SACE Stage 2 Legal Studies Exam Revision

What are the two functions of law?

social cohesion, social progress

social cohesion

laws that protect and preserve societal values and human rights

social progress

laws that facilitate social cohesion through HEED; health priorities, education, environment protect, development

public law

relates to the rules that govern the operation of the government and the standards of behaviour everyone must conform to

private law

regulates the relationship between one legal entity and another

types of public law

international, constitutional, administrative, criminal

types of private law

contract law, torts (civil wrongs)

constitutional monarchy

a system of government where a British King or Queen is the hereditary Head of State who exercises power in accordance with the Constitution

rule of law

states that all people are equal before the law and that all government action will be undertaken in accordance with constitutional law

representative government

a model of democracy where citizens elect representatives to parliament to make laws on their behalf

responsible government

the executive government are directly accountable to parliament, therefore indirectly responsible to the people

division of powers

the allocation of legislative power between the commonwealth and states

commonwealth powers

exclusive: only power the commonwealth can exercise (defence)

concurrent: powers shared with the states in S51 (taxation)

state powers

residual: powers the states retained at Federation (health, education)

prohibited: powers the states/commonwealth cannot exercise on

separation of powers

legislature: makes law

executive: enforces and administers law

judiciary: settles disputes/interprets law

High Court

has judicial power in its original jurisdiction to interpret the meaning of the constitution

Functions of the constitution

- protect and preserve sovereignty

- commonwealth can't legislate on state powers, states can take commonwealth to courts

- ensures a functioning commonwealth

Section 61

Federal government assumed general executive power to sign and ratify international treaties

Three steps of entering a treaty

signing, ratifying, incorporating

signing

agreeing to the proposal

ratfying

agreeing to do something about it

incorporating

including the proposal into domestic legislation

incorporating a treaty into domestic legislation

legislative action, cooperative federalism, executive action

Section 128

referendum

referendum process

goes to vote within 2 months, a majority of 4/6 states, a majority across Australia

1967 referendum

commonwealth were permitted to make laws on Aboriginal People

Terra Nullius

Land belonging to no one

Native Title

The right of Indigenous people to their traditional lands

Mabo Case 1992

a landmark case which lead to the Racial Discrimination Act 1975 and the establishment of Native Title

Wik Case 1996

established that Native Title and other interest in land can co-exist

initiation of legislation

political parties, pressure groups, election promises, people power

political parties

policies political parties implement

pressure groups

pressure on the government to take action (Greenpeace)

election promises

promises from political parties

people power

people advocating generally through the media (A Current Affair)

introduction of public law

proposed and drafted by government for society - made to set acceptable standards of conduct to protect the community. Introduced by a Minister.

introduction of private law

initiated by a Member of Parliament who is not a Minister, addresses controversial social or moral issues

types of bills

ordinary, amending, repealing, consolidating, supply/money bills (S53)

Advantages of legislation

Government agencies, parliament hold sovereignty and autonomy, representative government (democracy), parliamentary privilege

Disadvantages of legislation

Minorities disenfranchised, time consuming and expensive, abuse of parliamentary privilege, conflicting laws between federal government and states

Sunset provisions

a clause inserted into a piece of legislation which requires a review after a specific date to see if it is still effective

on-the-voices

verbal vote

division

formal vote

political-party-lines

vote is influenced and based on party interest

conscience vote

based on personal opinion and values

deadlocks

occurs when the senate becomes hostile

resolving deadlocks

compromise, abandonment, double dissolution mechanism outlined in S57

Supervision of legislation

S53 bicameral scrutiny

sunset provisions

auditor general

statutory interpretation

delegated legislation

parliament delegates law-making power to the Executive in Enabling Acts

DL authorites

executive council, local councils, government department, statutory authorities, professional sporting bodies

Types of DL

regulations, by-laws, ordinances, rules, notices

reasons for DL

political considerations, administrative convenience, relieve workload of parliament, technical expertise, emergencies, de-centralised decision making

