Legal Studies Unit 1 Outcome 1 Legal Foundations (not fully edited)

2.1 Laws and the Australian legal system

Introduction to Laws

• Laws: Legal rules made by a legal authority (e.g., parliament or courts) that are enforceable by police and other agencies

• Are generally made by parliament, laws made by parliament are often referred to as legislation, statutes or acts of parliament

• Apply to everyone in society

• Laws are enforceable by courts

• If a law is broken, the individual may receive a penalty (sanction)

• Sanction: A penalty ( e.g a fine or prison sentence) imposed by a court on a person guilty of a criminal offence

• Laws made by parliaments are often called legislation, statutes or acts of parliament

• Act of Parliament: A law made by parliament; a bill has passed through parliament and received royal assent (also known as a statute)

• Statute law: law made by parliament

Legal and Non-Legal rules

• Legal rules:  rules made by a legal authority (e.g., parliament or courts) that are enforceable by police and other agencies

• Non-Legal Rules: Rules made by private individuals or groups (like parents or schools) that are not enforceable by courts (e.g school rules)

• Differences

- legal rules apply to everyone

- non-legal rules apply to only certain people

- legal rules are made by legal authority

- non-legal rules can be made by anyone

- legal rules are enforced by legal bodies (e.g police)

- non-legal rules can be enforceable but not by courts

• Similarities

- they both regulate behavior and set expectations

- both are enforceable

• The Australian Constitution

• Australian Constitution: a set of rules and principles that guide the way Australia is governed

• A constitution is a legal document that outlines the basic rules of government and law making powers

• Federation: the union of sovereign states that gave up some of their powers to central authority to form Australia

2.2 Parliaments and Courts

Parliaments

• Parliament: is a formal assembly made up of representatives of the people who are elected by the people, and who gather to make laws

• The nine parliaments in Australia are:

• one Commonwealth Parliament (the parliament of Australia, also known as the Federal Parliament)

• six state parliaments (in NSW, VIC, QLD, WA, SA and TAS)

• two territory parliaments (in the Australian Capital Territory and the Northern Territory)

• Structure of Parliaments

Parliaments Consist of:

• The King-who is head of the parliament but is represented by the Governor General (the King’s representative at the Commonwealth level) in the Commonwealth Parliament and by a Governor (the King’s representative at the state level)

• Two houses (upper house and lower house)

Houses

• if a parliament has two houses, this means  that it is a bicameral parliament (a parliament with two houses)

• Political parties: an organisation that represents a group of people with shared values and ideas (aim to have its members elected to parliament

• Independents: individuals who stand as candidates in an election or are elected but do not belong to a political party

Courts

• Court hierarchy: the ranking of courts from lowest to highest according to the seriousness and complexity of the matters they deal with

• Federal courts generally deal with issues that arise under federal law

• State courts generally deal with issues that arise under state law

2.3 The rule of law

• The rule of law: the principle that everyone in society is bound by law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

3.1 Social Cohesion and Rights

• Social cohesion: the willingness of members of a society to cooperate with each other in order to survive and prosper

• The five core areas of social cohesion:

- a  sense of belonging

- a sense of worth

- social justice and equity

- political participation

- acceptance (or rejection)

The role of laws

• Laws provide guidelines on what behaviour is acceptable and what is unacceptable

• They set expectations about the way individuals should behave

• Rule of law: the principle that everyone in society is bound by law must obey the law, and that laws should be fair and clear, so people are willing and able to obey them

The role of individuals

• It is the responsibility of individuals to ensure that they are aware of laws and abide by them

The role of the legal system

• The legal system is a set of methods and institutions that make, administer (implements) and enforce laws

• They aim to deal fairly and justly with individuals who have broken the law or breaches someone else’s rights

3.2 The principles of Justice

The three principles of of Justice are:

• Fairness

• Equality

• Access

Fairness

• Fairness: means all people can participate in the justice system and its processes should be impartial and open

