Semester Two Exam Revision Flashcards
Adversarial system
A legal system based on the principle that justice is best served by allowing competing parties to present their arguments to an impartial adjudicator.
Three stages of the pre-trial precedure (Civil)
- Pleadings documents
- Further and better particulars
- Certificate of readiness for trial
Pleadings documents
- Writ and statement of claim
- Service
- Notice of appearance
- Statement of defence (counterclaim)
Further and better particulars
- Interrogatories
- Discovery
Certificate of readiness for trial
A document which allows parties to notify the courts that they are ready to go ahead with the trial. The parties indicate how long they think the case will go for.
Civil law
The body of law that regulates the ordinary private relationships in a community. It deals with civil disputes which are those which involve a dispute between two or more individuals in a community.
Criminal Law
Criminal laws deal with actions regarding as anti-social and dangerous to the community. A criminal dispute is is between society and the person accused of violating the criminal law.
Remedies
Orders made by a court in a civil dispute to compensate a successful plaintiff for the wrong committed against them by the defendant. Remedies are intended to restore the plaintiff to the position they would have been in had the dispute not occurred. These are generally damages and injunctions.
Compensatory damages
Money awarded to the plaintiff to compensate them for the loss suffered. These can be specific damages (an amount to cover the exact loss) or general damages (an amount to cover an uncertain loss).
Exemplary damages
Money awarded against a defendant in order that their conduct is made an example of to the community. These are very rarely awarded own Australia.
Nominal Damages
In cases where an plaintiff seeks to prove a point of principle or have their reputation vindicated, a small amount of money can also be awarded.
Injunction
A court order requiring a person to either carry out or not carry out an particular action. These are usually sought urgently to halt an action whilst a matter is being heard in a court.
Trial Procedure (civil and criminal)
-Opening Statements (P then D)
- Examination-in-Chief
- Cross Examination
- Re-examination
[Repeat]
- Closing Statement
Criminal Sanctions
The sentences applied by the courts to a person who has been found guilty of an offence. Sanctions include fines, community service orders and imprisonment.
Mitigating factor
Any fact or circumstance that decreases the severity or culpability of a criminal act
Aggravating factor
Any fact or circumstance that increases the severity or culpability of a criminal act
Purposes of Sanctions
RETRIBUTION: Avenging or punishing someone on behalf of society for the breach of its laws and values
DETERRENCE: Deterring the offender from re-offending and warning others who might commit the same actions of the consequences
REHABILITATION: To establish the conditions that would modify or alter the behaviour of individuals so that they will not commit the same crime again.
PROTECTION: Sanctions should operate to protect the community against the potentially harmful actions of individuals
Natural Justice
A set of procedures that are designed to ensure that decisions made are fair. Includes procedural fairness which is just and fair legal proceedings which are predictable and well-publicised.
Post-trial procedure (Civil)
- Sentancing / Verdict
- Judges decision is handed down, and any punishment the judge sees fit is applied
Pre-trial procedure (Criminal)
- Police complete pre-trial stage
- Police investigations
- Warrants
- Defendant Arrested
- First appearance (bail is set)
- Commital mention / pleas
Political party
An organised group of people with the same political aims and opinions who seekto influence public policy by having its candidates elected to public office.
Major parties
Political parties capable of winning a majority in the House of Representatives in their own right in order to form government.
Labour & Liberal
Minor parties
A political party capable of winning seats in the parliament but not enough to form government in their own right.
Greens & One Nation
Micro parties
A political party which may win one or two seats in parliament, however they maybe not survive for more than a few successive terms.
Motoring Enthusiast Party & Daylight Savings Party
Trustee Model of Representation
The trustee form of representation is where a representative has a formal responsibility over another, trusting them to act in your best interest.
Advantages :
- people vote for who would act wisely on their behalf, rather than who represents their ideas
- altruistic model
Disadvantages :
- elitist
- doesnt allow for political equality (some opinions are worth more than others
- dont get ideas represented
- anti-democratic
Partisan Model of Representation
Party system, people are represented by a political party and their ideologies.
