Legal Studies Unit One AOS1

Question 1

Define social cohesion

Answer 1

The willingness of members of a society to cooperate with each other in order to survive and prosper.

Question 2

The benefits of social cohesion

Answer 2

Members are unified.
Provided opportunities in work, education and in their social life.
Sense of belonging.
Individuals work together to challenge disharmony and to promote theirs and others’ wellbeing.
Not discriminated against.
Free to make choices in society.

Question 3

Examples of human rights

Answer 3

A functioning society ensures that the rights of individuals are protected.

Examples of rights are rights to freedom of speech, freedom of religion and the right to vote/silence.

Question 4

The three factors that contribute to social cohesion

Answer 4

The role of individuals, the role of laws and the role of the legal system.

Question 5

Explain the role of individuals

Answer 5

It is the responsibility of individuals to ensure that they are aware of the laws and abide by them.

It is the responsibility of every person to obey the law.
A person needs to find out what the law is, particularly if it impacts them.
Individuals are expected to respect human rights, and not act in a way that is contrary to those rights.
To be willing citizens and contribute to society where all persons are free from harm and can live their best life.
To be active citizens by influencing change through the use of petitions or joining a political party.
Assisting the police with their investigations, by reporting crime and using the legal system to resolve their disputes when their rights have been infringed.

Question 6

Explain the role of laws

Answer 6

Laws provide guidelines on what behaviour is acceptable and what behaviour is not acceptable. They set expectations about the way individuals should behave.

Establish a framework in which people live, set boundaries for behaviour and allow individuals to make choices about how they live.
Laws apply to everybody, regardless of their position in society.
The idea that laws apply to all upholds the rule of law (the principle that everyone in society is bound by law and must obey the law, and that laws should be fair and clear, so people are willing and able to obey them.
Mechanisms for resolving disputes.
Laws recognise and support the rights of individuals and groups.

Question 7

Explain the role of the legal system

Answer 7

The legal system is a set of methods and institutions that makes, administers (implements) and enforces laws.

Parliament’s role is to make new laws and to change or repeal existing laws
Courts are responsible for interpreting the law and enforcing the law by settling disputes

Courts, tribunals and enforcement bodies (e.g. Victorian Police)
Aims to deal fairly and justly with individuals who have broken the law or breached someone else’s rights.
Applying the law and enforcing the law are two of the roles of the legal system that helps to achieve social cohesion and protect the rights of individuals when a dispute arises.

Dispute resolution bodies: courts and tribunals.
To help people settle disputes in a way that avoids further conflict or disruption to society.
If a system of laws existed without being applied and enforced, there would be no consequences if an individual breached a law.
Having a legal system to help enforce the law ensures that rights are upheld, and that society functions effectively.

Question 8

The three principles of justice

Answer 8

Fairness, access and equality.

Question 9

Explain the principle of fairness

Answer 9

‘Impartial and just treatment or behaviour without favouritism or discrimination.’

Laws must be fair.
There are fair legal processes in place to deal with them.
All parties receive a fair hearing.
People should be able to understand court processes and have an opportunity to present their case and rebut (challenge) the other side’s case.
The processes involved in determining a case should be fair and impartial.
If someone has a similar case, they must receive the same punishment as the person who previously committed the offence.

Question 10

Explain the principle of access

Answer 10

‘The ability to approach or make use of something.’

The laws and the legal system should make it possible for people to use the legal procedures, methods and institutions that help to resolve civil disputes and determine criminal cases.
Access to the institutions that make decisions about cases, as well as being able to have contact with bodies and institutions that provide legal advice, education, information and assistance, and being able to be informed about cases.
People should have access to information about their legal rights so they can understand when their rights may have been infringed.
Access the law and the legal system to enforce their rights, and people who have been harmed because of someone else’s actions should be able to seek compensation.

Question 11

Explain the principle of equality

Answer 11

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

All people should have the right to be recognised as a person before the law.
No person or group should be treated advantageous or disadvantageous.
They should be treated the same regardless of their characteristics or attributes, such as status, race, religion, marital status, or sexuality.
People should not suffer from any form of discrimination in the legal system.

People should be given an equal opportunity to present their case.
Legal processes should be free from bias and prejudice.
Same resources or opportunities.
This includes judges, who must act impartially, and jury members, who must be unbiased and have no links with the parties.
Laws should not be discriminatory and there should be laws that prohibit discrimination against a person or group because of some characteristic.
Sometimes, it is necessary to treat someone differently to ensure there is equality. Someone who may be more disadvantaged than the other can be benefited to achieve equality.

Question 12

The five characteristics of an effective law

Answer 12

Clear and understandable, reflects society’s values, known, enforceable and stable.