• The ‘human rights charter’ is to protect and promote human rights

• The three main features of fairness:

- impartial processes

- open processes

- participation

- Impartial processes

• all the personnel involved in the legal system (including judges, magistrates, jury members and court personal)  must be impartial and independent

•  they should not show bias towards or against any party, and the case must be decided based on facts and law, and not on what a person thinks about any party in a case

- Open processes

• It ensures transparency in processes, and it allows those processes to be scrutinised by the community and reported in the media

- Participation

• All people should be able to participate in a case

• Some ways participants can achieve this:

- the person defending the case may have an opportunity to know the facts that are being raised against them

- the person defending the case must have time and facilities to  prepare a defence and should have the opportunity to present their defence

- people should have the opportunity to engage with a lawyer

- people should be able to use an interpreter if they cant understand or communicate in English

- the case should be heard in a timely manner without unreasonable delay

Equality

• Equality: means people should be treated the same way, but if the same treatment causes a disparity or disadvantage, adequate measures should be implemented to engage with the justice system without disadvantage

• This means that all people should be treated the same regardless of their characteristics such as race, sexuality, gender or religion

• Some ways to allow equal treatment is:

- a person who does not have a lawyer may need more assistance

- a person who can speak or communicate in english may need an interpreter

- some people may need to be communicated in a different way (these people can be children, elderly etc)

- some people with disabilities may need more breaks

-there may be a change in courts for people like the First Nations People

Access

• Access: means that all people should be able to engage with the justice system and the processes on an informed basis

3.3 Characteristics of an Effective Law (CREKS)

• There are 5 characteristics for a law to be effective

Laws must reflect society’s values

• If a law is in line with society’s current values, then members of society or more likely to follow the law rather than disregard it

• This means that laws need to change when society’s values change

Laws must be enforceable

• If someone breaks the law, it must be possible to catch and punish them, or sue them

• If not possible, people may be less inclined to follow the law

Law must be known

• The public must know about the law

• If people don't know about the law, they cannot follow it

• It is the responsibility of individuals to make themselves known about the law

Laws must be clear and understood

• A law should be written in a way that people can understand it

Laws must be stable

• If a law is constantly changing, people may be uncertain as what the law actually is, and it therefore may not be effective as a law that has remained constant for a period of time

3.4 Parliament

• Parliament: is a formal assembly made up of representatives of the people who are elected by the people, and who gather to make laws

• Laws made by parliament are known as a statute law

• Statute law: law made by parliament

Commonwealth Parliament

• Is a bicameral parliament

• Bicameral parliament: a parliament with two houses

• The commonwealth parliament consists of:

• House of Representatives

• Lower house

• Each state and territory in australia is divided into geographical areas known as electoral divisions

• Each division has approximately the same number of electors

• There a 151 electoral divisions therefore 151 members of House of Representatives

• There is a federal election every three years to vote for a House of Representative

• Voting is compulsory

• The main roles of the House of Representatives is to:

- form government

- represent the people in its roles

- introduce and pass proposed laws

- review any bills passed by the senate

• Senate

• Upper house

• Consists of 76 elected members

• Each six states are represented by 12 senators

• Northern territory and Australian Capital Territory are represented by 2 senators each

• The main roles of the Senate are to:

- review bills that have been passed by the house of representatives

-ensure equal representation of the states in the senate

- introduce and pass bills

Victorian Parliament

• Legislative Assembly

• The lower house of the victorian parliament

• Victoria is divided into 88 electoral districts

• Each member of the legislative assembly hold their seat in parliament for a fixed term of four years

• The main roles of the legislative assembly are to:

- form government

- represent the people in its roles

-  introduce and pass bills

- review any bills passed by the legislative council

•  Legislative council

• The upper house of the victorian parliament

• the state of Victoria is divided into eight regions, each consisting of 11 districts

