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Stage 2 legal exam revision subtopics - Coggle Diagram

- - - - laws outline acceptable standards of behavior, outlining sanctions for the breach of these standards. Laws are necessary for a functioning society to maintain social cohesion.
    - - legal rules are rules that are outlined in legislation that have a prescribed consequence for breach. e.g. traffic rules
      - non legal rules are rules that are enforced by a private entity. the consequence for breach is at the discretion of the maker and have no legal weight behind them e.g. uniform laws
    - - social cohesion refers to 'keeping society together to avoid anarchy'
      - to maintain social cohesion:
        
        laws create institutions of government to make laws and enforce them and for adjudicating bodies to bring about just outcomes to disputes
        
        these institutions operate in executive, legislative and judicial arms (separation of powers)
        
        laws must be able to adapt to changing circumstances and environments. society is dynamic therefore must be able to adapt to changes in societal and personal values, global developments, environmental and technological factors etc
        
        ways to alter law
        
        const. change i.e referendum, statutory alteration changes to case law, changes to delegated law
        
        laws must be able to protect societal values and fundamental human rights. society values are never homogenous so they must satisfy the majority ad represent current values
        
        political and democratic rights: individual right to be involved in democratic processes protected by state statutes. e.g. casting vote in referendum, voting at regular elections for MPs
        
        human rights: civil rights such as freedom of speech, association and religion. e.g. 1948- aus was signatory to UN declaration of human rights
        
        legal rights: identifies the rights an individual may recieve in a legal dispute. protected by common law and codified rules e.g. right to present own case before an independent judge, presumption of innocence, equality before the law
        
        laws set acceptable standards of behavior and prescribe legal consequences for breach via law making institutions in order to protect values and human rights
        
        unacceptable behavior: as defined by law-making institutions i.e. parliament, court and delegated authorities and exec
        
        public wrongs: crimes that incur a sanction as a sign of community condemnation
        
        private wrongs: where one legal entity infringes on another's rights or interests
    - - social progress refers to the 'orderly progression' of society from one generation to the next
      - for social progress to occur, laws must be made to facilitate this. Laws that are made to facilitate social progress are designed to:
        
        provide universal education to all citizens
        
        provide adequate healthcare
        
        protect the environment
  - - - a framework of rules and institutions that govern a community
    - - the rule of law refers to principles that underly the australian legal system and incorporates 3 key elements
        
        supremacy of the constitution
        
        states that all australian constitution is supreme and very person and instotution draws their authority from it
        
        existence of fundamental rights
        
        the concept that some individual rights exist under all circumstances and nothing can be done to take them away e.g. the right to a fair trial
        
        equality before the law
        
        states that all are equal before the law regardless of status, power, wealth etc and all law must be exercised in accordance with this concept so no community or section is arbitrarily discriminated against
        
        parliaments are expected to not make laws contrary to this
      - how institutions of government facilitate the rule of law
        
        parliament functions
        
        heed advice of chief legal officers to enact alws within the powers prescribed in the constitution
        
        enact laws to facilitate legal processes e.g. pass electoral laws to allow voting for reps at regular elections
        
        enact laws to protect human rights e.g. RDA 1975 (cth)
        
        court functions
        
        HCA original jursidcition resolves const. disputes about validity of state/fed statutes to ensure parliament exercises power in accordance with const.
        
        court resolves disputes by resolving the legal rights of an individual e.g the presumption of innocence
    - - monarchy
        
        power vested in a monarch (e.g. the king)
        
        const. duties are performed by a representative (GG) who is appointed on recommendation from PM
      - constitutional government
        
        provided 3 conditions exist: PM has confidence of house (majority vote), PM can guarantee passage of supply bills and PM acts in accordance with const. on advice of GG
        
        therefore gvt is held directly accountable to parliament for advice given to GG
        
        written const sets out rules by which insts of gvt exercise their power therefore gvt can only exercise power in accordance w this
    - - a federation has at least two tiers of government --national and state-- each with their own defined law making powers separate from one another
      - aus federation is currenlty the union of 6 states, 3 territories one central gvt
        
        each of the 9 entities has its own sovereign law making body (parliament) as well as an executive and judicial arm
        
        also includes local councils however these are not mentioned in the const as they are a state creation
    - - british traditions
        
        decor and furnishings e.g. red for UH and green for LH
        
        formal reading stages
        
        record of proceedings (hansard) is kept)
        
        westminster conventions- PM sits in lower house along with treasurer
        
        parliamentary privilege
        
        public is invited to view parliament in public galleries
      - functions of parliament
        
        democratic
        
        representative of the people, therefore upholding the concept of representative democracy
        
        scrutinising
        
        meticulous reading and reviewing stages in making law ensure that all bills are scrutinised effectively by government themselves and the opposition
        
        legislative
        
        making, repealing, amending legislation for the people
        
        supply
      - fed parliament elements:
        
        const prescribes that parliament is bicameral with an uh and lh
        
        crown is head of parliament
        
        GG performs no active role in debating and voting processes of law making other than summoning mps to parliament, discontinuing parlaiment between sittings and dissolving parliament in prep for elections. also gives royal assent for bills to become acts
      - house of reps
        
        composition and membership
        
        comprise of of 151 reps who are elected every 3 years from electorates comprised of approx the same number of voters (80 000)
        
        voting system and tenure
        
        uses a preferential voting system
        
        nature of this voting system tends to favor members form two major parties (labor and liberal)
        
        elections are conducted every 3 years
        
        presiding officer
        
        speaker who is usually drawn from the majority party and elected at the beginning of parliament
        
        chairs debates in the house
        
        has a mace as a symbol of their authority to chair debates in parliament
        
        government is formed in this chamber from the majority political party at election
        
        needs 50% + 1 seats to govern in its own right
        
        gvt sits to right of speaker and opposition to the left
        
        seating
        
        cabinet ministers sit on front treasury benches with gvt back benchers directly behind them.
        
        opposition shadow ministers sit facing ministers on the other side of the chamber.
        
        shadow ministers- opposition expert and spokesperson in the same area as ministers. they scrutinise minister performance and challenge gvt
        
        functions of parliament
        
        democratic
        
        representative of the people, therefore upholding the concept of representative democracy
        
        3 specific roles:
        
        to maintain the democratic process- australia adopted pricniples of rep gvt from UK -main role is to allow elected reps to to make laws
        
        to determine exec gvt: westminster system of responsible gvt adopted- convention states that exec gvt is formed from majority LH party with ministers drawn from both houses, being directly accountable to parlt.
        
        to determine political leadership and statesmanship -leaders of 2 major parties are chosen for their ability to perform. PM is selected by their own party but is not sworn in by GG unless they have the LH majority vote
        
        scrutinising
        
        meticulous reading and reviewing stages in making law ensure that all bills are scrutinised effectively by government themselves and the opposition
        
        provides system of checks and balances over executive and judiciary to ensure they follow the rule of law
        
        legislative
        
        making, repealing, amending legislation for the people
        
        parliament makes statute law to set acceptable standards of behavior and imposes consequences which help achieve the dual functions of law (sc and sp)
        
        both houses have equal legislating power except for supply, which can only originate in the LH
        
        proposed bills are either public --introduced by ministers concerning matters of public interest--or private bills-- those introduced by any MP
        
        supplying
        
        parlt passes supply bills (budget) to allow the collection and spending of tax
        
        s53- only LH can originate supply bills and senate cannot ammend them, however they can reject them altogether
      - senate
        
        composition and membership
        
        comprised of 12 senators from each original state and 2 from each territory (76 total)
        
        voting
        
        multi member electorates use a proportional voting system which allows minority parties and independents to gain sufficient votes to be elected
        
        presiding officer
        
        president- is voted in by the senate to perform a similar role to the speaker and holds a black rod to symbolise their authority
        
        government is not formed in the senate but ministers do sit in to represent government
        
        role of senate
        
        house of review- all bills passed by parliament must also be passed by the senate
        
        original intention was for it to be a states house -protecting the interests of the state- however the party function has reduced this function with most members voting along party lines
        
        legislative- senate can originate any bill except supply (s53)
        
        investigative- senate commitees (standing and select) investigate areas or public policy and interest
        
        minority rep- proportional voting system allows minorities and independents to be repped
        
        modelled on the US senate to accomodate democratic principles
        
        equal number of senators from each state (12) and territory (2), while they are also appointed for a longer time to bring stability to the law making process
        
        tenure
        
        appointed for 6 years, however territory members are only elected for 3, with half the senate getting re-elected every 3 years
        
        hostile senate
        
        refers to when gvt does not hold majrity in the UH due to different voting system
        
        makes passage of bills more difficult and often requires negotiation with non government parties- if the opposition opposes a bill the passage relies on crossbenchers
      - role of senate
        
        original intention was for it to be a states house -protecting the interests of the state- however the party function has reduced this function with most members voting along party lines
        
        house of review
      - SA parliament
        
        lower house (house of assembly)
        
