Legal Studies 2020

LEGAL STUDIES
- :
Charles Huynh <<<< giving credit because I am vain :)

The Legal System
WRITE A PARAGRAPH OUTLINING THE KEY DIFFERENCES BETWEEN THE LEGAL SYSTEM AND A RULE
SYSTEM.
- A legal system refers to a procedure or process for interpreting and enforcing the law.
- Rule systems impose regulations as a representation of what is expected of the behavior of the individuals
belonging to the respective organization.
- As members of the community people are subject to a range of rules – Non-legal and legal
LEGAL RULES [8]

- Legal rules are known as laws
• established and created by institutions within the legal system and enforced by the legal system.
- These laws set out the rights of the members of the community.
• For instance, under the EQUAL OPPORTUNITY ACT 2010 establishes that it is against the law to be
treated unfairly because of personal characteristics.
- These rules are imposed on all members of the community in order for social cohesion to be accomplished.
• Those community members who do not follow the law are usually punished in some way for breaching
those standards
• in an attempt to ensure that behaviour doesn’t affect other people’s individual rights.
- Legal rules include Speeding and committing murder.
NON-LEGAL RULES [5]

- In contrast a non-legal rule is a rule established by social norms through an organisation or community group
• that only applies for those members belonging to that group
• they help reduce conflict within that particular group that are not found in the law.
- Consequently, school uniform expectations only apply to students enrolled at that school.
- Legal rules differ from non-legal rules in that legal rules apply to the community as a whole.
SOCIAL COHESION [3]

- Can refer to the quality of society in which through legislation passed by both parliament and enforced by the
courts
• has resulted in the community to run in a safe, orderly and cohesive manner.
- The Legal System has aimed to achieve social cohesion through enforcing laws that
➢ accurately reflect the views of society
➢ are enforceable
➢ are known
CRIMINAL LAW [2]
DEFNE [3]
- Criminal law is concerned with behaviour that that is disruptive to the society as a whole
- Criminal law aims to regulate the behaviour of individuals as members of the community and to protect the
interests of society.
- Usually acts of violence
TYPES OF OFFENCES [4]

- OFFENCES AGAINST A PERSON
• Action that results in some form of personal injury
• E.g. Murder or Assault
- OFFENCES AGAINST PROPERTY

• Conduct that results in damage to or loss of property
• E.g. Theft or Vandalism
- OFFENCES AGAINST MORALITY

• Maintaining certain values in society
• E.g. Incest or street prostitution
- OFFENCES AGAINST THE LEGAL SYSTEM

• Responsibility to participate as responsible citizens in the administration of justice
• E.g. Failure to attend court or lying in court
CIVIL LAW
DEFINE [3]
- Civil Law involves protecting the individual rights of people within society
• by providing solutions to disputes between two individuals or groups where someone’s rights have been
breached.
- The aim of civil law is to restore the injured party to their original position prior to the event that took place.
TYPES OF CIVIL LAW CASES [3]

LAW OF TORTS
- includes actions for negligence, defamation, trespass or nuisance.
CONTRACT LAW [2]

- Contract law involves a legally binding agreement between two or more parties
- Civil disputes concerning contract law involves a breach of contract.
DIFFERENCES [5]
- Criminal law is enforced by the police and the state
- Criminal cases most usually are resolved through imposing a sanction on the accused once proven guilty.
• A sanction is any form of punishment given for a criminal offence such as monetary fines, community
correction orders, and imprisonment.
- Civil law in contrast, often concludes with the plaintiff being awarded with a form of remedy.
- For instance, example monetary compensation and injunctions.
SOURCES OF LAW [2]
STATUTE LAW [3]
- Also referred to as legislation or acts of parliament

- Parliament makes statute law
- Parliament – “in Futuro” [proactive]
COMMON LAW [6]
- Developed by courts
- Judge’s ruling of case
- Becomes precedent for future case
- Judges make common law through statutory interpretation
- Novel Cases makes common law, in regard to new cases introduced to them in court.
- Courts – “ex post Facto” [reactive]
Principles of Justice in Criminal Law

INTRO [3]
THE AIM OF THE LEGAL SYSTEM [3]
- A legal system refers to a procedure or process for interpreting and enforcing the law.
- It serves as an impartial form of dispute resolution for both criminal and civil law, and has evolved with a focus
on providing for all citizens to be heard
- And to provide for all to be able to seek legal redress without barriers that are too difficult to overcome.
PRINCIPLES OF JUSTICE IN CRIMINAL LAW [3]

- The Victorian criminal justice system seeks to achieve both social justice and procedural justice that is
outlined in the CRIMINAL PROCEDURE ACT 2009 (VIC).
• sets out the processes must be used in criminal cases in court in order to achieve the principles of
access, fairness and equality in the running of criminal matters
- It is imperative to uphold these significant features of the legal system to assist in guaranteeing order within
institutions that enforce and create Australian Law.
HOW CRIMINAL LAW ACHIEVES POJ [3]

- Both the accused and victims of crime should have a sense that justice has been achieved.
• Done through ensuring that human rights are upheld in criminal proceedings.
- Additionally, the criminal justice system must ensure that the procedures that are followed during all trial
procedures
FAIRNESS [2]
DEFINE [4]
- Fairness is an important measure of whether or not justice is being achieved through the legal system
- It refers to the ability to receive impartial treatment of all individuals before the legal system
• without discrimination, fear or favour by the person exercising administrative power
- Fairness refers to the provisions of unbiased treatment for all, therefore eliminating any actual bias or the
apprehension of bias.
HOW IS FAIRNESS ACHIEVED [4]

- Laws are enforced on all members of society regardless of their basis of origin.
- This involves fair hearings and operations, where cases are heard before an impartial, objective third party
judge.
- Strict rules of evidence and procedure used in a trial to ensure that the prosecution and the defence have an
equal opportunity to present their case.
PRESUMPTION OF INNOCENCE [4]
- Recognises that all individuals have the right to be considered innocent until proven guilty beyond reasonable
doubt
• meaning that the decision is certain, given the evidence that the defendant committed the crime.
- protects individuals against self-incrimination.
- further enforced by the right to silence or reticence.
EQUALITY [2]
DEFINE [5]
- Equality can be defined as the belief that our legal system should allow for all individuals to be treated
uniformly and equally, while recognising individual facts and circumstances of people within society
- It refers to the notion that both parties in a case have a balanced chance of obtaining a favoured outcome that
is based on law not a person’s characteristics, culture, gender, social status
- The legal system enforces and follows the idea that both the victims and the accused should be treated with
advantage or disadvantage.
- SECTION 8 of VICTORIAN HUMAN RIGHTS CHARTER (VHRC)

• Outlines the right to recognition and equality before the law
HOW IS EQUALITY ACHIEVED [3]
TIME/COST ISSUES [3]

- Cost and time barriers can cause differences in equality in Australia but the criminal justice system seeks to
address this through services available to the accused. Including:
• Pre-trial procedures to determine if enough evidence is actually available to commit the person to a higher
court
• Trial procedures that require the same processes and procedures for both parties.
CULTURAL DIFFERENCES ARE ADRESSED [3]

- Indigenous offenders, for example, may qualify to have their matter heard in a koori court.
• Reduces perceptions of cultural alienation
• Ensures sentencing orders are appropriate to the cultural needs of koori offenders.
SPECIFIC SERVICES [2]

- It is recognised that certain participants in the criminal justice system need to be assisted with specialised
procedures and facilities.
• Such as translators, provided free of charge
ACCESS [2]
DEFINE [4]
- It is the idea that everyone should have the ability to provide with opportunities and resources to obtain
dispute settlement or redress in the recognition and protection of their rights under the law.
- People within society need access to information, support and assistance about the legal system in the
recognition of their rights under the law
- People involved with a legal case should receive assistance and access to different institutions and services
- They should have an understanding of the law regardless of financial physical or mental disadvantage.
HOW IS ACCESS ACHIEVED [2]
ACCESS TO FINANCIAL ASSISTANCE [4]

- Expressed through the Victorian Legal aid
- In a criminal matter, it can be very costly to obtain legal advice and to maintain legal representation
• This may affect those concerned and their ability to access the system.
• VLA aims to overcome this barrier, for those who qualify for assistance.
ACCESS TO INFORMATION [4]

- Access to information is also important for those using the criminal justice system
- For an accused, it is important to have access to the details of the case that the prosecution is making.
- A victim has a general right to access information about the status of an investigation, subject to the progress
and needs of the investigation
• SECTION 8 of the VICTIMS CHARTER ACT 2006
PRINCIPLES OF JUSTICE IN GENERAL

COURT HIERARCHY [4]
- Provides for all cases to be assigned to a certain court based upon their level of seriousness
• which saves some courts time helps ensure that all members of society are heard.
- In the absence of such an important feature may act to hinder the primarily successful way in which citizens
seek legal redress
• as there would be no structure to ensure that complicated cases are determined properly.
Key Concepts in the Criminal Justice System

- SUMMARY/INDICTABLE
- PRESUMPTION OF INNOCENCE
- BURDEN/STANDARD OF PROOF
DEFINING CRIME [2]

- A crime is an act or omission committed against the community at large that is punishable by the law.
- A person suspected of committing a criminal offence is prosecuted by the state.
TWO ELEMENTS OF A CRIME [4]

- ‘Actus Reus’ and ‘Mens Rea’ are two elements that must be present to prove a crime has been committed
- Latin terms that means guilty act and guilty mind respectively.
- ACTUS REUS is the physical action or conduct the accused preforms to commit the crime.
- MENS REA is the thought process that involves the intention of doing the act or a person’s knowledge that
their action or lack of action would cause a crime to be committed.
THE PURPOSE OF CRIMINAL LAW [4]

- Criminal law acts as a code of conduct that regulates society’s behaviour
- Show what is expected of the right and responsibilities of every citizen to display what behaviours are not
acceptable.
- Criminal law is imposed on all members of society, so the community continues to operate in a safe and
orderly way and to guarantee social cohesion.
- The purposes of criminal law include punishing the offender and protecting the community.
TYPES OF CRIMINAL OFFENCES [3]

SUMMARY OFFENCES [4]
- Summary offences are minor criminal offences
• such as speeding or drink driving offences.
- Heard in the magistrate’s court by a magistrate alone or an infringement notice
- Summary offences can be heard in the absence of the accused, and involve a hearing.
INDICTABLE OFFENCES [4]

- Indictable offences are more serious crimes with regard to impact on victims and society
- Are usually heard in the County or Supreme court by a judge and a jury of 12
- Indictable offences require the presence of the accused, and involves a trial
• such as murder or attempted murder.
INDICTABLE OFFENCES HEARD AND DETERMINED SUMMARILY [7]

- SECTION 28 of the CRIMINAL PROCEDURE ACT 2009 (VIC) directs readers to SCHEDULE 2 of the Act for
a list of the types of indictable offences that can be heard summarily.
- These are more serious offences can be heard summarily in the magistrate’s court by a magistrate alone, on
the conditions that the offence
• Had no more than a maximum 10-year sentence
• The accused party has plead guilty to the offence
• Both parties give permission for the indictable offence to be heard summarily
• Circumstances in which an indictable offence can be heard summarily is stated in SECTION 29 of the
CRIMINAL PROCEDURE ACT 2009 (VIC)
- Such as causing serious injury or recklessly assault with intent to commit a sexual offence
BURDEN OF PROOF, STANDARD OF PROOF, PRESUMPTION OF INNOCENCE

BURDEN OF PROOF [4]
- The burden of proof is the duty or requirement placed upon a particular party to prove or disprove a disputed
fact.
- The burden of proof is the responsibility to prove the guilt of the accused
• Is usually held by the prosecution in a criminal trial
- Prosecution is the state.
- STANDARD OF PROOF [1]

- This is differentiated from the standard of proof, which involves a level of confidence or proof that is required
to support a determination in court beyond reasonable doubt.
PRESUMPTION OF INNOCENCE [8]

- Refers to the legal concept in which an accused person should remain innocent until proven guilty, through
evidence presented, beyond reasonable doubt.
• meaning that the decision is certain, given the evidence that the defendant committed the crime.
- An accused should be treated fairly in the eyes of law, regardless of criminal history, prejudice or
circumstantial evidence.
- Ensures that:
• the human dignity of the individual accused is supported
• that innocent persons are not wrongly convicted as well, until proven guilty through sufficient evidence.
- Right to silence as presented by SECTION 25 of THE VICTORIAN CHARTER OF HUMAN RIGHTS AND
RESPONSIBILITIES
• States a person cannot be compelled to testify against themselves or to confess their guilt
Rights of the Accused
RIGHTS OF THE ACCUSED
- Right to be tried without reasonable delay – SECTION 21 & 25
- The right to a fair hearing – SECTION 24 & 25
- The right to trial by jury – SECTION 80
DEFINE [4]
- Both the accused and the victims in a legal case are entitled to their respective rights
• in an attempt to prevent the abuse of power within the legal system
• is distributed throughout several sources.
- Rights of Accused are outlined in the constitution and THE VICTORIAN CHARTER OF HUMAN RIGHTS
AND RESPONSIBILITIES
VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES PROTECTING RIGHTS [4]

- THE VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES ACT 2006 (VIC) sets out
fundamental human rights, freedoms and responsibilities that are afforded to Victorians.
- A statutory bill of rights that works as a check on all proposed legislation to the parliament that must comply to
the rights mentioned in the charter.
RIGHT TO BE TRIED WITHOUT UNREASONABLE DELAY [5]

DEFINE THE RIGHT [5]
- One right of the accused is the right to be tried without unreasonable delay.
- This means that all accused’s individuals are entitled to have their case heard in a timely manner
- That that no delay should occur unless it is reasonable.
- The right should apply to all without discrimination.
- It is upheld in the VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES, under
SECTIONS 21 AND 25.
FAIRNESS [3]
- it guarantees all individuals impartial treatment under the law
- ensuring their liberty isn't restricted for an unreasonable period of time
- Case is clearer in the minds of those concerned
EQUALITY [1]
- regardless of personal characteristics, people have the same ability to have a trial without delay
ACCESS [3]
- Reduces delays
- minimises stress
- Improves access for accused people
DISADVANTAGES [3]
- If cases are brought to trial too quickly
- there may be a risk of the accused person not being adequately prepared for their defence
- Impacts the fairness of a trial, and equal treatment.
RIGHTS TO A FAIR AND UNBIASED HEARING
DEFINE THE RIGHT[3]
- guarantees accusers persons the ability to have their charge heard by a competent, independent and
impartial tribunal or judge
- Accused person is entitled to be tried using correct processes and procedures that assists in achieving, to a
certain degree of impartial and objective treatment towards people within society.
- SECTION 24 AND 25 of the VICTORIAN HUMAN RIGHTS CHARTER, outlines this right.
FAIRNESS [2]
- Upheld as it ensures that the Judge or Magistrate is an expert and impartial in their role, looking at the case
objectively without fear or favour impairing their decisions.
- Rules of evidence and procedure ensure only relevant evidence is introduced in trial
EQUALITY [2]
- Ensures no individual is purposefully advantaged or disadvantaged based on personal characteristics
• as the ability to have a fair hearing applies equally to all.
ACCESS [1]
- provides the resource for a fair, open courtroom for all individuals.
DISADVANTAGES [4]
- If cases are brought to trial too quickly there may be a risk of the accused person not being adequately
prepared for their defence
• Impacts the fairness of a trial, and equal treatment.
- There may be disparity existing between different parties based on personal circumstances, denying a fair
justice system
- Cannot fully ensure the elimination of provisions of bias due to the inevitability of people holding discrimination
against certain persons.
RIGHT TO TRIAL BY JURY [8]

DEFINE JURY [2]
- Juries are a panel of 12 community members selected by the courts depending on the circumstances of the
case
- They act as a decider of facts and determines the guilt of the accused, of the offence they have been charged
with on the basis of evidence submitted to them in court beyond reasonable doubt.
ROLE OF A JURY [3]

- As outlined in SECTION 80 of the constitution, which defines the right to a trial by jury
- A jury attends trial each day and actively listen to all evidence of both parties without bias or preconceptions in
order to make a verdict unanimously beyond reasonable doubt.
- Key principles of a jury involves that an accused is judged by persons with the same legal standing through
being ordinary members of the community.
IMPORTANCE OF A JURY [3]

- thought to be important in achieving justice because the jurors are representative of the wider community
• ensures issues of fact are determined by opinions of the general public, not judge alone.
- The allowance of jurors into criminal trials gives the community an opportunity to participate in the justice
system and vocalise their views and values in their verdict.

