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Chapter 2

2.1

Laws

• AKA legal rules

  • Are made by legal authorities
  • I.e: parliament, courts, etc
  • Enforceable by police or enforcement agencies
  • Are generally made by parliament 
  • Formal assembly of representatives elected by people and make laws

• Help resolve conflicts that are often inevitable

• Anyone who breaks a law may receive penalties

  • Aka sanctions
  • Fines, or prison sentence

• Laws made by parliament are called legislations, statutes or Acts of Parliament

  • Acts of Parliaments are bills (law drafts) made by and passed through parliament, and received royal assent

• Non legal rules

  • Made by private individuals/groups
  • Are imposed on the members of a specific group
  • I.e: schools, clubs, etc
  • Are not enforceable by courts or law, but there may be other consequences

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Early Legal Systems

• Aboriginal and Torres Strait Islander peoples had their own system of law, rights, responsibilities and behaviour

• When the British first arrived, the Australian Commonwealth did not exist

  • There were only six separate British colonies with their own parliaments

• As colonies grew, a central parliament was needed to make consistent laws for the whole country

  • They began deciding on which laws the central parliament should make, and which laws the colonies should make
  • Central parliament controlled things like defence, currency, post, overseas, immigration and trade

• Each colony sent representatives to special meetings called constitutional conventions where they decided that a Commonwealth Parliament should be created

  • January 1 1901 became known as the Federation of Australia where the British parliament passed the Commonwealth of Australia Constitution Act 1900 (UK)
  • Was the union that meant that the sovereign states (‘federal’ states) gave up some of their powers to Australia’s central authority
  • Created Australia

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Australian Constitution

• Commonwealth of Australia Constitution Act 1900 (UK) is commonly known as the Australia Constitution

  • Set of rules and principles that determine how Australia is governed

• The constitution is a legal document that has basic rules of government and law making powers of an elected parliament

  • Aka legislature (legislative body, having the power to make laws)

• It established the Commonwealth Parliament and the High Court of Australia

• Established division of lawmaking powers 

  • I.e: which laws/power could be controlled by the states and the parliament

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2.2

Parliaments in Australia

• 9 parliaments in Australia

  • One commonwealth parliament  (federal parliament)
  • Six state parliaments (QLD, VIC, SA, WA, NSW, TAS)
  • Two territory parliaments (ACT, NT)

• Each parliament is a supreme law making body in its area, meaning it can make and change any laws within its law making power area, within restrictions

  • The constitution decides what law making areas belong to which level of government
  • E.g: defence and immigration can only be controlled by federal government, and education can be controlled by the states, and some areas like marriage, are shared between them

• Australia’s parliaments are all based on the Westminster System

  • Parliamentary system of government developed in Britain
  • Named after the location of the British parliament

• Various characteristics of the Westminster system were adopted in Australia, such as

  • The Queen
  • Head of parliament, but is represented by the Governor-General in Commonwealth parliament, and Governor in state parliaments
  • Two houses (upper and lower house)
  • All parliaments are a bicameral parliament, except for the territories and Queensland, which have one house
  • The names for these depend on the parliament, in Commonwealth parliament, the upper house is the Senate, and the lower house is the House of Representatives. In Victoria, the upper house is the Legislative Council and the lower house is the Legislative Assembly

• The house of parliament consists of elected members or representatives

  • Aka parliamentarians of members of parliament (MP)
  • Most parliamentarians belong to a political party
  • Organisation that represents a group of people with similar beliefs, values, and ideas of where the country’s future should lie
  • Parliamentarians who do not belong to a political party are known as independents
  • The main political parties of Australia are:
  • Australian Labor Party (Labor)
  • Liberal Party (Liberals)
  • National Party (Nationals)
  • Australian Greens Party (Greens)

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Commonwealth Parliament

• Consists of

  • Queen (or the Crown), represented by the Governor-General
  • Senate (upper house)
  • House of Representatives (lower house)

