Presumption Of Innocence Flashcards
Rule
Non-legal rules (regulations/codes/policies) made by private individuals or groups in society, enforced in various ways by said maker. They only apply to a specific group of people. E.g From households, schools workplaces, departments, sports
Laws
Legal rules made by legal institutions (parliaments or the courts) that apply to society and are enforceable by the courts and the police.
Federation date
1st January 1901
Parliament
A formal assembly made up of representatives of people who are elected by the people to make laws, with the exception of the Governor General who is appointed. There are 9 parliaments in Australia
Significance of the constitution
Establishes:
Parliament- two houses, directly chosen by the people, represent the people
Lawmaking Powers of Cth & states - division of powers, express powers, residual powers, Cth supremacy
The judicial role of the High Court - only the court interprets the Constitution, determine if Parliament is outside jurisdiction, final court of appeal
Constitution can be changed - referendum with double majority (51% and 4/6 states)
Social cohesion
Describes the willingness of members of a society to co-operate with each other in order to survive and progress
Indicators of a societally cohesive society
- people can work and improve their education
- individuals feel a sense of acceptance and belonging
- individuals are fairly treated and not discriminated against
- there is active and effective participation in government and community based organisations by community members
- the legal system treats individuals equally and promotes accessibility
Indicators of a dysfunctional society
- high levels of crime
- frequent and large protests
- high reoffending rates
How individuals can promote social cohesion
By following the law.
Individuals are not expected to know and understand every law in Australia, but it is their responsibility to follow laws once they’re aware of them. Individuals can also campaign for change against unfair laws
How the law can promote social cohesion
Laws set up guidelines for what is acceptable, create boundaries to protect individuals, and establish the ‘rule of law’ (principle that everyone in society is bound by the law and must obey the law)
How the legal system can promote social cohesion
By ensuring that institutions exist to effectively create, implement and enforce the law, including:
Parliament (represent the views of their voters when making lawmaking decisions)
Police (fairly enforce the law)
Courts (apply the law and determine if an individual has broken the law)
Flexible Sanctions (options such as fines, community corrections and imprisonment)
Fairness
All people can participate in the justice system and its processes should be impartial and open
impartial processes
all Personnel within the legal system including the judge magistrate jury members Court Personnel must act in a way that is impartial and independent to show no bias or discrimination
open processes
Court processes must be transparent - open courtrooms to allow media reporters, clear guidelines for sentencing and regulations for selection and role of the jury
participation
individuals must be able to effectively participate in the legal system through being aware of charges laid against them having time to prepare their case being aware of the evidence brought against them
equality
all people engaging in the justice system should be treated in the same way if the same treatment creates disparity or disadvantage adequate measures should be implemented to allow all to engage with the justice system without disparity or disadvantage
same treatment
this refers to formal equality whereby all individuals are treated the same and given the same levels of support regardless of their personal differences or characteristics such as race religion gender identity or Age this idea of equality adopt thr one size fits all approach
different treatment
this refers to substantive equality whereby if the legal system did treat people in the same way but in doing so causes disadvantage or disparity then measures/adjustment should be put in place to allow people to participate in the justice system this is when the one size fits all approach doesn’t work
Access
All people should be able to engage with the justice system and its processes on an informed basis.
Engagement
To engage with the justice system, people need to be able to use and participate in the system.
• Physical access - the location of courts in Victoria - This may lead to people living in rural areas having limited access or having to endure additional hardships in travel time to go to court.
Financial access - Victorian Legal Aid is limited in its funding and thus ability to support individuals who do not have the means to pay for legal representation. People should not be prevented from defending their case because they do not have the financial means to do SO.
Informed basis
• Education - individuals with higher levels of education are generally more informed about their rights + more thorough awareness of the legal system. Information published by courts should be printed/produced in plain-English to support those with lower literacy levels.
Access to legal support services - having free access to legal support services can help people be more informed about their rights e.g include going to generalist community legal centres that are located in particular suburbs or specialist community legal centres such as those specifically designed to assist women or refugees
Legal representation - having legal representation is one of the most effective ways that a person, particularly an accused person can be informed about their rights + legal processes.
Reflect society’s values
A value is a belief, principle or idea about the way we should behave and treat others, which are deemed important to uphold.
As laws regulate and restrict our actions, it is vital that they are acceptable to the community. If a law is accepted within society, members are more inclined to follow it.
This is a major reason for law reform, as laws must change with to align with current societal values.
Enforceable
If it were not possible to reprimand those who break the law, people would be less inclined to follow it.
Those who break the law may be apprehended and charged in a criminal case or sued in civil proceedings.
The law is enforced in Australia by the courts, various government bodies and the police.
Known
The public must be aware of a law
in order to follow it. Law makers must keep public informed of new laws or major changes to laws - these are usually reported and debated in media before being introduced.
However, it is the responsibility of individuals to find out what the law is on matters that affect them. Ignorance of the law is no excuse.
Proceedings from Federal Parliament are broadcast on television and radio and new legislation is published in the Government Gazette
Clear and understood
Legislative drafters write legislation with a purpose in mind - they must be consistent and precise with their wording so that the law can be interpreted and understood clearly by people in society.
. If a law is ambiguous, unclear or written in technical legal jargon, it is less likely to be followed.
For example, in Victoria there has recently been calls to change the laws about neighbourhood tree disputes. Tree disputes are incredibly common and yet the law for dealing with such conflicts is convoluted.
Stable
Laws cannot be constantly changing otherwise there will be confusion. People need to be confident that the law can be relied on.
