Unit 1: Legal Foundations

Question 1

Why do we need laws?

Answer 1

Laws are needed in society in order to prevent anarchy. Anarchy is defined as “a general state of disorder or uproar” or “a lack of established government or control”. It means that there are no laws, and no order is enforced.

Question 2

What is the difference between social customs, rules and laws?

Answer 2

Social customs are socially acceptable habits such as saying hello, waiting in lines, and bringing a gift to a birthday party.

Rules regulate our lives in a more formal manner. These are decisions made by parents, teachers and school (basically any non-legal authority figure) in order to keep people under their control safe. They are small-scale. The consequences for breaking a rule aren’t legal.

Laws are rules made by governments to ensure that our society functions properly. There are legal consequences for breaking a law.

Main differences:

• Laws are made by a governmental body with authority.
• The consequences of breaking a law are more serious than a rule
• Laws apply to everyone

Question 3

Why do laws change?

Answer 3

Laws change to reflect the evolving needs, morals and values of society. For example, as society’s morals have gone to absolute ruin throughout the years, prostitution laws have been relaxed, and laws such as witchcraft have been abolished. Free speech and religion are probably next.

Question 4

What are the cultural influences in our legal system?

Answer 4

Most Australian Laws are British in origin. When Australia was colonised by Britain, their British laws were adopted.
Due to Australia’s multicultural society, as well as the Indigenous First Nation people, various pieces of legislation have been passes to ensure fairness exists between different cultural groups. E.g. The Racial Discrimination Act (1975) and the Native Title Act.

Question 5

What are the moral influences of our legal system?

Answer 5

Moral influences in our legal system are the morals that occupy society today. These morals are frankly horrifying, but since they are held by the majority of our very messed up society, they impact the law. For example, since more and more people are becoming sexually immoral, prostitution laws have been relaxed.

Question 6

What are economic influences in our legal system?

Answer 6

When some laws are passed, they can either be in response to economic pressure of may have some form of economic impact on our society.

Question 7

What is the rule of law?

Answer 7

The rule of law is the principle that “all people and institutions are equally subject and accountable to the Law.
- Democratic countries such as Australia adhere to this principle in order to ensure just and equitable outcomes for all.
See book for Rule of Law pyramid.

Question 8

What are the 5 features of a “good” law?

Answer 8

To be a good law, a law must contribute positively to the wellbeing of all citizens in our society.

1. Law must fairly balance individual rights with community good
2. Law should be clear
3. Laws should be consistent and stable
4. Laws should apply equally to all
5. Laws should be capable of being enforced.

Question 9

What are the three sources of Law in Australia? (Primary sources of law)

Answer 9

1. The Constitution
2. Law made by parliament (legislation/statute law)
3. Law made by judges (common law)

Question 10

What is the Constitution?

Answer 10

The Constitution is the most important legal and political document in Australia.

• The Constitution establishes the composition of the Australian Parliament, describes how Parliament works and what powers it has.
• It also outlines how the federal and state Parliaments share power, and the roles of the executive government and the High Court of Australia .

It was drafted when the colonies agreed to come together and form States in a Federation in 1901.

Question 11

Identify and explain the four different types of law-making powers.

Answer 11

The four different types of law-making powers are exclusive powers, concurrent powers, and residual powers.

Exclusive powers: Only able to be exercised by the Commonwealth Government.

• s90: power to make laws regarding customs
• s115: prevents the States from making their own money
• s114: prevents the States from having their own armies

Concurrent powers: These powers can be exercised by BOTH the Commonwealth and the States. However, s109 states that COMMONWEALTH will PREVAIL if there is inconsistency. (Commonwealth > State)

Specific powers: Section 51 specifically sets out powers that can be exercised by the Commonwealth. They provide the Commonwealth with the power to make laws for ‘peace, order and good government of Australia’.
- If the Commonwealth decides not to legislate in that area, the states are free to do so.

Residual powers: Powers held by the states only. If a power is not set out in s51 or given exclusively to the commonwealth, it is a residual power and can ONLY be exercised by the STATES.