        47 MPs elected from 47 state electorates
        
        tenure is a fixed term of 4 years
        
        presiding officer is the speaker who holds a mace
        
        upper house (legislative council)
        
        22 MLCs who rep the whole state
        
        8 years fixed term tenure
        
        presiding officer- president with black rod
  - - - features
        
        payment of MPs
        
        ensures that MPs are able to do their job without consideration of money to allow them to be voted for and stand on an equal basis
        
        parliamentary privilege
        
        refers to the ability for MPs to debate issues openly and freely without fear of being sued for defamation for words said in parliament. this exists to prevent debate from being stifled on controversial matters
        
        regular elections
        
        ensure that the government of the day are truly represntative of the people by being held accountable at regular elections
        
        universal franchise
        
        universal franchise refers to the right of every citizen to vote in regular elections regardless of other factors. if a section of the community were to be disenfranchised, this would mean they were arbitrarily discriminated against
        
        one vote = one value and secret ballot
        
        ensures that the votes arent corrupt or rigged and gives each vote equal status regardless of the voter, allowing the elected reps to be truly representative of the majority
        
        rule of law
        
        reps are able to stand for election and vote on an equal basis, as well as law-making processes having strict rules to ensure the supremacy of the const. and individual rights are observed
      - model of democracy where citizens elect reps to parliament to make laws on their behalf. this can take two forms: direct democracy, where every person is involved in law-making (this is not practical) and indirect democracy, where power is vested in reps. this makes parliament representative gvt
      - federal executive power
        
        executive power is responsible for administering laws made by fed parliament and is divided into 3 arms:
        
        codified/const arm - refers to the gg. s61 states that exec power vested in the monarch is repped by the GG, S62 states that FEC is to advise the GG (of which the members are appointed by the GG)
        
        const rules: GG exercises power and accepts advice from FEC, ministers are appointed/dismissed by GG, ministers are heads of gvt departments and must be MPs, civil servants are appointed by GG delegates
        
        convention of gvt arm
        
        S62 suggests GG power, however, this is exercised by numerous unwritten rules or conventions which determine how gvt is formed and how they exercise their power
        
        in the constitution there is little reference to exec gvt, and no mention of the PM, therefore the convention is that they exist and operate as they do
        
        conventions: exec gvt is formed from majority LH party, PM is sworn in as head of gvt by GG because the majority party has chosen them as leader, GG swears in such members of parliament as PM advises, the GG exercises power on the advice of those ministers at FEC
        
        general admission arm- refers to gvt departments which are commissions or agencies that enforce specific legislation, i.e. centrelink controls welfare payments.
        
        these are run by ministers who form a link between parliament and the CEO of the department.
        
        CEO is an employee who runs the department like a business
        
        c-suite refers to the employees of that department
        
        cabinet (exec gvt) gvt holds real political power, formed from the majority party and headed by the PM (cth) premier (state) or chief minister (territory). the other members are ministers
        
        fed gvt has 30 ministers
        
        SA has 14 ministers
        
        stages to forming fed gvt:
        
        general election for house of reps
        
        party gains majority in LH and chooses leader and members of cabinet
        
        GG swears in PM and ministers
        
        PM allocates portfolio to ministers
        
        cabinet meets regularly and in private to form gvt policy
        
        cabinet members also form FEC which meets with GG to approve cabinet decisions- acting on advice (convention of responsible gvt)
        
        main roles of fed gvt
        
        drafting bills for parliament
        
        administering statutes passed by parliament i.e. accept responsibility for gvt departments ad statutory authorities e.g. education, health, police
        
        deciding gvt policies e.g. immigration numbers
        
        making regulations via delegated power from enabling acts
        
        appointing judges and heads of departments and statutory authorities
        
        signing international conventions at UN and treaties with other nations
    - - features
        
        accountability
        
        the chain of accountability refers to a complex web of checks and balances that ensures no institution of government oversteps its powers or exercises arbitrary use of power
        
        executive >accountable during question time to the legislature> accountable to the people during elections
        
        gvt is held responsible to electorates in a number of ways: ministers must be MPs so citizens have acees (indirect democracy), ministers must answer questions about their policies and department from the opposition, and minister resigns if they lose the confidence of parlt. or misleads it
        
        ministers public performance is subject to parliament scrutiny, which occurs via question time, grievance debates,, debating stages of bills and special committees
        
        relationship between legislature and executive
        
        the sitting of executive government in the legislature allows them to be directly accountable to the parliament, and therefore indirectly accountable to the people under parliament's scrutiny
        
        convention that PM is leader of gvt as long as 3 conditions exist: they have the confidence of house, they can guarantee passage of supply and acts on advice of GG in accordance with constitution
        
        ministers must be MPs (codified in the state/cth const) meaning aus does not have a complete separation of powers
        
        exercise of exec power
        
        misc conventions: PM is head of gvt and must sit in LH to right of speaker, speaker has unlimited access to GG to identify ehich party leader has confidence of house, ministers can sit in both houses on front benches, HCA is independent therefore cannot give legal advice to gvt
      - a system of parliamentary democracy based on the british westminster system. centred around the concept that an elected legislative body (parliament) will make laws for the people while an unelected body (government) will perform an executive function in the administration of these laws
      - US system of responsible gvt: president is directly elected by people, rather than the party. this means they are directly responsible to the people, while they do not sit in congress either
    - - features of judicial independence
        
        conditions surrounding appointment/dismissal
        
        appointed by exec (attorney general) but dismissed on address of both houses of parliament. grounds for dismissal must be misbehavior (e.g. criminal activity) or proved incapacity (illness affecting their ability to work i.e. dementia) section 72 (ii) outlines the specific grounds for which a judge may be dismissed, however no federal judge has ever been dismissed in Australia.
        
        crimes act 1914 (cth) outlines the offences judges may be charged with to prove misbehavior
        
        tenure
        
        judge is a permanent position, however judges must retire at 70 (65 for family court) to prevent less progressive opinions or values harbored by judges due to their age from coming into their decisions- section 72
        
        fixed remuneration
        
        according to section 72, judges may not have their pay reduced only increased. this protects judicial independence by preventing judges from being punished by a pay deduction for an unpopular decision in a case
        
        judicial privilege
        
        refers to the freedom of speech that a judge has while on the bench. this protects them from being sued for defamation or prosecuted for harsh things they may say to the defendant however this must be within reason and adhere to a professional standard
      - how do judges make law?
        
        ratio decidendi
        
        element of a judges decision that refers to the reasons why the judge made the decision. concrete precedent
        
        obiter dictum
        
        outside reasoning or persuasive elements. further comments made that can be persuasive but not binding and provide context to the decision
        
        issues and questions of fact
        
        issues surrounding the admissibility of evidence and whether it was relevant or interpreted correctly
        
        questions that help determine what happened in the context of the case before the court. help the court to arrive at the truth of what actually occurred with regard to the allegations made
        
        answered with evidence provided by witnesses
        
        in a civil case, the judge is the sole determiner of fact, whereas in a criminal case a jury may be used to determine fact
        
        issues and questions of law
        
        whether the law was applied correctly for the circumstances and if this application was valid- refers to interpretation of statutes and application of case law
        
        issues only a judge can decide
        
        question of law is decided by a judge through their application of precedent or creation of law
        
        doctrine of precedent
        
        departing from precedent
        
        reversal
        
        same case on appeal in a higher court may reverse the precedent used for the decision made in the court of original jurisdiction if deemed inappropriate considering issues and questions of fact and law
        
        e.g. wik 1996
        
        overruling
        
        higher court (on a different case) may overrule decisions made in a case in a lower court earlier in time to depart from precedent if deemed inappropriate to apply to the current case before them. higher courts i.e. supreme courts and HCA may overrule their own decisions as well
        
        distinguishing
        
        if the facts and evidence involved in the cases are different enough, courts may distinguish between the two to avoid following the precedent. e.g. thomas v nix distinguished the types of injuries sustained to be different from searle v wallbank, therefore they did not have to follow precedent
        
        disapproval
        
        general disapproval occurs when a lower court disapproves of precedent set in a higher court but still has to follow it as it is binding
        
        e.g. SGIC v Trigwell (1978) full HCA disapproved of searle v Wallbank precedent but still had to follow it as it was made in the house of lords
        
        persuasive precedent
        
        precedent made in another court system that has no auhrity over the australian court hierarchy (e.g. england's courts) but may still be persuasive if the circumstances are applicable
        
        binding precedent
        
        precedent made by a court of higher standing that all inferior courts must follow. forms the basis for judge-made law
        
