Law and Society

Question 1

What is a rule?

Answer 1

Prescribed directions for conduct in
certain situations.

Made by groups and only affect people
within those groups

Question 2

What are the reasons for laws?

Answer 2

Laws establish the rights and responsibilities of members of society to avoid anarchy.

• Establish Boundaries of acceptable behaviours
• Protection from the actions of others, as well as our own behaviour
• Provide Freedom: Telling member of society what they are allowed to do
• Resolving disputes. Ensure members of society do not take the law into their own hands

Question 3

Why should laws differ between countries?

Answer 3

Laws are made reflect to society’s values, morals and ethics.

Because these vary between countries, so do the laws.

Question 4

What and why is there a Court Hierarchy

Answer 4

It provides opportunities for appeal and specialisation of skilled legal practitioners.

Lower courts – including the Local Court of NSW, the Coroner’s Court, and the Children’s Court

Intermediate court – the District Court of NSW

Superior courts – the Supreme Court of NSW, Court of Criminal Appeal and the Land and Environment Court

Federal courts – High Court of Australia.

Question 5

What are the court considerations when dictating what court the case will be heard in?

Answer 5

• The seriousness of the matter
• Whether the matter is being heard for the first time or involves an appeal
• Nature of the offence – summary or indictable
• Age of the accused
• Type of hearing, for example whether it is a bail hearing, committal hearing or trial

Question 6

What are the state courts?

Answer 6

Local Court
- Hears summary offences eg. shoplifting
- Committal hearings for indictable offences(serious crimes)
- Civil cases involving less than $100,000.

District Court
- hears most indictable offences eg armed robbery (not murder)
- Civil cases from $100 000 to $750 000.
- Civil and criminal appeals from the Local Court
- All motor vehicle accident cases.

Supreme Court
- Hears the most serious indictable offences such as murder
- Civil cases over $750 000

COURT OF APPEAL- hears appeals from the Supreme Court for civil matters
COURT OF CRIMINAL APPEAL- hears appeals for crimes heard in the Supreme Court or District Court

Question 7

What are the Federal Courts?

Answer 7

Federal Circuit Court - hears the majority of cases involving federal laws such as consumer matters, intellectual property, family law, divorces, child support, privacy, migration

Family Court - hears complex separation matters including property and children and appeals from the Federal Circuit Court about family law.

Federal Court - hears complex cases regarding bankruptcy, human rights, migration and appeals from the Federal Circuit Court

High Court - hears cases involving the Constitution, disputes between the federal government and a state government and is the FINAL COURT OF APPEAL IN AUSTRALIA.

Question 8

What are the specialised courts?

Answer 8

Children’s Court - Hears cases where a child between 10yrs and under 18yrs has committed a crime.

Coroner’s Court - Investigates deaths by unnatural causes, the date, place, circumstances and medical cause of death, cause and origin of fires and explosions.

Family Court of Australia - Assists Australians to resolve more complex family law matters such as divorce, parenting disputes and the division of property.

The Drug Court of NSW - Provide long-term solutions for offenders who have been caught up in drug use and crime by encouraging them to become free of substance abuse, gain employment and reduce the need to commit crimes to support the habit.

Question 9

How are courts arranged?

Answer 9

• By location: To provide access to citizens

eg, State: Local, District, Supreme
Federal: Federal, Family, High

• By Jurisdiction - to provide specialised knowledge according to the case.

Jurisdiction refers to a court’s power to hear certain cases.

The type of cases a court can hear: General vs. specific

Their power to review other courts’ decisions: Original vs. appellate

Question 10

Adversary vs. Inquisitorial System

Answer 10

Adversary System
A system of law where two opposing sides that present their cases to an
impartial judge or jury

It is the role of a judge or jury is to act as an impartial observer who determines the accused’s guilt or
innocence based on the evidence
presented

Inquisitorial System
A system of law where two sides present their cases to a judge who directs the cases and calls for particular evidence

Question 11

Adversarial Process

Answer 11

• Commencement of Trail
• Framing of Charges
• Prosecution evidence
• Statement of the Accused
• Defence evidence
• Final Arguments
• Judgement

Question 12

What are appeals?