Question 12

What is the Separation of Powers doctrine? What are the three parts?

Answer 12

The Separation of Powers doctrine ensures the powers of making, enforcing and interpreting law should be separate.
The Constitution separates the powers into 3 parts:
1. Legislative power (make laws and legislations)
- Exercised by Parliament
2. Executive power (enforce laws)
- Exercised by the Cabinet (PM and ministers in charge of Govt departments)
3. Judicial power (interpret law and decide if it has been broken)
- Exercised by Courts and Judges - independent from Parliament.

Question 13

How does the Separation of powers work? E.g. Underage drinking laws

Answer 13

Only PARLIAMENT makes legislation setting the drinking age limit, making it illegal for minors to drink
The EXECUTIVE has the power to put these laws in to operation in order for law breakers to be arrested.
Only the COURTS interpret the law to see if a person has broken it.

Question 14

What are the functions of the High Court? How many judges can be on it at a time?

Answer 14

The functions of the High Court are to interpret and apply the law of Australia; to decide cases of special federal significance including challenges to the constitutional validity of laws and to hear appeals, by special leave, from Federal, State and Territory courts. The High Court can strike down some laws made by parliament.

There must be a High Court in Australia, and there must be at least 3 judges on that Court. Australia can only have 7 High Court judges at any time.

Question 15

What is the Parliament and what does it do?

Answer 15

The word Parliament means “a meeting at which a discussion takes place”
Parliament is the legislative arm in the Separation of Powers.
The main functions of any parliament:
- To make or change laws
- To represent voters
- To scrutinise and check on the Government (Executive Arm)

Question 16

What is the Federal (Commonwealth) Parliament?

Answer 16

The federal parliament passes laws that apply to all Australians. It consists of:

• The Crown - The Queen represented by the Governor General
• The House of Representatives - represent voters in their Local Electorate
• The Senate - Senators that represent State/Territory as a whole

Question 17

What is the House of Representatives?

Answer 17

The House of Representatives is the “Lower House”

• It consists of 150 representatives each elected for a term of 3 years.
• Each member represents about 125,00 people in an electorate
• The most heavily populated states have the most representatives.

Question 18

What is the Senate? (OLE)

Answer 18

The senate is the “Upper House” of the Federal Parliament.
It is made up of 76 senators - each of the 6 states elect 12, the territories elect 2 senators each.
Senators are elected for a term of 6 years.

Question 19

What is Preferential Voting in Australia?

Answer 19

Preferential voting is listing candidates in order of preference.
After the first preference votes have been counted, if no candidate receives a majority, the candidate with the fewest first preference votes is eliminated.
The eliminated candidate’s second preferences are then added to the other candidate’s tallies. This process continues until 1 candidate has more than 50% of the votes.

Question 20

What are the steps of a bill becoming a law?

Answer 20

First reading:
The title of the Bill is read out in the House of Representatives or Legislative Assembly. Each member receives a copy of the Bill.

Second reading:
Detailed discussion of the Bill begins. Bill can be opposed.

Committee stage: The Bill is examined and debated in detail. This is the MOST IMPORTANT STAGE. Pros and cons will be given.

Third reading: The title is read out again and voted on.
If this is just for QLD, it goes straight to the Governor General for signing.
If this is Federal, it must go through this process in the Senate before the Governor General phase.

Royal Assent: A bill becomes a Law after the success of these steps.

Question 21

What is common law?

Answer 21

Common law (or case law) is made by judges rather than Parliament.

Question 22

What is Customary Law?

Answer 22

Customary Law is social customs treated as if they are laws in certain communities (e.g. Indigenous)

Question 23

What is the Doctrine of Precedent?

Answer 23

The doctrine of precedent is that judges are obliged to follow the decisions of earlier cases in higher courts when the factual circumstances are essentially the same.
Criteria: If the earlier court case a higher ranked court? Are the factual circumstances almost exactly the same?

Question 24

What is the Court Hierarchy for Criminal Matters?

Answer 24

Lowest:

Magistrates Court
District Court
Supreme Court
Court of Appeal
High court

Highest:

Question 25

What is the Court Hierarchy for non-criminal matters?

