2A Law Flashcards
What is the importance of law
a. The law aims to reflect the desires of society on particular issues that the society believes should be controlled by the law. (doesn’t always happen)
what are the major social values in our society
protection of life,
People should be treated equally and there should be no discrimination, especially in court.
Individuals and groups should be free to express their opinions (but not in the area of defamation)
All citizens should be provided for when they cannot be provide for themselves.
What are laws
b. Laws- Laws are a set of rules that regulate the behavior of one person to another, defining the boundaries of acceptable conduct and are enforced by the courts.
What are the functions of law
To provide a structure for the creation and amendment and enforcement of the law
To represent social values of society,
to provide a clear statement of what is acceptable behavior
to provide the basis for the protection of individuals
to provide a formal means of the settling disputes between individuals
What makes a good law (effective)
It must be respected and acknowledged by society
It should be applied without discrimination
In needs to have a degree of flexibility to be able to be applied to certain situations
It has to be clearly worded so it can be easily understood.
It must be able to be enforced
What is the law feature of the rule of law
The law provides the means of peaceful change to reflect changing social values
What are the functions of parliament
To initiate, debate and approve changes to statue law (political term legislation)
To appoint and dismiss executives
To represent the values and beliefs of citizens and electorates
To provide a forum of debate for political issues To act as a training ground for future leaders
What is a bill
Bills are unpassed legislation
what are the types of legislation
Public policy legislation- new government policies
Remedial legislation- is to overcome problems in existing legislation.
Financial legislation gives the government the authority to raise review (tax authority) and for the expenditure the budget.
Delegated legislation- gives the authority to government departments to create rules and regulations (they delegate the authority- parliament can still overrule if necessary )
What are the sources of legislative ideas
During elections- political parties present their alternative policies to gain support and to enact when they get elected.
Pressure groups- often push forward their ideas and what changes need to be made to the law e.g shark culling protests against it, public school teachers for wages.
Members of society will often demand changes. E.g petitions, random groups of people
The public service (the collective word for all the government departments) gives advice to ministers about updating the laws
Court decisions will often show problems in statute law, and these problems need to be changed .
What is the writing of the legislation known as + who is it carried out by
drafting
it is carried out by the office of parliamentary council (lawyers) who construct a bill from the government’s instructions.
What is initiating a bill
when the bill is presented to the cabinet for approval, and then it goes to parliament (usually the lower house- guaranteed that the government has majority- guarantee success)
What are the features of WA Parliament
Head of state is the crown and is represented by the governor. Gives royal assent (royal assent- is literally signing the legislation) and acts on the advice of the premier.
Lower house is the legislative assembly which has 59 members who each represent a separate electorate, elected for 4 years the speaker is the presiding officer (person who controls all the debates)
Upper house is the legislative council, 36 members. They don’t have their own electorate, 36 members from 6 regions (3 metropolitan and 3 country) elected for 4 years, their presiding officer is the president (same as a speaker)
Ministers are selected from the government and the leader of the government is the premier
Stages of Legislative Process- list them (passage of the bill)
Initiation- where the proposed Bill is listed on the notice paper (official “weekly newsletter”)
First Reading- Where the Bill is introduced and its title read out by the Clark of the House, and given to ministers
Second Reading- minister responsible explains why the Bill is necessary and outlines what they are intending to do. Then the shadow minister replies and is most of the time against, then a member of the government will speak in favour of it, then an opposition minister will speak against it ect.
Consideration in detail- this is where the wording of the Bill is looked at and amended (changed) and proposed changes are put forward and voted on. (government has majority so often no changes)
Third Reading- vote on the Bill (often yes)
Transmission to the other house- bill is sent to the other house all those stages are then done all over again
Royal assent- this is the signing of the bill by the governor on behalf of the queen (monarch) to become an act of parliament
Proclamation- The date it is to become a law is normally written in the act but if the date not written it automatically becomes a law 28 days after the royal assent.
What is a private member- how successful are their bills
A private member is any member of parliament who doesn’t hold office (who isn’t a premier or minister)
Very few Private Members bills are ever successful usually because they are very controversial. E.g 206 daylight savings act.