        states that decisions made in previous judgements of courts must be followed in future cases with similar fact situations to ensure the same decision is reached. this ensures consistency, fairness and predictability in the legal system while upholding individual human and legal rights
        
        gives practical application to the principle of stare decisis -t stand by ones decision
        
        statutory interpretation
        
        parliamentary guidance
        
        internal guidance: parliament may include definitions of legal terms in the front of acts to aid the judiciary in interpreting legislation
        
        external guidance: acts interpretation act
        
        case law guidance
        
        literal rule
        
        assumption that parliament knew what their intentions were when writing it thus it should be interpreted with the literal and obvious meaning
        
        golden rule
        
        allows judges to avoid using the literal meaning if it may yield an absurd or unjust outcome
        
        canons of construction
        
        rules created by judges to guide them where there are no other exiting rules in that context. this allows them to make assumptions such as:
        
        the parliament would not deliberately take away someones rights
        
        also use common sense to ensure the intentions of parliament are upheld
        
        ejusdem generis rule
        
        specific terms followed by a more general term e.g. house, room or other like place, a shed may be considered to be included in this list by interpretatio
        
        mischief rule
        
        interpreted by determining what mischief or misbehavior the legislation was trying to prevent when made
        
        why statutes need interpreting
        
        legislation is unintentionally vague or unclear
        
        parliament cannot predict all cases or circumstances that may require or relate to the legislation therefore it may be unintentionally vague, requiring judicial interpretation
        
        legislation is intentionally vague
        
        parliament may make wording intentionally vague to allow for and encompass a variety of circumstances, allowing the flexible wording to apply to various cases and changing societal values
        
        Creating case law: case law is law made by judges, however judges do not have the same extensive law making power as parliament
        
        Stages to making case law
        
        judicial pronouncement
        
        refers to the creation or extension of common law principles where no current law exists in that area to easily apply to the circumstances
        
        judges will use past precedent (decisions) to guide them in their decision making
        
        if no applicable precedent exists, then judges may make brand new case law e.g. donoghue v stevenson
        
        statutory interpretation
        
        refers to the process by which judges give meaning to words or phrases in legislation in order to solve a legal dispute. this may create new legal principles
      - important cases
        
        donoghue v stevenson (1932)
        
        instrumental in shaping tort law and the tort of negligence
        
        ms donoghue bought and consumed gingerbeer with a decomposed snail in it and fell seriously ill. she issued proceedings against stevenson (the manufacturer of the gingerbeer) as she was not able to claim breach of warranty of a contract as she was not party to any contract
        
        the decision (in the house of lords) had several components; firstly that negligence is separate and distinct in tort law, secondly that a contractual relationship does not have to be established for a duty of care and third that manufacturers ow this duty to consumers of their product.
        
        it was decided that reasonable care must be taken to avoid acts or ommissions that may be reasonably foreseen to cause harm to others
        
        effectively established tort law as separate to contract law
        
        grant v australian knitting mills (1936)
        
        concepts of negligence were expanded upon as in this case manufacturers failed to remove a chemical irritant from their woolen underwear, causing the plaintiff to contract dermatitis and sue akm for damages. donoghue v stevenson was used as persuasive precedent and expanded the legal principles to include all manufacturers.
        
        this case also established 3 elements that must be present for negligence to be established: there was a duty of care owed by the defendant, this duty was breached, and damages were caused by this breach
        
        Coffey v Jaensch
        
        Coeffy's husband was seriously injured by the negligent driving of jaensch, and coeffy suffered significant nervous damage due to the state of her husband. she seeked compenatio from jaensch in the sa supreme court for nervous shock and loss of consortium. she was successful in trial and the subsequent appeal which jaensch pursued
        
        doctrine of tort law and negligence was extended to include those who perceive the event's aftermath
      - crucial in a democratic society as the judge must be free from interference or intimidation. this is achieved by the judge not performing a legislative or exec function. judicial independance forms he cornerstone of the seperation of powers and is vital if courts want the confidence of society so that cases are decided on merit free from influence
      - judicial review
        
        original jurisdiction -refers to the principle of a democratic state to exercise power in an independent judiciary, and to hear and decide cases before appellate review
        
        HCA reviews legislative and executive power use and must decide if gvt or parlt. has exceeded its powers i.e. they are the 'guardians' of the constitution
        
        HCA interprets const. to determine whether parlt. acted ultra vires their powers of the const. this also applies to regulations via state/federal court
        
        doctrine of ultra vires acts as a safeguard against unlawful and arbitrary power use which guarantees the appropriate application of the rule of law
        
        appellate jurisdiction- parties in a dispute have a legal right to ask an appellate court to review the decisions of a judge from a court of original jurisdiction
        
        parties have the right to appeal to state appellate court, and by leave from full supreme court, to the HCA
      - means that judges must be free from any interference, intimidation or external influence when deciding cases.they must only consider the evidence and legal submissions before them, including judicial guidance and precedents
  - - - people power
        
        majority public opinion on certain matters such as same sex marriage may make the gvt create legislation to meet these values of the people. people power may be expressed though media such as talkback radio and tv to express a unified view and make the gvt consider change
      - pressure groups
        
        external organised groups e.g. greenpeace exert significant pressure on gvt to introduce legislation in line with their activism and beliefs
      - parliamentary committees
        
        investigative parliamentary committees may find areas in need of change for specific areas and recommend changes and legislation to be introduced to improve these areas e.g. royal commission into investigating aboriginal deaths in custody
      - poor court decisions
        
        unpopular or poor decisions made by the judiciary that the legislature or executive disagrees with may trigger the creation of remedial legislation to ensure decisions like that don't happen again
      - party policies
      - election promises
        
        promises made by arties for action on specific issues with legislation that they will action if voted in
      - public service
        
        chain of accountability??
    - - Pre parliamentary (PP)
        
        Cabinet discusses and agrees for a bill to be drafted
        
        OPC drafts the bill along with an explanatory memorandum
        
        draft bill is reviewed and approved by the Legislative committee of the cabinet (LCC).
      - Parliamentary (P)
        
        occurs in originating house:
        
        Consideration in detail: Informal debate. Every member is given a chance to debate the bill more informally. the bill is debated clause by clause with amendments proposed and voted on. minister may be questioned on details of the bill (scrutinising function)
        
        second reading: minister reads second reading speech outlining the broad principles and purpose of the bill as well as the planned commencement date. Formal debate occurs, with the opposition given the chance to state their stance.
        
        referral to a comittee (optional). bill is referred to a standing or select committee for an advisory report however this is not usually done in the lower house as the government usually has the numbers to pass the bill without it.
        
        First reading: the title of the bill is read by clerk of house. MPs are called on to approve the first reading. they will not disprove at this stage.
        
        initiation- minister responsible for the bill initiates the bill. bill is tabled for first reading. house is notified of new bill and copies of the draft are distributed
        
        third reading: bills long title is read by clerk of house
        
        transmission to senate: clerk clarifies bill has passed LH. speaker sends message to president of senate requesting the bill be reviewed by the senate
        
        senate stages are largely the same
        
        first reading
        
        referral to a senate committee: this occurs more often in the senate as they are a house of review, and especially if there is a hostile senate a report may be requested
        
        second reading (without ministers second reading speech)
        
        committee of a whole: same as consideration in detail process. bill is debated clause by clause, however any amendments made mean the bill must be sent back to the LH and passed again there before it can be sent to the senate again
        
        third reading: bills long title is read. senate votes on bill
      - Post parliamentary (occurs if bill passes both houses in the same form)
        
        Governor general gives royal assent to the bill
        
        proclamation: bill is published in the government gazette along with planned commencement date
      - the law making process displays several features of the aus const. version of const. gvt including:
        
        const monarchy-parliament can only enact legislation that that is consistent with the const, queen rep acts on advice of parliament to assent bill
        
        rep gvt-elected MPs debate and vote on a bill in two houses, which gives effect to the doctrine of legislative review
        
        responsible gvt- bills are drafted by gvt as part of the legislative program, ministers explain bills in debate, gvt controls legislative agenda of parliament
    - - types of deadlocks:
        
        disagreement- two houses opposed over parts of a bill. compromise may still be possible. conditions for a double dissolution not yet met
        
        deadlock. houses in disagreement over a bill. compromise not possible due to a hostile senate. bill has passed the lower house and been rejected by the senate twice with a lapse of 3 months in between
      - abandonment: bill may be abandoned and shelved for a more favorable time. usually used for bills that are unpopular in public opinion
      - compromise- houses may be able to still come to some sort of compromise over the bill.
      - double dissolution (section 57) a 4 step process in which a deadlock over a bill may be resolved (only for bills which originate in LH)
        
