Legal Foundations

Question 1

Why do we need laws?

Answer 1

In other words, we need laws to achieve
social cohesion and to protect individual
rights

Question 2

Define Social cohesion

Answer 2

The ability of a
community to live together in a peaceful,
orderly, and harmonious manner by
recognising that all people have rights and
responsibilities.

Question 3

Customs

Answer 3

Socially acceptable habits that have become common practice.

e.g. not smoking around children, not speaking with your mouth full, not sneezing all over someone.
* Made by society
* Interpreted by society
* Enforced by society
* Not adhering to the social custom / norm = social exclusion, labelling, disdain

Question 4

Rules

Answer 4

Are non-legal guidelines which apply to a specific group of people.

e.g. house hold rules, sporting rules, school rules.
* Made by non-legal institutions or bodies e.g. families, sporting clubs
* Interpreted by sporting association, parents, school administration
* Enforced by non-legal individuals e.g. umpires, parents
* Breaking the rule = ban, fine, detention, grounded

Question 5

Laws

Answer 5

Legal rules that everyone in society must follow.

• Made by parliament, subordinate authorities, or the courts
• Interpreted by the courts
• Enforced by the police
• Breaking the law = sanctions

Question 6

Characteristics of an Effective Law

Answer 6

-Known
-Enforceable
-Reflects society’s values
-Stable
-Clear and Understandable

Question 7

The Principles of Justice

Answer 7

Fairness, Equality, Access

Question 8

Fairness

Answer 8

Impartial and just treatment or behaviour without favouritism or discrimination.

e.g.-The right to silence when being questioned by police
- Receiving a fair trial
-The ability of young people (under 18) to have a parent or guardian
present when being
questioned by police

Question 9

Equality

Answer 9

The state of being equal, especially in status, rights or opportunities.

e.g.* Both parties have a right to legal representation
* Both parties have equal opportunity to present their case
* Both parties are treated equally with regard to strict rules of evidence
and procedure in court
* The judge is an independent and impartial adjudicator who treats
both parties equally

Question 10

Access

Answer 10

The means or opportunity to access the legal system.

e.g. * Access to an interpreter if needed
* The ability to access legal representation even if you cannot afford to
pay (legal aid)
* Being able to access a court in your geographic area
* Having access to the evidence that will be presented against you in
court

Question 11

Three Levels of Government

Answer 11

• Commonwealth (Federal) Parliament—makes laws for the whole of
  Australia
• 6 state and 2 territory parliaments—make laws for their state or territory
• Over 500 local councils—make local laws (by-laws) for their region or
  district

Question 12

The Parliamentary System

Answer 12

The Constitution separates the functions of the legal system between the parliament, the executive, and the judiciary.

Question 13

Role of parliament

Answer 13

The parliament makes and amends the law

Question 14

Role of executive

Answer 14

The executive puts the law into action

Question 15

Role of judiciary

Answer 15

The judiciary makes judgements about the law

Question 16

Governor-General roles

Answer 16

• Giving royal assent to laws made by the houses of parliament.
• Commissioning the Prime Minister; appointing ministers and
  assistant ministers; and swearing-in other statutory positions.

Question 17

The Commonwealth Parliament

Answer 17

Commonwealth Parliament consists of:
* The King (represented by the Governor-General)
* Two houses (the Senate and the House of Representatives).

Question 18

House of Representatives (Lower House)

Answer 18

-151 members representing 151 electorates
-The aim is to ensure that electoral divisions within each state or territory
contain approx. an equal

-Roles:
* Introduces bills.
* Reviews bills passed by the upper house.
* Holds government (political party, or parties in coalition, which holds the
majority of seats).
* Represents majority interests.

Question 19

Senate (Upper House)

Answer 19

-The aim or intention is to ensure that each state/territory has equal
representation, regardless of population.
-There are 76 Senators
-Role:
* Reviews bills (proposed laws) introduced from the lower house.
* Introduces and passes bills.
* Known as the ‘house of review’ because most bills are introduced in l
lower house.

Question 20

Division of Powers

Answer 20

The Constitution gives the Commonwealth / Federal Parliament exclusive powers in some areas
Eg. defence, currency, citizenship

Some powers are shared between the Commonwealth and the states. These are called concurrent powers.
Eg. Taxation

Powers not addressed in the Constitution are residual powers; these rest with the states.
Eg. Crime.

