legal topic politics and law

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Roles of a court system

Main Roles:

• Judicial review (Ensure executive and legislature don’t act beyond the power given to them in the constitution)

• Criminal and civil cases

Secondary roles:

• Law making role (through statutory interpretation and common law precedent)

• Court of disputed returns (challenging election results in the high court)

How does the high court remain independent?

• Fixed salary (s72(iii)) and can’t be removed by the executive (s72(ii))

What is law?

The law is rules of conduct enforceable by the court (In comparison to informal rules which are not). The law controls all matters of human activity, and is the most powerful social controller and regulator that exists

What are the functions of laws?

• Promote and represent the values of the community

• Provide a structure for the creation, enforcement and alteration of the law

• Regulate and control the basic activities of humans within a society

• Provide a clear statement of behaviors which are considered acceptable

• Provide a basis for the protection of people against behaviour which removes their social and economic freedoms

Difference between rules and laws

• Enforceability (Laws are enforceable by the courts and have a legal consequence, while rules do not have legal consequences and don’t involve a court)

• Universality (The law applies to everyone and no one is above the law, while rules apply to a specified category of people)

• Legitimacy (Laws have the consent of the people)

Purpose of public law

Laws which apply to the conduct of the whole of society and exist to protect and regulate key areas of social interaction for all members of the public (eg constitutional law, criminal law)

Purpose of private law

Law which regulate the conduct of individuals with other individuals (including companies) and do not involve the police (eg contract law)

Characteristics of effective laws

• Respected and acknowledged by the community

• Applies universally without any arbitrary discrimination

• Has a degree of flexibility in its application to cover various situations which may arise

• Complements other laws on related issues

• Clear in its wording and can be enforced in a straightforward manner

Categorizations of law based on jurisdiction

• International law

• Commonwealth/federal law (Parliament in Canberra)

• State law (Parliament of Western Australia)

Categorization of laws based on source

• Constitutional law (created by referendum (direct democracy), greatest legitimacy and overrules all other law)

• Statutory law (Created by legislature, overrules common law)

• Common law (Created by courts when new precedents are created)

What is delegated legislation?

Laws made by an executive body using law making powers granted to them by an act of parliament (closely monitored through the senate regulations and ordinances committee). Contemporary example is the Online safety amendment (Social media minimum age) act 2024 which gives the executive the power to add social media companies to the list which the age limit applies to

Characteristics of good laws

Legitimacy:

• People should follow law by consent, not coercion

• Statutes are made by elected representatives, with debate allowing for transparency and detailed examination of a proposed law

• Bills are often only passed if they are proposed by the government (as the government almost always controls the lower house) and minority views are unlikely to be reflected

Universal

• Laws apply evenly to everyone and are non discriminatory

Clarity

• Laws are written in ‘plain English’ so the average person can understand

• Laws which are not easily understood cannot be followed or effectively implemented

Prospective, not retrospective (Doesn’t apply to actions which occured prior to the law’s existence)

Enforceable in court

Flexible to keep pace with changes in society, including attitudes (eg Marriage Act changed to include gay marriage in 2017)

Appropriate remedies in civil cases

Overview of legislative process

• Initiation (Formality where the bill and MP is listed on notice paper)

• First reading (Minister announces the title and explains it)

• Second reading (Minister gives a speech outlining the bill’s intent, parliament debates, asks questions etc (Very important for scrutiny))

• Committee/Consideration in detail (Bill is referred to a committee (Including opposition members, other MPs not just gov) who go through in more detail and ask minister Qs)

• Third reading (Put to a vote in house it was introduced in)

• Presentation to other house (repeat same steps in other house)

  • Senate allows for the highest amount of scrutiny as gov typically doesn’t hold a majority so must persuade other senators to vote for a bill

• Royal assent (Formality where the GG signs the bill)

What is a common law system

Legal system based on the doctrine of precedent - decisions are based on precedent set by past decisions in similar cases (UK, US, Aus)

What is a civil law system

Legal system in which the whole body of law is written in one document/code (France)

Benefits of common law

• More fair as everyone is subject to the same law

• More consistent as judges are guided by the same standards, not making radically different decisions

Origins of common law

English legal tradition, originating to provide uniform decisions by selecting the best regional traditions

Doctrine of precedent

Refers to the concept that judgements of courts are based on precedents set by previous judges faced with similar facts

Stare decisis

To stand on what has been decided - the decisions of higher courts are binding on lower courts

Ratio decidendi

The part of a legal report which lists the key reasons for a judge’s decision, the most important part of the report. Binding precedent for courts lower in the same hierarchy, and persuasive precedent for other courts (same level, higher up, different hierarchies)

Obiter dicta

‘Sayings by the way’ - all other components of the legal report, such as comments on other cases. Not binding but may act as persuasive precedent

How can precedent be avoided/changed

Overruling, disapproving, distinguishing or reversing a decision

Overruling a decision

A superior court may reconsider a lower court’s case and substitute in it’s own ratio decidendi if it disagrees with the lower court

Disapproving a decision

A court may choose not to follow precedent set by another court on the same level in a hierarchy

Distinguishing a decision

A court may decide the facts of the case before it are sufficiently different from any past cases, meaning it will be distinguished from past precedents

Reversing a decision

If a higher court finds that the law has been misapplied, it may reverse the decision of the lower court and substitute in a correct ratio decidendi. This is different from the other ways of avoiding/changing precedent, as it focuses on the law being misapplied.

Benefits of a court hierarchy

• Helps to ensure that judicial decisions are fair, consistent and predictable

• Allows precedents to flow down

• Allows appeals to flow up

Briefly outline the WA court hierarchy

• Magistrates court deals with minor offences and civil claims with lower amounts of money

• District court deals with more serious crimes and civil claims with more money

• The supreme court deals with very serious and/or violent crimes and civil cases with large amounts of money

Grounds for appeal

• Appeals must be based on matters of the law, not fact

• Higher courts will overturn decisions if they find that the legal process was flawed or the law was incorrectly applied

• NO RIGHT TO APPEAL

Define statutory interpretation

The process by which judges interpret the words or phrases in statute in order to give the words meaning

When is statutory interpretation needed

When a case is brought before a court in which there is a dispute about whether the words