        Lower house passes a bill. senate rejects the bill or amends in a way unacceptable to the government.
        a lapse of 3 months occurs
        lower house passes bill again and senate rejects again
        conditions for a double dissolution are now met as this is a constitutional trigger for the mechanism in section 57
        
        PM advises GG to dissolve both houses of parliament and call a sap election. all MPs and senators are re-elected. this may happen within 6 months of a scheduled election
        
        (this step only occurs if government is won back. if not, the bill will lapse)
        lower house passes bill again, displaying commitment to the bill. senate rejects again (if still hostile to the senate)
        
        PM advises GG to convene a joint sitting. This involves all senators and Mps sitting together and voting on the bill. If the bill is passed with an absolute majority out of both combined houses, the bill will pass and can be assented to.
        
        there have only been 7 double dissolutions since 1901. the most famous of these was the 1975 double dissolution of 1975 under the whitlam government with sir john kerr as GG. 1974 dd ended in joint sitting
        
        reasons for DD usage: if gvt is committed to passing a bill with a specific agenda, or if they want to use the possibility of an early election as a threat
        
        high risk factor: gvt may lose majority vote and therefore gvt in an early election ( as in 1914, 1975 and 1983)
        
        evaluation of the dd mechanism: in 2003, Howard proposed two improvements to s57 as the current mechanism is slow and inefficient, expensive etc.
        proposal 1: a joint sitting be convened after step 2 of the process, allowing the bill to go straight to a joint sitting without needing a snap election. However, this was criticized for weakening he scrutinizing function of the senate.
        proposal 2: a joint sitting could be convened after an ordinary election. this excludes the neccesity of a snap election
    - - compromise- members from both houses meet outside parliament for a managers conference. rarely fails to reach a compromise
      - abandonment- bill is abandoned to resolve deadlock. may occur if bill is generally unpopular and does not have public support
      - dd- there is a double dissolution mechanism in the sa const, however is not practically viable to use since it does not involve a joint sitting
    - - const gvt: cmwlth const, state const, statute of westminster, australia acts, international agreements, HCA interpretations
      - democratic: public pressure and discipline of political parties places restrictions on law-making capacity, parliament is the sovereign law-making body except for when HCA interprets const, parliament's power to delegate law-making to subordinate authorities
      - parliament is the supreme law-making body at both state and fed levels and is an assembly of elected reps with four main functions
        
        democratic
        
        scrutinising
        
        supply
        
        legislative
    - - bill- proposed new act drafted for parliament by the OPC and presented to parliament for debate and possible enactment
        
        types of bills: public and private
        
        public bills are drafted by gvt for society on matters of public interest. they are made to set acceptable standards of behavior so values and rights are protected.
        
        ordinary bill: proposes new law
        
        amending bill: changes parts of an existing act and is identified by word amendment in title e.g. family law amendment act (1983) (cth)
        
        repealing bill: terminates an existing act
        
        consolidating bill: repeals a number of existing acts for the purpose of combining them to allow them to be more accessible e.g. criminal law consolidation act (1935)(SA)
        
        private bills are those not introduced by a minister. they cannot impose/vary a tax or consolidate money from a consolidated revenue fund. they are usually initiated for the purpose of controversial social/moral issues that the gvt may not want to promote as a public bill for fear of electoral backlash
        
        voting on bills in parliament: bills may be voted on in two ways
        
        on the voices- simple verbal vote (yay or nay)
        
        division voting- formal ballot. this is conducted with MPs having 4 minutes to get to the house and vote otherwise they are locked out and cannot vote. members may cast votes along party lines or as a conscience vote
      - an act (also called legislation or statute) is a bill that has passed both houses in the same form and has gained royal assent from the queens rep
      - a law is an act that has been proclaimed by the queens rep and published in the government gazette
  - - - executive councils
        
        SA enabling acts can delegate authority to governor. westminster system encompasses responsible gvt conventions. one of most important: GG acts on advice of gvt so they can proclaim a regulation at exec council
      - local councils
        
        may only create DL for their local jurisdiction and is subject to ministerial approval and parliamentary review
        
        control areas such as local traffic, cat and dog regulations etc
      - sporting venues
        
        may create laws enforceable in their venue, such as adelaide oval's no smoking rules
      - statutory authorities- semi-autonomous agencies established by an enabling act such as Australia post
      - gvt departments
        
        chain of accountability- civil servants design DL-minister presents DL to governor in council. governor proclaims DL
    - - administrative convenience
        
        easier to create dl and saves time and resources
      - relieve parliament workload
        
        parliament already has a large workload with creating/reviewing legislation therefore creating dl relives part of their work
      - decentralised decision making
        
        local authorities have better knowledge of the specific needs of their area therefore they are more suited to create dl for their local areas
      - specialisation/technical expertise
        
        MPs are not experts in all areas therefore they may delegate lawmaking power to specialists in certain areas
      - emergencies
        
        DL is quicker to create therefore is more suited to fixing emergency situations
      - political considerations
        
        exec can make DL instead of passing a bill- backdoor method often used by gvt
    - - parliament: enabling act. an enabling act is created by parliament which authorizes the delegated authority to make regulations and other DL in that area. it has regulatory power and guiding legislation
      - executive: consultation. the executive authority consults with the community that will be affected by the dl
      - drafting: the DL will be drafted by either the OPC (state), a hired law firm, or the actual delegated authority depending on the nature of the DL
      - confirmation/approval: the dl will be confirmed by either a single cabinet minister or the whole cabinet using two documents: a docket containing the original instructions and a certificate of validity
      - tabling in parliament: the dl must be tabled in parliamnt within 6 days. the paraliament has 14 days (SA) or 15 days (cth) to disallow. this disproval motion is done via a standing or joint committee
      - proclamation: proclaimed by state governor, including commencement date
    - - regulations (most common)
      - by-laws (DL made by local councils)
      - ordinances
      - rules
      - notices
  - - - doctrine of precedent
        
        the doctrine of precedent is a key principle of the court system. precedent refers to decisions made in certain cases which dictate the outcomes of cases with similar facts and evidence. since precedent is only binding when made by a superior court, this doctrine would not have effect without the court hierarchy. it provides consistency, fairness and predictability and ensures that lower courts do not have to repeat legal reasoning in cases of similar circumstances
      - specialisation
        
        judges and justices become specialised in certain areas of law e.g. a magistrate may be well versed in summary offences while a district court judge would be more knowledgeable
      - allocation of resources
        
        allows legal resources to be allocated more efficiently to courts. e.g. the district or supreme courts may require more law library resources than a magistrates court
      - appeals system
        
        appeal is a matter of natural justice. the court hierarchy provides a system for appeals as it establishes courts of superior and inferior authority, giving decisions such as overruling decisions legal and valid weight.
      - flexibility and choice
        
        hierarchy allows plaintiff or defendant to choose an appropriate court for the hearing. in civil cases, the damages claim may be adjusted to choose a particular court (however penalties may apply if lawyer chooses an inappropriate court for the matter)
    - - magistrates
        
        hear susmmary offences and some minor indictable offences for which the maximum penalty is 5 years imprisonment
        
        appeals go to court of criminal appeal
        
        no juries
        
        judge is called a magistrate. their roles is to: conduct preliminary hearings, hear summary and some minor indictable offences
      - district
        
        hears all indictable offences except for murder, murder related and treason
        
        appeals go to court of criminal appeal
        
        1 judge who wears a wig and purple robes
        
        maximum penalty is life imprisonment
        
        defendant may request a jury
      - supreme
        
        hears serious indictable offences such as murder and treason
        
        1 justice who wears a wig and red robes
        
        maximum penalty is life imprisonment
        
        defendant may have a jury
    - - magistrate
        
        general claims
        
        claims up to $100k
        
        may use legal rep
        
        appeals heard in full supreme court
        
        minor claims
        
        hears civil claims up to $25k
        
        no lawyers
        
        appeals are heard in the district court
      - district
        
        hears motor vehicle claims from $100k
        
        hears general claims from $100k
      - supreme
        
        hears serious civil disputes
        
        appellate jurisdiction: becomes full court of supreme court
      - HCA
        
        original jurisdiction
        
        original jurisdiction: originates from s75 and s76, the full bench (7 justices) hears complex civil disputes regarding treaties (s75) and matters interpreting the const (s76) among other things
        
        interse disputes: disputes between state and federal gvt. s109 is usually invoked (inconsistency rule)
        
        ultra vires disputes: does parliament have the power to make law
        
        fed law disputes such as treason are heard by 1 justice
        
        appellate jurisdiction
        
        criminal: full court of HCA (3-5 justices) will hear appeals from the states supreme courts
        
        civil: full court of HCA (3-5 justices) will hear appeals from the states supreme courts
      - no juries are used in civil cases
  - - - executive
        
        signing of UN conventions such as the International convention on the elimination of all forms of racial discrimination (1969), which gave the commonwealth the external power to use and exercise over the states to make uniform rights protection. it led to the cration of acts such as the RDA
        
        royal commissions such as the royal commission into the investigation of aboriginal deaths in custody. however a number of recommendations made by this commission were not taken on board, while a commission investigating the stolen generation found the gvt had acted lawfully. this displays a mixed positive and negative impact on rights protection of indigenous people.
        