Law-making bodies should attempt to forecast changes that may occur in the future as they are making new laws or changing existing ones.
Structure of Commonwealth parliament
The Commonwealth Parliament, also known as the Parliament of Australia and the Federal Parliament, consists of:
- The crown, represented by the Governor general
- the house of representatives (lower house)
- The senate (upper house)
House of representatives
Australia - geographical areas = electoral divisions, ~100000 each
- 2023 = 151 electoral divisions in Australia + 151 members in the House of Representatives. Members are elected three years.
-Forms government
(majority of members + leader becomes the Prime Minister.)
PM chooses ministers - the Cabinet
Holds government accountable
The second largest political party forms the Opposition.
- shadow ministers who challenge government on policies
Introduces and pass proposed laws
majority of bills are introduced by lower house.However, any member of parliament can introduce a bill.
. If a bill is introduced and first passed in the Senate, it will proceed to the lower house for review.
Represent the people’s interests when debating and making laws
Senate
The Senate is the upper house of Commonwealth Parliament and consists of 76 senators.
Reviews bills that have been passed by the House of Representatives
. As the majority of bills are introduced in the lower house, the Senate scrutinises and debates these bills before either passing them or rejecting them. This is why the Senate is known as the ‘House of Review’.
Ensures equal representation for the states
Regardless of their population size, each state elects 12 senators for a period of six years. Both the mainland territories (NT, ACT) elect two senators for a period of three years.
Introduces and pass proposed laws
Although the majority of bills are introduced in the lower house, the Senate can also fulfill this role. However, the Senate cannot introduce bills that generate revenue (e.g. taxes) or spend money.
Statute law
Parliament is the supreme lawmaking body in Australia and can override laws made by other bodies, including the courts. Law made by parliament is called statute law, Acts of Parliament or legislation.
Before a bill can become a law it must pass both houses of parliament. It goes through several stages in each house and must also receive a majority vote.
Once a bill has passed through both houses it must be presented to the Governor-General to receive royal assent. Only then does it become a law.
Governor general
Represents the crown in parliament. Their role is to give royal assent to laws, so they can pass and be put into action
Structure of Victorian parliment
- The King (the crown) represented by the Governor
- The legislative assembly (lower hose)
- legislative council (upper house)
Legislative Assembly
Victoria is divided electoral districts. As of 2023, there were 88 electoral districts in Victoria and therefore 88 members in the Legislative Assembly. Each member of Legislative Assembly is elected for a period of four years.
Forms government
The political party with the majority of members in the lower house forms government. The leader becomes the Premier of Victoria.
The Premier then chooses ministers to be responsible for different portfolios - e.g. housing and police. This is called the Cabinet.
Holds government accountable
elected /voted The second largest political party forms the Opposition.
Some of the Opposition become shadow ministers who challenge and question the government on policy matters.
Legislative Council
the upper house of Victorian Parliament. Victoria is also divided into eight regions, each consisting of 11 districts. Five members are elected from each region which means there are 40 members sitting in the Legislative Council.
Reviews bills that have been passed by the legislative assembly
As the majority of bills are introduced in the lower house, the Legislative Council scrutinises and debates these bills before either passing them or rejecting them.
Introduces and pass proposed laws
Although the majority of bills are introduced in the lower house, the Legislative Council can also fulfill this role.
Subordinate Authorities
Parliament is the supreme law-making body. However, it does not have the time or resource to make all the laws necessary for social cohesion.
Therefore, both Commonwealth and State Parliaments can delegate law making power to subordinate authorities which can make minor laws in their area of expertise. This legislation is known as delegated or subordinate legislation.
Examples
Local councils make laws about pet ownership, rubbish removal and parking.
VicRoads makes laws about roads and traffic.
Common law
Judge made law/established in court
Doctrine of precedent
A precedent is a legal principle established by judges that should be followed by courts in later cases when similar facts arise. It is Created through statutory interpretation or when a court decides a case that is the first of its kind
Stare decisis - ‘to stand by what has been decided’ - when a court follows the precedent set by a higher court
Binding/persuasive precedent
Binding precedent = must be followed. Set by a higher court in the same court hierarchy. Material facts are similar
Persuasive precedent = does not have to be followed. Set by another state or country (different court hierarchy). Set by a lower court in the same court hierarchy. Set by the same court in the court hierarchy
Ratio decidendi
Ratio decidendi - ‘the reason for the decision’ - binding part of the judgment that must be followed by courts lower in the hierarchy.
Obiter dictum
‘by the way’ - persuasive part of the judgment that does not have to be followed but can provide suggestions for judges and other law-makers in the future.
Developing/avoiding precendent
Distinguishing - material facts in the new case are sufficiently different from the material facts in the binding precedent
Overruling - a higher court states that the precedent set by a lower court in a different case no longer applies. The higher court then sets a new precedent that becomes binding on lower courts
Reversing - the same case is appealed to a higher court and the superior court changes the decision of the lower court. The higher court has set a new precedent that becomes binding on lower courts
Disapproving - a court follows a binding precedent but expresses disagreement with it in its obiter dictum. This does not change the precedent but may be considered by a higher court in the future
Statutory interpretation
Judges are often called upon to interpret the meaning of words in a statute when applying it to a case before the court.
Codification
As the supreme law-making body, parliament can make legislation that codifies (reinforces, confirms) precedent set by a court.
Abrogation
As the supreme law-making body, parliament can make legislation that abrogates (overrides, abolishes) a common law principle.
Judicial Influence
In their judgements, courts may influence parliament to change the law by commenting on the need for reform.
