Topics 1,2,3 2020

Question 1

Define the term democracy.

Answer 1

A form of government in which the people govern themselves.

Question 2

What is the difference between a democracy and a liberal democracy?

Answer 2

A democracy allows people to govern themselves, and mainly ensures the principle of majority rules. A liberal democracy does this as well but further measures are taken to ensure the protect citizen rights especially those of a minority that may be subject to disadvantage, prevent discrimination, and resolve illiberal acts.

Question 3

Outline and briefly define the operating systems of a liberal democracy?

Answer 3

• Majority rule: the greater number of people should exercise greater power. Legislature and executive chosen by the people.
• Equality of political rights: entitlements essential to citizen ability to govern themselves. (conduct in public affairs, vote and be elected, have access to public service)
• Political freedom: make choices without intimidation, coercion, or pressure from those with power.
• Political participation: people actively taking part in their own government by putting to use their political rights and freedoms.

Question 4

Outline and define the key principles of rule of law.

Answer 4

• Supremacy of law: no arbitrary punishments
• Equality before the law: no one is above the law regardless of socio-economic backgrounds, etc.
• Judicial Autonomy: courts determine their own decision making without influence from outside the courts.

Question 5

How is rule of law upheld and undermined in Australia? [CASE EXAMPLES]

Answer 5

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Question 6

What is the difference between rules and laws?

Answer 6

The main difference between rules and laws are the consequences associated with breaking them. They are both used to create order and ensure fair play but the consequence of breaking a law is much heavier than breaking a rule.

Question 7

Why are laws necessary to regulate behaviour and ensure social cohesion?

Answer 7

Without laws there is no legally binding outline of behavioural expectations of people, and thus there are no consequences or punishments implemented as a result of bad behaviour. And so when people behave badly, there are little to no consequences associated with it, thus people won’t respect them and follow them.

Question 8

Define the term constitutional law.

Answer 8

laws outlined in the constitution at federation

Question 9

Define the term statute law.

Answer 9

Law laid down by legislation

Question 10

Define the term common law.

Answer 10

Judge made law. Made in courts by judges when deciding cases which give rise to the need for new decisions or precedents. Is inferior to statute law.

Question 11

Define statutory interpretation.

Answer 11

Interpretations of the law. Essentially the judge can apply the law how they see fit given the circumstances and make their own judgement rather than follow the legislation exactly.

Question 12

Why is statutory interpretation necessary?

Answer 12

The literal meaning may not always apply to certain acts and would result in absurd applications of the law if it were followed, and so interpretations of legislation is necessary in ensuring that outcomes are just and fair. - Laws can also be ambiguous and so interpretations are necessary in clarifying how that law is applied. There can also be drafting errors, homonyms, inconsistencies and contradictions, and time changing circumstances that require the law to be interpreted and not followed by the letter

Question 13

Outline and briefly define the maxims and rules of interpretation.

Answer 13

Maxims:
- Ejusdem generis: a general word that follows more specific words in order to give broader terms without being ambiguous
- Noscitur a sociis: any unclear words being clarified by the context that they are in.
Rules:
- Literal rule: plain meaning of words applied.
- Golden rule: interpret legislation in a way which will avoid unfair, absurd, or inconsistent applications of an act.
- Mischief rule: interpret the legislation in a way which is consistent with the intention or stated purpose of the law

Question 14

Define the term ‘stare decisis’.

Answer 14

“To stand by terms decided”

- Previous decisions are authoritative in all future cases in which the facts are substantially the same (precedent)

Question 15

Define the term ‘ratio decidendi’.

Answer 15

Latin for ‘reason for deciding’. Critical judicial reasoning which is binding on lower courts in a court hierarchy and persuasive across and up a court hierarchy.

Question 16

How does the doctrine of precedent operate?

Answer 16

• must abide by stare decisis and apply existing law if it exists (precedent)
• recognise that a case is different from existing case law, and create new case law to resolve it.

Question 17

Outline how the court hierarchy operates in WA and federally.

Answer 17

WA: high court -> state supreme court -> district court -> magistrates court.
Federally: High court -> federal court -> federal circuit court.

Question 18

Outline jurisdiction of different courts within WA.

Answer 18

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Question 19

How does the process of appeals operate in Australia?

Answer 19

• Between 21-28 (depends on court) of the case to file appeal
• Notice of appeal outlines the ground of appeal being made which have to establish either:
○ An error in the law that was applied
○ an error as to the important facts in the case (decision maker didn’t consider all evidence)
• Respondent has 14-28 days (depending on court) to respond
• Appellant and respondent provide written arguments responding to appeal.
• Court determine whether to grant special leave to appeal
• Court hears arguments from both sides regarding ground of appeal
Not a retrial of case, rather trial on legality and due process of original case

Question 20

What is the difference between ‘appeal by right’ and ‘appeal by leave’?

Answer 20

Everyone has the right to seek appeal, but don’t have the right to have an appeal heard. When an appeal is agreed to be heard they are given appeal by leave.

Question 21

Identify and briefly explain 4 ways in which an appeals court can avoid precedent.

Answer 21

• They can distinguish the case from another case
  ^^ facts of a case are not similar enough to the facts of the case before them.
• Deem the precedent out of date
  ^^ societies, values, and technology change. old precedent results in stagnation and injustice.
• Can overturn a lower courts decision
  ^^ superior courts can review evidence and ratio decidendi and overturn decision if they don’t agree.
• Disapprove binding precedent
  ^^ lower courts are bind by superior court precedent. They can express disagreement and encourage parties to appeal to higher courts that can overturn that precedent, or even parliamentary intervention.

Question 22

Why is the court hierarchy essential to the doctrine of precedent?

Answer 22

There must be higher courts capable of creating common law. Must be lower courts that must follow binding common law. ratio decidendi in higher courts with appellate jurisdiction create common law, precedent of higher courts bind lower courts, higher courts may be persuaded by ratio decidendi and obiter dicta of lower courts.

Question 23

Define the term natural justice.

Answer 23

Belief that there are core principles of judicial fairness in society.

• impartial adjudication
• hearing both parties
• evidence based decisions
• open trials

Question 24

What are the key differences between civil and criminal law?

Answer 24

• resolve disputes vs ensure community safety, punish and deter crimes
• onus of proof difference
• outcomes of punishment

Question 25

Define the term burden of proof and how it differs between criminal and civil trials.

Answer 25

Rests with the accuser regardless of type of trial. Onus to prove accusation against an accused.

Question 26

Define the term standard of proof and how it differs between criminal and civil trials.

Answer 26

Standard of proof is the measure of how much proof is required to establish the liability or guilt of the accused.. Plaintiff / prosecution must achieve this to win case.
Criminal cases must prove guilt of defendant beyond reasonable doubt.
Civil cases must prove liability on the balance of probabilities.

Question 27

Describe the roles within the adversarial system.

Answer 27

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Question 28

Describe the rules of evidence.

Answer 28

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Question 29

What is obiter dicta?

Answer 29

‘sayings by the way’

- non-critical judicial reasoning outlined in a decision. can be persuasive to future cases.