Answer 25

Lowest:
Federal Circuit Court
Family Court
Federal Court
High Court
Highest:

Question 26

What is “ratio decidendi”?

Answer 26

Ratio decidendi is the “reason for decision”. It is binding upon later courts.

Question 27

What is “obiter dicta”?

Answer 27

Obiter dicta is “incidental things said”. Opinions and by the way comments which are not binding upon later courts.

Question 28

Determine the ratio decidendi and the obiter dicta for this case:
“Smith v Danes (1998) - District Court”
- Young man (passenger) injured in car crash
- Underage driver
- Driver on drugs
- Stolen car, illegal activity

Answer 28

Ratio decidendi: The passenger assumed risk of injury by getting into a car with an underage driver on drugs.

Obiter dicta: The driver and injured man were part of a joint illegal activity.

Question 29

What is a persuasive precedent?

Answer 29

A precedent that can be followed, but doesn’t have to be. (e.g. a case from a lower court that has the same facts of case but is not legally binding because it is a lower court. However, the judge can still choose to follow it if they choose.)

Question 30

What happens when statute law and common law are in disagreement?

Answer 30

When there is a conflict between statute law and common law, STATUTE LAW ALWAYS TAKES PRECEDENT.

Question 31

What is statutory interpretation?

Answer 31

Statutory interpretation is the process undertaken by courts to interpret Acts before determining their proper application.

Question 32

What are the four rules of statutory interpretation?

Answer 32

1. The literal rule
   This rule is used to interpret the words of an act as it is written, the literal meaning of the words is applied. Judges can use definitions and dictionaries and etc.
2. The golden rule
   The Golden Rule permits courts to depart from the Literal Rule if the meaning leads to absurd, ambiguous or inconsistent circumstances. Used to apply a more lenient definition.
3. The mischief rule
   Counters mischief and is used to avoid loopholes in the law. It counters mischievous technicalities. E.g. “No man or woman can commit a crime” - well, technically I’m nonbinary so I can commit as many crimes as I want - the mischief rule is used to counter things like this.

4. The class rule (purposive approach)
The purposive approach is implemented to ensure the law is effective as Parliament would have intended.

Question 33

What is the onus of proof?

Answer 33

The responsibility of the prosecution to convince the judge or jury that the accused is guilty.

Question 34

What is the burden of proof in a criminal case vs a civil case?

Answer 34

The burden of proof in a criminal case is proof beyond a reasonable doubt. Every jury member says guilty.
The burden of proof in a civil case is the balance of probabilities (50/50)

Question 35

What’s the difference between the Adversarial and Inquisitorial court system?

Answer 35

Adversarial: Lawyer fight and dispute it out. The judge is an unbiased referee. Jury makes final call.
Inquisitorial: The Judge does his own investigation and lawyers play a smaller role.

Question 36

What are some characteristics of the adversarial system?

Answer 36

• Lawyers dispute and present the argument.
• Lawyers question witnesses
• The judge is an unbiased and neutral party
• The jury makes final call - 12 guilty verdicts. Confessions proceed to sentencing.
  (Because of this, false confessions can be common in order to get a lighter sentence)
• Quality of defence depends on quality of lawyer. A charming and sharp lawyer can give one side a significant advantage.

Question 37

What are some characteristics of the inquisitorial system?

Answer 37

• Judges actively investigate the case
• Judges lead witness questioning, lawyers ask supplementing questions
• Decreases level of contest between the 2 parties, reduces intimidation/threat
• Weak evidence doesn’t proceed to trial, eliminates plea bargaining
• Confessions do not proceed to sentencing, are just one more fact (reduces risk of false confession)

Question 38

What is customary law?

Answer 38

Customary law is behaviour by communities, typically indigenous communities that is treated as law but is actually a social custom.

• Consists of principles and procedures that have developed in laws through general usage among a group of people.
• Passed on by word of mouth and are not codified
• An established pattern of behaviour that can be objectively verified within a particular social setting.
• Indigenous customary laws have never been recognised in Australian Law.