        national inquiry into seperation of ATSI children from their families (1995 stolen generation) however it found the gvt acted lawfully
      - legislative
        
        Native title act 1993- provided legal weight to a form of traditional land ownership and acknowledged the tradiional custodians of the land in actual legislation
        
        Racial discrimination act (1975) (cth) passed to adhere to UN convention, to make discrimination against people based on race unlawful, and promote both societal and fundamental equality in adherance to the rule of law
        
        racial hatred act was passed to complement this in 1995 to make it unlawful to do or say anything in public if it is reasonably likely it will offend someone based on race
        
        SA parliament
        
        racial vilification act- passed to ensure that ATSI and others can live peacefully without vilification of their race. this may be identified as any public act which incites others to hate or ridicule them based on race
        
        equal opportunity act 1984- conciliated multiple discrimination acts and mae it unlawful to discriminate against ATSI people in a range of areas including education, employment etc
        
        administered by equal opportunity commissioner, grievances may be heard in equal opportunity tribunal
        
        state version of RDA (1976)
        
        aboriginal heritage act- established a committee including indigenous reps to advise the minister on measures to be taken to protect sacred aboriginal sites/objects/remains
        
        passing const alteration to conduct 1967 referendum to give cth specific power to protect ATSI rights
        
        human rights and equal opportunity commision act 1986- created a commission where the RDA commissionr administers the RDA and racial hatred act
      - judicial
        
        Koowarta v Bjelke Peterson (1988) RDA was able to be used to Mr Koowarta's advantage to fight the blocking of a land sale by the qld gvt based on his race -qld court claimed he already had land granted to him as an ATSI person. the HCA cound that the cth external affairs power allowed them to sign the un convention and create the RDA, meaning rhis was intra vires and therefore ruled in favor of Koowarta using s109
        
        Mabo (no. 1 and 2) 1982- an influential case which led to the establishment of native title. eddie mabo and members of the meriam community were seeking native title to the murray islands and this was denied by qld gvt under the coastal islands declatory act (1985) which legislated that their native title was extinguished. however the const. dispute that ensued ended in the HCA ruling this act invalid as it was inconsistent with the RDA. following this, the HCA granted native title as a valid form of land ownership, which overruled the doctrine of terra nullius
        
        Wik peoples v Queensland & ors (1996) HCA- Wik people made a native title claim to pastoral lands in qld. claim was unsuccessful in aus federal court, however, the case was appealed and the HCA ruled that native title could co-exist with other land use (however royalties may have to be organised)
        
        port adelaide magistrates court provides 'nunga court' where indigenous offenders are heard in more culturally appropriate ways. law is applied no differently but procedures differ from conventional court. greater emphasis on employing indigenous elders and court personnel
        
        this has led to incidence of re-offending to decline significantly
      - why it is needed: aus const was not created with the intention of protecting human rights. it was thought that these wouold be protected with common law and legislation. aus does not alternatively have a bill of rights. limited explicit rights exist in the const.
        
        implied rights- rights and freedoms that the HCA has held to exist by implication in the const. they are identified when the HCA sits in original jurisdcition to give meaning to words and phrases in the const to solve a const dispute.
        
        e.g. adban case (australian capital television pty ltd v commonwealth 1992) where the HCA held that there is an implied freedom of political communication
        
        bill of rights
        
        a statutory bill of rights can be enacted like any other piece of legislation by a parliament with appropriate jurisdiction
        
        advantages include that parliament can retain control over human rights and can amend/repeal acts as they see fit
        
        disadvantages include that parliament may add or remove rights at their discretion without public consultation
        
        a constitutional bill of rights as in the US is a list of rights enumerated in the const. these would have to be introduced via referendum. agreement needed on protected rights
      - rights protected in the adversary system:
        
        presumption of innocence
        
        burden of proof on prosecution
        
        right to remain silent
        
        right to present one's own case in court
        
        right to have court proceedings conducted before an independent judge
        
        right to select trial by judge or jury
        
        principle of double jeopardy (cannot be tried for same crime twice)
        
        right of appeal
      - doctrine of terra nullius (land belonging to no one) allowed british gvt to colonise aus and claim sovereignty. the application of this doctrine led to the alienation of indigenous people from traditional lands and culture
        
        aus const made indigenous affairs a residual power of the states which led to discrimination against indigenous people in specific areas
      - 1967 referendum
        
        made indigenous affairs a specific power of the cth and repealed discriminatory sections of the const
        
        since 1967 the cth has taken a more active role in administering indigenous affairs
        
        previous to 1967, the only acknowledgement of indigenous people was in section 51 (xxvi) which made indigenous affairs a prohibited power of the cth, and s127 which identifed aboriginal people as flora/fauna (not included in the census)
        
        these sections were changed to remove any perception of discrimination against ATSI people and meet accepted social an moral standards of the international community. it trasnferred legislative power to the cth so national laws regarding protection of ATSI affairs may be a concurrent power
- - - - self help
        
        not legally binding and doe not involve the other party- the aggrieved party attempts to resolve the matter by themselves
      - mediation
        
        most informal method of third party intervention. attendance is voluntary. most commonly used for family/neighbourhood disputes. consequences are not legally binding and no legislation is cited. mediator is not involved in the content and does not make suggestions, only ensures that things are running smoothly and progress is made. used by SA office of ombudsmen for disputes regarding private parties and government
      - conciliation
        
        a form of third party intervention. attendance is compulsory and some legal representation may be present. options for settlement are restricted by legislative requirements. often used with industrial disputes. conciliator takes a more active role in offering suggestions, and highlighting the consequences of not reaching an outcome. they make an order which reflects terms of settlement, which may be registered in a tribunal to give it legal weight. before civil matters go to trial in higher courts, a mandatory conference occurs which uses a conciliation model
      - arbitration
        
        most formal form of third party intervention. the most legally binding adr method which may have legislation attached to the third party's decision. arbitrator takes a specific role, may call witnesses, examine evidence. consequences are legally binding and may be registered in a tribunal to give it more legal weight. often used in matters regarding builder and contracters. also used by businesses in contract disputes- contracts often have clauses stating that disputes are to be resolved with arbitration. arbitrator may make suggestions, give opinions and propose resolutions.
      - conceding a claim
        
        defendant admits causing damages and accepts responsibility. a damages payment is settled on between the two parties. often done in a pre-trial conference
      - abandoning a claim
        
        plaintiff does not choose to pursue the claims due to various difficulties such as not having money to pursue the claim, the defendant not being able to pay damages etc.
      - concensus (mutual agreement)
        
        needs the active involvement of both parties agreeing on a compromise. this often occurs at a pre-trial conference. some legal rep may be present
    - - types of damages awarded: special and general
        
        special refers to damages that have specific monetary value, e.g. hospital bills, damage to possessions or property. this compensation is intended t put the plaintiff in the same financial position as they were as if the incident had not occurred
        
        general damages refer to less quantifiable damages suffered such as psychological trauma, nervous shock etc from the events
      - trial stages
        
        pre trial
        
        plaintiff lodges a statement of claim at a court registry which includes nature of claim and remedy being sought and a summons of defendant to court
        
        'discoveries' are made- evidence such as all relevant legal docs that is disclosed to each party. purpose is to encourage an out of court settlement.
        
        defendant's response (admitting liability and settling) or statement of defence and notice of appearance
        
        formal pleadings
        
        pre-trial conference
        
        trial
        
        plaintiff's case- introduces witnesses and may examine them. has burden to prove defendant committed the private wrong and is liable to provide a civil remedy.
        
        defendant's case follows similar format
        
        closing address
        
        judge's summary
        
        judge can only find defendant liable on the balance of probabilities
        
        judge can find defendant liable, not liable or apportion liability between parties. e.g. they may only have to pay 60% of damages claim
        
        will take into account a number of factors outlined in the Civil Liability Act (1936)
        
        civil trial outcome
        
        post trial
        
        responsibility is determined and damages are awarded
        
        partial responsibility may be determined e.g. defendant may be 60% liable and therefore only need to pay 60% of original damages
        
        legal costs
        
        execution/enforcement of judgement
        
        if defendant refuses to pay, further proceedings may be taken to execute judgement, such as a warrant for sale (seizing and settling of assets), garnishee order (prescribed sum of money withdrawn from an employees pay each period)
        
        appeal/judicial review
      - civil case principles
        
        disclosure
        
        parties are obliged to define their claim and defence in the pleadings. the discovery phase in trial prep is important in fostering fairness, openness and equality as well as assisting in hastening trial procedures.
        
