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Legal Studies 3/4 > Strengths and weaknesses > Flashcards

Strengths and weaknesses Flashcards

1
Q

What are 5 strengths of parliament as a law-making body?

A

D - delegate (par. can delegate it’s law making powers to subordinate bodies. more likely to be aware of needs because more accessible to the people)
D - Democratically elected (elected by people, should represent views of majority or run risk of being voted out next election)
I - investigate the whole topic (well sourced to investigate, government departments and ministers with required knowledge to initiate necessary changes)
S - set processes to ensure adequate time and debate (bills must pass through certain stages to ensure sufficient time for proposals to be debated and amended)
C - create legislation on an entire topic (par. can make wide-sweeping changes if needed, can amend a number of Acts in one new piece of legislation)

DDISC

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2
Q

What are 5 weaknesses of parliament as a law-making body?

A

S - subordinate bodies not elected (other than local councils, so may not rep the views of the people and too many people making laws)
C - controversial topics (risk of voter backlash, e.g. same-sex marriage)
T - time consuming (investigation and implementation)
C - compromise on legislation (gov. may have to give in on key points to ensure the Bill will pass both houses, especially when opposition holds majority seats in upper house)
V - volume of legislation (so much legislation, parliament may make laws that contradict or clash)

SC - TCV

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3
Q

What are 3 strengths and 3 weaknesses of a referendum as a means of changing law-making power? (method of adjusting the division of power)

A

C - compulsory vote
P - protection of smaller states
P - protection of constitution

L - lack of understanding
D - double majority
C - costly

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4
Q

what are 3 strengths and 3 weaknesses of referral of powers as a means of changing law making powers? (method of adjusting the division of power)

A

B - best left to CW, e.g. anti terrorism laws
E - Easy
S - states able to decide

U - Uniform laws
U - unclear if exclusive or concurrent
S - States generally reluctant

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5
Q

what are 3 strengths and 3 weaknesses of HC interpretations as a means of changing law-making powers?
(method of adjusting the division of power)

A

R - relevant (can keep constitution relevant)
C - check (HC is guardian of the C and can act as a check against abuse of power by S or CP, provided there is a relevant case)
E - experts (HC judges are experts on C law and its application, so are best placed to interpret its meaning)

S - standing
R - relevant case
C - cannot change the words

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6
Q

what are 4 strengths of the CW constitution in protecting rights?

A

C - challenged in HC (any leg that attempts to limit or remove express or implied right)
A - altered by successful referendum (difficult to achieve)
S - structure of Australia’s democratic system of gov (reflected in C and offers some structural protection of rights)
E - entrenched rights (HC can declare invalid any legislation that attempts to limit them)

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7
Q

what are 4 similarities between AUS and SA approaches?

A

C - Change or amend the offending Act
E - Entrenched
S - Separation of powers
U - Unconstitutional (court can find section of Act unconstitutional b/c it contravenes with an express right)

CESU

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8
Q

what are 4 differences between AUS and SA approaches?

A

R - referendum not needed to change bill or rights
E - extensive list of express rights in SA
P - promote spirit and purpose of bill of rights
S - standing (SA without standing)

REPS

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9
Q

what are 5 strengths of law making through the courts?

A

D - develop areas of law by making new decision (cover situtations not covered by statue or common law, because new situtations are constantly arising. e.g. negligence)
E - judges are Expert and Experienced (makes their decision relevant to todays circumstances)
R - rigid by ROD
P - political influence (courts not subject to political influence, appointed rather than elected, more objective)
Q - quickly change law if relevant case (can resolve a dispute for parties and create precedent)

DERP-Q

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10
Q

what are 5 weaknesses of law making through the courts?

A

S - changes in court made law can be Slow (changes in particular areas of law through courts can be slow to develop, such as negligence which continues to broaden its score. Also depends on relevant case)
C - community consultation or engage experts unable (don’t have access to VLRC or consultation with public, limited resources)
E - elected, judges aren’t (may not reflect community values b/c not help answerable and accountable)
B - bound by an old precedent (may not be able to change the law)
R - relevant case (cant change unless case before them, e.g. Dr. McBain would have found it difficult w/o Leesa Meldrum)

SCEBR

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11
Q

what are 4 similarities between the operation of the courts and VCAT?

A

B - binding
L - legal rep
T - third party
C - civil cases

BTLC

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12
Q

what are 4 differences between the operation of the courts and VCAT?

A

J - judicial officers (not all VCAT members are)
C - criminal cases
L - legal rep
C - certified decision (VCAT decision has to be certified, courts immediately enforceable)

JC LC

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13
Q

what are 4 strengths of the operation of VCAT to resolve disputes?

F-DAC

A

FORMALITY: informal - VCAT is informal
DECISION: binding
APPEALS: appeal - limited right to appeal saves time and money
COSTS: cheaper - low application fees

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14
Q

what are 4 weaknesses of the operation of VCAT to resolve disputes?

F-DAC

A

FORMALITY: no - strict rules of e&p
DECISION: it’s orders require certification in the Mag Court before they can be enforced
APPEALS: appeal - limited right
COSTS: fees - been seen to increase

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15
Q

what are 4 strengths of courts to resolve disputes?

F-DAC

A

FORMALITY: strict - rules of e&p
DECISION: binding
APPEALS: appeal
COSTS: fair case - through legal rep

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16
Q

what are 4 weaknesses of courts to resolve disputes?