Question 13

Explain the characteristic of known

Answer 13

The public must know about it.

If people do not know about a law, they cannot follow it.
It is the responsibility of individuals to find out what the law is on a matter that affects them.
If someone breaks a law, saying ‘I didn’t know I was breaking the law’ is not an acceptable answer. This principle is commonly expressed as ‘ignorance of the law is no excuse.’
Law-makers also need to keep the public informed of any new laws that are passed by parliament. Major changes in the law, or new laws, are usually reported in the media, and many laws are debated in the media and in society before they are introduced.
Example: A state of emergency was declared in Victoria to combat COVID-19. This provides the Chief Health Officer with wide-ranging powers, which includes restricting people’s movements. The Victorian Government published the changes widely, through a social media and television campaign.

Question 14

Explain the characteristic of enforceable

Answer 14

Must be enforceable.

If people break the law, it must be possible to catch and punish them, or sue them.
If this is not possible, people may be less inclined to follow the law.
Laws need to be realistic.
Laws are more likely to be effective because it requires the behaviour to occur in public; therefore the behaviour is more likely to be visible to police officers and members of society, and the police will be able to enforce the law.

Question 15

Explain the characteristic of clear and understandable

Answer 15

It is important for a law to be written in a way so that people can understand it, and so the intent of the law is clear.

If a law is ambiguous, unclear or written in language or in jargon that people don’t understand, it is possible people won’t follow it and the law will be ineffective.

Question 16

Explain the characteristic of reflects society’s values

Answer 16

Must reflect society’s current values.

If the law is in line with society’s current values, then members of society are more inclined to follow that law than disregard it.
The laws need to change when society’s values change.
Example: Changes were made to Australia’s marriage laws to allow people of the same sex to lawfully marry each other.
Laws are meant to recognise society’s current values.

Question 17

Explain the characteristic of stable

Answer 17

It must be stable.

If a law is constantly changing, no one would be certain what the law is, and it may not be as effective as a law that has remained constant for some time.
Example: There have been very few changes to the law relating to murder in Australia. Murder has always been a crime, and so there is certainty that murdering another person is against the law.

Question 18

What is source of law

Answer 18

Source of law (who made the law)
Statute law (laws made by the parliament) and Common law (laws made by the courts).

Question 19

Explain statute law

Answer 19

The main role of parliament is to make laws. Laws made by parliaments are called statutes, Acts of Parliament or legislation.

Australia’s parliamentary system is based on the concept of the supremacy of parliament and this means that parliaments are able to override laws made by other bodies, including the courts.
The final law-making power rests with the parliament.

Question 20

Stages of a bill through parliament

Answer 20

Introduction and first reading - the bill is introduced to the first house (usually the house of representatives).

Second reading - the purpose of the bill is explained and it is debated and voted on.

Committee stage/ consideration in detail - the bill is considered in detail, clause by clause. Amendments are most likely to occur at this stage.

Third reading - the bill is voted on in its final form.

The bill passes the first house.

Same procedure in the second house.

The bill passes the second house.

Royal assent - the Governor-General (federal) or the governor (state) approves the bill before it becomes law.

Proclamation - the act comes into operation.

The Act becomes law.

Question 21

Explain common law

Answer 21

A court’s primary responsibility is to apply existing laws to the facts in cases brought before it and to decide the cases based on those laws.

The primary role of courts is to apply the law to resolve the disputes at hand.

The secondary role of the courts is to make laws as part of their determination of cases.
Court made law is also known as common law, case law or judge-made law.
A court can make law in two circumstances:
By interpreting the meaning of the words in a statute when applying the statute to a case the court is hearing (this is known as statutory interpretation).
By deciding on a new issue that is brought before the court in a case where there is no legislation in this area, or when a previous principle of law requires expansion to apply to a new situation.

Common law is created through the reasons for decisions of courts, which are then followed by courts in future cases where the facts are similar.

Question 22

Explain statutory interpretation

Answer 22

A statute is often written in general terms to apply to all types of situations.
Sometimes, an unusual situation arises and a court has to interpret words within a statute.
A judge clarifies or interprets the laws written by parliament.
This interpretation then forms part of the law and can become binding on other courts as part of the doctrine of precedent.

Question 23

Example of statutory interpretation

Answer 23

Example: The Lansell case is an example of a higher court creating a precedent for other lower courts to follow. The federal court judges stated that mini ciabatta bread was a cracker and had to pay GST and was not a bread.

Question 24

Define precedent

Answer 24

When a court decides a case that is the first of its kind, and in doing so establishes or creates a legal principle.

A principle established in a legal case that is followed by courts in cases where the material facts are similar. Precedents can either be binding or persuasive.

Question 25

Two types of precedents

Answer 25

Binding and persuasive.