Answer 12

An appeal is an application to a higher court by a party who believes that a decision of a lower court was incorrect. It reviews the basis of the appeal. For example
- Harshness of sentence
- Admissibility of evidence

Criminal appeals for indictable crimes heard in the Supreme Court - Court of Criminal Appeals

Civil case appeals from the District or Supreme court - Court of Appeals.

Question 13

Who are the parties involved in each court?

Answer 13

Local Court
- Magistrate
- Police Prosecutor
- Solicitors or Barristers

Higher courts
- Judges
- Prosecutor
- Barristers (solicitors may
assist)

Question 14

Criminal case process:

Answer 14

An offence against society

Indictable is serious eg. murder
Summary are minor eg.traffic offence

Parties involved: Prosecutor vs
The Accused

(this may be a Police Prosecutor in local courts)

The burden of proof: Guilty beyond
reasonable doubt.

Onus: Prosecutor

Outcome: guilty or not guilty.

Jury of 12

Question 15

Civil Case process

Answer 15

Disputes between individuals

Defamation, negligence,
trespass, nuisance

Parties involved: Plaintiff vs Defendant

The burden of proof: On the balance of probabilities.

Outcome: liable or not liable.

Jury of 6

Question 16

What does “beyond Reasonable doubt” mean?

Answer 16

That there is no other logical or
reasonable conclusion can be reached (based on the facts) except that the defendant is guilty.

Question 17

What does “balance of Probabilities” mean?

Answer 17

The court is satisfied that an event occurred if the court considers that
the evidence indicates that the event more likely occurred, then it did not.

Question 18

What are the 4 sources of law?

Answer 18

British Common Law – cases and precedents set by the court system

Constitution – the Australian constitution established at federation
establishes the Australian legal system.

Statute Law – laws made by parliament

ATSI Laws – involvement in enforcement of Australian laws for indigenous peoples

Question 19

What is common law?

Answer 19

Common law is also referred to as judge-made law. It is a collection of legal principles derived from the decisions of
judges.

When no relevant statute law exists a judge will turn to common law principles to resolve a dispute.

Question 20

What is the doctrine of precedent?

Answer 20

A judgement that establishes a point of law (or principle). It serves to provide guidance for deciding similar cases.

The purpose of precedent is ensure that people are treated fairly in their dealings with the legal system, and that the law develops in a consistent and
coherent way.

Question 21

What are the two ways a precedent is developed

Answer 21

1. When a judge arrives at a decision in a case when there is no existing common or statute law
2. When judges interpret statute law
   legislation

Question 22

What is a binding precedent?

Answer 22

Lower courts are bound to follow decisions of superior courts, regardless of whether the judge believes a decision of the higher court is correct.
This is known as ‘binding precedent’.

Question 23

What is a persuasive precedent?

Answer 23

Superior courts do not have to follow decisions made in lower courts. They may, however, use them to help make a decision. This is called ‘persuasive precedent’.

The higher the court in its own jurisdiction hierarchy, the more persuasive the precedent.

Question 24

What is the basis of a precedent?

Answer 24

Ratio decidendi: the central
reason for a judge’s decision

Obiter dicta: other comments
(such as a judge’s personal
opinions) precedent.

Question 25

What is statute law?

Answer 25

Statute law is parliament-made law and also referred to as legislation or Acts of Parliament.

Parliament is a body of elected representatives responsible
for debating, passing/rejecting and amending legislation.

Question 26

What are the Separation of Powers?

Answer 26

1. The legislative Arm (parliament): is the parliament. It has the power to make new laws and to change or repeal existing laws. Consists of 2 separate ‘houses’; the House of Representatives and the Senate, together with the Governor-General as the representative of the Queen.
2. The executive Arm: is the arm of government with the responsibility of putting the laws into action. Executive power is exercised by government ministers (members of parliament who have special responsibility for particular areas of government). Eg.
   the minister for defence is responsible for administering all laws that relate to the defence forces etc.
3. The judicial Arm: includes the judiciary and the courts, which are responsible for enforcing the law and settling disputes that might arise under the law.