- entitles individuals to have the opportunity to have their case determined or heard by randomly selected peers
and fellow community members.
- Ensures the judgement of the community is given, and the power of the government is kept in check
- This right is outlined and protected under SECTION 80 of the Australian constitution, as well as the 2008
JURORS ACT, and the VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES
FAIRNESS [2]
- eliminates/cancels out the possible bias/apprehension of bias by the judge
• As the jury acts as the independent body simply looking objectively at facts in order to reach their verdict
on the accused guilt.
EQUALITY [2]
- A jury is a randomly selected cross section of the community that is selected to represent this body
• allowing for them to not be disadvantaged, but still remaining biased.
ACCESS [2]
- applies to all commonwealth indictable offences
• therefore, all accused parties with trials in the county/supreme court have this right to have a jury
determining their case, ensuring a just outcome.
DISADVANTAGES [3]
- Juries are only preselected group of individuals, which as a consequence is not representative of the general
public as it does not involve the opinions of particular groups.
- Juries do not give reasons for their verdicts, cannot ensure that their decision is free of bias, reducing
fairness.
- Juries may also enforce a decision based upon the values and opinions of the community, which changes
with time.
Rights of the Victim

RIGHTS OF THE VICTIM
- Victim Impact statements
• VICTIMS CHARTER ACT 2006
- Right to give evidence as a vulnerable witness
• CRIMINAL PROCEDURE ACT 2009 (VIC), SECTION 232, 41
- Right to be informed about proceedings
• VICTIMS CHARTER ACT 2006, SECTION 8
- Right to be informed of the release date of the accused
• CORRECTIONS ACT 1986, SECTION 17 of the VICTIMS CHARTER ACT 2006
DEFINE [5]
- Both the accused and the victims in a legal case are entitled to their respective rights
• in an attempt to prevent the abuse of power within the legal system
• is distributed throughout several sources.
- Rights of the Victim sets out principles on how the Victorian criminal justice system should best respond to
victims
• that are indicated primarily through the CRIMINAL PROCEDURE ACT 2009 (VIC) and the VICTIMS
CHARTER ACT 2006.
THE VICTIMS’ CHARTER ACT 2006 (VIC) PROTECTING RIGHTS [5]

- The VICTIMS’ CHARTER ACT 2006 (VIC) sets out the principles for how the Victorian criminal justice system
should best respond to the victims of crime such as a Victim Impact Statement.
- Ensures that all parties involved receive fair treatment to prevent abuses of power.
- This is demonstrated within a case through
• Right to prepare a Victim Impact Statements
• Right to be informed about the proceeding
VICTIM IMPACT STATEMENTS (VIS) [1]
- Defined in the VICTIMS CHARTER ACT 2006, a victim impact statement is a written or oral statement made
as part of the judicial legal process
- Allows crime victims or friends or family of the victim, to describe to the court, the impact of the crime.
- Making a Victim Impact Statement helps the judge understand how the crime has affected the victim which
can sway a judge or jury in deciding the sentence imposed.
- Of the things that are usually included in Victim Impact Statements are:
• any emotional, physical, monetary or social damage
• loss that the victim has suffered resulting directly from the offence.
THE RIGHT TO GIVE EVIDENCE AS A VULNERABLE WITNESS [4]

ROLE OF VULERABLE WITNESSES [4]
- Victims who are classified as vulnerable witnesses can include: [3]
➢ Children
➢ People with a cognitive impairment
➢ Victims of sexual assault
- The role of vulnerable witnesses is to give evidence in the courtroom.
- The giving of evidence is important as it acts as an account of facts relating to the crime.
- Is considered when determining the guilt and potential sentence of the accused.

- THE CRIMINAL PROCEDURE ACT 2009 (VIC) allows the court to make alternative arrangements for the
giving of evidence by vulnerable witnesses
• in a manner that helps guarantee that the court process is less intimidating or traumatising
- The right to give evidence as a vulnerable witness is established in [2]
➢ SECTION 232 of the CRIMINAL PROCEDURE ACT 2009
➢ SECTION 41 of the EVIDENCE ACT 2008.
- This is represented through the use of audio or audio-visual material, such as
• CCTV often used for witnesses/victims of a sexual offence so that they don’t have to be seen in person.
• Use screens to block the witness’ view of the accused.
- SECTION 41 reinforces the protection that vulnerable witnesses hold by disallowing improper questions.
ADVANTAGES [3]
- This right has been made so that ACCESS to the courtrooms are more encouraging for witnesses whose
statement is crucial in a criminal trial.
- ensures the evidence of the witness isn't jeopardised, which could lead to an unfair outcome in which the
victim hasn't been able to present their best case forward. [FAIRNESS]
- Victims aren’t disadvantaged under the law [EQUALITY]
DISADVANTAGES [2]
- denies equality as the accused may feel as those, they are on an unequal playing field to the victim,
• jury is being more sympathetic towards the victim instead of remaining objective.
THE RIGHT TO BE INFORMED ABOUT THE PROCEEDINGS [3]
- Of such rights, involve SECTION 8 of the VICTIMS CHARTER ACT 2006 that explicitly expresses the victim’s
right to be informed about proceedings
- requires an investigating agency to inform the victim about:
➢ the progress of an investigation.
➢ any people accused with the offence and their charges
➢ the outcome of the proceeding
ADVANTAGES [3]
- The disclosure and explicitness of information provided to victims gives individuals easier ACCESS to the law
and its facilities
- Reassures victims that their case is being dealt with in a manner that is efficient and just, allowing them to
reach a FAIR outcome without the element of surprise.
- Individuals that are disadvantaged in the community, are made aware of possible support services, reducing
the disadvantage they face before the law. [EQUALITY]
DISADVANTAGES [2]
- may unfairly intrude on the convicted persons right to privacy, especially if they have already served the
imposed sanction. [EQUALITY]
- ACCESS to information may be denied to the victim, if it poses a potential risk to them.
THE RIGHT TO BE INFORMED OF THE RELEASE DATE OF THE ACCUSED [1]

THE ‘VICTIMS REGISTER’

- The right to be informed about the likely date of the accused means that victims of criminal acts or violence
and their fellow family members can apply to be included on the VICTIMS REGISTER
• A database by the state of Victoria to provide victims of crime relevant information about the
accused/prisoner
- This information can include the: [3]
➢ length of the sentence
➢ release date
➢ Parole status and conditions
- The following right is protected under the CORRECTIONS ACT 1986 and SECTION 17 of the VICTIMS
CHARTER ACT 2006
Criminal Post and Pre-trial Procedures
COMMITTAL PROCEEDINGS [CRIMINAL PRE-TRIAL] [5]
THE PRINCIPLES OF JUSTICE IN THE CRIMINAL JUSTICE SYSTEM [4]
- The Victorian criminal justice system seeks to achieve both social justice and procedural justice that is
outlined in the CRIMINAL PROCEDURE ACT 2009 (VIC).
• sets out the processes must be used in criminal cases in court in order to achieve fairness and equality in
the running of criminal matters
- Both the accused and victims of crime should have a sense that justice has been achieved.
- Additionally, the criminal justice system must ensure that the procedures that are followed during pre-trial, trial
and post-trial are just for all involved.
OUTLINING COMMITTAL PROCEEDINGS [2]

- Committal proceedings are a series of stages and hearings occurring in the magistrates court before an
indictable offence goes to trial
- It occurs when an accused has pleaded not guilty and is a process that establishes if a case can be and is
appropriate to be heard summarily.
PURPOSE [10]
- Set out in SECTION 97 of the CRIMINAL PROCEDURE ACT (2009) VIC
- Allow for the court to determine if a “prima facie case” exists
- Therefore, determines whether the prosecution has established sufficient evidence to warrant the matter to go
to trial and support a conviction.
- At this stage, all evidence of the prosecuting party is presented with full disclosure of all the case facts and
evidence against the accused allowing for transparency in the process.
- This in turn dictates how an accused will plead as the full transparency of trial allows the accused party to
examine and determine the case against them
• if the evidence against them is strong, they can make an informed decision on potentially pleading guilty
early
• This alleviates parties of the adverse consequences of trial including time stress and delays.
- Committal proceedings also acts as a filtering process, as weaker cases without substantial evidence not
being committed to stand for trial
• Reduces backlog
• ensures only strong cases with a likely conviction going to trial.
EFFECTIVE [7]
EXPEDITING OF TRIAL
- as a pre-trial procedure are effective as they allow for the overall expediting of criminal proceedings
• Through the accused party pleading guilty to the charge or the determining of the case to be heard
summarily.
• Saves the time, costs and overall resources of the parties
• Alleviating some of the stresses that come along with a lengthy trial, such as costs and time delays
CASES ARE FILTERED

- Allow for weaker cases to be filtered out of court.
• Cases without substantial evidence to support a conviction are not committed
• therefore, reducing the courts case backlog and ensuring that the courts resources are only spent on
cases that have a likely-hood of success.
INEFFECTIVE [4]
- However, committal hearings/processes may be unnecessary in some cases that prima facie is apparent
- In turn committal proceedings can contrastingly add to the delays of trial.
- Committal proceedings can be complex for individuals without legal representation
• may lead to the possible intimidation of accused parties that denies parties the chance for a fair trial.
COMMITTAL HEARINGS [POST-TRIAL] [2]
COMMITTAL MENTION HEARING [2]
- Stage before committal hearing where the charges are read out and the accused pleads either guilty or not
guilty
- If they plead guilty, sentencing begins committal hearing does not take place.
COMMITTAL HEARINGS
- Committal hearings are the final stage of the committal proceedings process where all evidence is disclosed
to both parties
- The accused party is able to cross examine the prosecutions witnesses and make submissions
• which ensures a fair trial in which both parties are aware of the evidence against each other.
- It is here that the Magistrate makes a decision as to whether or not the accused should be committed
• upholding the presumption of innocence, in which an accused is innocent until proven guilty.
LEGAL STUDIES
- :
REASONS FOR COURT HIERARCHY [3]

- Victorian courts are arranged in a hierarchy in which courts are ranked from inferior to superior based on their
jurisdictions.
DOCTRINE OF PRECEDENT [4]

- This hierarchy serves to meet many purposes, of which include the Doctrine of precedents
- that is dependent on a hierarchy of courts
- means that decisions made by a higher court is binding for lower courts in the same hierarchy
• allows for consistency and predictability to a certain degree in regards to similar cases and how they are
treated.
APPEALS [6]
- Court hierarchy also allows for appeals, if the grounds of appellation exist
- As a fundamental application of justice and fairness, an accused who may be dissatisfied with a decision
made by the court
• can therefore have the opportunity to have their case heard again in a superior court
• challenging the decision either on a point of law, question of fact, or verdict/damages rewarded by a judge
with specialist knowledge and expertise
- This system ensures fairness, and the correction of mistakes to occur.
- For example, any appeals from the Magistrates court on a point of law are heard in the Supreme Court Trial
Division who may choose to uphold the decision or reverse it, that may create a precedent.
SPECIALISATION [8]
- Each court is limited to a specific area of jurisdiction to hear certain types of cases
• that allows courts to develop specialisation in their own areas of law with respect to the types of cases
that are determined in that particular court.
- This therefore allows for the courts to be specifically designed to deal with certain issues
• with court personal developing knowledge and expertise in the area of law
- Allows individuals within a trial to benefit from a more expertise judge.
- For example, the Supreme Court is the highest of the Victorian courts
• has jurisdiction over the most severe and technical cases
• Is able to be heard by the most experienced and qualified judges.
THE FACTORS THAT ARE TAKEN INTO CONSIDERATION IN SENTENCING [4]

MITIGATING FACTORS [2]
- In criminal law, a mitigating factor, is any information or evidence that reduces the seriousness of the offence
or the offender’s culpability resulting in a lower sentence.
- This can include: [4]
➢ a limited criminal history
➢ the accused’s mental capacity during the events of the crime
➢ signs of remorse
➢ pleas of a guilty charge.
AGGRAVATING FACTORS
- Aggravating factors consist of evidence presented that increases the seriousness of the offence and so
contributes to a harsher sentence
- This can include: [4]
➢ a use of a weapon
➢ prior convictions
➢ offenders use of weapon
➢ offenders’ disregard for public safety
GUILTY PLEAS [6]
- From March 2008, under amendments to the SENTENCING ACT 1991 (VIC), Courts must take into account
a guilty plea, and its timing when determining an appropriate sentence
- If a victim pleads guilty they are agreeing to be held accountable for committing the offence that they have
been charged with.
- They are treated as mitigating factors and can result in a reduced sentence or a sentence indication
- A guilty plea is seen as a mitigating factor in how it saves the community the considerable cost of conducting
a full trial and reduce delays in the court system
- Will also spare victims and witnesses the potential trauma of giving evidence.
- Guilty Pleas indicates evidence of repentance and remorse and shows that the offender is taking
accountability for their actions.
VICTIM IMPACT STATEMENTS [6]

- Defined in the VICTIMS CHARTER ACT 2006, a victim impact statement is a written or oral statement made
as part of the judicial legal process
- Allows crime victims or friends or family of the victim, to describe to the court, the impact of the crime.
- Making a Victim Impact Statement helps the judge understand how the crime has affected the victim which
can sway a judge or jury in deciding the sentence imposed.
- Of the things that are usually included in Victim Impact Statements are:
• any emotional, physical, monetary or social damage
• loss that the victim has suffered resulting directly from the offence.
VICTORIA LEGAL AID [6]

INTRO TO LEGAL AID [4]
- It is important for accused individuals to have the aid of a legal representative to help defend their case
- However legal representation can be expensive for individuals experiencing economic disadvantage,
- This is why legal aid institutions have been established in order to combat this inability to access the courts
- Such as the Victoria Legal aid and Community Legal Centres.
INTRO VICTORIA LEGAL AID [2]

- Victorian Legal Aid (VLA) is a government funded body with the main responsibility of providing accessible
and affordable legal assistance to individuals in the community
- It is eligible particularly for those accused of criminal offences who: [3]
➢ cannot afford to pay for a private lawyer
➢ Suffering significant disadvantages
➢ at some form of risk of homelessness.
FAIRNESS [2]
- Promotes fairness, through providing a plethora of legal services at a free or low price
• to help individuals with their legal issues in a manner that is efficient and just.
EQUALITY [2]
- VLA helps promote equality within the criminal justice system as they provide resources and representation
and services for citizens
• so that all parties involved in a trial have a no significant advantage or disadvantage.
ACCESS [3]
- VLA provides provide the community with improved access to justice and legal remedies
• in the recognition and protection of the individual rights of all citizens
• to pursue innovative means of providing legal aid.
DISADVANTAGES [6]
- However, due to the lack of funding for the VLA, a strict eligibility criterion is employed for services
- This involves individuals needing to satisfy: [3]
➢ the income test for duty lawyer assistance
➢ the means merit test lifestyle test
➢ And other tests for grants of legal assistance
- Done to ensure that the focus is on those that need it most and prevent the exploitation of their services for
more trivial issues.
- The means test takes into account not just their income their value of assets, such as savings, houses and so
forth.
- If they receive more than $360 per week in income, and $1095 in assets, they are ineligible.
- This strict and awfully low cap on their eligibility tests contradicts the initial purpose of VLA, leading many to
deem their services as inaccessible.
Key Personnel in a Criminal Trial

KEY PERSONNEL IN A CRIMINAL TRIAL
- Jury
- Parties
- Judge
- Legal Practitioners
JURY IN A CRIMINAL TRIAL [V DIFFERENT FROM A JURY IN CIVIL LAW] [6]

DEFINE JURY [2]
- Juries are a panel of 12 community members selected by the courts depending on the circumstances of the
case
- They act as a decider of facts and determines the guilt of the accused; of the offence they have been charged
with on the basis of evidence submitted to them in court beyond reasonable doubt.
ROLE OF A JURY [3]

- As outlined in SECTION 80 of the constitution, which defines the right to a trial by jury
- A jury attends trial each day and actively listen to all evidence of both parties without bias or preconceptions in
order to make a verdict unanimously beyond reasonable doubt.
- Key principles of a jury involves that an accused is judged by persons with the same legal standing through
being ordinary members of the community.
FAIRNESS [same as civil juries] [3]

- Juries act as an application of fairness within the criminal justice system as they are typically a cross section
of the community
- The jurors are representative of the wider community and their current views
- Ensures that issues of fact are determined by opinions of the general public, not judge alone.
EQUALITY [same as civil juries] [3]

- Equality is upheld as individuals in the jury come from all different socio-economic backgrounds
- As such they will represent a wide range of views that ensures that all parties involved do not have a
significant disadvantage or advantage.
- Either party can also request a jury, ensuring equality between the parties.
ACCESS [same as civil juries] [3]

- The allowance of jurors into criminal trials gives the community access to participate in the justice system and
vocalise their views and values in their verdict
- Reflects the idea that everyone in a community is responsible for the administration of justice
DISADVANTAGES [different to civil juries] [3]
EASILY PERSUADED [2]

- Juries are easily persuaded through emotive arguments of parties
- can be easily subject to bias in offenders which may affect the reasons for verdicts.
CHALLENGES [2]
- Each party have a right to an unlimited number of challenges for cause that can all be heard by a judge
- Therefore, not serve as a fully random community cross-section, as they can be manipulated to specifically
favour a certain party.
UNANIMOUS VERDICTS ARE DIFFICULT TO ACHIEVE [3]

- Therefore, majority verdict may sometimes have to be affected.
- Denies jurors with an opposing view the chance to have their opinion be heard in the final verdict
- Breaches the standard of proof in which evidence submitted must prove the accused is guilty beyond
reasonable doubt.
PARTIES [4]
DEFINE PARTIES [2]
- The parties consist of: [2]
➢ the prosecution, typically the state, that brings about the criminal action
➢ the accused, who has been charged with the criminal offence.
- Responsibilities of the parties can consist of: [2]
➢ giving an opening address
➢ presenting their case with all credible evidence relevant,
DISTINGUISH DEFENDANT/PERSECUTION [4]

- The prosecuting party must disclose all their evidence, however the defence doesn't have to.
- It is also the role of the prosecution to establish that a prima facie case exists, while the defence doesn't need
to prove anything, due to the “presumption of innocence”
- The prosecution is also the party responsible for initiating the case, which the defendant obviously doesn't do.
- The prosecution party is also typically the state, while the defence is an individual, therefore not obliged to
have legal representation.
EFFECTIVE [2]
- are able to present their case, and control or determine the way it is put forward.
• this can assist them in having a fair trial where they feel that justice has been achieved.
INEFFECTIVE [2]
- The complexity of the legal system means that parties without adequate knowledge of the legal system or
access to resources may not be able to present their case
- This could potentially lead to an unfair outcome and a wrongful conviction due to the parties role.
JUDGE [6]
COMPARE HOW TWO ROLES OF THE JUDGE DIFFER WITH AND WITHOUT A JURY PRESENT
GENERAL ROLES [2]
- The judge is the central figure in trial, acting as the impartial, independent umpire.
- The judge is responsible for: [3]
➢ managing the trial
➢ ensuring the rules of evidence and procedure are strictly adhered to
➢ giving parties equal opportunity to present their case.
ROLE IN A CRIMINAL TRIAL [only thing different from civil law] [2]
- Judges are additionally responsible for determining and imposing an appropriate sentence and sanction in the
outcome of a trial
• based solely upon evidence presented by the prosecution that establishes that the accused is guilty
beyond reasonable doubt.
ROLE WITH A JURY [2]
- In cases involving a jury the judge is responsible for the process through which a jury is selected and
empanelled
- They also help direct the jury, allowing them to apply the facts of the case.
EFFECTIVE [2]
- Judges are effective in their role as they are able to manage the trial, providing assistance to self represented
parties, ensuring an equal and fair trial.
- A judge additionally directs the jury about the law which ensures that a jury’s decision on the guilt of the
accused party is made fairly with all the facts.
PRINCIPLES OF JUSTICE [3]
FAIRNESS IS UPHELD AS: [3]