Where is the adversarial system used
In all common law countries- Australia, New Zealand, America, England
Define adversarial system
The adversary system is a method of legal trial that is used in all common law countries. It involves the two parties to dispute ( adversaries) taking part in a verbal battle in front of an impartial adjudicator (judge) who enforces the rules of the battle (rules of evidence and procedure). This system follows the belief that the truth will be revealed in battle (most controversial aspect of the legal system)
Why do we need the adversarial system
- Provides a peaceful way to resolve disputes
- Conflict may be resolved using a number of differnet methods (ADR)
- Most serious disputes should be heard in court- courts can inpose legally binding solutions
- but resolvin disputes in a court relies on a third party- the adjudicator
What are the two parties in the adversarial system
Civil- Plaintiff v Defence
Criminal- Prosecution v Defence
What is the role of the parties in the adversarial system
- to ensure that their case is presented in the best way possible
- choose when to bring the action to court and to which court
- initiate the proceedings - fill out paperwork
- investigate the facts + which to present
- decide if and how to challenge the other parties case
- engage trained legal council to represent them or represent themsleves
What is the role of the individual in the adversarial system
- full control over preparation and presentation of the case
- individuals are responsible for initiating the case
- responsbile for preparing and presenting the case
- responsible for ensuring that their rights are upheld
- significant role of individuals reflect Australia’s democratic values
What is the role of the judge in the adversarial system
- ensure natural justice for both parties
- maintain independance and imparciality
- act in a way that preserves public confidence and respect for the legal system
- ensure that the rules of evidence and procedure are followed
- ensure only relevant and admissible evidence is presented
- question the witness to clarify evidence where necessary and rule on any points of law (uncommon)
- ensure that the burden of proof has been discharged
- where no jury exists asses th verdict and punishment, with a jury just the punishment
- determine the law applicable to the facts
- summerise the facts of the case and instruct jury on matters of the law
- impose the appropriate sanction or remedy after the jury has annonced its verdict
- dismiss the jury at the end of the trial
What is the role of the legal representation in the adversarial system
- preparing and presenting an individual’s case
- responsible for opening statements etc.
What does the barrister do
- argues a particular side of the case
- responsible for presenting evidence to the court
- helped by solicitors and cannot take instructions directly from the clients
- Queens/States Council is a senior prosecution barrister
What does the solicitor do
- interviews client and takes their instructions
- does most of the research or background work on a case- investigates facts and law, determines the issues and evidence to be presented, decide whether to challenge opponents case
Why do you need legal representation, are you automatically entiled to legal representation
to present your best case + equality
yes for serious inditable offences and if you are in a low enough income braket
What is the burden and standard of proof for both cases
Civil- plaintiff, balance of probabilities
Criminal- Prosecution, beyond reasonable doubt
What is a continous trial
A case that is heard in a single continous event, it cannot be stopped once started
What is relevance evidence
Evidence must prove or tend to prove the fact that is in dispute
What is opinion evidence
Conclusions formed by witness based on facts are inadmissable
What is hearsay evidence
statement by a witness of what they heard someone say, who will not be called as a witness
What is character evidence
- bad character pf a defendant may not be led by the plaintiff/ prosecution
- evidence of good character may be led by either party, but only if it is relevant
- if the defendant raises their good character or attacks the credit of the prosecution witness, the plaintiff/prosecution may cross-examine the defendant about their bad character
Who can be sued, CIVIL
- Vicarious- through other people e.g penrhos/ direct liability e.g teacher
- Companies, clubs and associations
- minors- can initiate (sue through parents) but cannot be sued directly
- Nominal defendant- the representative e.g Mrs Melville
Pre trial steps- CIVIL
- Letter of Demand
- Pleading
a) Writ of Summons- legal start to case
b) Notice of Apperance- when you must go to court
c) Statement of claim- sent to defence- what happened and what the plaintiff wants
d) Statement of Defence- what occured- their version of events
e) (perhaps counter claim)- something the defendant wants from the plaintiff - Interrogatories/ Discovery- both parties share the evidence with the other side, case may be abondoned by plaintiff at this point or settled out of court
- Certificates of Readiness for trial- from both parties to say that they are ready
Why are pre-trial steps neccessary- CIVIL
- Prepares the court
- provides the parties with an opportunity to estalish their case
- reduces the time spent in court (lots of cases get abandoned)
Trial order- CIVIL
- Plaintiffs Opening Adress
- Examination in Cheif
- Cross Examination
- Re-examination
- Defence Opening Adress
- Repeat 2-4
- Defence’s closing adress
- Plaintiffs Closing Adress