        finality
        
        once a final decision has been made, further litigation cannot occur (apart from appeal)
        
        public accountability
        
        heard in an open court room so the public may access and view fair court processes. improves public confidence in administration of civil justice
        
        resolution principle
        
        civil law is designed to provide lawful mechanisms to resolve disputes between private parties. principle objective is to compensate people for private wrongs committed against them and punish those who inflicted them
        
        procedural fairness
        
        also referred to as natural justice- means that litigants will have their case decided purely on its merits in accordance with applicable law. each party will have equal opportunity to put their case to an independent judge and have decision tested in appeal
        
        procedural privy
        
        dictates that only parties with direct interest in the case can contest the matter in court. unless allowed by statute, common law precludes third parties from involvement in civil matters not directly related to them
        
        adverserial principle
        
        places decision to take a matter to court solely into the hands of the parties rather than an agent of the state. plaintiff is at liberty to commence and cease litigation at will although legal consequences may occur if the matter is arbitrarily altered to the detriment of the defendant
    - - pre trial
        
        role of exec
        
        gathering of evidence, calling witnesses to trial and collecting statements
        
        DPP (director of public prosecution) prosecutes all criminal cases on behalf of the state to uphold their responsibility to keep the community safe. evidence is submitted to them by police to prepare info. they need to establish a prima facie case (on first appearance but subject to further examination). if a prima facie case is not found the defendant may be discharged
        
        plea entered
        
        guilty plea may reduce an indictable offence sentence up to 25% while summary up to 40%
        
        not guilty plea
        
        bail
        
        elements to consider when granting bail
        
        possibility of absconding/reoffending
        
        need to protect victim/witnesses/evidence/society
        
        severity of offence
        
        past bail record
        
        strength of evidence
        
        an undertaking by a charged person that may allow them to be released from custody on the condition that they adhere to bail agreements- mist forfeit a sum of money if they don't comply
        
        process of deciding bail
        
        show cause offence (for indictable). alleged offender must show reason for why their continued detainment is not justified. if unsuccessful they remain in remand until trial
        
        risk assessment. courts consider bail concerns such as if the accused may skip trial, commit an offence or pose a threat to the community, interfere with evidence. some concern may lead to conditional bail.
      - trial
        
        arraignment
        
        closing address from each party.
        
        judge will explain anything not understood to jury members, they will reiterate the importance of weighing evidence impartially to the jury. will outline any inconsistencies in evidence and issues and questions of fact or law.
        
        jury verdict- may give either a guilty or not guilty verdict. this must be the majority (10/12 jury members) or a unanimous vote for serious cases.
        
        if a jury cannot reach a decision, this is called a hung jury. trial will discontinue until a new panel has been called.
        
        mistrial- occurs when a jury members conduct is not fitting, e.g. looking up extra information about the case
        
        empanneling of jury
        
        prosecutions case (questioning of witnesses)
        
        defence case (cross-examination)
        
        judge enforces jury verdict and announces date for sentencing hearing
      - post trial
        
        sentencing hearing
        
        elements considered in sentencing
        
        victim impact statement
        
        past criminal record
        
        Sentencing act 2017 (SA) outlines factors that may be taken into account when sentencing
        
        submissions from DPP and defence
        
        pre-sentence reports (e.g. psychiatric) which takes into account the rights and circumstances of the convicted and the need to meet standards expected of the community and crime deterrence
        
        types of sanctions
        
        immediate imprisonment- to be served straight away
        
        includes head sentence and non parole period. head sentence refers to the standard imprisonment term e.g. life imprisonment for murder, while non parole refers to the term the accused must serve before being eligible for parole
        
        under SA, the guilty person must serve 4/5 of their sentence before being eligible for parole
        
        suspended imprisonment e.g. corrections centre
        
        good behavior bond
        
        judge may impose a custodial sentence but suspend it provided the defendant enters a good behavior bond. this means the sentence is not served in prison but if they break a condition the sentence must be served later
        
        financial penalty
        
        appellate hearings-parties may appeal issues of law/fact to court of criminal appeal and by special leave to HCA. e.g. defence could submit that some evidence should not have been included due to admissibility
        
        outcomes: find for the appellant means the previous verdict would be quashed. they may also decrease or increase the sentence or reverse the precedent as submitted by the appellant. find for the respondent means the appeal would be dismissed
        
        enforcement of sanctions is up to the department
      - summary offences (magistrates court)
        
        charge is read to accused, followed by a plea
        
        not guilty plea
        
        matters are referred to trial, the allocated duration of which is determined by the complexity of the matter and witnesses to be examined.
        
        police prosecutor presents evidence by examining witnesses and accused cross-examines to present their own case. prosecution re-examines and defence may examine again
        
        closing address by parties
        
        magistrate verdict and sentence
        
        possible appeal
        
        guilty plea
        
        accused admits facts presented by prosecutor. magistrate hears submissions in plea of mitigation from defendant. represents an attempt to explain reasons why and circumstances which may result in a lesser penalty. character statements may also form part of this, and any involvement in community work or rehab since offending. magistrates sentence handed down ex tempore (there and then) however in some cases they ,ay reserve their sentence and deliver it at a later date. the sentence will include court costs, a victims of crime levy, any relevant behavioral orders and sanction involving loss of personal freedom if required
    - - faster and cheaper
      - parties have a chance to voice their side of the story
      - flexible, party driven, less formal
      - parties are involved in the result therefore should be committed to the result
      - confidential- not heard in an open court
    - - emotional disputes may not always be able to be solved in a mature or reasonable manner
      - intimidation may play a negative role
      - outcomes not always legally binding or enforceable
  - - - evidence admissibility
        
        admissible evidence
        
        professional opinion evidence
        
        professionals such as coronors, psychologists etc may give their professional on facts in court
        
        direct evidence
        
        evidence encountered by the witness firsthand, e.g. evidence that was heard, smelt, felt or seen by witness
        
        secondary evidence
        
        evidence when the real evidence has beebn lost/damaged etc, such as photos of a murder weapon or transcripts of documents
        
        circumstantial evidence
        
        evidence that cannot prove anything unless related to other facts, e.g. fingerprints of the accused at the cirme scene prove they were there however cannot prove their guilt
        
        best evidence
        
        objects that directly relate to the court e.g. weapons
        
        inadmissible evidence
        
        hearsay
        
        opinion evidence
        
        illegally obtained evidence
        
        past criminal record evidence
      - procedure
        
        trial must be one continuous event. a pause in trial may not be requested for the collection of more evidence etc. exceptions may be due to unforeseen medical emergencies e.g. coma or heart attack
    - - impartial mediator
        
        allows for natural justice to take place (principle of adversary system) and for rule of law to be upheld
      - examine and weigh all evidence presented
      - judicial indpendence is an important part of the adversary system as it prevents the judge from displaying preference to one party, and stops them from having other roles influence their decisions. tis serves as a protection for judges as well.
    - - juries
        
        compiling jury lists
        
        a random list of approx 6000 names is generated by the sheriff's officer from the electoral roll (those over 18 enrolled to vote) for each jury district
        
        two rounds of eliminating names: first relies on ineligibility. those who are ineligible include: people with a mental/physical disability, people who have been found guilty of a crime for which the maximum imprisonment time is life imprisonment, people who have been imprisoned within the past ten years, have received a prison sentence exceeding two year, someone currently awaiting a verdict for a crime, someone who has been comvicted of an offence within the past 5 years, someone currently on a good behavior bond, anyone part of the third schedule inelgibility list.
        
        third schedule inelgibility: anyone who cannot serve on a jury due to the nature of their job or their partners job being inolved in other parts of the government or justice system. this includes lawyers, governers and their partners, MP's and their partners, police offciers etc.
        
        upholds judicial independence and ensures that those who run the justice system cannot be taken from their jobs to serve duty as this would be dysfunctional
        
        this criteria demonstrates that gvt wants jurors who are more likely to be impartial to administrating justice
        
        general ineligibility: someone with an insufficient grasp of english or part of 3rd schedule ineligibility
        
        eligibility criteria: enrolled to vote, live in a jury district
        
        names with those generally ineligible are selected, and selected jury members are notified of their selection by a jury summonses. they can now apply to have their jury service deferred or to be exempt. deferral may be due to events such as holidays, exams, pregnancy etc. exemptions may occur due to the nature of someone's job -e.g. a surgeon may be exempt as their job requires a high amount of skill and missing a portion of their job could have significant repercussions for the community. people who live more than 150km out of the jury district may also apply for an exemption.
        
        empanneling
        
        jury members arrive at court for a training day. they are split into jury sections of 25. not every section is required each day.
        