- the judge acts as an impartial third party
- looks at the case objectively
- Ensures any decision is made completely fairly, without any bias for any party.
ACCESS IS UPHELD AS: [2]

- The judge ensures all individuals have access to pursue justice
- Judge gives assistance to all parties such as those self-represented.
EQUALITY IS UPHELD AS: [1]

- the judge ensures all parties, regardless of personal characteristics are subject to the same rules of evidence
and procedure
DISADVANTAGES [3]
- A judge must remain completely neutral, and cannot act as representation and enable certain to present their
best case.
• Leaves the possibility for individuals to be disadvantaged before the law
- However, a judge may hold a bias or apprehension of bias, leading to the parties being denied a fair trial.
LEGAL PRACTIONERS [4]

DEFINE
- The legal practitioner, on behalf of the parties, must undertake the role of preparing and conducting the case
on behalf of the parties, providing them with advice and advocacy
- The Office of Public Prosecutions (OPP) prepares and conducts prosecutions for the Director of Public
Prosecution (DPP). They record and collect all evidence for a case
- A solicitor will provide advice and will prepare the case or argument for a barrister, who give advice about the
law and the individual rights and draws up documents.
TYPES OF LEGAL PRACTIONERS
SOLICITOR
- Gives advice about the law and the individual rights
- Draws up any documentation
- BARRISTER
- Presents case to the court
- Usually work in higher courts
EFFECTIVE
- They are knowledgeable and experienced in the law.
- Therefore, they are able to adequately present the case of the accused or the victims in the best light, through
their understanding of the legal system.
INEFFECTIVE
- Often based on their cost, representatives may vary in their expertise and effectiveness.
- A more skilled juror may come at a greater cost, essentially meaning that only those of whom are wealthy and
can afford such costly legal representation will be able to achieve a better chance of success in trial.
Factors That Affect the Achievement of Justice [Criminal Law]

IDENTIFY ONE PROBLEM THAT RESTRICTS ACCESS TO THE LEGAL SYSTEM. EVALUATE A REFORM THAT
RESOLVES IT
INTRO [Same as Civil Law]

- In order for the criminal/civil justice system to operate effectively for parties involved, a sense of justice must
be achieved.
- Despite the best aims of the criminal justice system, factors such as:
➢ Costs
➢ Time
➢ Cultural differences
• can mean that not all parties feel that they have been treated in a just manner.
COST [3]
EXPLAIN COSTS [7]
- The costs of initiating civil actions can be prohibitive with the process of civil trial is an extremely costly one,
- Through the costs of: [3]
➢ trial
➢ representation
➢ advice
- This impairs the ability of litigants to achieve justice for those who cant afford it.
- The costs for court fees and legal representation can be too expensive for many people
• denying access to the court system
• as it prevents certain parties involved from purchasing adequate legal representation
- Private legal representation is expensive as it is perceived as higher quality than government funded
representation.
EFFECTS [3]
- Costs can also affect equality, and the court’s ability to achieve a fair trial
• parties that cannot afford legal representation tend to be those of a lower socioeconomic background
• they are therefore disadvantaged against skilled private legal representatives
HOW IS COST SOLVED: VICTORIA LEGAL AID. [5]

- Victorian Legal Aid (VLA) is a government funded body with the main responsibility of providing accessible
and affordable legal assistance to individuals in the community
- It is eligible particularly for those accused of criminal offences who: [3]
➢ cannot afford to pay for a private lawyer
➢ Suffering significant disadvantages
➢ at some form of risk of homelessness.
- VLA provides provide the community with improved access to justice and legal remedies
• in the recognition and protection of the individual rights of all citizens
• And to pursue innovative means of providing legal aid.
- However it is restricted because it’s very limited as to who qualifies for Legal Aid assistance.
• Due to the lack of funding for the VLA, this leads to a very strict and awfully low cap on their eligibility
tests.
• This cap is what contradicts the initial purpose of VLA, leading many to deem their services as inaccessib
RECOMMENDED REFORM FOR CRIMINAL LAW [solves costs] [4]
REFORM OUTLINE [6]
- The process by which pre-existing laws are amended or changed is referred to as law reform.
- These are suggestions that can help improve the justice system, but have not been adopted yet.
- To improve the court’s ability to achieve justice a popular recommended reform involves:
• Increased funding for legal assistance which would allow legal institutions such as Victoria Legal Aid
(VLA) or Community Legal Centres (CLCs) to increase their eligibility criteria
• So that more people are able to access their services and in turn, access the legal system.
• To meet the increased demand for legal aid, in particular duty lawyers.
FAIRNESS [4]
- This would uphold fairness by improving the resources, assistance and representation for individuals
• Ensures that they have the opportunity to be present their case in the best light with proper understanding
to allow provisions of unbiased treatment in the legal system
- However, the legal representation of the VLA may still not be as advanced as a representative from a private
firm
• therefore, have a lesser understanding and ability to present the best case.
EQUALITY [3]
- This would uphold equality by giving a greater opportunity for individuals requiring assistance who are of lower
socio-economic background:
• greater ability to gain information and representation
• In order to ensure equal footing between parties.
ACCESS [8]
- This would uphold access by improving the amount of resources that the VLA is able to give
- Therefore, allowing more individuals access to representation and other services
• making them more inclined to pursue a court case.
- This would mean that people who previously were unable to access legal representation can now do so
• without putting themselves into debt or be forced to represent themselves without any help.
- However, additional funding may come at the expense of others

• as more people whose cases aren’t as necessary may be prioritised over others whose are
• many may act to try and exploit the services provided.
TIME DELAYS [3]

EXPLAIN TIME DELAYS [5]
- The achievement of the POJ may be substantially hindered by the time delays and backlog of cases within the
criminal justice system.
- Criminal pre-trial procedures are designed to reduce delays in the criminal system.
• However, as stronger cases don’t see these hearings as necessary but are required to partake in them.
• May add to the length to cases
- Delays lessens the community’s respect for the law and can result in hardship for all parties involved and
impact the relativity and admissibility of evidence.
EFFECTS [3]
- Time delays infringes upon the principle of fairness as an accused person who may be innocent must wait in
jail if so ordered.
- This breaches equality and access to the legal system as some cases take longer than others
• as delays in one person’s case does not give access for other person’s case
HOW IS TIME DELAYS FIXED: PLEA NEGOTIATIONS [5]
- This is also attempted to be reformed through plea negotiations

• that involve an informal processes that determines what charges the accused will plead guilty to if other
charges are dropped.
- In spite of this it is questionable whether these, although saving time, allow for the achievement of justice
• as the victim may not feel justice has been served due to the leniency and lesser imposed sanction.
• Accused may also plead guilty despite their chances of an acquittal because of the stress delays and
costs associated with the court system
CULTURAL DIFFERENCES [3]

EXPLAIN CULTURAL DIFFERENCES [4]
- Cultural differences can be a factor affecting the ability of the criminal justice system to achieve justice.
• due to the variance in culture with regards to the systems of law.
- Immigrants and new Australians may have difficulty in accessing the criminal justice system
- They may have different perceptions regarding the legal system and how the law operates.
INDIGENOUS COMMUNITY [5]

- Specific groups in the community have difficulty seeking and accessing justice as seen by:
- Minor communities, especially the Indigenous communities are a group who seems to be the most
disadvantaged in the criminal justice system.
- This breaches fairness and equality though how all citizens should be treated without discrimination fear or
favour without any disadvantage or advantage.
- This however can be said to be remedied through the creation of the Koori Courts court that: [2]
➢ reduces perceptions of cultural alienation
➢ ensures sentencing orders are appropriate to the cultural needs of Koori offenders.
- However, the koori court can only listen to cases at a magistrate’s level.
NON-ENGLISH SPEAKERS [3]

- Non-English or Migrants speakers also experience disadvantages by the legal system and can reduce the
ability to achieve justice.
• May find it difficult to understand their rights give evidence or even access the legal services available to
them.
• To address this, interpreters are provided free of charge.
RECENT REFORM FOR CRIMINAL LAW [4]
REFORM OUTLINE [4]
- A recent reform that aimed to address the cost factors associated with the criminal justice system is the “Free
Online Tool” reform, which introduced the “Robot Lawyers tool” in 2016.
- As a part of pro-bono work, this free online tool was created
- Allowing for individuals without the means to access legal representation or aid: [2]
➢ to get provided assistance from a systematic, preprogramed lawyer regarding the law
➢ allowing them to represent themselves.
- The reform aimed to fill the gap in the disparity caused due to the lack of legal services available to some.
FAIRNESS [6]
The following reform ensures fairness by:
- ensuring that parties are able to put forward their best case
- Parties have a greater understanding of legal processes and procedures
- ensuring the individual isn't constrained in their ability to achieve justice.
- However, the reform may not make up for the lack of legal representation
- Therefore, any bias present towards the individual during trial may not be able to be countered.
- The pre-programmed nature of the reform means that advice given may not be individualised to suit the
certain case.
EQUALITY [4]
The following reform upholds equality by
- closing the gap between those with the ability to afford legal representation, and those who can’t
- to help ensure equity within a trial without significant disadvantage or advantage based on financial situation.
- However, the pre-determined nature of the tool means that some cases may still be at a disadvantage
- This tool may not compare to the skilled legal representative of the opposing party present in the courtroom,
preventing a truly equal trial through this reform.
ACCESS [5]
The following reform upholds access by
- allowing more individuals, a chance to gain legal advice making them more inclined to go to court,
- The online nature of the tool also makes it far more accessible, with majority having access to form of
technology.
- However, only those with access to the internet are able to use this service,
- “Robot Lawyers” are not common knowledge:
• as those who are not as knowledgeable about this tool would not know to access this resource, in turn
putting them in a disadvantaged position.
PLEA NEGOTIATION
DEFINE [8]
- A plea negotiation is an informal discussion or bargaining process
- Takes place between the prosecution and accused party outside of court regarding the charges against the
accused.
• To try and expedite criminal proceedings by having the accused reach an early guilty plea.
- Plea negotiations involve the accused pleading guilty to a lesser charge

• in exchange for having more serious charges withdrawn or some charges removed
• as a form of concession for the accused party.
- Plea negotiation streamlines the flow of cases by producing guilty pleas

• thus saving court time and saves victims of crime the trauma of appearing in court.
APPROPRIATENESS [2]
- Plea negotiations can only occur if it is in the best interest of both parties, as well as the public.
- Done to determine if its appropriate include: [3]
➢ whether the accused is willing to cooperate in the investigation
➢ whether the accused is willing to plead guilty.
➢ whether witnesses are reluctant to give evidence
EFFECTIVE [2]
- They lead to a settlement before trial, which can save the resources of the courts.
- The facilitated out of court settlement will therefore save the victim from the stresses and trauma of trial .
INEFFECTIVE [3]
- May act to hinder the legal system’s principles of access as:
- It may be a waste of time due to a failure to negotiate, adding to delays.
- it discourages an accused from exercising their right to a having their case heard when there may be a
chance of an acquittal.
SENTENCE INDICATION [3]

DEFINE [7]
- As identified in the CRIMINAL PROCEDURE ACT 2009
- A sentence indication are broad estimates given by the court to accused individuals
• Informing the accused on the possible sanction/ sentence likely to be imposed, if they were to plead guilty
at that given moment.
- Sentencing indication allows an accused person, or their legal representative, to request an indication from
the judge
• as to whether they are likely to receive a custodial or a non-custodial sentence through a sentence
discount, if the accused pleads guilty.
- Sentence indications enables the accused to make an informed plea
- This encourages people to plead guilty early spares court time and resources on facilitating a trial as well as
sparing victims stress.
APPROPRIATENESS [2]
- A sentence indication is only given if: [2]
➢ the accused applies for one
➢ the victim/prosecuting parties agrees to give it, in indictable offences.
- They are appropriate if: [2]

➢ the accused hasn't committed a serious, violent crime against the accused
➢ if they have been cooperative with proceedings.
DISADVANTAGES [5]
- Sentence indications may however be unfair, in that innocent persons may feel pressured to plead guilty
• under the assumption that the evidence against them is too strong,
• in the belief that it would be better to take the lighter sanction offered to them rather than to risk being
found guilty and given a harsher sanction.
- Many may also argue that this contradicts with SECTION 25 of the CHARTER OF HUMAN RIGHTS AND
RESPONSIBILITIES ACT 2006 (VIC)
• which sees that a person should not be compelled to testify their own guilt.
COMMUNITY LEGAL CENTRES.
- Within Victoria are 50 Community Legal Centres
- Are independent community organisations
- Responsible for providing free legal assistance and services to members of the community
• namely those at a disadvantage before the law
• accused individuals at some form of financial, social or cultural disadvantage.
OTHER ROLES
- CLC arranges or provide representation in court proceedings.

- All of their services are free and can be accessed either on the phone, online or in person.
SIMILARITIES WITH VICTORIA LEGAL AID

- Both the VLA and CLC’S provide free legal assistance such as advice and information through various
platforms
- Both the VLA and CLC are also government funded bodies, and therefore quite limited in their resources.
DIFFERENCES WITH VICTORIA LEGAL AID

- Unlike the VLA, the CLC’s will rarely provide sustained legal representation, instead focusing more on duty
lawyers in the magistrate’s court
- All support provided by CLC’s come at no cost, whereas some of the VLA’s services can be at a cost.
Sanctions
DEFINING SANCTIONS [5]
- A sanction is the consequence issued by a judge or magistrate for criminal wrongdoing
• is issued once the defendant has been found guilty.
- The principle of proportionality operates to guard against the imposition of an unduly, lenient or harsh
sentence
• involving various degrees of loss to be imposed
• ranging from a financial loss to the deprivation of liberty.
PURPOSES OF SANCTIONS [5]

JUST PUNISHMENT [2]
- to inflict some kind of loss or burden on the offender
- in a manner that is just, given the circumstances of the crime committed.
DETERRENCE [3]
- there are two types of deterrence – general and specific.
- General deterrence is aimed at preventing crime in the general population for fear of the perceived
consequences.
- In contrast, specific deterrence is designed to deter the particular offender from reoffending.
REHABILITATION [2]
- To establish conditions that would alter or modify the behaviour of offenders
- So that they will abandon their wrongdoing and reintegrate into society as law-abiding citizens.
DENUNCIATION [3]
- to condemn and criticise publicly the conduct of the offender as wrong and inexcusable.
- Is a fundamental purpose of criminal law and of sentencing
- As it requires that a sentence should also communicate society’s condemnation of the particular defendant’s
behaviour.
COMMUNITY PROTECTION [2]

- The community needs to be secure in the knowledge the offender cannot re-offend in the foreseeable future
- Ensure society is protected from harm that could be elicited by wrongdoers.
COMMUNITY CORRECTION ORDERS [3]
DEFINE [4]
- involve an order that requires an offender to comply with mandatory and additional conditions while in the
community including: [3]
➢ unpaid community work
➢ drug/alcohol treatment
➢ curfews.
- CCOs were introduced in 2012 under PART 3A of the SENTENCING ACT 1991.
- CCOs aim to provide non-custodial sentence options which can be applied to a wide range of offending
behaviours.
- The three primary conditions that the offender must adhere to is: [3]
➢ to not leave the country/state
➢ not to reoffend
➢ to undertake unpaid community work.
ROLE OF CCO [5]

- CCOs may act to rehabilitate the offender, through:
• addressing the underlying reasons for the offender committing a criminal
• assisting them in changing their attitudes and behaviour
- This facilitates their ability to integrate into the community and preventing recidivism upon release.
- Accomplished through: [2]
➢ conditions set out in the CCO
➢ treatment centres provided such as drug treatment order
RESTRICTIONS [4]
- However, is only successful with offenders’ compliance.
- The conditions attached to these orders tend to be lenient
• As such victims believe justice has not been served appropriately
• hinders the sanction’s purpose of deterrence and general punishment.
FINES [3]
DEFINE [3]
- are a court order to pay a monetary penalty as a punishment under the law.
- Fines are an appropriate sentence option for low-level crime
- SENTENCING ACT 1991.
ROLE OF FINES [4]

- Generally, serve as effective deterrents for both the offender from re-offending and others in the community to
commit similar minor offences
• as the loss of money is an unwanted circumstance that individuals may try to be avoid.
- A fine aims to punish the offender, forcing them to pay a monetary amount
• with the loss of money acting as retribution appropriate to the crime committed.
RESTRICTIONS [3]
- However, imposing a fine would not be as effective on more wealthy individuals
• would not be as easily deterred or punished as a result of their wealth
• they would not experience any significant consequence compared to someone who isn’t as affluent.
IMPRISONMENT [DO NOT USE THE TERM PRISON IN A SAC]
DEFINE [6]
- Imprisonment removes an offender from the community
- Denies them their liberty
- Involves the incarceration of a convicted person in custody for a certain term.
- This is considered the most severe sanction and it is a custodial sentence that is put onto an individual’s
record.
- THE SENTENCING ACT 1991 recognises it as a sentence of last resort, as it is the most severe sanction
• Means that judges must consider all other sentencing options before imposing a prison term.
ROLE OF IMPRISONMENT [6]