Question 26

Explain binding precedent

Answer 26

Must be followed by courts that are lower in the same court hierarchy.

A precedent is considered to be binding on a new case when:
The material facts of the precedent are similar to the material facts of the new case.
The precedent was set in a higher court that is in the same court hierarchy as the court hearing the new case.

Question 27

Explain persuasive precedent

Answer 27

Does not have to be followed.

A court is not bound by this precedent and can choose to follow it (be persuaded by it).

A precedent is considered to be persuasive when:
Where a court in another state or country set the precedent (as this court is not in the same court hierarchy).
Where a lower court sets the precedent, therefore, the High Court does not have to follow a precedent set in any other court in Australia.
Where the same court sets the precedent, therefore, the Supreme court is persuaded by previous decisions made by that court.

Question 28

Define obiter dictum

Answer 28

Comments made by the judge in a particular case that may be persuasive in future cases (even though they do not form a part of the reason for the decision and are not binding). ‘By the way…’

Question 29

Define ratio decidendi

Answer 29

The legal reasoning behind a judge’s decision.

Question 30

Developing or avoiding precedent

Answer 30

There are four main ways courts can develop or avoid earlier precedents:

If the material facts of a case are sufficiently different from the material facts in a binding precedent, a lower court may not have to follow the precedent. Instead they may distinguish the material facts in the present case from those in the previous case and make a different decision.

A precedent can be overruled by a higher court in a different case.

A precedent can be reversed when the same case is taken to a higher court on appeal.

In some instances a court is bound by a precedent but expresses its disapproval of or disagreement with the precedent. This is known as disapproving. This does not change a precedent, but a higher court, when deciding a later case, may choose to agree with the court that disapproved of the precedent and decide to overrule it.

Question 31

The five ways of relationship between the courts and parliament

Answer 31

Interpretation of statutes, supremacy of parliament, abrogation of common law, ability of courts to influence the parliament, codification of common law.

Question 32

Explain interpretation of statutes

Answer 32

Courts must apply the statutes to the cases before them.
It is sometimes necessary for a court to interpret the meaning of the words in a statute or in secondary legislation.
Decisions by courts about the meaning of words in statutes form precedents that become part of the law to be followed in the future.
Example: The Lansell case is an example of a higher court creating a precedent for other lower courts to follow. The federal court judges stated that mini ciabatta bread was a cracker and had to pay GST and was not a bread.

Question 33

Explain supremacy of parliament

Answer 33

Parliament are the final law-making body.

Question 34

Explain abrogation of common law and example

Answer 34

Parliament, as the supreme law-making body, can change or override common law.
Parliament abrogates common law by passing an Act of Parliament that specifically abolishes the particular common law principle.

Reasons for the parliament abolishing the law are:
A court’s interpretation of the meaning of a statute’s words may differ from the meaning that parliament meant the words to convey. (A court may interpret the words in a way that does not reflect the current meaning of the act or the intention of parliament).
Courts may also develop a precedent that parliament does not agree with.

Example: Abrogation of common law of wilful exposure.
Amended the crimes act and new sexual offences were created.

Question 35

Explain ability of courts to influence the parliament and example

Answer 35

Courts can also influence changes in the law made by parliament through the comments judges make during court cases.
They may indicate in a judgement that they think a law should be changed by parliament.

Reasons for the courts wanting to do this are:
They may be reluctant to change the law themselves. This could be because a judge thinks parliament is in a better position to look at a wider area of law. Parliaments can carry out investigations that courts cannot.

Example: Trigwell case - The Victorian Parliament subsequently passed the Wrongs (Animals straying on highways) act (influenced by the statement made by Justice Mason of the court), which abolished the common law immunity and made owners of land liable for damage negligently caused by their animals straying.

Question 36

Explain codification of common law and example

Answer 36

Parliament can make laws that confirm precedents, as they are the supreme law-making body.
To codify a precedent, parliament passes an Act of Parliament that reinforces a principle established by a court.
Common law is codified or put into a statute.
Example: Different types of sex offences have been created by common law. Victoria has codified these common law sex offences so that they are now statutory crimes under the crimes act.

Question 37

Two types of law

Answer 37

Criminal and civil.

Question 38

Is criminal a summary or indictable offence?

Answer 38

Indictable.

Question 39

Is civil a summary or indictable offence?

Answer 39

Summary.

Question 40

Explain criminal law and what are the two parties involved

Answer 40

A body of law that protects the community by establishing crimes and setting sanctions for people who commit crimes.
Examples of crime include murder, theft and assault.
One of the distinct features of criminal law is the consequences of committing a crime.
Sanctions may be imposed such as paying a small fine or imprisonment.

