LEGAL FOUNDATIONS

Question 1

SIGNIFICANCE OF THE CONSTITUTION

Answer 1

Establishes parliament:
-needs to bicameral
-directly chosen by public
-represent the people

Establishes law making powers of the Cth and states:
-division of powers
-Cth=superior lawmaking body

Establishes judicial role of the high court:
-final court of appeal

Establishes how the constitution can be changed.

Question 2

how the law upholds social cohesion

Answer 2

reflects the acceptable behaviours through laws and establishes the rule of law

Question 3

how individuals uphold social cohesion

Answer 3

By following the law

Question 4

how the legal system upholds social cohesion

Answer 4

ensures there are institutions that exist to effectively create (parliament), implement (the courts) and enforce (police) the law

Question 5

Commonwealth parliament

Answer 5

-the governor general
- the senate: 76 senators - reviews bills, equal representation for states, proposes and passes bills
-the house of reps: 151 members, elected every 3 years- forms government, holds government accountable, introduces and pass proposed laws

Question 6

Victorian Parliament

Answer 6

-the governor
-the legislative council: 40 members
-the legislative assembly: 88 members

Question 7

reasons for a court hierarchy

Answer 7

-specialisation: expertise
-appeals
-precedent
-administrative convenience: time, money, resources

Question 8

common law

Answer 8

legal principle derived from judicial reasoning and decisions in past cases made to resolve disputes

Question 9

statute law

Answer 9

laws made by parliament

Question 10

Statutory interpretation

Answer 10

when judges apply meaning to words within acts made by parliament to resolve a dispute

Question 11

reasons for statutory interpretation

Answer 11

-unclear wording (made to fit a wide range of circumstances so may be too broad)
-changing nature of words
-clarify words (if a mistake has been made)

Question 12

impacts of statutory interpretation

Answer 12

-widen/ broaden the scope of words
-narrow/constrict the scope of words
-set a precedent

Question 13

strengths of statutory interpretation

Answer 13

-allows meaning of words to be updated more efficiently
-judges ae not elected officials therefore less controversy
-judges are experts at the law so the interpretation is more accepted

Question 14

weaknesses of statutory interpretation

Answer 14

-judges are not elected officials: don’t reflect society’s values
-impacts can be reversed or overruled by a higher court
-impacts can be abolished by parliament

Question 15

precedent

Answer 15

legal principle established by judges that should be followed by cases in later cases when similar facts arise

Question 16

reasons for precedent

Answer 16

-stare decisis :”to stand by what has been decided”
-consistency
-provide predictability

Question 17

obiter dictum

Answer 17

additional elements of a case
“statements made by the way”

Question 18

binding precedent

Answer 18

should be followed if it is set by a higher court in the same court hierarchy, similar material facts

Question 19

persuasive precedent

Answer 19

doesn’t need to be followed because:
-set in a different country or court hierarchy
-different material facts
-set by a lower court

Question 20

distinguishing
(flexibility in precedent)

Answer 20

material facts are significantly different from material facts in a binding precedent

Question 21

overruling
(flexibility in precedent)

Answer 21

a higher court states that the precedent set by a lower court in a DIFFERENT case no longer applies

Question 22

reversing
(flexibility in precedent)

Answer 22

the SAME case is appealed to a higher court and that court changes the decision of the lower court

Question 23

disapproving
(flexibility in precedent)

Answer 23

a court follows a binding precedent but expresses disapproval/ disagreement with it in its obiter dictum

Question 24

codification
(relationship b/w parliament and the courts)

Answer 24

After a court makes a decision in a case:
parliament absorbs/ embeds the common law into acts through writing new acts of amending old ones. strengthens the common law as it cant be overruled by higher courts

Question 25

example of codification

Answer 25

Landmark Mabo case, the high court overturned the concept of terra nullius and established the principle of native title. This was codified in the native title act 1993 (cth)

Question 26

abrogation (relationship b/w parliament and the courts)

Answer 26

when common law is made by the courts: parliament then disagrees with the decision and abolishes the precedent by changing or writing new acts

Question 27

example of abrogation (and judicial influence)

Answer 27

State government insurance commission v Trigwell: Trigwell= seriously injured due to animals crossing road and argued it was the farmers responsibility. The high court found that the farmer was not responsible based off a persuasive precedent set in Europe. the Victorian parliament disagreed and passed the Wrongs (animals straying on highways) act 1984 which stated that farmers are responsible for their animals

Question 28

Judicial influence (relationship b/w parliament and the courts)

Answer 28

Courts may influence parliament to change the law, through the judges obiter dictum in a case. Parliament can decide to ignore or invite the comments into acts