- Imprisonment is seen as a way to protect the community
• The offender being withdrawn from society reassures individuals that they will be protected from the
crimes committed.
- Imprisonment punishes the offender as they lose their freedom and liberty
- Would deter them from re-offending when or if they’re released
• Deters others in the community from committing similar acts.
- Various programs are offered in prisons with the aim of rehabilitating the member become a useful member
of the community.
RESTRICTIONS [1]
- Associating with other criminals in prison can lead to unsuccessful rehabilitation and reoffending upon
release, as per the current 40% recidivism rate.
LEGAL STUDIES
:
The Principles Of Justice Effectively In Civil Law
CIVIL LAW [1]

DEFINE [6]
- The focus of civil law is to protect the rights of individuals in society who may seek to take action in an effort to
have their rights restored.
- The civil justice system seeks to achieve this by providing solutions to disputes between two individuals or
groups where someone’s rights have been breached.
- The courts seek to ensure that redress is sought in complying with the legal systems principles of justice of
fairness, equality and access.
- The courts help ensure this through adhering to the CIVIL PROCEDURE ACT 2010 (VIC)
• That aims to facilitate the ‘just, efficient, timely and cost effective resolution of the real issues in dispute’
through the courts, whose duty is to uphold the law and administer justice.
FAIRNESS [3]
DEFINE [5]
- Fairness is an important measure of whether or not justice is being achieved through the legal system
- It refers to the ability to receive impartial treatment of all individuals before the legal system
• without discrimination, fear or favour by the person exercising administrative power
- Fairness refers to the provisions of unbiased treatment for all, therefore eliminating any actual bias or the
apprehension of bias.
- Both parties are able to present their case in the best way and therefore receive the best outcome from an
impartial adjudicator.
HOW IS FAIRNESS ACHIEVED [2]

STRICT RULES OF EVIDENCE/PROCEDURE [3]
- Civil law promotes fairness by having strict rules of evidence and procedure at any civil trial that is imposed on
both parties.
- Evident through the existence of the standard of proof in civil cases which refers to the balance of
probabilities
• in which both parties have equal opportunity to persuade the court that their version of the facts is more
likely to be true, to remove bias within a civil trial.
COSTS FOR TRIAL [4]

- The process of civil trial is an extremely costly one which impairs the ability of litigants to achieve justice.
- As a result, as a representation of fairness within the legal system a number of options
- Such as government-funded services and community organisations have been established in order to assist
destitute individuals.
- Tribunals have been created as a specialised form for resolving disputes between parties, usually without the
high costs associated with courts.
HOW IS FAIRNESS HINDERED [2]

ALTERNATE DISPUTE RESOLUTION [3]
- Even with the ability to resolve a dispute at VCAT
- ADR that is often utilised in such resolution bodies involve third party’s that are often ordinary members
presiding over final hearings including: [3]
➢ Mediators
➢ Conciliators
➢ Arbitrators
- They may still pose an inherent bias, or not be as knowledgeable as a judicial officers, limiting them in their
ability to provide a fair outcome.
COSTS OF TRIAL [2]
- The financial position of the parties may limit the effectiveness of remedies in restoring the parties to their
original position
- This is because the costs of a civil action are borne by the parties in dispute.
EQUALITY [3]
DEFINE [7]
- Equality can be defined as the belief that our legal system should allow for all individuals to be treated
uniformly and equally
- while recognising individual facts and circumstances of people within society
- It refers to the notion that both parties in a case have a balanced chance of obtaining a favoured outcome
• that is based on law not a person’s characteristics, culture, gender, social status
- The legal system enforces and follows the idea that both the victims and the accused should be treated with
advantage or disadvantage.
- SECTION 8 of VICTORIAN HUMAN RIGHTS CHARTER (VHRC)
• Outlines the right to recognition and equality before the law

- Civil law has evolved with a focus on:
• providing for all citizens to be heard
• for all to be able to access the legal system without barriers that are too difficult to overcome.
PRE/POST-TRIAL PROCESSES [3]

- The civil pre-trial, trial and post-trial processes and procedures aim to provide similar and uniform treatment
for all people.
- Within these trials, the rules of evidence and procedure ensure consistency and predictability
- They allow parties to have equal chance to reach a favourable outcome
THREE TIER FEE SYSTEM [4]

- Equality is evident through the implementation of the three tier fee system at VCAT
- This allowed for the distribution of fees according to individual financial circumstances
- That ensures that individuals aren't disadvantaged due to the high costs of obtaining justice
- Ensures there is equal footing in how parties can obtain redress regardless of their economic position
HOW IS FAIRNESS HINDERED [3]

THREE TIER FEE SYSTEM
- Financially struggling individuals without a healthcare card may not get formal recognition
- May not be eligible for the $150 cap under the criteria for the three tier fee system
- This prevents their ability to be provided with equal treatment before the law and a level playing field in
opposing a potentially less disadvantaged party.
ACCESS [3]
DEFINE [4]
- It is the idea that everyone should have the ability to provide with opportunities and resources to obtain
dispute settlement or redress in the recognition and protection of their rights under the law.
- People within society need access to information, support and assistance about the legal system in the
recognition of their rights under the law
- People involved with a legal case should receive assistance and access to different institutions and services
- They should have an understanding of the law regardless of financial physical or mental disadvantage.
ADR [4]
- In a minor civil claim, the dispute may be resolved with the assistance of CAV or heard and determined by
VCAT
- Done to allow disputes over a small amount of money to be resolved in a relatively inexpensive and quick
manner.
- An individual involved in a minor dispute would be unlikely to enforce their rights if they were faced with a
lengthy and costly trial
- As such through the existence of this dispute resolution bodies, citizens will be more inclined to seek legal
redress.
TRANSLATORS [2]
- The legal system recognises specific disadvantaged groups
- Therefore, it is ensured that all parties have access to legal resources, through TRANSLATORS and other
necessary services.
Tribunals
CONSUMER AFFAIRS VICTORIA (CAV) [8]

INTRODUCTION [4]
- CAV is a government body that regulates consumer affairs in Victoria
- Has the role of providing information and advice to consumers/traders/tenants/landlords regarding their rights
and responsibilities.
- The CAV is a complaint government body
• provides a more accessible avenue for legal redress in relation to consumer disputes.
ROLE OF CAV [3]

- To provide information and advice regarding the law, as well as their own rights and responsibilities.
- They contribute to enforcing compliance of consumers laws, and providing a platform to conciliate between
consumers/traders/landlords/tenants.
- The CAV can arrange for advice and information to be given online, face to face or over the phone regarding
consumer rights and obligations.
JURISDICTION OF CAV [1]

- CAV has broad jurisdiction through enforcing compliance with a range of parliamentary acts, including: [2]
➢ AUSTRALIAN CONSUMER LAW AND FAIR-TRADING ACT 2012 (VIC)
➢ RESIDENTIAL TENANCIES ACT 1997 (VIC)
DISPUTE RESOLUTION METHODS [2]

- As a primary form of dispute resolution utilised by CAV, they provide a voluntary CONCILIATION service to
hear disputes regarding consumers affairs
- This allows for a resolution to be reached at no cost constituting a reasonable outcome
APPROPRIATE [2]
- For those within their limited jurisdiction those who are able to exercise their rights and have their disputes
resolved, involving
➢ Consumers
➢ Traders
➢ Landlords
➢ Tenants
- Appropriate for individuals seeking a cost-effective resolution as resolution
INNAPPROPRIATE [3]
- For parties without a spirit of compromise
• may not be able to voluntarily reach a mutually beneficial decision.
- Cases where the CAV isn't the first “port of call” for a resolution,
• For example they cannot hear cases already gone to VCAT or the courts.
EFFECTIVE [6]
- It allows individuals of all socio-economic backgrounds to exercise their consumer rights when they’ve been
infringed
• though how they provide services to resolve civil disputes in a free, informal and accessible manner.
• Allows for access and equality
- The CAV is also effective as it allows for parties, through the voluntary conciliation process
• They are able reach a decision that is mutually beneficial allowing for fair decision that is more likely to be
followed through.
INEFFECTIVE [6]
- Services require voluntary compliance meaning that their services aren’t as useful towards individuals who
aren’t willing to compromise
- This hinders individual’s ability to seek proper civil redress as individuals cannot be ordered to: [2]
➢ attend the dispute resolution process
➢ be compelled to participate in a positive manner
- The CAV has a limited jurisdiction
• Can only hear a limited amount of cases within it.
- Aren't legally binding
• Parties may not take the decision seriously.
- [REMEMBER TO PROVIDE A CONCLUSION ON BIG MARKERS!]

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (VCAT) [8]
ADR [5]
- Alternative dispute resolution are alternative methods to the courts
- Involves a third party to help resolve a civil dispute.
- Sought in order to avoid the costs, stress and intimidating formalities many associate with a court case
- Individuals will often seek methods to resolve their civil dispute themselves, before all decision-making is
taken out of their hands.
- Through tribunals such as VCAT/CAV
THE VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL (VCAT) [6]

- Established in 1998 by the VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 (VIC)
- Is an independent quasi-jurisdictional civil tribunal
- Can review decisions of the Victorian government
- Can resolve civil disputes, such as civil claims and building and tenancy disputes.
- Tribunals as distinct from courts, are a body generally established to provide resolution of civil matters in a
way that is:
➢ legally binding
➢ expeditious
➢ cost effective
- Utilise a range of alternate dispute resolution methods such as “mediation, arbitration, and conciliation.
DIVISIONS OF VCAT [5]

- VCAT is divided into 4 divisions:
➢ The civil
➢ Administrative
➢ Human rights
➢ Residential tenancies division
- Each have a specific jurisdiction and hear cases in a certain area of law.
- The civil division rules on consumer disputes, and domestic building work.
• Additionally, hears some disputes under the MOTOR CAR TRADERS ACT 1986 and the FAIR TRADING
ACT 2015.
- The human rights division deals with claims or complaints about:

➢ equal opportunity
➢ disability claims.
- The residential tendencies division rule in relation to disputes concerning

➢ residential tenants
➢ public housing
APPROPRIATE [3]
- Where a cheaper, more timely decision is sought
- With no hostility or power imbalance between the parties
- The desire to reach a mutually beneficial resolution.
INAPPROPRIATE [6]
- cases outside of their jurisdiction
➢ representative proceedings
➢ disputes between employers and employees.
- Large scale complex disputes may be inappropriate for VCAT
• due to the informality of the dispute resolution
• such claims may be best left with the court.
- Where there is large power imbalance or hostility between the parties
• methods require some form of compliance and negotiation
DISPUTE RESOLUTION METHODS [3]
MEDIATION [5]
- VCAT can arrange for a case to be mediated that usually occurs before a hearing commences
- That facilitates a confidential discussion process
- Involves a trained mediator who meets with the parties to help them to negotiate with each other
- Done in order to assist them to come to their own agreement and resolve their dispute
- Does so without giving professional advice.
CONCILIATION [3]
- conciliation is utilised in the form of compulsory conference
- that involve an informal pre-hearing conference using a conciliator
- allows the parties to explore outcomes and reach a mutual resolution.
ARBITRATION [3]
- The final hearing, often done in the form of arbitration
- Occurs if the parties are unable to settle the dispute previously
- Used to identify and clarify issues in dispute and promote a settlement.
POJ [2]
- they develop a framework to allows citizens access to equal legal redress regardless of origin
- promotes trust and confidence in Australian courts and the judiciary.
FAIRNESS [5]
- VCAT attempts to seek a form of redress in which both parties’ mutually benefit
• as their services encourage the parties to reach an agreement
- Courts use an adversarial approach
• Results in animosity between the parties
- Conversely, VCAT uses a range of alternative methods to that may preserve the ongoing relationship
between the parties.
ACCESS [5]
- Due to its timely approach, with the short hearing and mediation processes
• that allow for the quick resolution of simpler civil claims cases
• decreases delays and backlog in the legal system.
- The cost of applying for a dispute to be heard before VCAT is far lower than the cost of taking a case to court
• ensuring that people of all financial situations can access legal redress.
INEFFECTIVE [5]
- the cost and delays of these hearings has escalated in recent years as a result of an increase in the number
of people using their services.
- The VCAT hearing process may be just as expensive and formal as courts
• Contradicts VCAT’s initial purpose of offering more affordable civil dispute resolution.
- When parties are unable to reach a decision, VCAT would employ arbitration in which a decision which is
binding on the parties
• may result in one of the parties feeling less satisfied with the final outcome.
DISTINGUISH CAV AND VCAT [5]
- Contrary to VCAT, CAV doesn’t utilise mediation or arbitration as a form of dispute resolution.
• CAV primarily uses a voluntary conciliation service to hear disputes regarding consumers affairs
- VCAT are able to offer adequate services relating to consumer rights however may not be as well adept in
comparison to CAV
- CAV are established so that citizens may have access to an entity providing more focus on consumer affairs
as most cases dealt with through CAV are in relation to this.
- As a result, they are given more jurisdiction and resources to hear and deal with consumer rights than VCAT.
Alternate Dispute Resolution

DEFINITION [5]
- Alternative dispute resolution are alternative methods to the courts
- Involves a third party to help resolve a civil dispute.
- Sought in order to avoid the costs, stress and intimidating formalities many associate with a court case
- Individuals will often seek methods to resolve their civil dispute themselves, before all decision-making is
taken out of their hands.
- Through tribunals such as VCAT/CAV
MEDIATION [5]
DEFINITION [6]
- Mediation is a cooperative/confidential method of dispute resolution
- Involves a trained, independent mediator who meets with the parties
- Has the role to facilitate the discussion between the two disputing parties
• to allow the parties to reach a mutually beneficial agreement and resolve the dispute.
- The mediator does not make suggestions or impose a decision
- It is up to the parties involved to reach their own agreement
APPROPRIATE [3]
- where there is an ongoing relationship: [2]
➢ family conflicts
➢ workplace disagreements.
- Allows for privacy
- Allows for the reaching of a mutually beneficial resolution.
INAPPROPRIATE [3]
- Cases where there is hostility between the parties, due to its informality
- Cases where there is a significant power imbalance
- Mediation also requires the willingness of both parties to compromise.
EFFECTIVE [4]
- Less expensive and more informal than a court process.
- Encourages parties in dispute to try to resolve their own conflict with the assistance of third parties,
- Both parties’ benefit
- Both parties are subjected to a more informal atmosphere which encourages compromise.
INEFFECTIVE [5]
- Cases with a power imbalance, as the decision made may be jeopardised due to one party intimidating the
other
- The more dominant party may force the other party to accept a solution which is unjust.
- Aren't legally binding and could lead to the possibility of not being treated seriously.
- The informal atmosphere can be taken advantage of by a stronger party
• Lead to result reflecting the imbalance of bargaining power.
CONCILIATION [7]
SIMILARITIES TO MEDIATION [2]
- facilitate the parties reaching a mutually beneficial outcome,
- third party cannot impose a decision.
DIFFERENCES TO MEDIATION [2]

- Mediator cannot pose any suggestion on how to resolve the issue
- Conciliator is typically an expert in an area of law who with their knowledge can: [2]
➢ offer expert advice
➢ recommends a possible solution
DEFINITION [4]
- Involves an impartial third party in facilitating a discussion between disputing parties
- In order to reach mutually beneficial decision, conciliator as an expert in an area of law, pose:
• Suggestions/recommendations on how to resolve the dispute.
- The parties can consider these suggestions when reaching any agreement between themselves.
APPROPRIATE [the same as mediation + this one thing]

- When an expert in the area of law is required for further guidance and assistance on how to resolve the
dispute.
INAPPROPRIATE/EFFECTIVE/INEFFECTIVE [the same as mediation]
ARBITRATION [7]
SIMILAR TO MEDIATION/CONCILIATION [2]
- is a process that utilises an impartial third party who oversees the discussion between the parties.
- is a confidential process
DIFFERENCES TO MEDIATION/CONCILIATION [3]

- It is more formal as evidence is presented to the arbitrator as opposed to a round table discussion.
- Mediator/conciliator cannot impose an outcome
- Arbitrator will make one of behalf of the parties if they are unable to do so.
DEFINITION [7]
- refers to a fairly more formal method of resolution
- Involves an impartial third party known as an arbitrator
- Allows both sides to present their sides of the matter,
- Allows the parties to reach their own resolution
- Poses suggestions where possible.
- if unsuccessful, the arbitrator’s role involves making the final decision on behalf of the parties,
• Is then a legally binding outcome.
APPROPRIATE [4]
- More serious disputes needing an enforceable decision for more serious disputes
- In situations where one party is less likely to cooperate
- Where there is no ongoing relationship between the parties
- Allows for finality and closure in the case.
INAPPROPRIATE [1]
- Inappropriate for minor disputes.
EFFECTIVE [3]
- Arbitration is effective as it is a less formal method than the courts
• not adhering to strict rules of evidence/procedure yet still providing a legally binding decision
- Arbitration also improves access within the legal system as it is timelier than the court process, therefore a
fairer resolution without delay can occur.
INEFFECTIVE [4]
- The ability to appeal any decision made in arbitration is limited
- Success is rare
- Therefore, any fault or dissatisfaction with the arbitrators decision cannot typically be reviewed or reversed.
- Can impose a decision, leading to a win-lose scenario
JUDICIAL DETERMINATION [COURTS]

DEFINITION [3]
- Often used as a last method to settle disputes
- Is a trial or hearing in which parties submit legal arguments and evidence favouring their side of the dispute
- The judicial officer then makes a legally binding verdict or order based on the matter
APPROPRIATE [2]
- For serious matters where a legally binding decision is required
- When a matter is complex.
INNAPPROPRIATE [2]
- For parties wanting a less public, more casual resolution
• such as family disputes.
EFFECTIVE [6]
- Courts follow the strict rules of evidence and procedure through an adversarial approach
- Ensures procedural fairness and the appropriate outcome of the case
- Both parties have an equal opportunity to present their case.
- Allows for the optional use of a jury
- Courts are able to enforce a legally binding decision to allow finality.
- Courts are bound by the principles of natural justice allowing for fair and unbiased hearings
INEFFECTIVE [5]
- The nature of judicial determination can be intimidating for certain parties
- The formality may jeopardise certain vulnerable individuals in having a fair trial and can result in an
unsatisfying outcome.
- The time-consuming nature associated with the court system may cause plaintiffs to be placed under
huge financial strain because of delays
- Plaintiffs may be pressured to settle for a lesser sum rather than wait to go to trial.
- Courts are very expensive which may discourage some parties from pursuing a civil claim through the courts.
EXTENT OF COURTS USING ADR [3]

