Politics and Law Semester 1

Law

• Law is a system of rules created and enforced by a government or other authoritative body.

• The purpose of law is to regulate behavior and ensure justice and fairness in society.

• There are many different types of law, including criminal law, civil law, and international law.

• Legal systems vary by country and can be influenced by cultural, historical, and political factors.

• Lawyers are professionals who are trained in the law and provide legal advice and representation to clients.

• The study of law is a popular field of study at universities and law schools around the world.

Functions of Law

• To provide a structure for the creation, enforcement and alteration of the law in accordance with the wishes of society.

• To regulate and control the basic activities of humans within a society.

• To provide a clear statement of behaviours that are considered acceptable within our community.

• To provide a basis for the protection of people against behaviour that removes their social and economic freedoms.

• To encourage a culture of respect and observance of the law in order to prevent social anarchy.

• To provide a formal means of resolving disputes and conflicts between individuals and groups and institutions within society.

• To promote and represent the values and aspirations of a community.

Difference between rule and laws

• Rules regulate behaviour = some are practical and technical others reflect deeply held values.

• Laws are formal rules that are consciously determined by society.

characteristics of an effective law

1. It provides for appropriate sanction for people who break the law.

2. It complements other laws on related issues.

3. It can be enforced in a straight forward manner.

4. It is clear in its wording so that obligations are easily understood.

5. Respected and acknowledged by the community to be a binding statement of social behaviour.

6. It applies universally without any arbitrary discrimination against or as favour of particular social groups or individuals.

7. It has a degree of flexibility in its application to cover various situations that may arise in its enforcement.

values

• Values can be defined as beliefs or principles that guide behavior and decision-making.

• They are often shaped by cultural, social, and personal factors.

• Some common values include honesty, respect, responsibility, and compassion.

• Values can influence individual and group behavior, as well as societal norms and laws.

• They can also be a source of conflict when different values clash.

social values

relate to public lives and dictate how we interact with each other.
deal with interactions morality is personal and intrinsic.

moral values

based on what society considers to be right. (sex before marriage)
concerned with setting a standard to prevent misbehaviour whilst laws are concerned with punishing misbehaviour.

roles and functions of parliament

1. initiating, debating and approving changes to statue law

2. appointing and dismissing the executive and individual executive members

3. providing a forum for the debate of political issues

4. approving expenditure by the executive and scrutinising the detail of administration

legislative function

the passage of bills through Parliament to create Statue Law

1. Must allow for input from outside Parliament (proposals raised from members)

2. Be part of the mandate of a popularly-elected government or arise from widely debated issue

representative function

parliament should provide a voice for the interests and opinions of electors

1. Delegates - MP's should act as voice in Parliament of the views of electorate

2. Trustees - MP's are chosen due to electorate's trust in their political judgement

3. Partisans - Candidates are endorsed by parties, once elected it is their duty to support party policy

responsibility function

parliament should check the Executive government
- British-Westminster tradition; Collective and Individual Ministerial Responsibility

forum for debate

parliament provides opportunity for the expression of community views and raises awareness of political issues

law passed through parliament

Notice of motion and introduction → first reading → second reading → consideration in detail stage → third reading → transmission to the other house → royal assent and proclamation.

issues with the legislative process

• political parties are dominant player (most people don't know representatives)

• dominated by the executive who use tactics to force legislation through without debate.

• A large majority of bills come from the executive (private members bills are rarely successful)

• HOR doesn't have 'mirror representation' - less women or minority representatives

• Motions of no confidence/ censure motions raised by the opposition will always be affected in the HOR

statute law

a legally enforceable legislative Act that has passed all stages in parliament, has received Royal Assent and has been proclaimed.

common law

law that is based on previous judgements of the courts and provides a body of decisions for those areas of law not covered by the statue laws passed by parliaments.

differences between statute and common law : COMMON

• Made by the courts to declare the law in specific situations

• Courts are bound by legal process, legislation and binding precedents

• Courts decisions can be over-ridden by parliament or superior courts

• Courts are not subject to political pressure

• Courts decisions are found within law reports and it is often difficult to identify the ratio decidendi (a reason for deciding)

• Judges are appointed and do not depend upon popularity for continuation in office

• Courts make decisions after the event has occurred.

differences between statute and common law: STATUE

• Made by parliament

• Parliament enjoys supremacy in law-making

• The sovereignty of parliament is supreme

• Parliament is subject to political and public pressure

• It is only bound by constitution

• Declare the law for all situations where the problem arises

• Parliamentary laws are written precisely as Acts and proclaimed

• Parliament resolves conflict 'infuturo'= predict future causes of conflict.

similarities between statue and common law

• Both promulgated by recognised authorities and both binding

• Parliament and judges always consider the public opinion in making law

advantages of common law

• Requiring courts to follow precedent means all cases are treated similarly; fairness in legal system