Process of DL

consultation, drafting, executive approval, proclamation

Consultation stage in DL

delegated authority consults with those that the regulation will impact

Drafting stage in DL

OPC drafts regulation in consultation with delegated authority

Executive approval stage in DL

Minister of cabinet approves draft regulation

Proclamation stage in DL

the regulation is proclaimed by the Queen's representative at Executive Council

Advantages of DL

parliamentary efficiency and accountability

efficiency and expertise

community participation

flexibility and adaptability

Disadvantages of DL

lack of community awareness and fragmentation

undemocratic law making

complexity of law and accessibility

Supervision of DL

responsible government: ministers held accountable

auditor general

statutory interpretation

Case law

judge made law

Ratio decidendi

means 'reason for deciding' and must be followed in the future

Obiter dictum

means 'remarks in passing' and is not binding

Stare decisis

the underlying principle upon which case law is founded, means 'to stand by decisions made'

Doctrine of precedent

judicial practice that puts stare decisis into practical application

original precedent

initial decision made by a court

binding precedent

a legal principle created in a superior court which must be followed in all lower courts in cases with a similar set of facts

persuasive precedent

can be used as a guide for other courts, but is not bound to be followed

literal rule

ordinary/plain meaning of the word

golden rule

applied if an absurd result is created

purposive rule

the intent of parliament when creating legislation

reasons for statutory interpretation

words and phrases can have multiple meanings

the intent of parliament is not always cleat

statutes are left vague/broad to allow Judges flexibility in coming to decisions

Departing from a precedent

RODD

Reversal

an appellate court declares the original court's legal principle as legally wrong and reverses them

Overruling

a later and separate case in a superior court declares a similar matter on the basis of a different legal principle (TWO disputes, TWO cases)

Distinguising

when a lower court finds a difference in the facts of the case and the precedent and therefore avoids the precedent

Disapproving

when an inferior courts follows a binding precedent but openly declares its opposition to it

Judicial pronouncement

where no statutory law exists and judges refer to past precedents to guide them

statutory interpretation

judges give meaning to words and phrases in statutes

Strengths of case law

stare decisis and doctrine of precedent: adheres to principles

judicial independence: made by independent and impartial judges

changing the law: judge creates new law if no statutory rule exists

accessible law: people are involved in making of case as they present their legal arguments

Weaknesses of case law

doctrine of precedent: judges are reluctant to depart from binding precedent as they are not sovereign law maker

judicial independence: made by appointed judges, in denial of democratic principles and judges not directly accountable

judicial review: expensive, inconvenient, time consuming

Alternative dispute resolution

settlement of civil disputes between parties without going to court

Types of ADR

self help

abandoning a claim

conceding a claim

consensus/mutual agreement

third party convention

(mediation, conciliation, arbitration)

Reasons for ADR

faster and cheaper

both parties have a chance to voice 'their side of the story'

flexible, party driven and less formal

confidential as not heard in an open court

Reasons for a court hierarchy

to ensure the doctrine of precedent is applicable

to allow higher courts to overrule or reverse decisions

different jurisdictions allow judges to become 'experts' in certain branches of law

flexibility and choice

Order of courts

High Court > Supreme Court > District Court > Magistrates Court

Features of adversary system

independent and impartial judge

parties in control of cases

rules of evidence

rules of procedure

judge or trial by jury

reliance on legal representation

individual rights

Strength of adversary system

judge is impartial and independent

hierarchy of courts

rights of appeal

precedent: brings consistency and fairness

decisions are binding

fundamental rights are protected

Weaknesses of adversary system

expensive

inequality of access to courts

time consuming

minority groups are disenfranchised

judges are not accountable for their comments

Role of juries

used for indictable criminal trials and only if desired by the accused

reach a verdict based on admissible evidence and legal principles explained by the judge

Jury selection

a two stage process (summoning and empanelling)

Verdicts

juries must determine a decision 'beyond reasonable doubt'

Unanimous verdict

12/12 jurors agree

Minority verdict

10/12 or 11/12 jurors agree

Hung trial

less than 10/12 jurors agree

Strengths of jury system

extension of democratic principles

judgement by one's peers

shared decision making

broad community respect

Weaknesses of jury system

not a true cross section of the community

unqualified jurors

non disclosure of reasons

inconvenience and cost

Reforms of jury system

broaden eligibility criteria

active role of jury at trial

alternative verdicts (charge not proven)

reasons for verdicts

Sentencing

the judge will consider the following:

age of prisoner

previous criminal history

degree of remorse

circumstances of the offence

effect on victim

Case citation

prosecution v defendant (criminal)

plaintiff v defendant (civil)

appellant v respondent (courts of appellate jurisdiction)