Question 21

The Functions of Parliament

Answer 21

• legislation (making laws)
• representation (acting on behalf of voters and citizens)
• scrutiny (examining the government)
• formation of government

Question 21

Victorian Parliament

Answer 21

The Parliament of Victoria also has two houses.
Representatives are elected to either the Legislative Council or Legislative
Assembly:

• The Legislative Council (the Upper House) - 40 members.
  Designed to ensure that rural and metropolitan areas are given equal representation
  (based on area, not population).

*The Legislative Assembly (the Lower House) - 88 members.
Electorates divided based on population.

Question 22

Outline the steps involved in making a new law.

Answer 22

-First reading
-Second reading
-Debated by members of the house
-Passed by both houses
-Becomes an act (given name, number and year)
-Given royal assent
-Commencement (act becomes an actual law)

Question 23

Why do laws change?

Answer 23

For social cohesion to exist, laws must be effective. If they do not meet certain aspects of the 5 characteristics of an effective law, the law may be changed.

Question 24

Reasons for a Court Hierarchy

Answer 24

• Precedent
• Appeals
• Specialisation
• Time and money
• Administrative convenience

Question 25

Precedent

Answer 25

-Precedent is a legal principle or rule established in a
previous legal case.

Precedent established by higher courts are binding
on lower courts in the court hierarchy.

Question 26

Appeals

Answer 26

The process whereby decisions can be reviewed by a higher court,
should a party not be satisfied with the outcome of a case.

Question 27

Specialisation

Answer 27

Having a court hierarchy allows courts to specialise in certain types of
cases.

It also allows judges to develop expertise in a particular area.
e.g. The Family Court of Australia

Question 28

Time and Money

Answer 28

Having a court hierarchy saves time and money.

A court hierarchy saves time as less serious matters that do not take as
long to be heard can be heard in the lower courts, leaving the higher
courts to concentrate on more serious matters, thus streamlining the
process.

Question 29

Administrative Convenience

Answer 29

A court hierarchy ensures administrative convenience as
administration can be dealt with more effectively when courts are
ranked and hear cases of a similar nature.

Question 30

Jurisdiction

Answer 30

Jurisdiction refers to the power or authority of a court to hear and determine
specific cases.

Question 31

Original jurisdiction

Answer 31

Original jurisdiction refers to the power of a court to hear a case in the first instance

Question 32

Appellate jurisdiction

Answer 32

Appellate jurisdiction refers to the power of a court to hear a case for the second time on appeal

Question 33

Court Hierarchy ( Most to least powerful)

Answer 33

-High Court of Australia
-Supreme Court (Court of Appeal)
-Supreme Court (Trial Division)
-County Court
-Magistrates’ Court

Question 34

High Court of Australia

Answer 34

The High Court of Australia is the highest court in the Australian judicial system.
The High Court has original jurisdiction to hear cases of special federal significance including challenges to the constitutional validity of laws.
It also hears appeals, by special leave, from Federal, State and Territory courts.

Question 35

Supreme Court (Court of Appeal)

Answer 35

The Court of Appeal hears appeals about decisions made in the County Court and the Trial
Division of the Supreme Court.

Question 36

Supreme Court (Trial Division)

Answer 36

The Trial Division hears the most serious criminal cases like murder and attempted murder
and large/complex civil disputes involving claims of an unlimited amount.

Question 37

The County Court

Answer 37

The County Court is an intermediate trial court, with both civil and criminal jurisdictions. It is above the Magistrates’ Court and below the Supreme Court in the Victorian courts hierarchy.

County Court hears serious criminal matters such as armed robbery, dangerous driving, drug offences and sexual assault offences. Civil matters involving claims of an unlimited amount (usually personal injury claims) are also heard in the County Court.

Question 38

Magistrates Court

Answer 38

The Magistrates Court is the busiest court, handling approximately 90 per cent of all cases that come before Victoria’s courts. The Magistrates Court sits at 52 different locations state-wide.

The Magistrates Court hears less serious criminal matters including traffic offences, minor assaults, property damage and offensive behaviour. The Magistrates Court hears civil disputes involving claims of up to $100,000