Legal Studies Study Checklist Cards Flashcards
What is the Doctrine of the Separation of Powers?
The Doctrine of the Separation of Powers ensures that the powers of making, enforcing and interpreting the law should be separate.
What are the 3 parts of the Separation of Powers?
- Legislative power (power to make laws or legislation)
- Exercised by Parliament - Executive power (power to enforce laws)
- Exercised by the Cabinet, who direct police forces to maintain law and order and enforce it. - Judicial power (power to interpret the law and decide whether it has been broken)
- Exercised by the Courts
What is the difference between a summary offence and an indictable offence? (misdemeanor vs felony)
Provide 3 examples of each.
A summary offence is minor and an indictable offence is a major offence with significant repercussions. Indictable offences are more serious and are guaranteed the right to trial by a judge and jury.
- Example of indictable offences: Murder, rape, robbery
- Example of summary offences: Drink driving, indecent exposure, offensive language in, near, or within hearing a public place or a school.
What is statutory interpretation?
Statutory interpretation
“Statutory interpretation” refers to the process undertaken by courts to interpret Acts before determining their proper application.
Acts may need to be interpreted because particular words in the Act are vague or unclear, the Act may not clarify all future applications, or the Act may not clarify the intention of Parliament.
What commonwealth and state legislation exists that gives courts the power to interpret Acts?
Commonwealth level - Acts Interpretation Act (1981)
For each state, various Acts.
What are the 4 rules of statutory interpretation?
The literal rule - used to interpret the law literally. Judges may use dictionaries and definitions for this.
The golden rule - a modification of the Literal Rule. If the Literal Rule gives an absurd or inconsistent meaning, the Golden Rule can be used to give a more lenient definition.
The mischief rule - used to avoid loopholes in the law and mischievous technicalities.
The class rule - “general words follow enumerations of particular classes or persons or things”
What customary law has had an impact on the Australian Legal System?
- English customary law. In the Middle Ages, English Law was customary, but developed into a common law system.
- International Customary Law - reasonable consistent practices over many years that are uniform and that nations accept as binding (e.g. territorial waters.)
- Aboriginal and Torres Strait Islander customary law
What is customary law in Australia?
- Systems and practices amongst Aboriginal Australians which have developed over time from accepted moral norms in Aboriginal societies and which regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other through a system of relationships.
- Customary laws are passed on through word of mouth, not codified (nor can they easily be codified)
- Historically, customary law has not been recognised as a part of canon Australian Law.
- However, the Native Title Act 1993 is a defining piece of legislation in terms of customary law. As a statute that had its evolution through common law, it is the ultimate recognition that Indigenous Australian societies possessed and continue to possess well developed systems of law.
What are differences between the Adversarial and inquisitorial court systems?
In the Adversarial system, the lawyers dispute the case, the judge is an independent unbiased party, and the jury decides whether the defendant is guilty or innocent. Confessions lead to immediate sentencing, hence false confessions being more common.
In the Inquisitorial system, the judge takes a greater role in the proceedings, lawyers have less of a role. The judge makes their own investigation into the evidence and is the primary questioner of witnesses (lawyers ask supplementing questions). Inquisitorial systems do not use juries unless by request (which is very, very rare and the jury will hate you), and the judge (or a panel of judges) will decide the final verdict.
No system today is purely adversarial or inquisitorial, but countries such as AUS, USA and ENGLAND lean towards the ADVERSARIAL, and countries such as FRANCE, ITALY and GERMANY lean towards the INQUISITORIAL system.
What are the characteristics of the Adversarial system?
- The police investigate the matter before it goes to court, and the defence gathers its own evidence.
- The lead up to the trial can be very long (years) while the trial itself usually only lasts a matter of days or a couple of weeks.
- During the court case, the two opposing parties (represented by lawyers) battle each other to win the case.
- The judge acts as an impartial referee or umpire - they cannot independently call for evidence. They do not independently investigate.
- It is the parties (through their lawyers) who decide what evidence is to be presented in Court although the Judge can rule on admissibility.
- Rules of evidence are quite strict so that the jury is not “tainted” by prejudicial evidence”
- The Jury (not the judge) makes the final decision.
What are the characteristics of the Inquisitorial System?
- A “search for the truth”
- The police work closely with the judge and the prosecutor during the court case to discover the facts of the case.
- No jury - final decision is made by the judge.
- The judge (rather than the parties through their lawyers) actively pursues and controls the evidence. The judge questions witnesses, although lawyers may do so at times. More evidence is introduced as the judge is expected to be more immune to prejudicial evidence than jury members.
- Lawyers play a minor role (as opposed to the adversarial)
- The lead up to the trial is quite short but the trial itself can take months.
What powers do police have?
In Queensland, police powers extend to these abilities (among others):
- If permission has been given or a court order obtained, they may take blood and body samples or other physical evidence from a person.
- If they believe that a person possesses a prohibited weapon (on reasonable grounds), they may search that person (and any package they may be carrying), and seize and hold any weapon found (without a warrant).
- If they believe that there are drugs of dependence (on reasonable grounds), they may search a car on a public road, and seize and remove any drugs that are found.
- They may question victims and witnesses
- They may arrest a person, with or without a warrant.
- They may ask a suspect to attend a police station
- They may compel a suspect to supply their name and address, if the suspect is thought (on reasonable grounds) to have committed a crime, about to commit a crime, or may be able to help with information on a crime.
- They may compel a suspect to supply their name and address, if the suspect is thought to have committed an offence and is driving a motor vehicle.
- They may hold identification line-ups, with the agreement of the suspect
- They may obtain fingerprints (if the suspect is 15 years or older)
- They may question suspects before the suspect for a reasonable time, before bail, court or release.
- They may reconstruct a crime scene if the suspect agrees to participate.
- They may record an audio or video interview
- They may use reasonable force if a suspect resists arrest.
- They may use surveillance devices in certain circumstances (with official permission)
What are your rights when dealing with police officers?
When dealing with the police, your rights extend to:
- Being informed of your rights.
- Being informed that you are under arrest and having the charge explained to you
- Except when required to give your name and address, you have the right to silence.
- You are not required to give blood samples, body samples, photographs, or any other samples unless a court order has been obtained for this purpose.
- You do not have to accompany police to a police station unless you have been placed under arrest.
- You do not have to let the police search your property unless they have obtained a warrant or they reasonably expect to find illicit substances.
- You do not have to participate in a reconstruction of a crime
- You do not have to participate in an identification line-up.
- You do not have to supply voiceprints.
- You have the right to an interpreter.
- You have the right to communicate with lawyers, family or friends before any questioning unless the police believe that to allow so will be detrimental to an ongoing investigation or the safety of others.
What are the powers of questioning? What are their general rules?
Police officers have the right to ask questions of any person who they think could help them investigate a crime. These people include the suspect, victim, witnesses, suspected accomplices, friends or family of the victim. Balancing this, however, is a citizen’s general right to silence.
General rules of questioning:
- Right to silence
- The police cannot detain you or make you accompany them to a police station unless you are under arrest
- You have the right to have a lawyer present during questioning and if you are under 17, an adult
Once arrested, the police must warn the person “anything you say can be used in a court of law against you”. (When questioning)
- Interviews are taped
What is the exception to the right of silence?
- If you are suspected of a terrorism offence, there is no right to silence.