- The courts will use mediation either: [2]
➢ as a pre-trial procedure in the magistrates court
➢ ordered by a judge to be mediated where the amount in dispute is $30 000 or more.
- Does not use conciliation
- Magistrate court can refer cases to arbitration if the dispute is under $10,000
KEY FEATURES OF A CIVIL ACTION
DEFINE [6]
- The focus of civil law is to protect the rights of individuals in society who may seek to take action in an effort to
have their rights restored.
- The civil justice system seeks to achieve this by providing solutions to disputes between two individuals or
groups where someone’s rights have been breached.
- The courts seek to ensure that redress is sought in complying with the legal systems principles of justice of
fairness, equality and access.
- The courts help ensure this through adhering to the CIVIL PROCEDURE ACT 2010 (VIC)
• That aims to facilitate the ‘just, efficient, timely and cost effective resolution of the real issues in dispute’
through the courts, whose duty is to uphold the law and administer justice.
CIVIL ACTION [2]

- A civil action is concerned with a dispute between two individuals
- Arises when an individual suffers damage as a result of their rights being infringed by the actions or omissions
of another party
PLAINTIFF [4]
- Initiated by one of the parties who seeks a form of dispute resolution.
- The individual affected by the breach, referred to as the plaintiff or complainant
- Is responsible for bringing the case to court in order to rectify any wrongs through a civil remedy.
- Civil remedies generally include: [2]
➢ Damages which are monetary forms of compensation
➢ Injunctions that involve an order by the courts that commands or prohibits certain behaviour.
KEY PRINCIPLES [3]

INTRO [3]
- Within a civil trial upholding justice and protecting individual rights is essential for civil justice
- These key values are protected through the burden of proof and the standard of proof
- Outlined in CIVIL PROCEDURE ACT 2010 (VIC)
BURDEN OF PROOF [1]

- In civil law, the burden of proof refers to the responsibility the plaintiff has to present the necessary evidence
to establish the liability against the defendant.
STANDARD OF PROOF [4]

- The determination of whether the defendant is liable or not is based on the standard of proof
- Is the standard of certainty necessary to establish proof within a case
- Which is based on the balance of probabilities
• Involves which version of the facts is more likely to be substantially the truth.
AREAS OF CIVIL LAW

TORTS [2]
- The law of torts includes actions for:
➢ Negligence
➢ Defamation
➢ Trespass
➢ Nuisance
CONTRACT [2]
- Contract law involves a legally binding agreement between two or more parties
- Civil disputes concerning contract law involves a breach of contract.
Factors to Consider When Thinking About Taking Legal Action
- Given the time consuming and expensive nature of courts, it is important to consider a number of factors.
NEGOTIATION OPTIONS [1]

DEFINE [4]
- Negotiating options through a dispute settlement body or an independent third party are always a possibility
- Allows parties to avoid the adverse consequences of trial
- Allows them greater control over the final outcome through a negotiation process.
- The majority of civil claims do not proceed to court, with 95% of all civil claims resolved through negotiated
settlement.
COSTS FOR TRIAL [1]

DEFINE [5]
- The parties bear the costs of the action which can continue to increase as the claim moves through from
beginning to end.
- As such parties need to carefully consider the costs and the financial consequences if they are unsuccessful.
- Can be expensive through costs for legal representation and services.
- Individuals must also consider the possibility of receiving an adequate costs order
• in which the losing party must pay the legal costs of the successful party.
LIMITATIONS OF ACTIONS [3]

DEFINE [3]
- This is an imposed restriction on the period of time during which the individual can bring about a civil claim.
- Specified under the LIMITATION OF ACTIONS ACT 1958
- Other legislation that state time limitations for civil actions are:
➢ TRADE PRACTICES ACT 1974 (CTH)
➢ WRONGS ACT 1958 (VIC)
PURPOSE OF TIME LIMITS [3]

- to ensure that cases are initiated while recollections of events are fresh
- provide for personal and business certainty in operating
- Ensure that plaintiffs act within a timely manner to resolve issues.
LIMITATION PERIODS [5]

- Limitation periods vary on the type of action claimed as:
- Breaches of contract limitations are 6 years

• but can be extended as per SECTIONS (1)(A) of the LIMITATIONS OF ACTIONS ACT 1958.
- For a tort, civil action must commence within 6 years as outlined in SECTION (10)(A)
- Offences such as defamation have a 1-year limitation of action.
SCOPE OF LIABILITY [1]

DEFINE [3]
- specified in SECTION 51 of THE WRONGS ACT 1958 (VIC)
- The plaintiff must establish a casual link between the defendant’s action and the harm caused
- Must determine the extent to which the defendant are liable or legally responsible
ENFORCEMENT ISSUES
DEFINE [6]
- Complications that may occur during the application or execution of a mutually binding agreement and
subsequent order.
- The plaintiff must consider if the defendant is willing to and able to pay the amount awarded.
- In such cases, the court may have to issue an enforcement proceeding, to ensure compliance of these
orders, that can include:
• a warrant for distress in which the defendant’s property is sold
• having the defendant declared bankrupt so that their assets are sold
- These orders allow for sufficient funds to be recovered in order to pay the amount owing.
REPRESENTATIVE PROCEEDING [5]

DEFINE [4]
- Known as representative proceedings or class actions
- Allow for the resolution of common civil disputes
- Involves permitting cases to be filed and brought forward to the court by one party
• on behalf of 7 or more others dealing with a common grievance.
EQUALITY [1]
- Ensure that those from a lower socioeconomic background are given the means to pursue their case in a way
that lessens the overall cost for them.
FAIRNESS [1]
- Ensuring individuals aren't impaired of the opportunity to present their best case forward and receive a fair
trial.
ACCESS [2]
- Effective way for the courts to deal with large numbers of claims in a timely and efficient manner.
- Can ensure that people who have cause of action are not discouraged from taking action due to cost barriers
DISADVANTAGES [3]
- Only heard in the supreme and federal courts and as therefore, there may still be a high cost/significant time
delay.
- Denies individuals the chance to have their specific issues and circumstances addressed
- The needs and views of all plaintiffs may not be able to be represented when putting forward a class action
case, reducing access to justice.
JUDICIAL POWERS OF CASE MANAGEMENT
DEFINITION [4]
- Are given to Victorian judicial officers in order to manage civil disputes introduce a system of rules
- To reduce costs and delays in the court system
- To control the progress of legal cases in a timely and cost-effective manner.
- Judges undertake certain actions to ensure this purpose is met such as ordering mediation and giving
directions.
DIRECTION HEARINGS/GIVING DIRECTIONS [4]

- The supreme court have the power to introduce direction hearings
- Allow courts to limit the length of time that will be required for a hearing.
- Outlined in SECTION 7 of THE CIVIL PROCEDURE ACT 2010
- These orders allow the court to maintain control of the trial and minimise delays
DIRECTIONS [2]
Directions involve:
- Instructions imposed on one or both parties, obliging them to undertake an action by a specific time.
- Proceedings conduct, parties to be directed to participate in an ADR method or imposing a timeline on trial.
MEDIATION [4]
- The supreme court now refers all civil matters to mediation
- To negotiate a settlement and promote out-of-court settlements in order to reduce the backlog of civil cases
waiting for trial.
- Allows for a more economic resolution of the dispute
- Allows an out of court settlement, reducing the time and costs associated with trial.
EFFECTIVENESS OF CASE MANAGEMENT [4]

- Allows for the judge to responsibly control and manage the trial.
- It means parties are able to be treated equal throughout and can make suggestions to assist with their needs.
- Case management improves the community’s access to the legal system
• through promoting out of court settlements and reducing time and costs associated with trial.
INEFFECTIVENESS OF CASE MANAGEMENT [2]

- Could leave parties with unnecessary expenses
- Some directions may be unnecessary and simply time consuming.
Civil Remedies
DEFINITON [3]
- Remedies are sought by the plaintiff to end a dispute and recognise their rights.
- Primary purpose of being given to restore the aggrieved party back to their original position, as much as
possible, as they were prior to the harm occurring.
- The WRONGS ACT 1958 outlines the remedies, damages and injunctions.
DAMAGES [8]
DEFINE [2]
- Involves a monetary form of compensation for the infringement of rights and harm caused, from the defendant
to the plaintiff
- Damages also aim to compensate and reattribute to varying extents for harm: [5]
➢ Compensatory
➢ Exemplary
➢ Nominal
➢ Aggravated
➢ Contemptuous damages
COMPENSATORY DAMAGES [5]
- Compensatory damages are a form of damages that are awarded to compensate the plaintiff for the injury or
damage suffered, that can include specific and general damages.
- Specific damages are precise monetary values that are easily quantifiable
• such as expenses or the loss of income.
- General damages are non-quantifiable amounts paid to account for magnitudes of loss and harm suffered
• taking into consideration long term consequences or job prospects
AGGRAVATED DAMAGES [2]

- awarded as further compensation for the plaintiff
- if the defendants’ actions are believed to have injured or humiliated the plaintiff
NOMINAL DAMAGES [2]

- When a plaintiff’s rights have been infringed but have not suffered a substantial amount of harm
- Small amounts given to the plaintiff to make a point
EXEMPLARY DAMAGES [2]

- deters others in the community from conducting an action similar to the defendant’s extreme infringement of
the plaintiff’s rights
- with the court ordering a large sum of money to make an example.
CONTEMPTUOUS DAMAGES [2]

- court shows contempt for the claim made and gives a small amount
- recognises that although the plaintiff doesn't have a moral right to be paid, legally they do.
EFFECTIVE [1]
- For cases involving economic loss, particularly cases where the specific value of the damage can be clearly
identified.
INEFFECTIVE [1]
- Some acts of parliament, place restrictions on the amounts that can be awarded and as a result the plaintiff
may not be fully compensated for the damage suffered.
INJUNCTIONS [3]
DEFINE [2]
- an order awarded against the losing party in a civil action by the courts
- commands or prohibits certain behaviour in order to rectify a situation caused by the defendant.
DIFFERENT TYPES OF INJUNCTIONS [2]

- restrictive injunctions require the defendant to refrain from undertaking a certain action
- mandatory injunction compels the defendant to undertake a certain action
DISADVANTAGES [3]
- The actions of the defendant have already caused damage, and as a result can only stop any further damage.
- Therefore, does not restore the plaintiff to their original position.
- Effectiveness of an injunction may depend on the willingness of a defendant to comply.
RECENT REFORM FOR CIVIL LAW [5]
“THREE TIER FEE SYSTEM”
INTRO [4]
- implemented to address the high costs associated with trial
- Introduced on the 1st of July, 2016
- VCAT divided its fees into three tiers, with each party being in a specific one based on their financial standing
- Ensures VCAT remains accessible and costs are maintainable to combat their growing costs.
TIERS [4]
- The lowest tier was for healthcare holders, having a capped fee of $150,
- The middle tier was the standard level
- The highest tier was the “corporate level” for companies making more than 200,000 per annum,
• pay more to ensure they’re not taking advantage of VCAT’s low cost services
FAIRNESS [4]
- Provides procedural fairness
- Ensures both parties are able to present their case in the best way and receive the best outcome from an
impartial adjudicator.
- However, third party’s such as mediators may still pose an inherent bias
- May not be as knowledgeable as a judicial officer
EQUALITY [5]
- Distribution of fees ensures that individuals aren't disadvantaged due to the high costs of obtaining justice
- Ensures that there is equal footing how parties can obtain justice.
- However, there is no eligibility for those without a healthcare card

- Therefore, individuals who are financially struggling may not get formal recognition and be eligible
- This denies some parties a level playing field with a potentially less disadvantaged opposing party.
ACCESS [2]
- It provides individuals with a more accessible pathway to obtain a resolution through VCAT
- However, the $150 cap that may be inhibiting and make parties less likely to pursue a claim.
RECOMMENDED REFORM FOR CIVIL LAW [4]

INCREASED USE OF ADR
INTRO [3]
- The Victorian Access to Justice Review recommended for:
• the alternate dispute resolution methods to be expanded upon
• the increase of methods to resolve disputes outside of the courtroom.
FAIRNESS [2]
- Ensures individuals are utilise methods that are fair and unbiased due to the parties reaching their own
resolution, in methods such as mediation.
- However, ADR may not utilise the strict rules of evidence and procedure, which ensure a trial is completely
fair and transparent.
EQUALITY [2]
- Individuals from a lower socio-economic background are ability to utilise a cheaper method of resolution,
ensuring they can achieve justice.
- However, one party may possibly intimidate the other, leading to a power imbalance, putting a party at a
disadvantage. [taking advantage of informality]
ACCESS [2]
- it provides greater amounts of services for individuals to have their disputes resolved, allowing them access to
pursue justice.
- ADR do still contain certain costs and time delays associated, therefore, inhibiting all individuals access to
justice
COURT HIERARCHY [5]

DEFINE [2]
- In Australia, courts are arranged in a hierarchy in which they are ranked from inferior to superior based on
their jurisdiction.
- Civil jurisdiction involves the power to hear and determine civil disputes up to a specified level as granted by
acts of parliament.
HIGH COURT OF AUSTRALIA [1]

- which has jurisdiction over matters that relate to the whole of Australia.
MAGISTRATES COURT [4]

- The magistrates’ court has the primary role to resolve local civil disputes
- Has original jurisdiction to rule on most civil matters up to $100,000.
- Can hear cases across many areas of including monetary disputes [debts, damages]
- The magistrates’ court cannot hear appeals.
COUNTY COURT [4]

- The main trial court in Victoria
- Has the role of having the original jurisdiction to hear and determine a broad range of civil matters.
- The county court has unlimited civil jurisdiction
- Hears cases involving building disputes and claims for damages, as well as appeals from the magistrate
court.
SUPREME COURT [3]

DEFINE [2]
- Established by Victorian legislation in 1852
- Acts as Victoria’s superior court that only hears the most serious criminal and complex civil cases in the state
COURT OF APPEAL [2]

- only hears appeals.
- rules whether or not the trial was conducted fairly and whether the law was correctly applied.
TRIAL DIVISION [4]

- Has extensive original jurisdiction in civil matters
- Hears some of the most serious civil cases
- Has unlimited civil jurisdiction
• Cases with no limit on the dollar amount of civil claim before the supreme court
REASONS FOR COURT HIERARCHY (same as criminal) [3]
- Victorian courts are arranged in a hierarchy in which courts are ranked from inferior to superior based on their
jurisdictions.

- This hierarchy serves to meet many purposes, of which include the Doctrine of precedents
- that is dependent on a hierarchy of courts
- means that decisions made by a higher court is binding for lower courts in the same hierarchy
• allows for consistency and predictability to a certain degree in regards to similar cases and how they are
treated.
APPEALS [6]
- Court hierarchy also allows for appeals, if the grounds of appellation exist
- As a fundamental application of justice and fairness, an accused who may be dissatisfied with a decision
made by the court
• can therefore have the opportunity to have their case heard again in a superior court
• challenging the decision either on a point of law, question of fact, or verdict/damages rewarded by a judge
with specialist knowledge and expertise
- This system ensures fairness, and the correction of mistakes to occur.
- For example, any appeals from the Magistrates court on a point of law are heard in the Supreme Court Trial
Division who may choose to uphold the decision or reverse it, that may create a precedent.
SPECIALISATION [8]
- Each court is limited to a specific area of jurisdiction to hear certain types of cases
• that allows courts to develop specialisation in their own areas of law with respect to the types of cases
that are determined in that particular court.
- This therefore allows for the courts to be specifically designed to deal with certain issues
• with court personal developing knowledge and expertise in the area of law
- Allows individuals within a trial to benefit from a more expertise judge.
- For example, the Supreme Court is the highest of the Victorian courts
• has jurisdiction over the most severe and technical cases
• Is able to be heard by the most experienced and qualified judges.
Key Personnel in a Civil Trial

KEY PERSONNEL IN A CIVIL TRIAL
- Jury
- Parties
- Judge
- Legal Practitioners
JUDGE [6]
COMPARE HOW TWO ROLES OF THE JUDGE DIFFER WITH AND WITHOUT A JURY PRESENT
GENERAL ROLES [2]
- The judge is the central figure in trial, acting as the impartial, independent umpire.
- The judge is responsible for: [3]
➢ managing the trial
➢ ensuring the rules of evidence and procedure are strictly adhered to
➢ giving parties equal opportunity to present their case.
ROLE IN A CIVIL TRIAL [only thing different from criminal] [3]

- Is expected to decide questions of fact
- Can determine the remedy for the party whose rights were infringed
- responsible for ensuring that the plaintiff has legally established the ‘burden of proof’.
ROLE WITH A JURY [2]

- In cases involving a jury the judge is responsible for the process through which a jury is selected and
empanelled
- They also help direct the jury, allowing them to apply the facts of the case.
EFFECTIVE [2]
- Judges are effective in their role as they are able to manage the trial, providing assistance to self represented
parties, ensuring an equal and fair trial.
- A judge additionally directs the jury about the law which ensures that a jury’s decision on the guilt of the
accused party is made fairly with all the facts.
FAIRNESS IS UPHELD AS: [3]

- the judge acts as an impartial third party
- looks at the case objectively
- Ensures any decision is made completely fairly, without any bias for any party.
ACCESS IS UPHELD AS: [2]

- The judge ensures all individuals have access to pursue justice
- Judge gives assistance to all parties such as those self-represented.
EQUALITY IS UPHELD AS: [1]