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House of Representatives

• Represent the people (population), introduce and pass bills (proposed laws), reviews bills passed by the Senate and ultimately make up the Australian Government

  • The party that has the most members in the lower house forms the government for the whole of Australia

• Each state is divided into divisions (areas) called electoral divisions

  • The voters in each division elect their representative, who becomes part of the House of Representatives
  • They are elected for up to 3 years
  • In 2021, there were 151 electoral divisions, and so 151 people in the House of Representatives

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Senate

• Represent the interests of the state and territories of Australia, introduce and pass bills, and review bills passed by the House of Representatives

• Consists of 72 senators

  • Each state have 12 senators that are elected up to 6 years and territories have two senators that are elected up to 3 years
  • A half senate election is held every 2 years, where half of the senators stand for election

• Senate is often called the house of review

  • Because most bills are introduced in the House of Representatives and so are reviewed by the Senate

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Victorian Parliament

• Consists of

  • Queen (represented by the Governor of Victoria)
  • Legislative Council (upper house)
  • Legislative Assembly (lower house)

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Legislative Assembly

• Mainly introduces and passes bills, and forms the Victorian Government

• May also review bills that are passed by the Legislative Council

  • The government consists of members of the political party that has the majority of the members in the legislative assembly (lower house)
  • E.g: if majority of the members in the lower house are Labor, then the government will only consist of members of the Labor party

• Each member of the Legislative Assembly represents one electoral district of Victoria, making a total of 99

  • Each member holds their seat for four years

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Legislative Council

• Introduce bills and review bills passed by the Legislative Assembly, which may be rejected or amended by the Legislative Council

  • Victoria is split into 8 regions, and 5 representatives are elected from each region which hold their seat for four years

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Government and Opposition

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• The leader chooses senior party members to be responsible for different areas of government

  • Senior party members are ministers or an MP who is a member of the party that is in government, and is in charge of a government department
  • Areas of government could include health, rodes and education
  • This senior group of members are called the Cabinet
  • Decide on policies
  • Decide on which bills or legislation should be presented to the parliament
  • Made up of the Prime Minister (or minister)

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Subordinate Authorities

• Although parliament is supreme lawmaker, it does not have the time to create the laws that are necessary to maintain social cohesion and order

  • Willingness of members of a society to cooperate and live together peacefully
  • Therefore, state and Commonwealth parliaments can delegate (allow to represent) their law making powers to subordinate authorities
  • Local councils, VicRoads, etc
  • This means subordinate authorities can make laws according to their field of knowledge, e.g: VicRoads can make minor laws on parking, driving and traffic, and local councils can make laws regarding pets and rubbish collection

• These laws are called secondary or delegated legislation 

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The Courts

• Role of courts is to resolve disputes and put people to justice

• Federal courts

  • High Court (highest court in Australia)
  • Federal Court
  • Family Court
  • Federal Circuit Court

• Victorian courts

  • Supreme Court
  • Country Court
  • Magistrates’ Court
  • Children's Court
  • Coroners Court

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2.3 

Rule of Law

• Principle that everyone in society is bound by and must obey the law
• Has 4 principles
  • Law must be clear, understood and enforceable
  • Law must uphold the right of ‘innocent until proven guilty/’
  • Hearing and trials must be heard by independent and neutral judges or adjudicators
  • Must be applied fairly and equally

Chapter 3

3.1

Social Cohesion

• Functioning society requires social cohesion

  • Willingness of members of society to cooperate
  • People are free to make choices in society, feel like they belong, not discriminated against, and are keen to cooperate with other members of society

• As number of benefits

  • Members are unified
  • Are provided with opportunities
  • Promote wellbeing

• To achieve social cohesion, rights of individuals must be protected, they are fundamental to a cohesive society