• Legal advisors can provide reliable advice to clients by referring to precedents set in previous cases

• Ability of superior courts to create new precedents allows the law to adjust to changed circumstances

• Creates basis for unbiased decisions; based on legal expertise rather than opinion

disadvantages of common law

• Law tends to lag behind social and economic change because a judge is reluctant to stray from precedent

• Decisions are too dependent on the skills of lawyers and a poor judgement can result from a failure by council to raise important precedents to the case

• No two cases are exactly the same

• Expensive process relying on extensive research and argument by lawyers

• Decisions are retrospective as they deal with past actions in specific cases and thus do not provide clear direction in a rapidly changing society

advantages of statue law

• easily accessed by general public (but disadvantages because not many people actually know what is statute law)

• predictable

• very long scrutiny process

• can be repealed if changes in society require

• made by politicians; who arguably know what the public want best

disadvantages of statue law

• not made by judges; people who know the law best

• not as flexible as common law

• takes a long time to change; drawn out process

• can be dominated by political agenda of government

• can be rushed through as knee jerk reaction, e.g. Dangerous Dogs Act 2004

• issues relating to separation of powers

• little public knowledge of bills going through parliament

importance of court hierarchy

-allows for specialisation
-allows for appeals to higher courts
-helps ensure that judicial decisions are fair and consistent because the hierarchy allows 'precedents to flow down and appeals to flow up'

examples of precedent

Grant V Australian Knitting Mills (1936) \= underwear gave him dermatitis
Donoghue V Stevenson (1932) \= ginger beer with snail \= gastro
\= duty of care and set neighbour principle

need for statutory interpretation

Ambiguity: if words have more than one meaning words often take their meaning from context shades of meaning
-words can change over time
-draftsmen cannot for see everything
-statute can be hurried and not thought out fully

statutory interpretation

The determination of the meaning of an act of parliament by a call before they can apply to a specific case.

the literal rule

the role of the judge is to apply the law, not make it. The only difficulty is in deciding what parliament has said. The court will apply the statue according to its ordinary and natural meaning (as written)

example of the literal rule

Whiteley V Chappel (1868):
A person was charged under a section which made it an offence to impersonate 'any person entitled to vote.' Voted using a dead guy's name. Didn't get charged because a dead person is not entitled to vote.

the golden rule

In some cases, the judiciary will apply this rule. This gives effect to the clear words used by parliament, but will step short of arriving at an absurd decision. 'sensible interpretation approach'

example of the golden rule

R V Sigsworth (1935):
A son had murdered his mother. Mother had not made a will, but as per rules in administration of justice act 1935, her next of kin (her son) would inherit. No ambiguity in the wording of the Act, but the court refused to let a murderer benefit from his crime. Held that literal rule should not apply and the golden rule was used to prevent a repugnant situation.

the mischief rule

the literal and golden rule determine what parliament said. This rule is applied to what parliament meant. It essentially asks the question\= by creating an Act of Parliament what was the 'mischief' that the previous law did not cover

example of the mischief rule

Smith V Hughes (1960):
Prostitutes charged with soliciting on the streets contrary to the Street Offences Act 1958. Defence made that they were inside a building and tapping on a window to attract men (thus not on the street) Despite such, the court applied the Mischief rule and found them guilty because the SOA Act 1958 was designed to prevent prostitution.

precedent

Earlier event or action that as an example to be considered subsequent, similar circumstances

two principles of common law

• stare decisis - 'to stand for what has been decided' - upholding of precedent

• ratio decidendi - 'reason for deciding' - legal reasoning for a case

all judgements have

• ratio decidendi - 'reason for deciding' - legal reasoning for a case

• obiter dicta - 'sayings by the way' - comment on precedent to clarify judgement

key principles of precedent

1. precedents are exclusively set by higher courts

2. all lower courts are bound by the decisions of higher courts in the same hierarchy

3. decisions by courts at the same level are not binding

4. decisions of courts provide the legal principles upon which precedent are created

reversing the decision

the action of a higher court in overturning the decision of a lower court and substituting a correct ratio decidendi where a lower court applied an incorrect ratio to a case.

overruling

when a higher court decision in a similar but subsequent case departs from a lower court judgement on the basis that the lower court wrongly decided the original case

disapproving

this occurs when a court when a court decides a precedent or previous decision set by a court at the same level is wrong in law

distinguishing

when a court departs from established precedent because it decides that the case before it is substantially different from the facts of an earlier case.

legalism

Legalist decisions apply 'the black letter of the law' set out in legislation/precedent.

argue for legalism

• Separation of powers means parliament makes law and courts merely apply law

• Decisions of judges should be based on pre-existing legal norms

• Judges should be guided by 'judicial restraint' and take no regards in decisions to try and change society.