- the judge ensures all parties, regardless of personal characteristics are subject to the same rules of evidence
and procedure
DISADVANTAGES [3]
- A judge must remain completely neutral, and cannot act as representation and enable certain to present their
best case.
• Leaves the possibility for individuals to be disadvantaged before the law
- However, a judge may hold a bias or apprehension of bias, leading to the parties being denied a fair trial.
JURY IN A CIVIL TRIAL [V Different from a Jury in Criminal Law] [6]

DEFINE JURY [4]
- The jury is not an essential feature of the civil trial process and is used in only approximately 2% of cases in
the county and supreme courts.
- Acts as an independent, impartial third party body
- Comprises of typically 6 jurors
- Are sworn in to act in their ultimate role of being unbiased in determining the liability of a party based on the
evidence presented
ROLE OF A JURY [4]

- Juries determine questions of fact
- apply the law as explained by the judge
- decides fault
- Considers the facts to make a statement that is completely unbiased
FAIRNESS [same as criminal juries] [3]

- Juries act as an application of fairness within the criminal justice system as they are typically a cross section
of the community
- The jurors are representative of the wider community and their current views
- Ensures that issues of fact are determined by opinions of the general public, not judge alone.
EQUALITY [same as criminal juries] [3]

- Equality is upheld as individuals in the jury come from all different socio-economic backgrounds
- As such they will represent a wide range of views that ensures that all parties involved do not have a
significant disadvantage or advantage.
ACCESS [same as criminal juries] [3]
- The allowance of jurors into criminal trials gives the community access to participate in the justice system and
vocalise their views and values in their verdict
- Reflects the idea that everyone in a community is responsible for the administration of justice
DISADVANTAGES [different to criminal juries] [2]

- Each party is permitted to challenge three of the potential jurors
• Therefore, not serve as a fully random community cross-section, as they can be manipulated to
specifically favour a certain party.
PARTIES [completely different from criminal] [2]

ROLE [5]
- controlling their parties’ case
- putting forward relevant evidence
- making submissions.
- The plaintiff in particular is responsible for filing the claim and seeking a remedy.
- The defendant must file a counter claim
EFFECTIVE [2]
- The parties are equally subjected to the rules of evidence and procedure
- They have their cases overseen by an impartial third party and therefore neither are disadvantaged in any
way
LEGAL PRACTITIONERS [completely different from criminal] [3]

DEFINE [1]
- The complexity and number of rules regulating court procedures mean that parties may choose to use legal
representation.
ROLE [3]
- The role of the legal practitioner is to respond to the plaintiff’s claim
- To present the plaintiff’s case in the best light.
- Responsible for protecting the rights of individuals by ensuring fair and equal treatment in court
EFFECTIVE [2]
- Providing both parties with equal representation, it is assumed that the truth will emerge and a just and fair
outcome will result
- However, financial disadvantage or one party appearing without representation, may contribute to an unfair
decision.
CIVIL PRE-TRIAL [5]
DEFINE CIVIL PRE-TRIAL [2]
- Outlined in SECTION 7 of THE CIVIL PROCEDURE ACT 2010 (VIC),
- The purpose of civil pre-trial procedures is to “facilitate the just, efficient, timely and cost effective resolution of
the real issues in the dispute.
PLEADINGS [2]
INTRO [3]
- Are a series of stages involving the exchange of a large number of legal documents that parties file with the
courts before the trial
- Allows the parties to clarify the claims and defences being made
- Helps define the real issues in the dispute.
WHAT IT ALLOWS/ENABLES [6]

- The stages allow for procedural fairness, through providing both parties with insights into the opposing case
• Enabling the parties to know what evidence it will be necessary to have available
- This process may help provide for an early out of court settlement.
- Enforces SECTION 9(1) of THE CIVIL PROCEDURE ACT 2010 that sets out the overarching purpose of pre-
trial procedures
• they must treat all people equally, and act in the public and parties’ interests to settle disputes early
- Within pleadings are the writ, statement of claim, notice of appearance, defence and counterclaim
DISCOVERY OF DOCUMENTS [3]

- Refers to the stage involving the full disclosure of existing documents and evidence relevant to the dispute
- Such as: [3]
➢ Photographs
➢ Tape recordings
➢ Other documentary materials.
- The discovery process allows for parties to disclose all relevant documents in their possession to the other
party.
DIRECTIONS HEARING [same thing]
EFFECTIVE [4]
- Ensures full transparency of trial
- Allows parties to determine the strength of their case and the other sides
- Allows parties to make an informed decision regarding whether an out of court settlement is a better option
- Saves both the courts and people’s time and money by pursuing ADR method or negotiating after seeing the
strength of the case presented again them.
INEFFECTIVE [2]
- Leads to huge incurred costs as a legal representative is required
- The requirement to disclose all documents can lead to significant delays
Factors that Affect the Achievement of Justice [Civil Law]
IDENTIFY ONE PROBLEM THAT RESTRICTS ACCESS TO THE LEGAL SYSTEM. EVALUATE A REFORM THAT
RESOLVES IT
INTRO [Close to Criminal Law] [3]

- In order for the criminal justice system to operate effectively for parties involved, a sense of justice must be
achieved.
- Despite the best aims of the civil/criminal justice system, factors such as:
➢ Costs
➢ Time
➢ Limited Access
• can mean that not all parties feel that they have been treated in a just manner.
COST [same as criminal law] [3]

EXPLAIN COSTS [7]
- The costs of initiating civil actions can be prohibitive with the process of civil trial is an extremely costly one,
- Through the costs of: [3]
➢ trial
➢ representation
➢ advice
- This impairs the ability of litigants to achieve justice for those who cant afford it.
- The costs for court fees and legal representation can be too expensive for many people
• denying access to the court system
• as it prevents certain parties involved from purchasing adequate legal representation
- Private legal representation is expensive as it is perceived as higher quality than government funded
representation.
EFFECTS [3]
- Costs can also affect equality, and the court’s ability to achieve a fair trial
• parties that cannot afford legal representation tend to be those of a lower socioeconomic background
• they are therefore disadvantaged against skilled private legal representatives
HOW IS COST SOLVED [2]

- Tribunals and community organisations assist destitute individuals.
- Class action reduce financial stress on individual people
TIME DELAYS [Different to criminal law] [2]

EXPLAIN TIME DELAYS [4]
- The achievement of the POJ may be substantially hindered by the time delays and backlog of cases within the
civil justice system.
- Through:
➢ lengthy pre-trial and trial procedures
➢ Insufficient resources
➢ lack of court control.
- Delays lessens the community’s respect for the law and can result in hardship for all parties involved and
impact the relativity and admissibility of evidence.
- However, legal system aim to give a definite and fair answer to important disputes which may take
considerable time and resources incurred through higher costs.
HOW IS TIME DELAYS FIXED [2]

- Civil pre-trial procedures help speed up the resolution of disputes by allowing the parties to clarify issues
• reduces the time taken for the case being heard
- Pre-trial procedures may result in the parties reaching an out-of-court settlement
LIMITED ACCESS [2]
EXPLAIN LIMITED ACCESS [3]
- The growing demand for legal aid services means that not everyone is able to get the assistance they need,
therefore, limiting access
- People are prevented from seeking proper civil redress can be because of their lack of understanding of their
rights and the legal system
- People may be economically, socially or culturally disadvantaged.
HOW IS LIMITED ACCESS FIXED? [2]

- Provides a number of dispute resolution processes that are relatively cheap and quick.
- The legal system provides for a system of review in which individuals who feel that they have not been dealt
with fairly may appeal their case to a higher court
LEGAL STUDIES
:
DIVISION OF POWERS [5]

INTRO [4]
- THE COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900 (UK) establishes the law-making
powers of not only the commonwealth but also the state parliaments.
- The jurisdiction of parliaments varies

• Which means that parliaments can only legislate within the specific areas of power given.
- For example:
➢ the commonwealth parliament can only legislate in areas of exclusive power and concurrent power
➢ while the state parliaments can only legislate in areas of concurrent and residual power.
SPECIFIC POWERS [5]

- The constitution divides law making powers into specific powers
- Are those enumerated in the constitution
- are powers that are given to the commonwealth parliament.
- Most of the specific powers of the commonwealth parliament are listed in SECTIONS 51 AND 52 of the
constitution
- Can include: [2]
SECTION 51 [1]
➢ (ii) regarding taxation
SECTION 52 [2]
➢ (xxix) regarding external affairs
➢ (xxvii) dealing with immigration and emigration.
EXCLUSIVE POWERS [8]

- Some of the specific powers enumerated in the constitution are exclusive powers
- Are areas of law that is not shared with any other law-making authority
- Only the federal parliament can legislate on, through being either be exclusive by nature or exclusive because
states are prohibited.
- All the powers in SECTION 52 and some in SECTION 51 are exclusive
- can include: [2]
SECTION 51 [2]
➢ (v) involving postal, telegraphic, telephonic, and other like services
➢ (vi) the naval and military defence of the Commonwealth and states
SECTION 52 [1]
➢ (xxvii) dealing with immigration and emigration.
STATES ARE PROHIBITED [3]

- SECTION 51(XII) regarding about currency, coinage and legal tender
- SECTION 115 declares that ‘a state shall not coin money
- Therefore, the power to make laws about currency is an exclusive power of the commonwealth parliament.
CONCURRENT POWERS [5]

- are areas of law shared by the federal and state parliament
- State parliaments are not excluded and can make laws about some areas set out in section 51
• provided they are not excluded from using that power by another section of the constitution
- Can include:
SECTION 51
➢ (ii) regarding taxation
➢ (iii) outlining trade
➢ (xxi) in relation to marriage.
- SECTION 109 states that in areas of concurrent law-making powers,
• when a state law is inconsistent with a law of the commonwealth, the latter shall prevail, and the
former shall, to the extent of the inconsistency, be invalid
RESIDUAL POWERS [4]

- As referred to in SECTION 106, areas of law not enumerated in the constitution are divided into “residual
powers”
- Left with the states to legislate.
- Subjects such as police, education, health
- The constitution recognises the power of state parliaments in:
➢ SECTION 106
➢ SECTION 107
➢ SECTION 109
SECTION 109 [4]

INTRO [3]
- SECTION 109 recognises supremacy of the commonwealth parliament in relation to concurrent areas
➢ The state parliaments can exercise both residual and concurrent
➢ The commonwealth can exercise exclusive powers and concurrent powers.
- Exists as a provision regarding concurrent powers as it is possible for Victorian laws to be in conflict with an
existing commonwealth law, where inconsistencies may occur.
- The section restricts the state parliament by establishing that “when a state law is inconsistent with a law
of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency,
be invalid”.
EFFECTS [3]
PARLIAMENT [7]
- Restricts the law-making power of the states
- Gives the commonwealth the ability to overrule state law
- Forces the act to be amended and be consistent with the acts of the commonwealth
• ensures consistency and clarity in law.
- Would push state parliament to make laws that do not contradict Commonwealth laws in areas of concurrent
power.
- Prevents the state government from abusing their power
- Provides the commonwealth with more power of that possessed by the state.
MARRIAGE [5]
- shown in SECTION 51 (XXI)
- THE MARRIAGE ACT 1958 (VIC) provided laws for a valid marriage, when there was no previous
Commonwealth law regarding this area.
- The Commonwealth parliament passed the MARRIAGE ACT 1961 (CTH)
- This made the pre-existing Victorian legislation largely redundant
- As a result, the Commonwealth prevailed and the inconsistent areas of the Victorian Act have been repealed.

- Will have an impact on areas of concurrent powers and by extension the division of powers
- Any inconsistency which provides that states must amend their legislation to be in line and consistent with the
commonwealth acts.
EFFECTIVE [3]
- If state law is challenged successfully the commonwealth law will prevail
- State law will be deemed invalid only to the extent of the inconsistency
- Consistent approach to inconsistencies of laws
INEFFECTIVE [5]
- Does not restrict state from making its own law if such a law is challenged by the commonwealth and the
challenge fails
- Does not restrict states from legislating in respect of residual powers
- Requires the state to be challenged in the high court on an inconsistency in law by someone with standing
before the section can be enforced
- This means that it is not automatic, which may mean that inconsistent legislation may not be realised until
much later.
- It corrodes the power of the states to implement legislation, and therefore function on its own laws.
Constitutional Checks on the Power of Parliament

HOW DOES THE AUSTRALIAN PEOPLE TO ACT AS A CHECK ON PARLIAMENT IN LAW-MAKING.
- Referendum
- Bicameral (commonwealth parliament is chosen by the people)
- The right to challenge commonwealth laws in the high court
HOW DOES CONSTITUTION PROTECT RIGHTS [5]

- In forming the Constitution, the writers were preoccupied with ensuring a good system of government in
Australia
- Done through designing a system of structures allowing checks and balances
- As evident throughout THE COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900 (UK),
- The writers created a system of structures designed to ensure a good government
- Prevents governmental power being concentrated in the hands of a small number of people, who might abuse
it.
BICAMERAL [4]
EXPLAIN [5]
- Structural protection refers to the framework that exists within the Constitution to protect democratic human
rights.
- As outlined in SECTION 1, involves an upper house and lower house structure of parliament
- Has the purpose of acting as a provision on how the crown, senate and the house of representatives are
composed and interact
- SECTION 7 AND 24 outlines the existence and purposes of the two houses of parliament and that they are
“directly chosen by the people”
- A bill must be passed by both houses, and it must receive royal assent from the governor-general before it
can become a law.
HOW IT ACTS AS A CHECK/RESTRICTION [2]

- This structure allows the senate as a house of review to act as a check on the house of representatives
- Ensures appropriate scrutiny of all legislation which prevents any poor legislation going through effecting the
rights of individuals within society.
EFFECTIVE [10]
- Allows for the second house, typically the upper house, to act as a house of review, ensuring appropriate
scrutiny of all legislation
- The parliament through the lower house represents the will of the people as they are “directly chosen’ by them
through a bicameral structure
- While the upper house provides equal representation for each state, territory or region
- As such ensures a wide range of interests is represented in the lawmaking process.
- This is as a failure to represent the interests of the majority, may lead to facing not being re-elected
- The requirement of responsible government
• means that members of parliament must also be held accountable for their actions
• their actions must be transparent to the people
• diminishes any opportunity to oppress or restrict the rights of citizens.
• Outlined in SECTION 24, SECTION 64
INEFFECTIVE [3]
MAJORITY IN THE UPPER HOUSE [3]

- When the governing party also has a majority in the upper house, meaning that the government controls both
houses
- May result in the Senate acting as a rubber stamp, simply affirming the decisions made in the lower house
- Can lead to the passing of legislation without the adequate scrutiny and checks required for fair and effective
laws.
MINORITY GOVERNMENT [3]

- The government may be pressured to water down bills
- Done in order to gain independent support, and therefore pass legislation
- May anger certain voters, as it fails to uphold their original legislative plan.
SENATE CAN BE CONTROLLED BY OPPOSITION OR COALITION [2]

- Can lead to the senate blocking legislative initiatives of the government
- Denies the changes and new legislation required for the parliament in order to keep up with the needs in the
community.
EXPRESS RIGHTS
HOW THE COMMONWEALTH CONSTITUTION RESTRICTS THE LAW-MAKING POWER OF THE FEDERAL
GOVERNMENT.
- Express rights
- High court
EXPLAIN HOW THE COMMONWEALTH CONSTITUTION PROTECTS RIGHTS.
- Protection of rights:
• Express rights
• High court
• Referendum
EXPRESS RIGHTS
- Acquisition of property – SECTION 51 (XXXI)

- Discrimination on the basis of state of residence – SECTION 117
- Freedom of Movement – SECTION 92
- Freedom of Religion – SECTION 116
- Trial by Jury – SECTION 80
EXPLAIN [3]
- Protects rights by identifying some rights provided to Australians such as express rights
- Are 5 entrenched rights that are clearly expressed or outlined within the constitution.
- Express rights can also be called entrenched rights as they cannot be altered neither removed unless
amended by a successful referendum, as per SECTION 128 of the constitution.
HOW IT ACTS AS A CHECK/RESTRICTION [2]

- It restricts commonwealth from exercising particular law-making power and can be interpreted by the High
Court
- Restricts the commonwealth’s law-making powers as they are not able to pass a law without having it
reversed by the high court who would deem the legislation as ‘ultra vires’, and ultimately, invalid.
ACQUISITION OF PROPERTY [4]
- The right to be compensated by the commonwealth for the just acquisition of property
- Provided by SECTION 51(XXXI) of the Australian constitution
- The commonwealth parliament may make laws to acquire property from individuals ‘on just terms.
- However, does not apply to the acquisition of property by state governments.
DISCRIMINATION ON THE BASIS OF STATE OF RESIDENCE [4]

- SECTION 117 of the constitution
- Provides for the protection against discrimination on the basis of state of residence
- Residents of any state shall not be subject to any discrimination from the commonwealth or state parliaments
in any other state based on the fact that they live in another state.
- However, it does not provide a general protection against discrimination such as gender or race.
FREEDOM OF MOVEMENT [4]

- Outlined in SECTION 92 of the constitution
- Dictates that interstate trade and commerce is to be free
- Directly mention that people are also free to move.
- Furthermore, SECTION 92 does not provide an absolute guarantee of freedom of movement.
FREEDOM OF RELIGION [4]

- SECTION 116
- The commonwealth shall not make any law for:
➢ establishing any religion
➢ imposing any religious observance
➢ prohibiting the free exercise of any religion.
- However, it only prohibits commonwealth parliament
• as few state constitutions specifically recognise religious freedom.
- The right may be limited to ensure that people follow the ‘ordinary laws’ of the community
• Does not act as a complete restriction.
TRIAL BY JURY [3]