  • Such as freedom of speech and religion
  • Right to vote and silence

• Without them, individuals could be taken advantage of and have no justice

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Role of Laws

• Provide guidelines on behaviour that is acceptable and unacceptable

• Set expectations about how individuals should behave

• Conflicts are inevitable in society

  • Laws set our how disputes are solved, and any penalties imposed help prevent future conflict

• Fundamental to social cohesion

  • E.g: murder is illegal, if there were no law against murder, someone may believe that it is acceptable to kill someone
  • Establish framework as to how people should live, to make choices, and specify what you have to go

• Laws are applied to everyone regardless of their position or wealth

• Also protect the rights of individuals 

  • They establish individual rights and what happens if they are infringed
  • E.g: discrimination against age, race, religion, etc is illegal, and consequences can occur if someone breaks it

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Role of Individuals in Social Cohesion 

• Once laws are and rights are in place, it is an individual's responsibility to ensure they are aware of them and abide by them

• Individuals are expected to respect human rights

• Individuals help achieve social cohesion

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Role of the Legal System

• Legal system is are methods and institutions that makes, implement and enforces laws

  • Includes courts, tribunals (settling disputes) and enforcement bodies (police)
  • Role of them is to help settle disputes to prevent further conflict
  • Aims to deal justly with anyone who has broken the law or breached someone else’s right

• Applying the law and enforcing the law are the two main roles of the legal system

  • Help achieve social cohesion
  • E.g: if someone sells an item that does not work and refuses to refund the buyer, a dispute arrives that needs to be resolved by the legal system

• Without enforcing laws, there would be no consequences to any actions that broke the law

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3.2

Principles of Justice

• Definition of justice may vary

• Following principles should be applied instead of coming up with a single definition

  • Fairness
  • equality 
  • Access

• Used to determine if justice has been achieved

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Fairness 

• Defined as impartial treatments and behaviour without favouritism or discrimination

  • Definition may vary depending on perspectives and values

• All laws must be fair

  • Fair among people and fair among penalties
  • E.g: you shouldn't get imprisoned for wrong parking

• When disputes happen, there needs to be fair legal processes to deal with them

  • All parties need to have a fair hearing, and have an opportunity to present their case and rebut (challenge) the other’s case - right to a fair trial

• Right to a fair trial is also protected by courts

• Fairness is also applied to interaction with police 

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Equality

• Principle of justice

• State of being equal in statutes, rights and opportunities

  • No group being treated advantageously or disadvantageously
  • No suffering from discrimination

• Equality in the legal system means equal opportunity for everyone to present their case

  • Free from bias, prejudice and no person links to the parties

• Not necessary to need to treat them the same

  • Some need to be treated differently in order to be treated equally
  • Equity

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Access

• Principle of justice

  • Ability to approach or make use of something 
  • All people should be able to understand their rights and pursue their case and have access to legal information and advice

• People need access to the law to enforce their rights and seek compensation

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3.3

Characteristics of an Effective Law

• Reflect society’s values 

  • Laws need to change to reflect society’s changing values
  • Society will be more inclined to follow that law

• Enforceable

  • It must be possible to catch someone breaking that law
  • If it's easy to get away with, people will be less inclined to follow that law

• Must be known

  • The public must be aware of major lawes
  • any minor laws, individuals must make themselves aware of it
  • E.g: hunters making themselves aware to any new hunting laws
  • Often debated on TV, social media and news outlets before it is enforced

• Must be understood and clear

  • Written in a way that people can understand
  • Intent of the law must be clear
  • People will not follow it if it is unclear

• Must be in effect for a long time

  • If it changes often, people may not be aware of the changes 

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3.4

Stages of a Bill Through Parliament

• Introduced to first house

  • First reading
  • Usually introduced to lower house

• Second reading

  • Bill is debated on

• Committee stage

  • Bill is considered in detail with amendments made to it clause by clause

• Third reading

  • Voted on its final form

• Passes to second house (generally upper house)