Advantages :
- Mandates
- Policy not person
Disadvantages :
- can lead to irrational or uneducated voting
- public may agree with some policies but not with all.
Delegate Model of Representation
The delegate model of representation is where someone is chosen to act on the behalf of another, one the basis of clear guidance and/or instruction.
Advantages :
- disallows personal preferance and judgement
- binds politician as closely as possible to the views of the public
- gives the people more control
- “popular sovereignty”
Disadvantages :
- breeds narrowness
- foster conflict
- limits scope of leadership (no room for vision or interpretation)
Mirror Model of Representation
System of representation based on the concept that our governments makeup should mirror our societies (e.g if society is 50% women, so is parliament)
Advantages :
- represents societies cliques
- direct representation
- representation of minorities
Disadvantages :
- narrow minded
- lots of conflict
- logistically inprobable
Developments in elections
1911 - sufferage for Men AND Women over the age of 21
1924 - Compulsory voting
1962 - Aboriginal and Torres Straight Islanders given the right to vote (over the age of 21)
1973 - Legal age to vote changed to 18
Gerrymandering
The deliberate manipulation of electoral boundaries to gain an electoral advantage.
[drawing electoral lines to bias one group = unfair advantage]
Malapportionment
The drawing of electoral boundaries to allow a large variation in the number of constituents in different electorates.
e.g 12 senators for WA, 12 senators for TAS.
Preferential voting
- Majoritarian system
- Single member electorates
- Ballots marked in order of preference
- Winner = candidate with absolute majority (50% + 1)
- Votes counted in order of preferance if no candidate reaches the majority on the first count, the candidate with the least amount of votes in removed and their votes re-distributed until someone wins
- Used post 1918 in Aus.
- Used in House of Reps. & Legislative Assembly
Advantages :
- fewer votes wasted than FPTP system
- outcome cannot be influenced by deals made between candidates
- single party majority creates stable government
Disadvantages :
- system favours larger parties
- winning candidates may enjoy little first preferance support
First past the Post
- Single member electorates
- Voters select a single candidate
- Winning candidate gets the majority of votes
- Used in Australia from 1855 - 1918
Advantages :
- Simple = Less informal votes
- Clear link between electors and elected
- Clear mandates
- Keeps extremism at bay
- Strong effective government
Disadvantages :
- Favours a two party system
- Not truly representing the majority
- Wastes votes
- Distorts electoral preferences
- Third Party effect
- Creates instability as a change in government = radical change in policy
Compulsory voting
Everyone has to vote
Compulsory enrolment
Everyone has to enrol to vote
Proportional voting
- Multimember electorates
- require a portion of the votes to be elected
- Voting options (above the line & below the line)
- Single transferable vote
- Used in the Senate & Legislative Council
Advantages :
- represents smaller groups more fairly as they are more likely to gain representation through preferance deals with major parties and because the quota is less than the majority.
- eliminates vote wastage
- eliminates gerrymandering
- can reduce malapportionment
- more diversity = better representation = mirror representation
Disadvantages :
- too many small parties = barrier to legislation
- GTV
Proportional quota formula
((Number of formal votes) divided by (Number of positions + 1)) + 1
Single Transferable vote formula
(Candidates number of surplus votes) divided by (total number of votes candidate recieved)
Counting the votes (Proportional)
- Candidates who gain the quota are elected
- Each vote gained by a candidate above their quota is then transferred to the candidate who recieved the voters second preference using the Single Transferable Vote.
