Legal Studies 1/2

• There are 9 parliaments in Australia:

  • One Commonwealth Parliament (Parliament of Australia)
  • Six state parliaments (NSW, VIC, QLD, WA, SA and TAS)
  • Two territory parliaments (ACT and NT)
• Australia's parliament is based on Britain's Westminister System. Most parliaments in Australia consist of:

  • the King: who is the head of the parliament (represented by the Governor-General in the Commonwealth Parliament and by a Governor in state parliaments)
  • two houses: an upper and lower house
• The existence of two separate houses or chambers if parliament means that the parliament is a bicameral parliament. All parliaments in Australia are bicameral except QLD, ACT and NT
• The rule of law means that everyone - individuals, groups and government - is bound by and must adhere to laws, and the laws should be such that people are willing to abide by them
• Social cohesion is a functioning society which is unified, feeling a sense of belonging, having opportunities and being protected
• Role of Laws:

  • Provides guidelines (acceptable and non acceptable behaviour)
  • Expectations of behaviour
  • Fundamental for social cohesion
• Role of Individuals:

  • Be aware of laws and abide by them (where applicable)
• Role of the Legal System:

  • Set of methods and institutions
  • Makes, administers, and enforces laws
  • Courts, tribunals and enforcement bodies (Victoria Police)
• Principles of Justice:

  1. Fairness
  2. Equality
  3. Access
• Principle of Justice 1 - Fairness: all people can participate in the justice system and its process should be impartial and open

  • Impartial
  • Applies to all processes
  • Everyone should participate
• Principle of Justice 2 - Equality:

  • Formal equality: all people treated the same way regardless of age, gender, sexuality, religion or race
  • Substantive equality: sometimes it is required to treat people differently to ensure that everyone is met with equality (equity)
• Principle of Justice 3 - Access: all people should be able to engage with the justice system and its processes of an informed basis

  • Making use of legal system
  • Access to institutions
  • Affordability
  • Informed
• Characteristics of an Effective Law:

  1. Laws must respect society's values
  2. Laws must be enforceable
  3. Laws must be known
  4. Laws must be clear and understood
  5. Laws must be stable
• Characteristics of an Effective Law 1 - Laws must respect society's values:

  • In line with society's current values
  • All values to be considered
• Characteristics of an Effective Law 2 - Laws must be enforceable:

  • Must be possible to catch and punish/sue them
• Characteristics of an Effective Law 3 - Laws must be known:

  • Law-makers need to keep the public informed
  • Media/news
• Characteristics of an Effective Law 4 - Laws must be clear and understood:

  • People can understand it, and so the intent of the law is clear
• Characteristics of an Effective Law 5 - Laws must be stable:

  • If the law is constantly changing, no one would be certain of what the law is
• Commonwealth Parliament:

  • The King (the Crown) represented by the Governor-General
  • The Senate (upper house)
  • The House of Representatives (lower house)
• House of Representatives:

  • Represent the people
  • Introduce and pass proposed laws (bills)
  • Review laws passed by the Senate
• Senate:

  • Represent the interest of the states and territories
  • Introduce and pass bills
  • Review bills from the House of Representatives
• Victorian Parliament:

  • The King (the Crown) represented by the Governor of Victoria
  • The Legislative Council (upper house)
  • The Legislative Assembly (lower house)
• Legislative Assembly:

  • Introduce and pass bills
  • Form the Victorian Government
  • Review bills from Legislative Council
• Legislative Council:

  • Introduce and review bills
  • Bills passed by the Assembly can be rejected or amended by the Legislative Council
• Subordinate Authorities:

  • Local councils can make local laws
  • VicRoads
  • Laws made by authorities are known as secondary legislation
• Sources of Law:

  • Statute Law
  • Common Law
• Statute Law:

  • Laws made by parliament are also known as statutes, Acts of Parliament, legislation
  • The Governor/Governor-General gives royal consent
• Common Law:

  • Judge made law/case law, statutory interpretation
  • Makes laws dependent on case - no legislation or precedent
• The main role of the courts is to resolve disputes and cases using laws from parliament
• Victorian Court Hierarchy:

  1. Federal Court of Australia
  2. Supreme Court of Australia (Trial Division and Court of Appeal)
  3. County Court of Victoria
  4. Magistrates' Court of Victoria
  5. Coroners Court of Victoria
  6. Children's Court of Victoria
• Persuasive precedents do not always need to be followed if the specific courts don't believe it. However, binding precedents need to be followed no matter what
• Why are courts in a hierarchy:

  • Specific expertise
  • Different jurisdiction
  • Different laws of appeal
  • Doctrine of precedent
  • Administrative convenience
• Statutory interpretation: for legislative laws to be effective, courts must apply the statutes to the cases before them
• Codification of Common Law: to codify a precedent, parliament passes an Act of Parliament that reinforces a principle established by a court. This is known as codification of common law, because the common law is codified or put into statute
• Codify: to collect all law on one topic together into a single statute
• Abrogation of Common Law: parliament, as the supreme law-making body, can change or override common law. Parliament abrogates common law by passing an Act of Parliament that specifically abolishes the particular common law principle
• Abrogate: to cancel or abolish a court-made law by passing an Act of Parliament
• Ability of Courts to Influence Parliament: courts can also influence changes in the law made by parliament through the comments judges make during court cases
• Criminal law is a body of law that protects the community by establishing crimes and settling sanctions for people who commit crimes
• Civil law is an area of law that regulate disputes between individuals and groups, and seeks to enforce rights where harm has occurred