Question 27

What is the role of the Constitution?

Answer 27

It outlines the legal framework and
rules that apply to the governance of
Australia, eg the judiciary, legislature and executive.

It outlined the ‘division of powers’ between the Commonwealth and states. Concurrent and Executive.

Question 28

What are of concurrent powers?

Answer 28

• Trade with other countries
• Military and defence
• External affairs
• Provision of unemployment, benefits to students, conscription
• Invalid and Old-age pensions

Question 29

What are executive powers?

Answer 29

The exclusive powers of the federal government:
- Matters relating to any department of
the public service
- Matters declared to be exclusive in other sections of the constitution:
- Customs (borders)
- Excises (trade taxes)
- Military

Question 30

What are residual powers?

Answer 30

Any area not covered in the Constitution is considered to be within the states’ powers to make laws, they were not transferred to the Commonwealth at federation.

Eg. urban planning, civil
law, education, environmental protection.

Each state has its own constitution to govern these powers.

Question 31

What happens when there is an inconsistency between State and Federal law?

Answer 31

According to the commonwealth of Australia Constitution Act- section 109

Inconsistency of laws:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Recent example of state versus federal jurisdiction conflict: Same Sex Marriage.

Question 32

How can Australia’s constitution be changed?

Answer 32

The Constitution can be changed if a majority of the Australian population agrees to do so via a referendum (a vote of all Australians) with double majority.

The method for doing this is in s128 of the Constitution.

Question 33

What is double majority?

Answer 33

The requirement of having a majority of votes as well as a majority in at least four out of six states.

Question 34

What is the process of passing legislation?

Answer 34

Legislation is debated and passed at both Federal and State government levels

• A majority in both chambers must agree to a Bill for it to become an Act
• Must be approved by the monarch or their representative eg. Governor, Governor General

Bills are usually introduced by the relevant cabinet minister (e.g. Education Minister, Health Minister, Treasurer, etc) but can also be introduced by a backbencher (known as a “private member’s bill)

Many laws are blocked in the upper house, where governments
tend to lack an absolute majority and require the support of
the opposition or minor parties

Question 35

What is double dissolution?

Answer 35

If agreement cannot be reached. The prime-minister may choose to request that the governor general call a double dissolution. It dissolves both houses of
parliament and triggers a vote.

• S57 of the Constitution

Question 36

What is public law?

Answer 36

Public law deals with the powers and obligations of governments and citizens. Applies to behaviours and offences that relate to Society as a whole.

Eg. Industrial, constitutional, administrative and criminal

Question 37

What is private law?

Answer 37

Private law is the law that aims to
regulate the relationships between
individuals, companies and organisations.

Eg, Contract, tort, civil, family, property

Question 38

What is civil law?

Answer 38

Civil cases are court actions involving disputes between individuals, plays a role in the creation and protection of our individual rights.

The two most common areas:
- Contract law: Breach of contract
- Tort law: Negligence, Defamation, Nuisance, Trespass

Question 39

What are remedies under civil law?

Answer 39

Compensation - A sum of money to compensate for damages suffered by the plaintiff.

An injunction – An order by the court to stop, cease or reverse an action.

Specific Performance – An order by the court for the defendant to perform and action.

Question 40

What are remedies under criminal
law?

Answer 40

Jail

Fine

Court order – An order by the court for
the accused to perform and action.

Question 41

What are Summary offences?

Answer 41

Minor crimes that are heard by a magistrate in the local court without a jury. Eg road traffic offences, minor damage to property.

Question 42

What are indictable offences?

Answer 42

More serious crimes that are usually heard in the District Court or Supreme Court, before a judge
and a jury.

Question 43

What are the two sources of law

Answer 43

1. Aboriginal customary law
2. Domestic vs International Law

Question 44

What is aboriginal customary law?

Answer 44

• Based on Kinship – system of sharing duties, responsibilities and behaviour within communities
• Based complex belief system which ties connecting every aspect of communities with the land – ‘the dreaming’
• Oral law - passed to generations through rituals and stories
• No land ownership – land precious and cannot be owned, instead they were part of and custodians of the land
• Use of mediation and tribal meetings to discipline community members
• Harsh penalties such as payback, spearing or death

Question 45

What is Terra Nullius?