- Repeat
Strengths of the Civil Trial system
- Impartial Judge (e.g Mulletboy)
- All particulars are known by both sides (e.g C7 case)
- Party control
- Settlement can be reached at anytime (e.g Victoria v Teenage Boys)
Weaknesses of the Civil Trial System
- Gathering of evidence takes time and money (e.g C7)
- Favours party more knowledgeable in the law
- large costs (e.g C7)
- rules of evidence
- adversarial trial allows for one party to exhaust the resources of the other
- trials take long amounts of time (e.g C7)
Strengths of the Criminal Trial system
- Burden of Proof upholds presumption of innocence
- Right to silence (cant be used against you)
- option to plead guilty
- Judge = unbiased and impartial
- witness examination & cross examination
- Rules of evidence & police investigation
- Bail procedures
- Pre-trial procedures = less delays
- Sanctions reflect community values
Weaknesses of the Criminal Trial System
- Not all crimes are reported
- Insufficient police funding = not all cases investigated
- Inconsistencies in bail / remand demands
- Jury
- Dependance on oral evidence = delays
- Rules of Evidence & Right to Silence can obscure the discovery of the truth
- Defendants often in a worse position than prosecution
- Witness intimidation
- Inconsistencies in sentencing
- Legislative interference with the process e.g mandatory sentancing
- Prisons promote recidivism
Advantages of the Jury system
- reflect community values
- limit the power of the legal system
- test evidence well
- builds belief in legal system (educates people)
- safe guards laws (can choose not to administer bad laws)
- unanimous verdict (or majority verdict) means presumption of innocence and rule of law are maintained
Weaknesses of the Jury System
- Unrepresentative
- Lacks expertise
- Juries reflect community prejudice
- Juries are inefficient (delays & possibility of a retrial)
- Juries are inconsistent
- Not accountable (Juries don’t have to give reasons for their decision)
What are the key changes of Juries Legislation Amendment Act 2011?
- Upper age limit extended (from 65 to 75) = representative
- Fewer occupation exemptions = participation
- Flexibility in timing (service can be deffered up to 6 months) replaces excuse of right, when undue hardship is only temporary (e.g pregnancy) = participation
- Peremptory challenges reduced from 5 to 3 = participation
- Tougher penalties for not showing up (now $800 fine) = participation
- Employers who don’t allow an employee to do jury duty will face a fine of $10000 to $50000 = participation
Objectives of Jury selection
- Representation
- Participation
- Impartiality
- Competence
Outline the key changes implemented by the Commonwealth Electoral Amendment Act
- Amends the Commonwealth Electoral Act of 1918
- Clause 13: omits group ticket voting
- Clause 19: at least 12 boxes below the line
- Clause 20: at least 6 boxes selected above the line
- Clause 51: “A person must not be a member of more than one registered political party”
- Clause 52: “A person must not be a registered officer of more than one registered political party”
- Savings clause = allows for less vote wastage (also super stupid)
Franchise
Franchise is the right to vote. In Australian parliamentary elections the right to vote is normally granted to Aus. citizens over the age of eighteen years.
Role of the parties
The two adversarial parties have full control over proceedings. This means that they are responsible for pre-trial procedures, and preparation and presentation of their respective cases. They must gather evidence, organise witnesses and employ experts. On a procedural level, they are also responsible for determining the time and place of the hearing. This role ensures that parties have the ability to present the best case possible.
Role of the judge
The judge’s main roles during the case are to control proceedings and ensure that rules of evidence and procedure are followed. This means that a judge decides what evidence is admissible, and what evidence is inadmissible, and therefore to be excluded from the trial. At the conclusion of the two parties’ presentations, a judge will instruct the jury if there is one, summing up the case and instructing them of the relevant law to be followed. With or without a jury, the judge decides the relevant law to be applied. However, when there is no jury, the judge decides on questions of fact. This means that the judge determines which presentation of evidence is more persuasive and, ideally, truthful, before reaching a verdict. The judge always decides on the sanction (in criminal cases) or remedy (in civil cases).
Rules of evidence and procedure
Rules of evidence and procedure are strict in the adversary system of trial, and aim to ensure that the trial is fair and unbiased, and that parties have an equal opportunity to present their case.
Some rules of evidence are:
- That only certain types of evidence are admissible, and others are inadmissible
- Only relevant and reliable evidence is allowed. This can come in the form of oral, documentary or expert evidence
- Inadmissible evidence includes hearsay evidence, and evidence that has been obtained unlawfully
- These rules ensure that parties are treated fairly
Some rules of procedure are:
- A hearing is to be single and continuous
- Questioning stages are organised strictly
- Delays will occur but are ideally minimised
- Standard and burden of proof
- The burden of proof refers to who has the responsibility to prove their case in court. In criminal proceedings, the prosecution must prove the defendant’s guilt, and in civil proceedings, the plaintiff must prove that the defendant was liable.