  • Same procedure occurs

• If it passes, it receives royal assent from governor (state) or governor-general (federal)

• Act becomes a law after proclamation

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Law Classification

• Who made the law (referred to as source of the law)

  • Statute law
  • Common law

• Type of law

  • Criminal law
  • Civil law

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Statute Law

• Law made by parliament

  • Also called Acts of Parliament or legislation
  • Laws that have been passed by parliament

• Australia is based on supremacy of parliament

  • Means that the parliaments decides all laws and may override all other bodies of lawmaking and enforcement
  • Final law making power rests with parliament

• Private member’s bill

  • Individuals of parliament (not members of any political party that forms government) may introduce a bill
  • Generally do not pass because the government has the majority of votes in the lower houser, and so will likely vote against it

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Common Law

• Law created by judges in court

• Made in two situations

  • Interpreting meaning of words in a statute when applying it to a case
  • Called statutory interpretation
  • When deciding on an issue that has never been brought to court before, with no current legislation in that area
  • Or when a previous law requires to be ‘expanded’ to be applied to a new situation

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Statutory Interpretation

• If an unusual situation occurs in a case, then a judge may have to interpret words and phrases within a statute to reach a decision

• This interpretation then forms a part of the law that can be binding to other courts

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Precedent

• Principle/judgement established in a court case that is followed by any courts where the material facts are similar

  • Are classified as binding or persuasive

• Precedent is the reason given for the decision of a sanction or remedy

• The most important part for this judgement is the reason for it

  • Ratio decidendi

• Lower courts than the court that established the precedent must follow the ratio decidendi in similar cases

  • Stare decisis
  • Means to stand by what is said

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Binding Precedent

• Precedent that must be followed by courts that are lower than the court that established the precedent in the same court hierarchy 

• Considered binding when

  • The precedent was set in a higher court in the same court hierarchy as the court hearing the current case
  • Material facts of the precedent are similar to the facts of the current case

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Persuasive Precedent

• Precedent that does not have to be followed, and the court does not need to follow this precedent 

  • They can still choose to follow it as a way of persuasion

• A precedent is persuasive and not binding when

  • The current court is not ion the same court hierarchy as the court that set the precedent
  • When a lower court set the precedent
  • When the same court set the precedent

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Developing or Avoiding a Precedent

• Four main ways courts can develop or avoid earlier set precedents

  • Distinguishing a previous precedent
  • If material facts of a case is sufficiently different than that of the binding precedent’s case
  • Can  lead to a different decision being made
  • Overruling a previous precedent
  • A precedent may be overruled by a higher court
  • When it is overruled, it no longer applied
  • Reversing a previous precedent
  • When the same case as the precedent is taken to a higher court on appeal
  • The decision may then be reversed
  • Disapproving a previous precedent
  • A court that is bound by a precedent may express disapproval or disagreement
  • Does not change the precedent, but in a higher court on a later case, the higher court may choose to agree with the disapproving court and overrule it

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3.5

Relationship Between Parliament and the Courts

• Have a complementary relationship

• Main role of parliament is to make laws, main role of courts is to resolve disputes and enforce laws

  • Therefore parliament and courts need to work together to ensure laws are workable and enforceable

• Four main features of the relationship between parliaments and courts

  • Interpretation of statutes
  • Codification of common law
  • Abrogation of common law
  • Ability of courts to influence parliaments

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Statutory Interpretation

• For legislation to be effective, courts must apply statutes to the cases before them

  • Applying laws to the cases in order to reach a conclusion
  • sometimes  this requires to interpret the meanings of words in a statute or secondary legislation
  • Rules and regulations by secondary authorities, e.g: local governments and government departments
  • Decisions by courts about the meanings of certain words in statutes can become part of the law

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Codification of Common Law

• Codification of law

  • To collect all law on one topic altogether onto a single statute

• Because parliament is supreme law making body, it can make laws that confirm precedents