There are two parties involved in a criminal case:
The prosecution (the state) which brings the action against the person alleged to have committed the crime.
The accused, who is the one that is brought to the court by the prosecution.

Question 41

Explain civil law and what are the two parties involved

Answer 41

An area of law that regulates disputes between individuals and groups, and seeks to enforce rights before harm has occurred.
Examples of areas of civil law include tort law (negligence and defamation) and contract law.
Civil disputes are private disputes, and do not involve the police or the state.

There are two parties involved in a civil dispute:
The plaintiff is the party who makes a claim.
The defendant is whom the plaintiff alleges has infringed the plaintiff’s rights.

The main aim of a civil law is to remedy a civil wrong by returning the person whose rights have been infringed to their original position.
This is done through civil remedies.
The most common civil remedy is damages, which is a sum of money awarded to the person who has suffered harm.
Another civil remedy is an injunction, which starts or stops an action made by the defendant towards the plaintiff.

Question 42

The main aim of civil law

Answer 42

The main aim of a civil law is to remedy a civil wrong by returning the person whose rights have been infringed to their original position.
This is done through civil remedies.
The most common civil remedy is damages, which is a sum of money awarded to the person who has suffered harm.
Another civil remedy is an injunction, which starts or stops an action made by the defendant towards the plaintiff.

Question 43

Distinguish between criminal and civil law

Answer 43

Aim of the law
Criminal - to protect society and to sanction offenders.
Civil - to regulate the conduct between parties to a dispute and to remedy a wrong that has occurred.

Examples of crimes and laws
Criminal - murder, assault, sexual offences, perjury, contempt.
Civil - negligence, defamation, trespass, contract law, family law.

Possible consequences
Criminal - sanction (fines or imprisonment)
Civil - remedy (damages or injunction)

Person bringing an action under the law
Criminal - prosecution, on behalf of the state
Civil - plaintiff

Person who has the responsibility (burden) of proving the case
Criminal - prosecution
Civil - plaintiff

Person defending the action
Criminal - accused
Civil - defendant

Police involvement in an action
Criminal - yes
Civil - no

Common words
Criminal - accused, prosecution, crime, victim, arrest, bail, guilty, innocent, sentence, punishment
Civil - sue, plaintiff, compensation, damages, dispute, negligence, remedy

Question 44

Victorian court hierarchy overview

Answer 44

The court system provides a means of resolving disputes and enforcing the law peacefully and without resorting to violence. The court system includes a variety of courts that have different areas of expertise and are suitable for different types of cases.

The Victorian courts are ranked in a hierarchy.
The higher courts hear the more serious and complicated cases, and the lower courts deal with less serious matters.
Each of the courts has its own jurisdiction, which is the right or power of a court to hear or deal with particular cases.
For example, the Magistrates’ court can hear minor criminal offences and the Supreme court can hear serious offences.

There are also two specialist courts: the Coroners Court (which investigates suspicious deaths and fires) and the Children’s Court (which deals with criminal and family matters involving children).

Question 45

Structure of victorian court hierarchy

Answer 45

High Court of Australia

Supreme Court of Victoria (trial division -> court of appeal)

County Court

Magistrates’ Court (children’s court and coroners court)

Question 46

The four reasons for a court hierarchy

Answer 46

Specialisation, appeals, administrative convenience and doctrine of precedent

Question 47

Explain specialisation

Answer 47

Courts develop expertise in dealing with the types of cases before them.

Example: The Magistrates’ court hears minor offences, so that court specialises in these less serious offences. The Supreme court hears serious offences, so that court has developed expertise around the principles relating to indictable offences.

Question 48

Explain appeals

Answer 48

The court hierarchy enables the parties to a court case to appeal to a higher court if they are not satisfied with a lower court’s decision.

Appeal: an application to have a higher court review a ruling.

This means that a person who believes that an error has been made in a lower court can appeal the case to a higher court for the higher court to review the decision.

Question 49

Explain administrative convenience

Answer 49

The courts have different jurisdictions to hear different matters.
This allows smaller and minor cases to be heard in the Magistrates’ court and more complex and larger cases to be heard in the County court and the Supreme court.
This allows for some efficiency or convenience with the way that cases are heard.
This easier system for distribution allows a case to be heard where there is expertise in that area rather than having to appeal to a higher court (which lengthens the process).

Question 50

Explain doctrine of precedent

Answer 50

The process of law-making through the courts depends on a decision being made in a higher court that is binding on lower courts.
This enables individuals and lawyers to predict the likely outcome of a case.
Judges and magistrates can be guided by the wisdom of the more experienced judges in the higher courts.
Doctrine of Precedent: The reasons for the decisions of higher courts are binding on courts ranked lower in the same hierarchy in cases where the material facts are similar.