Answer 45

Latin for ‘land belonging to no one’ International legal term indicating no state (country) has sovereignty over the land.

Land ownership is a key principle of British law and at odds with Aboriginal belief of spiritual nature of land, making them therefore free to occupy Australia and take possession of the land.

Aboriginals were not recognised as inhabitants as they had no recognisable government, legal system or claim to the land.

Question 46

What Aboriginal customary laws are recognised in our legal system?

Answer 46

1. Circle sentencing: elders and a magistrate together decide on a punishment for offenders.
2. Native title: ATSI people who live customary lifestyles on ancestral land have the right to control that land under native title.
3. ATSI customary law marriages: recognised as legally de facto relationships.

Question 47

How does International law effect Australia’s legal system?

Answer 47

The UN has establishes international laws through State Sovereignty and Treaties = form of contracts between two parties (eg countries)

Charter of the United Nations is International Law and acts as the International Court of Justice

Question 48

Why is equal access to law important?

Answer 48

If some people are unable to access the law, then they are discriminated against and consequently denied justice when they have disputes or have been wronged. It disables them from receiving legal help easily meaning they can end up paying more and spending excessive amounts of time to receive it.

Question 49

What are some barriers for peoples access to law?

Answer 49

• Costs: Legal costs charged by lawyers and barristers are very high, this deters people from the legal process
• Time: Trials are lengthy and often too difficult
  “Justice delayed is justice denied”
• Distance: There are a range of places you need to go to in order to access the law, offices of lawyers, police stations and courthouses. May have to travel long distances to see a lawyer, a police station or courthouse
• Procedures: With limited knowledge of the law, you may not even know your rights Court procedures can be intimidating
• Languages: If English isn’t your first language, the legal terminology might be confusing and off putting

Question 50

What are the two main methods voting can occur:

Answer 50

1. First Past the Post: Where voters cast a vote for a single candidate, and the candidate with the most votes wins the election
2. Preferential Voting: the voter indicates his order of preference for each of the candidates listed on the ballot, if no candidate receives a majority of first preferences the first and second preferences until one candidate obtains a majority

Question 51

What is the structure of the government?

Answer 51

• Federal government, responsibilities include Air travel, Currency, Defence, Foreign Affairs, Immigration
• State government, responsibilities include
  Education, Emergency services, Health, Public transport
• Local government, responsibilities include Libraries, Rubbish collection, Town planning

Question 52

Why do laws change?

Answer 52

Laws Reflect Changes in Society, new laws develop and old ones are scrapped due to changes in social values, technology and political circumstances.

For example
- Changing political circumstances can bring about radical changes to the law.
- Homosexuality was once a criminal offence and opening retail stores on a Sunday was illegal.
- The Australian government passed strict anti-terrorism laws in response to the rise of terrorism.

Question 53

What are some examples of political action?

Answer 53

• Lobby groups often hold rallies to publicise their
  causes, You might choose to lobby particular politicians, that is, meet with them and try to influence them.
• You can organise or become involved in public protest meetings or demonstrations.
• You might even decide to join a political party and try to get your ideas accepted as party policy.
• You can also add your name and address to a petition indicating support (or otherwise) for some
  government action.
• If you are unhappy with something, you can write
  letters or emails to newspapers or to politicians.
• You can use the media or social media as a way of
  publicising a cause.

Question 54

What are the steps to changing the constitution?

Answer 54

Any proposed change to the Constitution must first be approved by a majority of members
of both houses of the federal parliament.

Within 6 months of being approved by the parliament, the proposed change must be put to
the people to vote in a referendum.

All registered voters are entitled to have a say.

The referendum will usually be in the form of a question asking the voters whether or not
they approve of the change.

For the change to be approved, more than 50 per cent of all voters in Australia must vote
yes to the proposal.

In addition, there must be a majority in favour in at least four of the six states.

If the above requirements are met, the proposal goes to the Governor-General for final
approval and the change is made to the Constitution.