        12 members of jury sections will receive a text by 4pm if they a re reuqired in court the following day. they will then remain on that case and will be notified if required again
        
        more than 12 members may be on a jury, however only 12 may give the final verdict
        
        verdicts: there are only two types of verdict that may be given- guilty and not guilty. if found guilty, a date for the sentencing hearing will be decided on. if not guilty, the accused will be let free and the principle of double jeopardy applies (accused cannot be tried for the same crime twice). majority verdict mist be 11-1 or 10-2 and may be accepted for a not guilty verdict for murder/treason, however a unanimous verdict mist be returned for a guilty verdict
        
        hung jury- occurs when jury members are unable to come to a majority decision. after deliberating for a certain period of time (4 hours), they must inform the judge of the events and court will be adjourned for a new jury to be brought in.
        
        mistrial- occurs when a jury members conduct is inappropriate. this may include meeting with other parties to the case, looking up extra information about the case etc. in this case, the jury member will be removed and trial may continue with a new jury member or on 11 members.
        
        alternative verdict: jury may choose for accused to be charged with a lesser charge after deliberating for 4 hours if it still fits the crimes e.g. guilty for manslaughter rather than murder
        
        perverse verdict: where jury gives verdict contrary to what evidence suggests. this verdict must still be enforced e.g. R v Adams 2018 jury convicted him of manslaughter rather than murder
        
        jury sits in public gallery to hear plea of the accused. once they plead not guilty the formal empanneling of the jury begins.
        
        judge will direct court official to read the names of trial participants including legal reps, and all witnesses - at this stage if a juror know any of the participants they must be excused from trial to protect the integrity of the trial
        
        jury manager or associate will select juror names out of a box- enabling them to walk to the jury box. parties may challenge the inclusion of jurors until they are seated in the box
        
        each party may challenge three jurors peremptorily (without reason), and may continue to challenge jurors with reason
        
        once 12 jurors are empanelled the remaining section are discharged and are not required to attend court again until the trial is over
        
        juries in civil cases
        
        SA and ACT are the only two states that do not use juries in any form for any civil cases
        
        NT uses juries for some civil cases except for defamation cases
        
        consists of 12 adults randomly selected to be the determiners of fact during trial. they are included in the adversary system to sit as 'peers of the accused' when determining trial outcome. they are required to weigh all evidence presented and evaluate if the standard of proof was met.
        
        Juries act 1972 (SA) a judge may empanel up to 15 jurors but only 12 can decided the verdict
        
        right to a jury is protected by S80 and is also protected at state level by legislation
      - witnesses
        
        witnesses are called in by either party to give oral testimony to prove or disprove facts
        
        they are not permitted to be in court before their testimony. once called upon, they will give an oath to the court to swear everything they say is true and they will only state the facts. they will be examined and cross-examined and then may leave court, however they may remain after their evidence has been given.
        
        cannot give evidence in narrative form, only through the interragatory method
      - prosecution
        
        all criminal cases are prosecuted on behalf of the people by the state. depending on the court level, this is done by either a police prosecutor (magistrates) or DPP (higher courts).
        
        they must collect their own evidence by working w police and other gvt bodies to effectively prove the guilt of the defendant
      - defence
        
        the defence plays a large role in protecting the interests of their client by clarifying facts and evidence, or disputing claims made in trial
        
        create doubt regarding prosecution's evidence. allows them to be protected by the presumption of innocence
        
        has the right to know all charges against them ad can access all evidence before beginning of trial to form a case
        
        have the right to remain silent, solely relying on cross-examination of witnesses
      - plaintiff
        
        bring legal action against defendant for their alleged civil wrong
        
        if ADR methods are not sufficient, they may approach the court to assist with resolution and may self-rep or hire legal rep
        
        their own responsibility to build a case and they are required to share all evidence w defence before trial
      - stenographer/reporter- transcribes everything said in trial in shorthand
      - sheriff's officer- assists with running and security of court
      - judges clerk- assists judge with administration during trial e.g. research
      - judge's associate- trained lawyer who assists in running trial by performing tasks such as reading the allocus (charge to the accused) and other judicial tasks
    - - an independent and impartial judge
      - two independent and autonomous parties
      - strict rules of evidence and procedure
      - a jury is determiner of fact (in criminal trials where the defendant ops for a jury)
      - trial is continuous
      - parties have the right to a lawyer
    - - equality before the law supported by the strict rules of evidence and procedure for a fair and consistent system
      - free from arbitrary government- rules and procedures and practical application of judicial independence ensure that gvt does not use power arbitrarily
      - specific features that uphold the rule of law by preventing arbitrary gvt:
        
        burden and standard of proof
        
        burden refers to responsibility to prove the truth of allegations made against the accused. whoever instigates legal action has this burden (prosecution or plaintiff)
        
        gvt takes responsibility to prosecute all criminal cases on behalf of society. in the magistrates court this is usually a police prosecutor, and in district and supreme, the DPP
        
        in both criminal and civil trials the plaintiif/prosecutor may call witnesses and present evidence to attempt to prove their case
        
        defendant only has to introduce doubt, rather than prove their innocence e.g. R v Che (1995) in which the prosecution case was so poor that the accused was acquitted after minimal deliberation.
        
        standard of proof refers to the level needed to be reached by evidence to win their case
        
        criminal -beyond reasonable doubt
        
        connects to underlying principle of the adversary system that it is better to let a guilty person free than convict an innocent person s the sanctions are severe
        
        civil- on the balance of probabilities
  - - - essentially all evidence is admissible to some degree, including illegally obtained evidence and hearsay evidence. witnesses may tell their version of events in a more narrative style, and they may submit evidence via written format rather than being forced to give oral testimony
      - trial does not have to be one continuous event. breaks may be taken for the gathering of more evidence
      - types of verdict
        
        three types of verdict may be given in the inquisitorial system, guilty, not guilty and guilt not proven. guilt not proven refers to when there is not enough evidence to prove definitively either way. this allows the accused to be let go, but they must appear before the court if their presence is requested again in light of new evidence
    - - the judge plays a more inquisitorial and investigative role, performing an executive as well as judicial role. They actively gather evidence, question witnesses, direct police in the collecting of info for trial and decide the verdict of the trial. judge may hear both criminal and civil submissions from the same incident at the same time
    - - no juries involved in the inquisitorial system
      - presumption of innocence still exists, however huilt may be inferred from silence. they lose many rights such as trial before an independent judge, right to present own case, right to challenge admissibility of evidence. defence legal counsel has little role in the inquisitorila system. although the defendant has the right o legal rep, the defence lawyer can do little more than ensure the evidence they submit is reviewed fairly by the judge
      - witnesses may tell their version of events in a more narrative style, and they may submit evidence via written format rather than being forced to give oral testimony
    - - parties are not in control of their own cases
        
        judge takes on role of prosecution and will gather evidence together with police, offer advice on points of law during trial, prepare a case to prove guilt of defendant and question witnesses in trial
        
        accused has limited control over their case. their legal rep will aid the judge to discover the truth
      - the presiding officer of the court is not impartial
        
        independence of judiciary is not evident
        
        judges perform an investigative exec role and a judicial role
        
        judges are specifically trained to coordinate exec to gather evidence and build a case
      - less strict rules of evidence and procedure
        
        all evidence is deemed admissible as long as relevant to the case and is kept in a file called a dossier
        
        evidence can be tendered in both oral and written form as it was collected by the judge and kept in the dossier
        
        rules of examining witnesses are relaxed- they may give their own version of events in narrative form
        
        judicial review exists, however appeal applications are limited
        
        trial does not have to be continuous. breaks may be taken to collect evidence
    - - just outcomes- trial will not cease until very strong evidence exists to acquit or convict the accused.. accused persons are nor acquitted on technicalities.
      - improves accessibility to legal system- less expensive as state prepares cases
      - intermediate verdict- charge not proven means that trial may be indefinitely postponed until more evidence can be found to better prove guilt/innocence
      - no trial by independent jury- imperfections of jury system i.e. unqualified persons, are eliminated
    - - state dominated justice- justice becomes domain of state-appointed judicial officers who assume a dominant role in the administration of justice while individual rights are often secondary
      - compromises the role of the judge
      - denial of trial by jury-accused cannot be tried by their peers
  - - - nunga court
        