activism

Activist decisions interpret statues so they are consistent with the legal values of contemporary society.

argue for activisim

• Courts can't avoid making law

• Creativity in the judgements of superior courts is inevitable because now legal situations arise

• Legislation can be ambiguous, rushed

• Parliament can legislate to overturn judicial decisions anyway = what's the harm.

four ways of avoiding precedent

reversing the decision, overruling, disapproving, distinguishing

example of avoiding precedent

MABO Case

1992, Eddie Mabo challenged Australian declaration Terra nullius, for right of ownership of land that belonged to his Indigenous Australian families. The courts were in favour of Eddie Mabo, and native ownership of land should be recognised.

significance of Mabo Case

The case was seen as a 'turning point' for the recognition of Indigenous people and their connection with the land. It also led to the passing of the Native Title Act in 1993.

• Showed that parliaments and courts can work together.

• Emphasises judicial activism.

federation

Federation is the creation of a nation by uniting previously separated colonies/states, each of which retains some powers of self-government but also cedes some to the national government. Australia federated on January 1st 1901.

Arguments for Federation: Free Trade

Traffis restricted trade and movement between the colonies. Free trade increased the cost of goods and made it hard for manufactures outside a colony to compete with local producers. Trade restrictions made the colonies want to federate to decrease the costs of goods across the nation.

Arguments for Federation: Defence

people feared that separate colonies in Australia could be vulnerable to attack as countries had larger population and greater military might then all the colonies if they stayed separated.

Arguments for Federation: Immigration

Australians were concerned that 'cheap' non-white labour would compete with colonists for jobs, leading to lower wages and a reduced standard of living. It was felt a national government would be in a better position than the colonies to restrict and control immigration.

Arguments against Federation:
Physical Distance

the great physical distance between the colonial capitals meant economic development and communication was regionally centred, with links between colonies developing more slowly.

Arguments against Federation:
Rivals

conflict between the larger and smaller states was a nation-wide reason not to federate. The smaller colonies were worried they would be over looked by the larger states as they were deemed more important because of their larger population. (Tasmania and WA)

Arguments against Federation:
Resources

traffic provided the colonial governments with much revenue so the colonies did not want to join as to lose the money they were making.

Process of Federation

The process of federation lasted 20 years and was first introduced by Henry Parks (premier of NSW) in 1881. By 1890 the colonies greed it was a good idea to federate. It took almost seven constitutional conventions, 2 separate referendums and 2 bills to be passed before Australia finally federated on January 1st 1901.

Constitution

a basic set of laws by which a nation is governed. It may include things such as principles, powers and processes of a political system. It can be written or unwritten

shift of powers: referendums

national vote that results in federal government receiving more power. People are reluctant to hand power over. They have agreed to only 8/44 constitutional referendums.
1967 referendum: Citizenship referendum
- The Commonwealth Games the power to legislate in relation to aborigines\= Give aboriginal people the same rights as white Australians

shift of powers: referral of powers

State government hands over area of authority two on unchallenged legislation. Federal government makes a law that intrudes in states authority\= Nothing states can do about it
1974: Railways in Tasmania and South Australia
- The Commonwealth took over the operation of railways in Tasmania and south Australia

shift of powers: commonwealth financial power

commonwealth controls customs/excise duties (exclusive). Controls overseeing overseas borrowing. Vertical fiscal imbalance (VFI) \= allocation to revenue between federal and state governments don't match.
Section 96: Grants
- Under section 96 of the Constitution the Commonwealth cannot determine the 'terms and conditions' of the grants its make to the state. This provides the commonwealth with a means of influencing state government policies and thus to 'intrude' on areas of state powers.

shift of powers: judicial interpretation

high court can determine the constitutional validity of state and commonwealth. Phase 1: Until 1920

• majority of decisions were in favour of states after federation Phase 2: After 1920

• decisions went in favour of the commonwealth

federalism

Federalism is a system of government in which the powers and responsibilities of government are divided between a national government and two or more states original governments.

exclusive

stated directly or indirectly in the constitution. Shared with the states but with commonwealth law overriding.
Section 52: Direct Powers
- administration of a capital city and commonwealth properties and to run the commonwealth public service.

concurrent

power which are shared by the commonwealth and states, however where these laws conflict commonwealth law will prevail (section. 109) Section 51: 39 subsections concurrent powers include:

• foreign trade and commence

• taxation

• marriage

• corporations

residual

constitution outlined that the states existing legislation and executive roles could be maintained, except in those specifically granted to the commonwealth (s106-108)

• civil law

• criminal law

• education

• health and hospitals

• public services

westminister influence

got the unity government in England. Is responsible Parliamentary government (accountability the executive sit in the legislation)

• Bicarmel Parliament: two houses

• Constitutional monarchy

• Cabinet government

• Conventions

• Government formed in the lower house

canada influence

combining American federalism with British Westminster of government. (Westminster mutation)
- State government had taxing powers.

