and prompt trials

• Separation of powers between Legislature Executive Judiciary

What is the purpose of a court hierarchy?

A court hierarchy ensures efficiency, allows appeals, provides specialization in cases, and ensures consistency in legal decision-making

Which court has the highest authority in Australia?

The High Court of Australia, which interprets the Constitution and hears appeals from lower courts.

Name the different levels of courts in Australia.

1. High Court of Australia – Highest appeal court and constitutional matters.

2. Supreme Court – Hears serious criminal and civil cases.

3. District Court – Hears serious criminal cases and civil disputes over $150,000.

4. Magistrates Court – Handles minor offences and civil cases up to $150,000.

What are the three branches of government in Australia?

• Legislative (Parliament) – Makes laws.

• Executive (Government, PM, Ministers) – Enforces laws.

• Judiciary (Courts) – Interprets and applies laws.

What is the purpose of the separation of powers?

It prevents any one branch from having too much power, ensuring a system of checks and balances.

What are checks and balances?

Checks and balances is a system that ensures no one part of the government becomes too powerful. It works by dividing power among different branches and giving each branch the ability to limit or "check" the others. This creates a balance of power and prevents misuse of authority.

What is statute law and how is it different from common law?

• Statute law is made by parliament and written in legislation.

• Common law is developed by judges through court decisions (precedents).

Who is responsible for making statute law?

The Parliament (both state and federal levels).

How do judges create common law?

Judges establish legal precedents by interpreting laws when no existing statute applies to a case.

What are legal precedents?

In Australia, legal precedents are previous judicial decisions that courts use as a guide when deciding future cases with similar facts or legal issues. The doctrine of precedent (also called stare decisis, meaning "to stand by things decided") ensures consistency and predictability in the legal system.

How does the doctrine of precedent work?

Lower courts must follow legal principles established by higher courts in the same jurisdiction (binding precedent).

How do binding and persuasive precedents differ?

• Binding precedent – Must be followed by lower courts in the same hierarchy.

• Persuasive precedent – Can influence a court’s decision but is not mandatory.

What does the Constitution do?

The Australian Constitution establishes the framework for government, outlines the separation of powers, and defines federal and state responsibilities.

What are the three types of powers under the Constitution?

• Exclusive powers – Only the federal government (e.g., defence, immigration).

• Concurrent powers – Shared between state and federal (e.g., taxation).

• Residual powers – Left to states (e.g., education, health).

What role does the High Court play in interpreting the Constitution?

The High Court of Australia determines the meaning of constitutional provisions and resolves disputes between state and federal governments.

What are some legal protections for human rights in Australia?

• The Constitution (limited rights like trial by jury).

• Legislation (e.g., Racial Discrimination Act 1975).

• Common law (courts uphold rights in cases).

• International treaties (e.g., ICCPR).

How does international law impact human rights in Australia?

Australia signs treaties like the ICCPR and CEDAW, which influence domestic laws but must be implemented by legislation to have legal effect.

What is legislation in Australia?

In Australia, legislation refers to laws made by Parliament at the federal, state, and territory levels. It is also called statute law or Acts of Parliament and is distinct from common law, which is developed through court decisions (precedents).

What does "standard of proof" mean in legal proceedings?

The standard of proof refers to the level of certainty required for a court to reach a decision in a case.

What is the standard of proof in a criminal trial?

Beyond a reasonable doubt – The prosecution must prove that the accused is guilty to such a high level of certainty that there is no reasonable doubt.

What is the standard of proof in a civil trial?

On the balance of probabilities – The plaintiff must prove that their version of events is more likely than not to be true (i.e., more than 50% likelihood).

Why must criminal cases be proven "beyond a reasonable doubt"?

Because the consequences (e.g., imprisonment) are more severe, the justice system requires a higher level of certainty before convicting someone.

How does the adversarial system work?

• Used in Australia, UK, and the USA.

• Two opposing parties present their case before an impartial judge.