•  5 members are elected from each region, therefore there are 40 members of the legislative council

• members of the legislative council hold their seats for four years

• The main roles of the legislative council are to:

- review bills  that have been introduced in and passed by the legislative assembly

- introduce and pass bills

Government and Opposition

• Government: the ruling authority with power to govern, formed by the political party that holds majority in the lower house in each parliament

• Opposition: the political party that holds the second largest number of seats. The opposition questions the government about policy matters

• Once government is formed, the prime minister and premier of victoria choose senior members of their party who have been elected to parliament who are referred to as ministers

• Minister: a member of parliament who is a member of the party in government and who is in charge of a particular area of government (e.g education)

• The senior group members are known as the cabinet

• Cabinet: the group of senior ministers in a government made up of the prime minister and senior government ministers

• Statute law

• Statute law: law made by parliament

• Supremacy of parliament: the concept that the final law-making power rests with parliament

• This means that parliaments are able to override laws made by other bodies, including courts, and that the final lawmaking power rests with parliament

RODD

• Reversing: same case  on appeal, judge reverses the precedent

• Overruling: different case trying to use an established precedent, higher court rejects the precedent and sets a new one

• Distinguish: judges decide the facts of the case are different and therefore they don't need to follow the precedent

• Disapprove: judge has to follow the precedent set in higher court but doesn't want to, it obiter dictum the judge will make it clear that the parliament should look at cancelling the common law

3.5 Courts

• The court system provides a means of resolving disputes and enforcing the law peacefully and without resorting to violence

The Victorian Court Hierarchy

                                                                                                        - The main victorian courts are:

• There are also two specialist courts in Victoria:

-  the Coroners court (which investigates suspicious deaths and fires)

- the Children's court

•  the victorian courts are ranked in a court hierarchy

•  Court hierarchy: the ranking of courts from lowest to highest according to the seriousness and complexity of the matters they deal with

• Each of the courts have its own jurisdiction

• Jurisdiction: the lawful authority of a court tribunal or other dispute resolution body to decide legal cases

• Reasons for a court hierarchy

- allows specialisation and expertise

- enables parties to a court case to lodge an appeal with a higher court if they are not satisfied with a lower court’s decision

- allows for administrative convenience

- a necessary part of the doctrine of precedent

Role of the Courts

• Primary role is to resolve cases

• Secondary role is to make law as part of their determination of cases

• Courts made by law are also known as common law

• Common Law: laws made by judges through decisions made in cases

• A court can make law in two situations

- by interpreting the meaning of the words in a statute (an  Act of Parliament) when applying the statute to a case the court is hearing (also known as statutory interpretation)

- by deciding on a new issue that is brought before the court in a case where there is no legislation in the area

• Statutory Interpretation

• Statutory Interpretation: the process by which judges give meaning to the words or phrases in an Act of Parliament so it can be  applied to resolve a case before the court

• Studded belt case

• Precedent

• Precedent: a principle established in a legal case that should be followed by courts in later cases where the material facts are similar (precedents can either be binding or persuasive)

Binding Precedent

• Binding precedent: the legal reasoning for a decision of a higher court that must be followed by a lower court in the same jurisdiction in cases where the material facts are similar

• A precedent is considered to be binding when:

- the material facts of the precedent are similar

- the  precedent was set in a higher court

Persuasive Precedent

• Persuasive Precedent: the legal reasoning for a decision of a lower court within the same jurisdiction

• A precedent is considered to be persuasive when:

- where a court in another state or country set the precedent

- a lower court set the precedent, therefore the higher court does not have to follow it

- the same court set the precedent

Developing or Avoiding earlier precedents

Four main ways in which courts can develop or avoid earlier precedents:

• Distinguishing a previous precedent

• Overruling a previous precedent

• Reversing a previous precedent

• Disapproving a previous precedent

3.6 Relationship between parliament and the courts

There are four main features of the relationship between parliament and courts:

• Interpretation of statutes by courts (statutory interpretation)

• The codification of common law

• The abrogation of common law

• The ability of courts to influence parliaments

Statutory Interpretation

• Statutory Interpretation: the process by which judges give meaning to the words or phrases in an Act of Parliament so it can be  applied to resolve a case before the court

• Studded belt case

Codification of common law

• Codification: to collect all law on one topic together into a single statute

• Self defence

Abrogation of common law

• Abrogation: to abolish or cancel a law

• Public decency

Ability of courts to influence parliament

• Courts can influence changes in the laws made by parliament though the comments judges make during court case

• Roaming animals

3.7 Criminal law and civil law

• There are two types of law in australia to regulate behaviour, criminal law and civil law

Criminal law

• Criminal law: defines behaviours and conduct that are prohibited (e.g crimes) and outlines sanctions (e.g imprisonment) for people who commit them

• The main aim is to protect society and to sanction offenders who have committed a crime

• Crime: an act that is against an existing law

• Sanction: a penalty (e.g fine or imprisonment) imposed by a court

• Imprisonment: a sanction that involves removing the offender from society for a period of time and placing them in prison (most severe sanction)

• Offender: a  person who has been found guilty of a crime

Civil law

• Civil law: defines the rights and responsibilities of individuals, groups or organisations in society and regulates private disputes

• The two parties to a civil dispute are the plaintiff (the party who makes a claim) and the defendant (who the plaintiff alleges has infringed the plaintiffs rights)

• The aim of civil law is to regulate the conduct between parties to a dispute, and to remedy a wrong that has occurred

• Remedy: any order made by the court that is designed to address a civil wrong or breach

• The most common civil remedy is damages

• Damages: an amount of money

The distinction between criminal law and civil law

The main differences are:

• The aim of each area of law

• The consequences if a law is not followed

The relationship between  criminal law and civil law

• The same behavior can give rise to both a criminal case and civil dispute

• For example, a person who hits another person can receive a sanction for the crime of assault. They can also be sued by the defendant and have to pay damages

Extra: Separation of powers (LEJ)

• Legislative: parliament (to make law)

• Executive: prime minister and cabinet and governor general (to administer the law)

• Judiciary: courts (enforce or make judgments on law)

• Reasons why we have separation of powers: it reduces the possibility of corruption, and acts as a system of checks and balances

Additional Definitions:

• The presumption of innocence: the right of a person accused of a crime to be presumed as innocent unless proven otherwise (innocent until proven guilty)

• Civil dispute: a disagreement between two or more individuals (or groups) in which one of the individuals (or groups) make a legal claim against the other

• Bias: a lack of objectivity in relation to one person or group

• Apprehended bias: a fair  minded lay observer might reasonably believe that the person hearing or deciding the case (e.g judge) might not bring an impartial mind in the case

• Disparity:  two or more things or people are not equal, and the inequality causes unfairness

• Lawyer: someone who has been trained in the law and is qualified to give legal advice

• Election: where eligible people vote to choose a person to hold a position in a body or oraganisition (e.g a member of house of parliament)

• Political party: an organisation that represents a group of people with shared values and ideas

• Coalition: an alliance or joining together of two or more political parties, usually form government

• Bill: a proposed law that has been presented to parliament to become a law

• Royal Assent: the formal signing and approval of a bill by the governor (state) or governor general (commonwealth)

• Private members bill: a bill introduced into parliament by a member of parliament who is  not a government minister

• Appeal: an application to have a higher court review a ruling (decision)

• Doctrine of precedent: the rule that the reasons for the decision of higher courts are binding on courts ranked lower in the same hierarchy in cases where material facts are similar

• Ratio decidendi: ‘the reason’ the reasoning behind a  judge's decision

• Stare decisis: ‘let the decision stand’

Obiter Dictum: ‘by the way’ comments made by the judge in a particular case that may be persuasive in future cases