USA influence

• used their separation of powers.

• Constitutional courts = interpret the Constitution

• Strong Senate- Equal number of senators from each state in regardless of the population= ensured that states retained power and was important for getting people to federate.

• Federal structure/federalism = division of power between state and central government

Switzerland influence

• Constitutional amendments = referendums

• Double majority requirement = majority of states/majority of population must agree.

• Idea that to make changes the people of the country must be consulted

sepration of powers

Consecrated by Baron D Montesquier. To prevent arbitrary and oppressive government\= political power is divided into three individual functions. Virtue feature and limited government.

legislation

makes and amends the law
- made up of the Queen, the Senates and the House of Representatives

executive

puts the law into action
- made up of the Queen, Prime Minister and Ministers

judicial

makes judgements about the law
- made up of the High Court and other federal courts

democracy

A political and legal system that is based on the principles of individual freedom and equality and the value of the people.

liberal democracy

a view that the ideal political system should combined majoritarian democracy (rule by the people) with the protection of the political, legal and social rights of individuals and minority groups.

4 elements: justice

justice is achieved when citizens live in an environment in which all citizens and treated equally. This may occur in a representative democracy that is tempted by constitutionalism, free elections and restraints on power. Society is encouraging of talent and awards citizens on America rather than on rank, privilege and status

4 elements: power

you in a liberal democracy, efforts are made to define and limit power, often by means of a written constitution. Separation of powers, senior government and judicial powers are instituted and conventions of behaviour and a legal system that compliments the political system.

4 elements: freedom

freedom in a liberal democracy is when individuals have the autonomy to do what the law does not forbid you while having respect for political and civil liberties such as freedom of speech. It is self-determination such that citizens may make their own decisions and take responsibility for them.

4 elements: legitimacy

a legitimate government is one that has the appropriate mandate/authority to rule. This usually means a high degree of popular support as demonstrated by free electorate and frequent elections. Rules are forms to maximise the well-being of almost citizens.

left wing

reformist political ideology emphasising broad popular involvement in decision-making and support of government intervention. This is sorry to create greater equality and achieve social progress. (gun control, marriage equality, favour abortion)

right wing

political views and generally opposed to/cautious about social change. Morally and socially conservative believing society should preserve all restore traditional institutions. They value orders, concession and patriotism. (gun violence, against abortion and gay marriage.)

communism

economic and social organisation in which all resources are collectively owned by a claim-less society. They come in a society is structured upon the common ownership of the means of production and the absence of social class, money and the state.

fascism

a form of government where there is one Party dictatorship that is against democracy.

socialism

a political and economic theory of social organisation which advocates about the means of production, distribution and exchange should be owned or regulated by the community as a whole.

liberalism

political social facility advocating the freedom of the individual, parliamentary systems of government to ensure governmental guaranties of individual rights and civil liberties.

moderate democratic

the modern view of a conservative Democrat with a moderate or Conservative foreign policy and social liberties.

rule of law

The principle that all individuals are equal before the law. It asserts that was nothing based on consents, involved consistency and except produces, and applied to all the actions of government as well as the actions of individuals. The idea of the little of law rejects arbitrary and absolute power.

four essential feature of rule of law

1. the law applies to everyone in matter this status or the amount of power they have

2. there must be an effective way of government and officials accountable

3. citizens are equal before the law

4. the law must be clear and understandable so people can easily comply with it.

magna carta

An agreement between King John of England and Byron/English Church in the 1215 that was the beginning of the restricting the power of the monarchy by law. It introduced the principle that everyone (even the king) was subject to the law. It contains 63 classes, three of which are still a part of English law.

representative democracy

in a representative democracy, representatives are collected by the people and interested to carry out the business of governments.

constitutional democracy

in a constitutional democracy, a constitution outlines who will represent the people and how.

key principles: rule of law

since all Australian people are equally required to uphold the law and are subject to legal and judicial processes, it makes this a key principle of the Australian democracy.

key principles: separation of powers

since power it is distributed between the ministries, the court and the parliament are to define, discrete and distinguish rollers and functions to ensure a monopoly power is avoided.

key principles: parliamentary sovereignty

the government is required to seek the approval of the parliament from many decisions including to create new or to amend existing more.

key principles: minister responsibility

minister is expected to accept full responsibility for decisions made by his or her department.

key principles: responsible governement

the government is in travel to the parliament fight actions of those of its departments - as administered by the public service.

core features: Australian constitution

provides the basic rules for the operation of the nation laid out under the three separate powers: legislative executive and judiciary.

core features: federation

Australia is a federation whereby power and authority to share between federal and state parliament, governments and courts.

core features: composition of the federal parliament

assistant designed to elect and support sufficient government.