• The judge ensures fairness but does not actively investigate.

• The burden of proof is on the prosecution (criminal cases) or plaintiff (civil cases).

How does the inquisitorial system differ from the adversarial system?

• Used in France, Germany, and other European countries.

• Judges play an active role in investigating and gathering evidence.

• Less reliance on lawyers and more emphasis on finding the truth.

• No formal opposition between parties.

How do the adversarial and inquisitorial systems differ?

Feature	Adversarial System	Inquisitorial System
Role of Judge	Neutral referee	Active investigator
Role of Lawyers	Present cases & evidence	Less central role
Investigation	Done by parties	Conducted by judge
Truth-Finding Method	Through debate & evidence	Through judicial inquiry
Countries Used	Australia, UK, USA	France, Germany

What are some strengths of the adversarial system?

✔ Ensures fairness by allowing both sides to present their case.
✔ Protects individual rights through procedural safeguards.
✔ Requires the prosecution/plaintiff to prove their case.

What are some weaknesses of the adversarial system?

❌ Can be expensive and time-consuming due to legal fees.
❌ Relies heavily on lawyers’ skills, which can create inequality.
❌ May focus more on winning than finding the truth.

What are some strengths of the inquisitorial system?

✔ More focus on truth-seeking rather than legal strategy.
✔ Less reliance on expensive lawyers, making it fairer.
✔ Faster and cheaper than the adversarial system.

What are some weaknesses of the inquisitorial system?

❌ Judges may have too much power, leading to bias.
❌ Less protection for the accused, as they may not have legal representation.
❌ Limited right to cross-examine witnesses.

What is the definition of customary law?

Customary law is a set of traditional laws and practices passed down through generations, often based on cultural, spiritual, and community values.

How is customary law applied in Australian Indigenous communities?

Indigenous Australians use customary law for dispute resolution, which may involve mediation, punishment, or reconciliation within the community.

What are some differences between Indigenous customary law and Western legal systems?

Feature	Indigenous Customary Law	Western Legal System
Source of Law	Oral traditions, Elders	Written statutes, courts
Enforcement	Community-based	Government, police
Punishment	Restorative (e.g., banishment, community service)	Deterrent (e.g., fines, prison)
Dispute Resolution	Mediation, community discussion	Court trials, legal arguments

What is the role of Elders in Indigenous customary law?

Elders act as decision-makers, mediators, and enforcers of customary laws, ensuring that traditions are respected and upheld.

Is Indigenous customary law legally recognized in Australia?

While not officially part of the Australian legal system, some courts consider Indigenous customs when sentencing Aboriginal or Torres Strait Islander people under the Sentencing Principles of the Criminal Code 1899 (Qld).

What are some issues with recognizing Indigenous customary law in Australia?

❌ Some customary punishments (e.g., spearing) conflict with human rights laws.
❌ Difficulties in balancing equality before the law with respect for cultural traditions.
❌ Not uniform – different Indigenous groups have different laws.

What aims does the criminal investigation process serve?

To gather evidence lawfully to determine whether an offense has been committed and to identify and prosecute the offender.

What rights do individuals have during a police search?

Individuals have the right to privacy, protection from unlawful searches, and, in many cases, the right to be informed of the reason for the search.

Why are warrants important in criminal investigations?

A warrant authorizes law enforcement to perform actions like searches or arrests, ensuring such actions are conducted lawfully and with judicial oversight.

What does the right to silence entail?

Individuals can refuse to answer questions from law enforcement to avoid self-incrimination, though there are exceptions.

What is the purpose of bail in the criminal justice system?

Bail allows a suspect to be released from custody, usually under conditions, while awaiting trial, balancing the presumption of innocence with community safety.

What responsibilities do police have during criminal investigations?

Police investigate crimes, gather evidence, interview witnesses and suspects, and enforce the law to maintain public order.

How is forensic evidence used in criminal investigations?