        Port adelaide magistrates court holds an aboriginal court day where procedures are more suited to trialling ATSI accused persons
        
        there is more emphasis on employing indigenous elders as court personnel to assist in trying indigenous offenders
        
        services such as court being conducted on equal levels or in a circle help indigenous offenders be tried in more culturally appropriate ways
        
        the legislation and sentencing applied is no different, however the adjusted court processes increase the number of indigenous people attending court and reduce the likelihood of reoffending
        
        n the ACT, legislation allows the court to consider the offender’s cultural background if it is relevant
        in QLD if an offender is Aboriginal or torres strait islander their cultural background also must be considered when sentencing and a community leader may make submissions on an offenders behalf
        
        aboriginal court increased community engagement increased court attendance and encouraged better relationships between aboriginal people and the judiciary
      - conflict between australian legal system and aboriginal customary law
        
        cases such as mabo (no. 2) 1992, coe v cth 1979 and walker v cth 1994 have confirmed that there is no room for an alternative system to function. aboriginal people are subject to their respective state and fed laws regardless of customary law
        
        issues w customary law
        
        does it align with international human rights standards and which body of law would be sovereign?
        
        when considering it in trial, how does the judge determine which 'version' to uphold?
        
        would its inclusion be considered a question of fact in trial, and therefore require witness testimony?
        
        the existence of two systems of law side by side, with the prevailing one and aboriginal customary law with very different attitudes to guilt and responsibility creates serious problems
        
        R v Watt 2007 displays the difficulty of language barriers with diverse groups- sexual assault case where the victim only spoke Wik Mungkan (native aboriginal language). a translator was provided but was not sufficiently accredited due to the scarcity of the language spoken. the communication barrier allowed inconsistencies in evidence to be found, and the accused was acquitted
        
        Ngatiyi v the queen 1980 accused charged with murder of Mr White. due to the accused’s lack of english, he immediately pleaded guilty through a translator. however, he did not understand the concept of a defence, and being drunk at the time, his lawyers argued that he had not been able to form the intent for murder. Mr Ngatayi refused to enter a not guilty plea as he knew he had killed Mr White and his customary law stated that he must take responsibility for his actions. A trial eventuated as the court did not accept his guilty plea, and Mr Ngatayi was convicted of murder and sentenced to death. His lawyers appealed on the grounds of the language barrier and Mr Ngatayi being unable to understand the conditions and form a defence. His appeal was dismissed.
      - improvement reccommendations
        
        the judge should be allowed to give direction to a jury about the impact of translated testimony in court
        
        judges should be more active during a trial to disallow questions which are ‘unfair’ -mainly due to complications arising from the language barrier
        
        aboriginal people should not be required to give direct eye contact as it is culturally rude or threatening
        
        the precedent of Mooney v James(1949) should be applied to potentially disallow cross-examination, of the aim is to introduce a leading question to the witness, due to general concerns about language and the comprehension of questions during trial
      - rep on juries
        
        under represented on juries- may be excluded due to rural area or crimina record, not being enrolled to vote, insufficient grasp of english, poor perception of justice system and unwilling to be involved
        
        may be removed by pre-emptory challenges
    - - women are often more financially disempowered and therefore disadvantaged in the legal system
      - in cases such as sexual assaul which women are disproportionately affected by, the adversary system reqires oral testimony and giving evidence on these experiences in court can be traumatising and confronting.
      - some criminal courts have allowances for victims of crimes such as these to be questioned via closed circuit tv, which is less confronting for the victims. they may also limit the types of questions that can be asked by the defence
      - most women's legal aid is gvt funded and under-resourced
      - fear of not being believed- nearly 40% of surveyed adults believed that women reporting sexual assault or rape actually engaged in consensual sex and regretted it afterwards, leading to them reporting it as rape. conviction rates for sexual assault in aus is only 10% therefore the motivation for women to come forward to report sexual assault is low -the impact of a court case when the abuser may not even get convicted is not worth it
    - - there are discrepancies in the system when it comes to children interacting with the legal system. since children are generally more financially disempowered they have limited access to legal aid. they may also be more disempowered when understanding court procedures and trial. childrens lawyers do exist to help children bringing legal action against another party to interact with the system, however this aid is limited. they may talk w the child to gain tjheir side of the story, but ultimately they mist weigh this with their own opinion to decide what is in the best nterest of the child
      - gviing evidence- children may not understand requirements of their role as a witness, at risk of not being believed due to age, intensive cross examination may be traumatising
      - young offenders
        
        more than 1/3 of all youths under the justice system come from the lowest socio economic areas
        
        80% of youth offenders were male
        
        approx 84% supervised by community, while the rest in youth detention
        
        children under youth supervision are particularly vulnerable as they have often experienced abuse and neglect
        
        differences between young and adult offenders: youth court hearings are closed to the public and the identity of the child offender is not released in the media or accessible in court documents, when sentencing a young offender, the primary consideration should be the child’s rehabilitation, penalties imposed by courts are generally limited to no more than three years detention, police have alternate consequences issuable to young people that are not available to adult offenders such as family conferences which are offered to try and resolve conflict without going to court
    - - refugees and immigrants are kept in offhhore dtention centres until their applications for asylum are granted. however this can take up to years, w the process only validating a limited percentage of the people who apply.
      - since many refugees don't have english as their first language, finding legal aid can be diffciult, so they end up filling out paperwork themselves. this may lead to errors, making the likelihood that their application will be accepted even lower. the extended detnetion of people in these centres leads to claims of arbitrary detention, which is in violation of several human rights codes as per the UN. however, since they are also often financially disempowered due to not having a job in a new country, they have trouble finding resources to pursue these claims, leaving these crimes unprosecuted
      - aus has legal obligations regarding the treatment of refugees and asylum seekers according to international law by being signatory to the following which outline our legal obligations:
        
        international covenant on civil and political rights (ICCPR)
        
        international covenant on economic, social and cultural rights (ICESCR)
        
        convention against torture and other cruel, inhuman or degrading treatment (CAT)
        
        Convention on the rights of the Child (CRC)
        
        aus is also a party to the refugees convention
        
        when in aus, the gvt has the responsibility to ensure the civil, human and political righst of refugees are upheld
      - in addition to conventions, aus has legislation addressing issues of migration - Migration Act 1958 (cth)
        
        under this act all refugees who arrive without a valid visa mist be detailed in immigration detention until their application for asylum has been processed
        
        there is no legislated limit for how long they may be detained for. this leads to many claims of arbitrary detention which is illegal under many international conventions
      - barriers to access justice include:
        
        language barriers
        
        restricted access to legal aid
        
        limited funding to legal aid
        
        lack of familiarity with Australian legal system and practices
        
        distrust of government and other authorities due to previous experiences in other countries
      - problems with the adversary system and immigrants
        
        only approximately 20% of refugees qualify for australia’s primary application process
        
        large unmanageable amount of people on the waiting list for support (as of 2017)
        
        geographic location of refugees makes it hard for legal aid to meet with them
        
        final hearings for migration cases where scheduled for as far away as 1 1/2 years in the future
        
        many recent arrivals have little understanding of the aus legal system, including underlying rights and principles and structure
        
        they may also mistrust gvt due to experiences in other countries
        
        they may not pursue legal action due to fear of it impacting gvt perception of them when considering visa status
        
        lack of intepreters available to help refugees
        
        limited funding and resources available
    - - lack of rep on juries
        
        people with intellectual disabilities are often removed from jury lists as inelgibile due to the nature of their disability affecting their ability to comprehend and weigh evidence
        
        this may help the effectiveness of the jury system as it means that time and resources are not spent making the understanding of evidence ore accessible, however it may also be argued that this gives accused persons with disabilities the loss of chance to be tried by their peers
        
        people with physical disabilities such as blindness or deafness are also usually excluded due to their inability to view or hear evidence. this reduces the diversity and accurate representation on juries, but also gives the accused more of a fair trial
      - Australia ratified the UN convention on people with disabillties in 2008.
        
        section 12 states that all people with disabilities should have equal recognition before the law and should be provided with neccessary support to exercise their legal capacity
        
        article 13 states that all people should have access to justice
        
        since having a physical/intellectual disability affects different elements of someone's capacity to interact w the adversary system, access issues related to people with disabiltiies arise when they appear in court as a witness/juror.
        
        there have been many cases of intellectually disabled people being denied natural justice when ascertaining their competency to stand trial for charges against them
      - witnesses
        
        disabled persons are often pre-judged by court participants due to preconceived notions on their disability
        
        Evidence act (cth) (1995) outlines test of capacity to understand a question to determine fact or give evidence in a comprehensible way
        
        S 30 and 31 outline methods of assistance that witnesses may have to give evidence e.g. an intepreter
      - issue of determining competency to stand trial
        
        must be determined if someone is mentally fit
        
        in addition to determining if someone was suffering from mental illness at the time of an offence, it is also a measure of whether someone with a cognitive disability can understand the charges against them and the nature of a trial
        
        aus legal system presumes fitness to stand trial therefore it is up to the parties to prove unfitness