Key Terms

Legal rules

• Made by Parliament and Courts

• Applied to all members of society

• Enforced by courts and police

• Penalty if rule is broken (fine, imprisonment)

Non - legal rules

• Made by private individuals or groups in society

• Applied to members of a specific group

• Enforced by people that make the rules

• Not enforced by courts but consequences can occur if broken

The need for laws

The central task of our legal system is to combine and delicately balance two conflicting ideas - freedom and order

The role of rules

• Guidelines on what is/not acceptable behaviour

• Achieves social cohesion

• Protect the rights of individuals

• Sets out how disputes are resolved

The role of individuals

Individuals are responsible for:

• Being aware of the law

• Follow/obey the law

• Use the legal system to resolve their disputes

• Respect human rights

• Assist police

• Report crime

Law reform

The process of examining existing laws, and advocating/implementing change in a legal system so it remains relevant and effective

The role of the legal system

A set of methods and institutions which makes, administers, and enforces laws.

It includes:

• Parliament

• Courts

• Tribunals (VCAT)

• Enforcement bodies (police)

• Prisons

Aim of legal system

To deal fairly and justly with individuals who have broken the law or breached someone else’s rights

Laws

Establish rules which aim to achieve social cohesion and protect the rights of individuals

Individuals

Are bound by those laws, are expected to abide by them, and can act when rights are infringed

Legal System

Make and apply the law and enforce it to achieve social cohesion and protect the rights of individuals.

Social Cohesion

Having a balanced society that involves cooperation between members in order to have freedom and order.

Criminal law

Aim - to establish crimes and set down sanctions for people who commit crimes in order to protect the community

Consequences - sanctions, imprisonment, fines

Parties - the state (prosecutor/R/DPP) (burden of proof) v the accused

Police involvement: yes

Crime

An act or omission that is against an existing law, harmful to an individual or society as a whole and punishable by law.

Types of crimes

• Against the person (e.g. murder)

• Against the state (e.g. treason)

• Against property (e.g. theft)

• Morality (e.g. incest)

• Against the legal system (e.g. perjury)

Civil law

Aim - to resolve disputes between individuals and seeks to enforce rights where harm has occurred

Consequences - remedy: damages, compensation

Parties - plaintiff (burden of proof) v defendant

Police involvement: no

Victorian Court Hierarchy

Ranked based on the severity and complexity of cases they hear.

• High Court of Australia (Federal)

• The Supreme Court of Appeal

• The Supreme Court

• County Court

• Magistrates’ Court, Children’s Court, Coroner’s Court

Jurisdiction

The types of cases a court is permitted to hear.

The High Court of Australia

• Federal court; hears appeals from the state and territory courts of appeal

• High Court must grant leave (consent) to a party who wants to appeal.

  • Depends on the strength of the grounds (reasons) for the appeal

Reasons for a court hierarchy

• Specialisation

• Doctrine of precedent

• Appeals

• Administrative convenience

Specialisation

The courts develop expertise in dealing with the types of cases that come before them.

Appeals

Enables parties to a court case to appeal to a higher court if they are not satisfied with the decision in a lower court.

Administrative convenience

Allows for efficiency or convenience with the way that cases are heard.

Parliament

• A formal assembly of representatives of the people that are elected by the people and gathers together to make laws

• Supreme law-making body

• Can override laws made by courts

• Based of UK Westminster System

Bicameral parliament

A parliament with two houses (chambers)

MPs

Members of parliament who belong to a political party

Political parties

An organisation that represents a group of people with shared values and ideas, which aims to have its members elected to parliament.