Scientific methods, like DNA analysis or fingerprinting, are used to collect and analyse physical evidence from crime scenes to identify or exonerate suspects.

What does the presumption of innocence mean in criminal law?

Every individual is considered innocent until proven guilty in a court of law.

What steps are involved in the criminal investigation process?

Key stages include reporting the crime, investigation, arrest or charging of a suspect, and gathering evidence for prosecution.

What functions does the DPP serve in the criminal justice system?

The DPP is responsible for prosecuting serious criminal offenses on behalf of the state. Their functions include:

• Assessing evidence to determine whether there is a reasonable prospect of conviction.

• Conducting prosecutions in higher courts.

• Providing legal advice to law enforcement agencies.

• Appealing sentences when necessary to ensure justice.

• Ensuring fair and impartial proceedings, upholding the public interest rather than individual or political interests.

What is the burden of proof and who holds it in criminal and civil cases?

• The burden of proof refers to the responsibility of proving the case.

• In criminal cases, the prosecution carries the burden of proving the accused’s guilt.

• In civil cases, the plaintiff carries the burden of proving their claim.

What is the onus of proof and how does it relate to legal proceedings?

• Onus of proof refers to who must prove a particular fact in court.

• It usually rests with the party bringing the claim (prosecution in criminal cases, plaintiff in civil cases).

• In some cases, the onus may shift, such as when the accused raises a legal defence (e.g., self-defence).

What is jurisdiction?

The authority of a court to hear and determine a legal matter, based on geographic area, subject matter, or the parties involved.

What is justice?

The principle of fairness and impartiality in the application of laws and the protection of rights, ensuring that legal outcomes are equitable and just for all parties.

What are equitable outcomes?

Legal remedies or decisions aimed at ensuring fairness and justice, particularly when the strict application of the law might result in an unfair or unjust outcome.

What is crime?

An act or the commission of an act that is forbidden or the omission of a duty that is commanded by a public law and which makes the offender liable to punishment by that law.

What are the powers?

• Residual Powers: Powers not explicitly granted to the Commonwealth by the Constitution, but left to the states.

• Concurrent Powers: Powers shared by both the Commonwealth and the states.

• Exclusive Powers: Powers only the Commonwealth can exercise, as specified in the Constitution.

What are summary offences?

Less serious criminal offences typically dealt with in a Magistrates' Court without the need for a jury trial, such as minor theft or traffic violations.

What are indictable offences?

Serious criminal offences, such as murder or robbery, that are tried in a higher court (e.g., District or Supreme Court) and often involve a jury.

What is actus reus?

The physical act or conduct that constitutes a criminal offence, such as theft, assault, or damage to property.

What is mens rea?

The mental state or intent required to commit a crime, meaning the offender must have had the intention or knowledge of committing the unlawful act.

What is alleged?

A term used to describe something that is claimed or asserted but not yet proven, typically referring to a crime or wrongdoing.

What is accused?

A person who is charged with committing a criminal offence and is facing trial or legal proceedings.

What is a witness?

A person who provides testimony in a court case, either as a witness to an event or as an expert in a specific field relevant to the case.

What is a suspect?

An individual believed to be involved in a crime but who has not yet been formally charged or arrested.

What is a victim?

An individual who suffers harm or injury as a result of a criminal act, such as a person who has been assaulted, robbed, or defrauded.

What is evidence?

Information presented in court to prove or disprove the facts of a case, which can include physical items, documents, or witness testimony.

What is an offender?

A person who has committed a criminal act and is subject to legal action or punishment.

What are warrants?

A legal document issued by a court authorizing law enforcement to carry out an act, such as searching a property or making an arrest.

What does arrest mean?

The act of law enforcement detaining an individual, typically under suspicion of committing a crime, and taking them into custody for legal proceedings.

What is a charge?

A formal accusation made against an individual, stating that they have committed a particular criminal offence and will face legal proceedings.

What are summons?

A legal document that orders an individual to appear in court to answer a legal charge or to testify as a witness.