• To codify a precedent, the parliament passes an Act that reinforced a reasoning established by court

  • Known as codification of common law because it codifies common law and put into a statute

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Abrogation of Common Law

• Parliament can change or abrogate (cancel/abolish a court-made law by passing an Act) common law

  • The act will specifically abolish that specific that law principle

• Can occur for a number of reasons

  • A court’s interpretations of a statute’s meaning may differ from parliament’s intentions
  • May interpret the words in a way that does not reflect the intention or meaning of the act
  • May develop a precedent the parliament does not agree with

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Ability of Courts to Influence Parliament

• Courts may influence parliaments through the comment’s judges make during court cases

  • E.g indicating that they think a law should be changed

• May do this for a number of reasons

  • May be reluctant to change the laws themselves because they believe parliament is in a better position to
  • Parliament can also carry out investigations that court cannot

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3.6

Types of Law

• Two types of law 

  • Criminal
  • Civil

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Criminal Law

• Area of law that defines behaviours that are prohibited (crimes) and sanctions (penalties or sentencing)

• Protects the community

  • Establishing crimes
  • Act against the existing law, harmful to any individual or society and is punishable by law
  • Setting sanctions for people who commit crimes
  • A penalty (e.g: fine or prison sentence) imposed by court on someone guilty of a criminal offence

• Examples of crimes include murder, theft or assault

• A distinct feature of criminal law is the consequences of committing a crime 

  • If a crime is committed and someone is guilty of it, a sanction is imposed

• Two parties in criminal law

  • The state
  • Represented by the prosecution
  • Brings action against the person who is accused 
  • The accused
  • The one who is believed to have committed the crime

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Types of Crimes

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Civil Law

• Area of law that defines rights and responsibilities of individuals, groups and organisations in society

• Regulates private disputes, generally do not involve police

  • Unless the government is a party of the civil dispute

• Seeks to enforce rights where harm has occurred

• Main aim of civil law is to remedy (legally fix) a civil wrong by returning to the plaintiff

  • Done through remedies
  • Most common is money

• Multiple areas in civil law

  • Tort law
  • Negligence
  • Defamation
  • Trespass
  • Contract law
  • Laws involving contracts

• Two parties of a civil dispute are

  • Plaintiff
  • One who makes a claim
  • Defendant
  • Who the plaintiff alleges infringed the plaintiff’s right

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3.7

Distinction and Relationship between Criminal and Civil Law

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Relationship Between Criminal and Civil Law

• Sometimes one action can give rise to both a criminal and civil dispute

  • E.g: if someone hits another person, they may be arrested and sentenced for assault, but the plaintiff may also sue them for damages in civil court
  • Called a compensation order (when you pay money as compensation to the victim)

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3.8

Victorian Court Hierarchy

• Main Victorian courts are 

  • Magistrate’s court
  • County court
  • Supreme court (divided into two)
  • Trial division
  • Court of appeal
  • Two specialists courts
  • Coroner’s court (investigates suspicious deaths and fires)
  • Children’s court (family court involving children)

• Victorian courts are ranked in a hierarchy, where the top court’’s handle more serious and complicated cases, and the lower court’s take the less serious ones

• High court is a federal court but can hear appeals from the Court of Appeal and any court in Australia

• Each court also has their their own jurisdiction (lawful authority)

  • Most of the courts in austra;lia have the jurisdiction to take on booth criminal and civil cases, only some can hear appeals, but certain courts can only take on smaller cases

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Reasons For a Court Hierarchy

• Four main reasons for a court hierarchy
  • Allows for specialisation or expertise with types of cases
  • Enables parties to appeal to a higher court 
  • Necessary part of the doctrine of precedent 
  • Decisions for higher courts are binding on lower courts where material facts are similar
  • Are guided by the wisdom oh more experienced judges
  • Administrative convenience so higher courts do not have to deal with less important cases