Independents

Individuals who stand as candidates in an election but don’t belong to a political party

Federal parliament

King’s Representative - Governor General, David Hurley

Upper House - the Senate, 76 members

Lower House - the House of Representatives, 151 members

Victorian parliament

King’s Representative - Governor, Linda Dessau

Upper House - the Legislative Council, 40 members

Lower House - the Legislative Assembly, 88 members

King’s representative

• Represents the crown

• Role is mainly ceremonial

• Approves all laws passed by parliament, royal assent

Upper House

Federal:

• States have equal representation

• Reviews bills passed in the lower house

Victorian:

• 5 members from each of the 8 divisions Vic is divided into for elections

• Ensures interest of rural areas are equally represented

Lower House

Federal:

• 1 member per electorate that Aus is divided into for elections

• Party with the majority form the federal government

Victorian:

• 1 member per electorate that Vic is divided into for elections

• Party with the majority form the state government

Royal assent

The formal signing and approval of a bill by the King’s Representative after which the bill becomes an Act of Parliament, a law

Statute law

Laws made by parliament (statutes, acts of parliament, legislation)

Common law

Laws made by judges through decisions made in cases (case law, court law, judge made law)

Ways courts can make laws

• Statutory interpretation

• Novel/test cases

Statutory interpretation

Judges give meaning to words in statute to make a decision

Novel/test cases

A case that sets a precedent for other cases involving the same question of law

No legislation to guide the courts

Stages of a bill through parliament

1. Government decides a law is needed, they draw up a bill

2. Bill is introduced to first house (generally lower) and has first reading

3. Purpose of bill is explained and debated, second reading

4. Considered in detail and amendments made

5. Bill is voted on, third reading

6. Bill passes through first house

7. Procedure is completed again in second house

8. Bill passes the second house

9. Bill receives Royal Assent

10. The Act comes into operation - proclamation

11. The Act becomes a law

Role of parliament

• Pass bills

• Decide and control finances

• Supervise and check the delegated legislation

• Provide a place for discussion and debate

• Investigate areas of concern

Parliament vs Government

Parliament:

• Law making body

• Includes all politicians who were elected at the last election

Government:

• Party with the majority of seats in the lower house

• Usually control which legislations are introduced to parliament

• In charge of administrative departments which run the country/state (e.g. department of …)

Levels of law making

• Federal

  • Defence force

  • Higher education

  • Centrelink

• State

  • Aged care

  • Primary and secondary schools

  • Hospitals

• Local

  • Waste management

  • ‘Meals on wheels’

  • Childcare

How do we know which parliament makes laws?

Aus constitution divides the law making power between state and commonwealth parliaments by listing the areas in which the commonwealth can make laws

Types of law making power

• Exclusive powers

• Concurrent powers

• Residual powers

Exclusive powers

Only the federal parliament can make laws in these areas

e.g. defense, immigration, currency

Concurrent powers

Shared between federal and state

e.g. taxation, roads, bankruptcy

Residual powers

Powers not listed in the constitution and left for the states

e.g. schools, crime, public transport

Precedent

When a court creates a law through a decision in a case for the first time

Ratio decidendi

The (legal) reason for a decision

Stare decisis

To stand by what has been decided

Doctrine of Precedent

The common law principle by which the reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar

Obiter dictum

A judge’s opinion expressed in court, but not essential to the decision, hence not legally binding as a precedent

Binding precedent

The legal reasoning for a decision of a higher court that must be followed by a lower court in the same court hierarchy in cases with similar material facts

Persuasive precedent

Reasoning behind a decision from a lower/equal court within the same jurisdiction, or a court from a different one, that may be deemed relevant although it is not binding

Ways to develop or avoid precedent

R - reverse

O - overrule

D - distinguish

D - disapprove

Reversing

Judge in a higher court changes the law and decision of the same case in a lower court

Overruling

Judge in a higher court changes the law from a lower court in a different case

Distinguishing

Judge finds a material difference in the facts of the case and does not have to use the law from the higher court

Disapproving

Judge in a lower court disagrees with a precedent from a higher court but must follow/apply it

Relationship between parliament and the courts

• Interpretation of statutes by courts

• Codification of common law

• Abrogation of common law

• Ability of courts to influence parliament

Codification

Changing common law that confirms a precedent into a statute (parliament)

Abrogation

Parliament cancels of abolishes a common law by passing an Act of Parliament

Courts influencing power

Courts make comments in court cases that may influence Parliament to change the law

Statutory interpretation (relationship between parliament and the courts)

Parliament creates statutes that courts then interpret

Principles of justice

Fairness

• There are fair legal processes in place and all parties receive a fair hearing.

Equality

• All people are treated equally before the law with an equal opportunity to present their case

Access

• People have an understanding of their legal rights and ability to pursue their case