- SECTION 80 of the constitution
- Guarantees the right to a trial by jury that applies to offences that are indictable.
- The constitutional right to a trial by jury does not extend, in theory, to offences against state law.
EFFECTIVE [5]
- Imposes a limit on the areas which the parliament can and can’t legislate on
- Therefore, all individuals are protected from the parliament potentially infringing on these rights by passing
contravening legislation.
- Permanently imposed
• can only be changed through a referendum process as per SECTION 128.
- Therefore, parliament cannot misuse their power and the rights will always apply, unless a democratic vote
state otherwise.
INEFFECTIVE [4]
- Are narrow in scope as there are only 5 entrenched rights
- Only provides limited protection and therefore parliament has a greater chance of abusing their power on any
other area of law that the rights fail to encompass.
- Doesn't directly protect the community as the protection of express rights by the high court is a complaint-
based approach
• Ex post facto.
HIGH COURT [5]
EXPLAIN METHODS OF CHANGING THE CONSTITUTION AND ANALYSE ITS IMPACT ON THE DIVISION OF
LAW-MAKING POWER.
- Referendum
- High court
HOW DOES THE AUSTRALIAN PEOPLE TO ACT AS A CHECK ON PARLIAMENT IN LAW-MAKING?
- Referendum
- Bicameral (commonwealth parliament is chosen by the people
EXPLAIN [5]
- acts as a means to restrict parliamentary powers
- Established under SECTION 71 and under SECTION 75/76 of the constitution
- Sets out the jurisdictional power of the high court over issues arising under the constitution
• and for disputes arising from any laws made by the parliament to be solved.
- This is evident as individuals are able to challenge legislation in the high court
ROLE [5]
- Acts as the guardian of the constitution of Australia, ensuring that state and Australian government abide by
its terms.
- Has supremacy over parliament when hearing cases and disputes, concerned with constitutional powers
- When cases appear before the high court, the high court may need to interpret the application of sections
of the constitution
- The high court has the power to deem any legislation that contravenes the constitution ultra vires, and
ultimately invalid.
- This ultimately allows the high court to fulfil its role of being an independent body acting as a check on
parliamentary abuse of power
IMPACT [2]
SEPERATION OF POWERS [2]

- Has the power to take a conservative or broad approach in providing meaning to the constitution’s words and
sections
- As such, in accordance with section 77 are able to extend state or commonwealth power or restrict it,
impacting SOP

- Changes made to the constitution through the high court would impact DOP
- This impacts the DOP as if the commonwealth misuses their legislative abilities an Australian citizen can
challenge this within the high court and possibly out rule the change made.
- Shifts of power typically favour that of the Commonwealth parliament, therefore reducing state powers.
EFFECTIVE [3]
- Allows for independent competent judges, without political influence the ability to make a decision free of bias
on the validity of certain legislation
- Able to Protect Australians as they able to extend/restrict the meaning behind words in the constitution
- Can establish new rights in order to keep it up to date with societal changes.
INEFFECTIVE [4]
- The high court can only hear cases and challenges ex post facto
• they can only interpret the constitution when a specific case appears before the courts by an individual
with standing
• Limits their ability to declare certain legislation contravening with the constitution void and by extension
their ability to act as a check on parliament.
- Costly nature may leave the constitution unprotected
REFERENDUM
EXPLAIN METHODS OF CHANGING THE CONSTITUTION AND ANALYSE ITS IMPACT ON THE DIVISION OF
LAW-MAKING POWER.
- Referendum
- High court
DISCUSS THE EXTENT TO WHICH THE AUSTRALIAN PEOPLE CAN PREVENT THE PARLIAMENT FROM
MAKING ANY LAWS ON RELIGION.
- Express Rights [outline the right]

- Referendum [enforces restrictions]
HOW DOES THE AUSTRALIAN PEOPLE TO ACT AS A CHECK ON PARLIAMENT IN LAW-MAKING.
- Referendum
- Bicameral (commonwealth parliament is chosen by the people
EXPLAIN [6]
- One important restriction on parliamentary power, is the stipulation that such a change regarding the
Australian constitution requires a referendum
- There has to be double majority for a referendum to be successful off people and states.
- The double majority provision is under SECTION 128
• Through a referendum proposal that can only be initiated from the commonwealth parliament.
- The double majority provision outlines that the only way words or sections may be changed, removed or
inserted is through the process of a referendum
• Involves the people entering into a compulsory vote to accept or deny the changes.
PROCESS [7]
- The writers of the commonwealth constitution considered the constitution to be so important that they made
changing it a difficult process.
- Is introduced as a constitutional alteration bill and must be passed by both the House of Representatives, and
the Senate
- Is then put to a vote of all enrolled electors nationally
➢ to vote ‘yes’ or ‘no’ within 2 to 6 months.
- The requirement of a double majority that involves:
➢ both a majority of voters nationally, through 51% of voters
➢ a majority in at least 4 of 6 states agreeing with the change.
- If the referendum achieves a double majority, it is then passed to the governor-general for royal assent.
• The crown is able to do this as per SECTION 61 AND 62
• Once royal assent has been given, the change to the constitution is made.
IMPACT [1]
DIVISION OF POWERS [very little extent] [6]

- The alteration of what law-making powers the commonwealth/state have access will cause a shift in power
- The power is stripped away from one entity and placed upon the other giving this entity more law-making
powers.
- Ensures a balance in power between commonwealth/state
- However, the commonwealth parliament are the only authority who can propose a constitution alteration bill
• can be exploited to extend parliamentary powers
• makes the division of powers disproportionate
EFFECTIVE [4]
- Ensures that any changes made to the constitution are made democratically through how parliament can’t
approve changes without approval by the people
- Ensures that the interests of the states and the national population are considered equally before any
changes are made
- Ensures that all the states have equal voice
• less populous states are not at a disadvantage and have an equal voice to a more populated state.
INEFFECTIVE [6]
- Parliament may influence voters to vote a specific viewpoint.
- Individuals in the community may not vote on their own moral conscious but instead along the lines of their
political affiliation
• the referendum still lacks in its democratic nature.
- However, the double majority is difficult to achieve as often people refuse changes,
• with 8 of 44 being successful to date, out of confusion of facts or conservatism.
• Therefore, necessary changes in the referendum may not be able to be implemented into the constitution
SEPERATION OF POWERS
INTRO [8]
- Established in SECTIONS 1,2 AND 3 of the constitution
- The constitution separates power so that each of them can act as a check on the other.
- Act as a mechanism to divide the three powers of the judicial, executive and legislative powers
- Ensuring no arm of government has complete power and therefore acting as a check on parliament
- The purpose of the SOP is presented in SECTION 64 of the constitution
- This system was established to prevent the concentration of government power, as it tends to cause
corruption and the abuse of power.
- Ensures that the government cannot become oppressive through courts being independent of the legislature
and the executive
- This is evident through how a person is able take action in the courts, and the courts can act as a check on
the other two arms of government.
ARMS OF GOVERNMENT [3]
LEGISLATIVE [4]
- CHAPTER I deals with the legislative function
- Given to the Australian parliament as specified in SECTION 1.
- At a federal level, the law-making power is given to the Australian parliament
- At a state level, the power to make laws is given to each of the state parliaments. [3]
EXECUTIVE [4]
- CHAPTER II deals with the executive function such as customs or police
- Specified in SECTION 61 AND SECTION 62
- Administration of laws is given to the executive government or the crown.
- The crown, on the recommendation of the prime minister, appoints the governor-general as presented by
SECTION 2 of the constitution.
JUDICIAL [4]
- CHAPTER III deals with the judicial function of applying the law
- Specified in SECTION 71
- Australian constitution gives this power to the courts to interpret the laws, settle disputes, and enforce the law.
- Are independent from the legislative and executive functions of the government and therefore, the courts are
not subject to political influence
EFFECTIVE [4]
- Prevents of the misuse of power, with no body having complete power to rule on, administer and create the
law.
- The separation of powers is also effective as it allows for the judicial power to remain independent.
- Judges are non-political entities without any bias, ruling on the law in an objective manner.
- Ensures individuals are able to challenge legislation in the high court effectively
INEFFECTIVE [7]
- When there are overlaps between the legislative and executive functions
• Governor-general, acts in accordance with the advice of commonwealth ministers
• Governor general is often simply a rubber stamp
- The cabinet ends up being the major administrator of the law leading to further blur between the executive
and legislative powers.
- Additionally, judges are appointed rather than elected, by the governor general in council
• according to SECTION 72
• may compromise the ability to achieve a representative government.
PURPOSE OF THE AUSTRALIAN CONSTITUTION [5] .
- The Australian Constitution was passed by the British parliament

- Came into force on the 1st of January 1901 by means of passing a British act in 1900 through the
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT 1900 (UK)
- Established the Commonwealth or federal government.
- Sets out the structure of the Commonwealth parliament and its powers to make laws
- Acts to outline the rights of the Australian people, functions of government and the legislative powers of the
commonwealth and the state in order to achieve social cohesion.
LEGAL STUDIES
- :
8.2 The legislative process

INTRO [5]
- The procedure used by parliaments to make a law is known as the legislative process.
- The parliamentary counsel is responsible for drafting legislation through writing a proposal known as a bill on
the advice of the relevant minister or member of parliament.
- The legislative process in parliament starts with the introduction of a bill
• Will become a law after it has been passed by both the upper and lower houses of parliament through
stages known as ‘readings’
• And then assented to by the crown.
STAGES IN THE LEGISLATIVE PROCESS [6]
LOWER HOUSE
FIRST READING [2]

- The first reading is the bill’s formal introduction
- Involves a member presenting the bill to the house with:
➢ the title being read out
➢ copies being distributed
➢ the contents of the bill being made known with no discussion or debate being held.
SECOND READING [5]

- At the second reading, the minister will deliver a speech explaining the main purpose of the bill
- The minister then presents an explanatory memorandum to the house that includes:
➢ the reasons for the bill
➢ outlines its main provisions.
- When the debate resumes, the opposition, usually represented by a shadow minister, will outline their
response to the bill
➢ does not oppose all bills
- The government and opposition will then take turns to speak either for or against the bill.
- At the end of the debate the house will vote either for or against the continuation of the bill
CONSIDER IT IN DETAIL/COMMITTEE OF THE WHOLE [6]

- Having accepted the main purpose of the bill, the house may consider it in detail
• also referred to as committee of the whole.
- The deputy speaker proposes each clause of the bill to the house in which discussion and amendment may
occur
• each amendment is voted upon.
- When the considerations are completed the house resumes sitting and the deputy speaker reports whether
the bill has been adopted with or without amendment.
- In some instances, the house may agree that the bill does not need to be considered in detail as this stage is
not compulsory.
THIRD READING [3]

- In the third reading, the house will formally accept or reject the bill as reported.
- This report will include any amendments agreed to during the consideration in detail
- The house will vote for or against the bill in its final form at the completion of the third reading.
UPPER HOUSE
EXPLANATION [4]
- When the bill has been passed in the lower house, it is sent to the upper house in which the bill will go through
the three reading stages in the upper house.
- When the bill has passed the upper house, it is returned to the lower house, either with or without
amendment.
- If no agreement can be reached regarding the provisions in the bill
• the bill may be ‘laid aside’, meaning that no further action is taken. [5]
THE CROWN
EXPLANATION [7]
- When both houses have passed a bill, it is presented to the crown by the initiating minister.
- The governor-general on behalf of the crown will act on the advice of the executive council to give royal
assent.
• Governor general is appointed as per SECTION 2
- Once a bill receives royal assent it becomes an act that will come into force on a date set in the act or on a
date proclaimed by the crown.
• Crown derives their power from SECTION 61 AND 62 of the constitution
- If a date has not been stated, it will become active 28 days after receiving royal assent.
- The crown can overrule or disallow any commonwealth law within one year of it being given royal assent as
established in SECTION 59.
Factors affecting law-making by parliament

FACTORS
- Role of the houses

- Political pressures
- Representative nature of parliament
- Restrictions on law making power.
ROLE OF THE HOUSES OF PARLIAMENT [7]

THE STRUCTURE [8]
- Both the commonwealth and Victorian parliamentary systems are based on and involves features of the
Westminster model of parliament
- Are bicameral as established in SECTION 1 of the constitution.
- Commonwealth parliament consists of the lower house known as the house of representatives and the upper
house referred to as the senate
- SECTION 7 AND 24 outlines the existence and purposes of these houses and that they are “directly chosen
by the people”
- The crown as represented by a governor general ensures that the houses are operating properly.
- In the Westminster system, ministers are required to sit in parliament
• Adheres with the concept of responsible government
• is a requirement of SECTION 64 of the constitution.
BICAMERAL [2]
- Has the purpose of acting as a provision on how the crown, senate and the house of representatives are
composed and interact
- A bill must be passed by both houses, and it must receive royal assent from the governor-general before it
can become a law.
COMMONWEALTH PARLIAMENT
HOUSE OF REPRESENTATIVES (LOWER) [2]
OUTLINE [6]
- The lower house of the commonwealth parliament is known as the house of representatives
➢ referred to as the “people’s house”.
- Structurally, the house of representatives consists of 150 members
- With one member from each electorate with approximately the same number of voters
- They directly elect one member who are responsible for representing the interests of the majority of people
within their electorate in elections held every 3 years
• Established in SECTION 28 of the constitution.
- The political party who wins the majority of at least 75 or more people or seats in the house of
representatives forms the government
ROLE [7]
- Share with the senate, the function of initiating and making laws
• bills must be passed by both houses to become law
- The electoral system ensures that the house of representatives represents the interests of the majority of
voters
• allowing for a more effectively representative government
- The house of representatives also provides a responsible government due to
• Opposition/many political parties within the parliament
• Allows for scrutiny of government as legislation is debated, and ministers are questioned.
SENATE(HIGHER) [2]
OUTLINE [5]
- The senate is the commonwealth “upper house”
➢ typically referred to as the “house of review”.
- Structurally, it consists of 76 members, with 12 from each state and 2 from each territory
- Ensures equal representation and power to the states, so that no states voice is undermined due to being less
populous.
- Members are elected for 6-year terms, with half of the senate standing for election every 3 years
• provides stability as well as ongoing membership.
ROLE [8]
- The senate shares a role in law-making with the house of representatives
• bills must be passed by both houses to become a law.
- Mainly act as a house of review
- Checks legislation passed by the lower house, through debating and scrutinising bills.
- Provide for representative government as they are known as the ‘states house’
• safeguard the interests of the states
- Allows responsible government
• are held accountable for its actions and proposals
THE CROWN [2]
OUTLINE [6]
- Above both houses is the crown
- Derives their power from SECTION 61 AND SECTION 62
• Outlined in CHAPTER 2 of the constitution
- Retains right to accept or refuse proposals passed by both houses of parliament.
- The queen, on the recommendation of the prime minister, appoints the governor-general as
• presented by SECTION 2 of the constitution.
ROLE [7]
- The governor can dissolve both houses of parliament
• Which dismisses the elected government and results in an election.
• provided by SECTION 5 and SECTION 28
- The main role of the crown through the governor-general is to carry out the obligation of giving royal assent
• enabling bills to become laws.
- The crown can overrule or disallow any commonwealth law within one year of it being given royal assent
• established in SECTION 59.
EFFECTIVE (Same as effectiveness for bicameral) [10]

- Allows for the second house, typically the upper house, to act as a house of review, ensuring appropriate
scrutiny of all legislation
- The parliament through the lower house represents the will of the people as they are “directly chosen’ by them
through a bicameral structure
- While the upper house provides equal representation for each state, territory or region
- As such ensures a wide range of interests is represented in the lawmaking process.
- This is as a failure to represent the interests of the majority, may lead to facing not being re-elected
INEFFECTIVE (same as ineffectiveness for bicameral) [3]

houses
laws.


community.
REPRESENTATIVE NATURE OF PARLIAMENT[4]
DEFINE [5]
- As an elected body aims to uphold the principles of representative government
• refers to a government that reflect the views of the will of the majority of people
- Therefore, that the laws made by parliament should reflect this.
- This means both the commonwealth, and the state parliaments, are directly elected by the people
• as per SECTION 7 AND 24 of the constitution
EXAMPLES [5]
- Are answerable to the public
- Must make laws on the public’s behalf as the failure to represent the public’s interests would potentially
jeopardise their chance of re-election.
- Parliament have fully considered the views of the community through debates that represent the will of the
people.
- Parliament has the resources and expertise necessary to ascertain the views and will of the community and
the need for a change in the law.
• can form committees, working parties and special bodies to prepare recommendations
EFFECTIVE [4]
- Ensures that the parliament legislates in a way that represents the values and views of the community.
- Allows for the community to have a greater say in laws
• Activities such as petitions and demonstrations, will be influential.
- This allows for parliament to truly represent the people, by promoting law reform that the community calls for.
INEFFECTIVE [4]
- Parliament may support legislative changes popular with the community instead of necessary yet
controversial laws.
• highly controversial issues, such as euthanasia, abortion or marriage equality.
- It can be difficult to assess the majority view of a controversial issue, as such legislation necessary may not
be implemented.
- Members of parliament may also be reluctant and not legislate in areas with vocal groups against it.
POLITICAL PRESSURES [4]
DEFINE [2]
- Political pressures can exist either generally or domestically
- Both inhibit and also allow for parliament to be effective in law making.
EXAMPLES [3]
PARTY POLITICS [4]

- Parliament may not provide a forum for debate that reflects the public’s best interests
- Leads to members of parliament may represent the views of their political parties rather than their electorates.
- This is because political parties can exercise strong discipline over their members of parliament
• who are expected to vote according to their party’s policy
PARTY POLICIES [2]

- During elections, political parties present to the community a range of policies.
- In adhering to responsible government, the government has pressure to make laws that reflect the proposed
policies.
PRESSURE TO BE REPRESENTATIVE [4]

- Members of parliament may be concerned can be subject to political influence.
- Parliament are sensitive to public opinion and are careful not to alienate voters by passing legislation that is
not popular.
- Parliament may support legislative changes popular with the community instead of necessary yet
controversial laws.
• highly controversial issues, such as euthanasia, abortion or marriage equality.
EFFECTIVE [3]
- upholds responsible government
- Holds members of parliament accountable for policies proposed
- Forced to maintain its legislative program to remain elected/retain community support
INEFFECTIVE [2]

INTERNAL CONFLICT [2]

- Can cause Internal conflict and friction between parties
- May distract from the country’s best interests, and the passing of legislation.
RESTRICTIONS ON LAW-MAKING POWERS
INTRO
- In a federal system, both state and commonwealth parliaments are restricted in their law-making powers.
• The supreme law-making powers of parliament is established by the COMMONWEALTH OF
AUSTRALIA CONSTITUTION ACT 1900.
RESTRICTIONS
- SECTION 109
- DIVISION OF POWERS
- REFERENDUM
- HIGH COURT
REFERRAL OF POWERS [7]

- Generally speaking, states are not often willing to hand over their law-making powers to the cth
• This inhibits their independence as a governing state.
- However, through a referral of powers the states can pass any of their residual law-making powers to the
commonwealth parliament
• Outlined in SECTION 51 (XXXVII) of the constitution.
• May occur in an area that would be better served under commonwealth law because of their expertise
• Provides for consistency as that would be uniform across the country.
- All the states need to agree to hand over the particular area of law-making power.
LEGAL STUDIES
- :
PRECEDENT [2]
INTRO [2]
- When no law, binding precedent or legal principle exists for a particular dispute before a court,
• In maintaining their role of enforcing the law
➢ Judges are able to establish a precedent
DEFINE [2]
- A precedent is a reported judgement or court decision
• That establishes a point of law in a previous legal case
➢ Either acts as binding or persuasive for future courts when deciding subsequent cases with similar
issues or facts.