F-DAC

A

FORMALITY: formal courtroom environment
DECISION: binding - less satisfied with outcome imposed on them
APPEALS: lengthy - can be lengthy
COSTS: legal rep - adds cost

17
Q

what are 5 strengths of the adversary system of trial?

parties (3)
judge (2)
burden and standard of proof (1)
legal rep (1)
rules of e&p (4)
A

parties - parties are able to; fight own battle, determine what evidence is introduced, engage in legal rep
judge - remains impartial, independent of prosecution in criminal or parties in civil
burden and standard of proof - party brining case has to prove facts to standard of proof
legal rep - each party has right to legal rep
rules of e&p - oral evidence helps reveal if witness is sincere, examination allows to test evidence, consistency, some evidence not permitted

18
Q

what are 5 weaknesses of the adversary system of trial?

parties (3)
judge (2)
burden and standard of proof (1)
legal rep (1)
rules of e&p (3)
A

party control can lead to - high cost of legal rep, delays that cause hardship, vital evidence missed
judge - cannot intervene, cannot offer assistance to unrepresented
burden and standard of proof - more concerned with winning
legal rep - unrepresented disadvantaged
rules of e&p - witnesses may be intimidated and say something misleading, can only respond to questions, expert evidence could be unduly relied on, not all evidence may be brought out (inadmissible)

19
Q

what are the 4 differences between the adversary system and inquisitorial system?

judge
rules of e&p
legal rep
parties

A
  • judge - adversary independent, inquisistorial active role
  • rules of e&p - adversary collected by parties & strict rules, inquisitorial collected by judge & no strict rules
  • legal rep - adversary help prepare case, inquisitorial greatly reduced role
  • parties - adversary preparation and presentation of case, inquisitorial respond to court directions
20
Q

what are 5 strengths of the jury system?

A

INDEPENDENT - An independent fact-finding body (Not bound by rules of precedent as judges are, Independent of political pressures and reflect the common sense values of the community)
UNDERSTOOD - the law can be understood through simplification of procedures
RESPONSIBILITY - spreads the responsibility
FAIR - ensures fair treatment (Prosecution must prove to the jury the accused is guilty beyond reasonable doubt, - ensures that civil proceedings are not conducted hastily for political convenience)
CROSS-SECTION - a cross-section of the community

21
Q

what are 5 weaknesses of the jury system?

A

INFLUENCED - easily influenced by emotional bias
EVIDENCE - still likely to be complex evidence
JUDGES - judges alone are better able to make decisions
MAJORITY - majority verdicts threaten the standard of proof
CROSS-SECTION- not a cross-section of society

22
Q

what are 3 strengths of bail? (criminal pre trial)

A
  • remand expensive for state gov
  • presumed innocent until proven guilty
  • remand can have negative effects on society
23
Q

what are 3 weaknesses of bail? (criminal pre trail)

A
  • bail process complicated
  • application can be time consuming/stressful
  • risk to the community
24
Q

what are 3 strengths of remand? (criminal pre trial)

A
  • ensures justice can be done
  • can protect society
  • can ensure witnesses protected, evidence not impeded
25
Q

what are 3 weaknesses of remand? (criminal pre trial)

A
  • high recidivism rate
  • can result in unemployment, homelessness
  • can affect accused’s ability to prepare for trial
26
Q

what are 3 strengths of committal hearings? (criminal pre trial)

A
  • helps save time and resources of higher courts
  • accused informed of prosecutions case
  • accused can test strength of prosecutions case
27
Q

what are 3 weaknesses of committal hearings? (criminal pre trial)

A
  • complicated
  • contribute to stress/inconvenience
  • can be considered unnecessary for stronger cases
28
Q

what are 2 strengths of pleadings? (civil pre trial)

A
  • opportunities to reach out of court settlement

- allows parties to determine s&w of each others case

29
Q

what are 2 weaknesses of pleadings? (civil pre trial)

A
  • long and complex, several documents need to be exchanged

- high cost, particularly if lawyer used to prepare pleadings docs

30
Q

what are 2 strengths of directions hearings? (civil pre trial)

A
  • timely resolution by ensuring parties completing pre-trial procedures in efficient manner
  • judge can order parties attend mediation, encourages out of court settlement
31
Q

what are 2 weaknesses of directions hearings? (civil pre trial)

A
  • difficult to understand, especially self represented

- waste of time if court ordered parties attend but no issues to discuss

32
Q

what are 2 strengths of discovery? (civil pre trial)

A
  • assist parties in understanding s&w of each others case
  • avoids trial by surprise, both parties have access to same relevant docs
33
Q

what are 2 weaknesses of discovery? (civil pre trial)

A
  • time consuming, especially when large number of docs

- costs, particularly when large number of docs

34
Q

What are 4 weaknesses of the CW constitution in protecting rights?

A

C - changing constitution is difficult (could make it hard to keep constitution up to date and reflecting changes in attitudes/tech)
A - advisory opinions (HC must wait for case before can decide whether a right exists)
F - few rights (means that Australians have to rely on statute to provide them with basic human rights)
E - express rights are more restrictions on the CW in regard to legislating (rather than to human rights that directly protect the community, e.g. freedom of religion about CW)

CAFE

Legal Studies 3/4 (24 decks)

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