Standard of proof
Standard of proof refers to the level of convincing required to prove a case. In criminal cases, the prosecution must prove that the defendant is guilty “beyond reasonable doubt” i.e. it is near certain that they committed a crime. In civil cases, the plaintiff must prove that the defendant infringed their rights on the “balance of probabilities” i.e. it is more likely than not that the defendant was in the wrong.
Need for legal representation
Often the responsibility of preparing and presenting one’s own case is delegated to legal representation, and a party will be disadvantaged without it. Solicitors handle most of the pre-trial preparation, while a barrister conducts the trial presentation, including questioning of witnesses. Legal representatives are vital in assisting the parties. They understand the complex rules involved in bringing a case to court that an ordinary citizen may not, and are therefore able to ensure that a party’s case is prepared and presented in the best possible manner.
Electorate
Can refer to all persons entitled to vote. Also means a geographical area that is represented by a member of parliament.
Independant
A parliamentarian who is not a member of a political party.
Pressure groups
Organisations that have relatively narrow aims and seeks to influence public policy.
How do political parties encourage popular participation?
- campaigning
- voting
- nominate for elections
- how to vote cards
- determining grop ticket
How do pressure groups encourage popular participation?
- allowing people to have a platform
- everyone can join
- allows people to access
- enables eveyone to have their say make the difference
How do Presidential election work in the USA?
- Those who wish to run apply if they are eligible (to be eligible you have to be a natural born citizen, a minimum of 35 years of age, and a US citizen for at least 14 years.
- Primaries and Caucuses
- Candidates from each political party campaign through the country to win the favour of their party members.
- In a Caucus: Party members select the best candidate through a series of discussions and votes.
- In a Primary: Party members vote for the best candidate that will represent them in the general election. - National Convention
- Each party holds a national convention to select a fial presidential nominee.
- At each convention the presidential candidate chooses a running mate (Vice Presidential candidate)
- Presidential candidates campaign - General Election
- People in every state across the country vote for one President and one Vice President
- When people cast their vote, they are actually voting for a group of people called electors - Electoral College
- In the electoral college system, each state gets a certain number of electors based on its representation in congress.
- Each elector casts one vote following the general election, and the candidate who gets more than half wins (FPTP)
Strengths of the Adversarial system
Role of the individual
- Control over their own case
- Assumed innocent until proven otherwise
Role of the Judge
- impartial
- ensures rules & procedures are followed
- referee
Legal Representation
- Legal representation = in an equal position to their opponent (Dietrihc v The Queen)
Burden of Proof
- Onus = on the person bringing the case
- Adheres to the innocent until proven guilty principle
- Up to date with community
Rules of Evidence & Procedure
- continuous = smooth (not disjointed) hearings
- strict rules of evidence = maintains consistency
- process of examination & re-examination creates equality.
Weaknesses of the Adversarial system
Role of the Individual
- losing party bears court costs
- plaes ultimate responsibility on the individual
- not all evidence must be disclosed, leading to a “selective” version of events that is decided to be the “truth”
- delays
Role of the Judge
- parties may not disclose all the facts. meaning that the expertise & experience of the judge may not be fully utilised
- judge can’t assist unrepresented parties = unequal
Legal Representation
- not everyone can afford legal representation
- not everyone can afford GOOD legal representation
Burden of Proof
- adversarial trial = more focused on proof than truth
Rules of Evidence & Procedure
- not all evidence is admissible
- selective evidence
- witness intimidation
- when not all evidence is presented or items are struck it can confuse a jury.
Free & Fair elections
Free and fair, or genuine, means that elections offer equal opportunities for all competing parties and candidates. Such equality requires the ability of political parties and candidates to register for office without unreasonable requirements, balanced access to the media for all candidates, the absence of campaign finance abuse and an independant electoral process.