DEFINE [3]
- Refers to a system in which the judgement of a court sets a principle of law
- Derives from the courts’ role of adjudicating disputes, and the need to be fair in doing so.
- Ensures cases with similar factual information are dealt with in similar ways, in the interests of consistency
and fairness.
TO SUIT ADMINISTRATIVE CONVENIENCE: [2]

- judges with more legal knowledge and expertise are appointed to superior courts
- They are expected to make more lawful and just decisions that become binding precedents on lower courts
who may not deal with the same cases with as much proficiency.
NOVEL CASE [3]

- Before a court can declare a new legal principle, it must wait for a ‘novel’ case, or a test case,
- Is concerned with a particular issue or legal question that has not been decided before in a court of superior
record in the same hierarchy.
- An example of a novel case is DONOGHUE V STEVENSON.
MAIN PRINCIPLES IN PRECEDENT [2]

STARE DECISIS [6]
- Doctrine of Precedent operates under the principle of ‘stare decisis’,
- Means to ‘stand by what has been decided’.
- This notion establishes a base where judges are to make laws through interpreting cases
- Courts will look to see if any previous case that involves a precedent has dealt with the same fact situation
• Courts will then apply that precedent to ensure consistency and predictability
- In adhering with stare inferior courts stand by the decisions of superior courts
RATIO DECIDENDI [4]

- the ‘reason for deciding’
- will form the legal principle that is used to determine future cases
- Forms the binding parts of precedent.
- The ratio decidendi of higher courts will be binding on all lower courts in the same court hierarchy in similar
circumstances.
TYPES OF PRECEDENT [2]
- The doctrine of precedent is reliant on the creation of two types of precedent:
• BINDING
• PERSUASIVE
BINDING PRECEDENT [5]

- A legal principle that must be followed.
- The general rule regarding this principle involves that decision of a higher court in the same hierarchy must be
followed by lower courts in similar circumstances.
- Ratio decidendi forms and enables a precedent to be binding.
- This system aims to minimalize errors to provide for effective justice.
• For instance, in Victoria a judge of the county court must follow the decisions of judges in the supreme
court.
PERSUASIVE PRECEDENT
OUTLINE [5]
- Is influential
- Contains a ‘convincing’ argument, as to how a case should be dealt with.
- Does not need to be followed as it is not binding
- May choose to follow to suit consistency or because a good reasoning was made
- These act as points of reference or indications as to what other judges believe law should be
WHAT DOES IT APPLY TO? [6]

- Persuasive precedents can include decisions made by:
➢ An inferior court or a court at the same level in the same hierarchy
➢ A court from a different hierarchy in another state or country.
- Applies to obiter dicta statements which are comments made by a judge [4]
• Is a judge’s statement of opinion or observation
• Anything else they would like to add in relation to the case
• Does not have a direct effect on the outcome/decision imposed.
• For example, a supreme court judge is not bound by the obiter dicta statements made by other supreme
court judges in past cases.
EFFECTIVE
UNBIASED [4]
- As such, judges in their creation of precedent are not subject to political pressures and are unbiased
• As the judiciary are independent from the other arms of government this means
- Ensures judges can administer the operation of precedent in a means that is fair and lacks political bias
- Judges will remain objective in their decision making, without the pressure of losing voter support or electoral
backlash impeding their ability to make a fair and effective decision
CONSISTENCY [3]
- Ensures consistency and predictability in all making.
- The system operates under the overarching principle of “stare decisis”
- This ensures that common law remains a consistent and therefore effective method of making laws.
DEVELOPING OF AUSTRALIAN LEGAL PRINCIPLES [3]

- allows for the reinforcement and strengthening of law to:
- Include new situations to suit relevant changing times
- To provide a scope to the particular rights individuals own.
INEFFECTIVE
FLEXIBILITY [5]
- There is a level of flexibility within precedents,
- Therefore, methods of avoiding precedent may be exploited and abused
- Such as:
➢ Reversing
➢ Overruling
➢ Disapproving
➢ Distinguishing
- This denies the consistency in the approach to the courts law making
- Increases the chance for the possible abuse of the courts law making power.
JUDGES ARE UNELECTED BODIES [2]

- This means that the judges are under no obligation to account of the majority or be representative of the
community as judges are appointed not elected.
- Therefore, in creating common-law, the decisions made by judges are not representative of the views of the
community.
JUDICIAL CONSERVATISM [1]

- The conservative nature of some judges may limit the capacity of the courts to reform the law.
PRECEDENT IN ACTION [2]

- The case of DONOGHUE V STEVENSON [1932]
• presents the operation of the doctrine of precedent
- A later Australian case, GRANT V AUSTRALIAN KNITTING MILLS [1936]

• presents the application of doctrine of precedent.
Flexibility and precedents
- Whilst precedents can be binding and ensure consistency, there is also a level of associated flexibility
FOLLOWING [1]
- When a subsequent court uses a precedent, it is said to be following the previous decision
REVERSING [4]
- If a higher court hears a case on appeal
- Can decide that the case was previously decided wrongly
- Can invalidate the previous decision therefore reversing it
• Same case subject to appeal
OVERRULING [4]
- The judge presiding in the higher court may believe an earlier case has been wrongly decided
- As such they can ignore or not follow the principle set
- therefore, overruling the previous precedent set
• Overruling a case requires two separate case
DISAPPROVING [3]
- Judge in a court of the same level
- Can decide to disapprove and complain about the precedent set by a judge of the same jurisdiction
• Both precedents will exist until a superior court sets a new precedent.
DISTINGUISHING [3]
- Courts are only bound by the higher courts in a case that is similar to the case in which precedent has been
set.
- Judge can argue that the cases are different to some extent in order to not follow this precedent
• provided a judge is satisfied that the facts of the new case are sufficiently different from the earlier case
Statutory Interpretation
STATUTORY INTERPRETATION [8]
- To resolve disputes judges must interpret the words or phrases within an Act passed by parliament
• in which the intention or the meaning of those words used is determined.
- This is called statutory interpretation and is a way in which the law is clarified in accordance with
➢ ACTS INTERPRETATION ACT 1901 (CTH)
➢ INTERPRETATION OF LEGISLATION ACT 1984 (VIC).
- This allows court the ability to reduce or increase the power of a statutory law
- An act of parliament may need to be interpreted in many situations, such as if:

➢ the intention of the act is unclear
➢ the meaning of the wording is unclear
➢ it fails to encompass advancements in technology
- In any circumstance, the courts will therefore clarify these laws and make explicit new meanings
- For example, in the 1993 DEING VS TAROLA “STUDDED BELT CASE”

• the phrase “regulated weapon” was interpreted from the “1990 CONTROL OF WEAPONS ACT”
REASONS FOR STATUTORY INTERPRETATION [3]
BROAD TERMS [5]
- When bills are drafted the parliamentary counsel try to cover a range of situations and circumstances
- Many acts of parliament are written in broad and general terms
- Courts will need to interpret whether the broad terms set out in the act include the specific circumstances in
cases appearing before them as different disputes arise.
- For example, in the 1993 DEING VS TAROLA “STUDDED BELT CASE”
• the phrase “regulated weapon” was interpreted from the “1990 CONTROL OF WEAPONS ACT”
OUT OF THEIR FIELD OF EXPERTISE [1]

- Mistakes can be made especially when the parliamentary counsel are required to write up bills outside their
field of expertise such as:
➢ A complex or technical topic
➢ specialist areas such as complex medical issues and technology.
TIME PRESSURES [3]

- Time pressures in drafting legislation may have pushed the drafting of the act to be conducted a hurry
• resulting in loopholes or vague or ambiguous wording within the act.
• As a result, parliament’s intention of the act may not be clear enough.
PROBLEMS IN DETERMINING PAST DECISIONS [6]

- Issues relating to locating relevant cases as:
• there may have been numerous cases relating to a particular area of law.
- It may be difficult to distinguish the obiter dictum and what is the ratio decidendi.
• makes it very difficult to decide which fundamental principle of law will apply to future cases
- In some instances, one or more judges may disagree with the final decision which:
• can make it even more difficult to determine what the relevant law is.
HOW JUDGES INTERPRET LEGISLATION

- If the meaning of a word or phrase in a statute is unclear, or a judge is unsure how to apply the legislation to
the dispute before it they can consult other sources.
INTRINSIC SOURCES [7]

- Referring to words within the act, to determine its meaning
- For instance, judges can refer to:
➢ The words in the act
➢ The object or purpose clauses.
➢ Footnotes
- Most acts contain a section where words used commonly throughout the act are defined.
• for example, the TRANSPORT ACCIDENT ACT 1986 (VIC) defines ‘transport accident’.
- Some acts also have schedules

• how the provisions of the act are to work in practice.
• The ROAD SAFETY ACT 1986 (VIC), contains a schedule that links a driver’s blood alcohol content to
the maximum period of licence cancellation.
EXTRINSIC SOURCES [4]
- Sources outside the Act to guide them in the task of interpretation.
- Courts can refer to:
➢ parliamentary committee reports
➢ law reform committee reports
➢ royal commission reports.
INTERPRETATION ACTS [2]

- ACTS INTERPRETATION ACT 1981 (CTH)
- INTERPRETATION OF LEGISLATION ACT 1984 (VIC)
LEGAL MAXIMS
DEFINE
- Have been largely replaced
- Judges used traditional common law principles known as legal maxims as a guide when interpreting statutes.
EJUSDEM GENERIS
- Means ‘of the same kind’
- When a general term will be interpreted to include the category indicated by the specific terms that precede it.
“EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS”

- Involves that the express mention of one term is to the exclusion of others.
EFFECTS OF STATUTORY INTERPRETATION [3]

FORMS PRECEDENT [1]
- Interpretation of statutes made in higher courts bind all lower courts to follow this interpretation in
similar cases
LIMITS EFFECT OF THE LEGISLATION [1]

- The court may choose to interpret the statute in a manner which lessens the power previous
possessed by the statute
INCREASING EFFECT OF LEGISLATION [1]

• The interpretation of the courts can be used in a manner that strengthens the statute in the sense
that it broadens its ability effecting more cases
Factors Affecting The Ability Of Courts To Make Law
DOCTRINE OF PRECEDENT (Same things as above) [2]
HOW DOES IT AFFECT THE ABILITY OF COURTS TO MAKE LAW? [3]
- the courts are not free to make law in the same sense as parliament is.
- Unlike parliament, judges cannot make law as an immediate response to a community demand or when a
general need is perceived.
- in the majority of cases, judges have no discretion to make law.
EFFECTIVE/INEFFECTIVE (Same things lol)
JUDICIAL CONSERVATISM [4]

DEFINE [6]
- For a court to change the law, a case must come before a court in which the judges are prepared to adopt a
law-making role.
- Involves an approach taken by judges to law making in which a judge takes a more cautious and
conservative approach
- Showing restraint when determining the outcome of cases
- Showing reluctance to make significant changes to the law or consider external factors.
- Instead, a judge acts in a manner of strictly adhering to the principle of stare decisis
- believing that law making is best left with the elected body of parliament.

- Therefore, judicial conservatism limits the amount of laws made by the courts
- Limits the effects associated with the interpretation of statutes.
EFFECTIVE [3]
- Ensures that the courts remain stable, and consistent in creating precedents.
- It ensures the courts law making power remains a secondary role.

• allows for parliament to act as the ultimate law-making body as the democratically elected body.
➢ due to the many implemented checks that exist in their legislative process.
INEFFECTIVE [3]
- Does not keep up with the changing nature of society.
- The judge may not look into social economic political circumstances and purely look at the case from a legal
perspective.
• This approach and reluctance may therefore deny certain individuals from receiving true justice, due to the
stricter approach.
JUDICIAL ACTIVISM [4]
DEFINE [4]
- When a judge is prepared to make a change in law when a suitable dispute comes before them, this is termed
judicial activism
- involves an approach to law making where the judges take a more active approach
• fully exercising their secondary law-making power in order to create common law.
- Judges will consider a wide range of social, political and economic barriers when creating precedents.

- Judicial activism means that the courts uphold their responsibility to fill in the gaps in the law,
- They assist parliament through developing precedents.
EFFECTIVE [5]
- It allows for the law to keep up with the changing nature of society.
- Allows for a wide range of social, political and economic barriers to be considered in law making.
- The views of the community and individuals are considered, not just the legal facts
• Ensures that the courts are proactive and effective in their law making
• Greater recognises the differing circumstances surrounding each case.
INEFFECTIVE [3]
- Despite their power to make radical change, judges are non-political entities, and therefore unelected,
• They are under no obligation to reflect the values of the community in decisions made.
• Can ultimately lead to a greater number of appeals on a point of law.
COSTS AND TIME DELAYS (same as cost/time factors before) [3]

- Legal outcomes may take years and mean that the law can be slow to change.
- Individuals may therefore be reluctant to pursue cases due to the uncertainty of the outcome.
EFFECTIVE [3]
- can discourage the frivolous claims of parties trying to take advantage of the legal system.
- encourage certain parties to seek alternate dispute resolution
- Time delays may ensure the court reaches a decision in law making that is appropriate and just.
INEFFECTIVE (same shit lol)
STANDING [4]
DEFINING [4]
- Standing’ or locus standi is the right of a party to start a legal action in a court
- This means that individuals, to be able to pursue legal action must:
➢ have sufficient connection to, or interest in the issue,
➢ be negatively affected by the matter at hand
- ‘Standing’ is crucial as seen through relevant statute law
• such as the ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 (CTH),

- It is therefore not enough to simply be interested in changing the law
• the courts need to see a direct negative connection before creating any precedent or interpreting a statute
EFFECTIVE [2]
- This ensures that no unnecessary claims that simply waste valuable resources are made.
- Ensures that the courts, who are an unelected body with the secondary role of law making, aren't abusing
their power.
INEFFECTIVE [2]
- It may deny individuals the ability to if interested, inspire a change in the law.
- The requirement of standing infringes on the rights of the individual
- Denies the courts the ability to make laws to prevent harm.
The Relationship Between Courts and Parliament

- The dynamic relationship between parliament and the courts in law-making is crucial to maintaining the
effectiveness of these laws and achieve social cohesion.
STATUTORY INTERPRETATION (Same things)
SUPREMACY OF PARLIAMENT [8]

- They are the supreme law-making authority, and in turn answerable to the people.
- Parliament is the ultimate law-making body

• Therefore, holds the power to confirm, amend or overrule any common law.
- It should be remembered that courts only exist as they were created by acts of parliament.
• For example, the high court of Australia is provided for by THE COMMONWEALTH OF AUSTRALIA
CONSTITUTION ACT 1900 (UK).
- If parliament is dissatisfied with a court’s decision, they can abrogate this subject
• subsequently new legislation can be created in its place, as the parliament holds sovereignty.
- However the courts can declare any law made by parliament ultra vires
➢ when it exceeds the law-making authority set out in the constitution.
ABROGATION OF COMMON LAW [6]
- Parliament holds the authority to abrogate common law

- Have the power to remove or abolish court precedents and interpretation if:
➢ they fail to match parliaments original intention
➢ parliament disagrees with a decision made.
- In its place, parliament will create a new legislation to override the court.
- For example, the parliament abrogated the decision of the 1979 TRIGWELL CASE
• creating the “WRONGS (ANIMALS STRAYING ON HIGHWAYS) ACT 1984 in its place
• Changed the law so that, farmers were responsible for the actions of their animals on the roads.
CODIFICATION OF COMMON LAW [4]

- Codification refers to the process where the parliament decide to bring common law principles within statute
law by:
➢ confirming the courts precedent
➢ collecting and restating the law in the form of parliamentary legislation.
- The case’s decision is subsequently reflected and replaced by the new legislation.
- The primary source of that area of law then becomes the relevant statute, and subsequently interpreted by the
courts.
- The MABO 1993 CASE and the NATIVE TITLE ACT 1993 (CTH) is an example of codification.
COURTS ABILITY TO INFLUENCE PARLIAMENT [7]
- Instead of significantly changing the law themselves the courts can criticise the obsolete laws of parliament
- The judge can establish an obiter dictum through making a comment expressing disapproval with the current
law
• This signals parliament or superior courts that the law needs to be changed.
- Create or form precedent to change the application of parliament law
- Similarly, the courts can declare the legislation of parliament invalid on the grounds of it being “ultra vires” and
therefore declare a law void.
- Court decisions can highlight a problem in the law which can lead to media and public outcry.
• Victorian parliament’s response to THE BRODIE PANLOCK CASE, regarding her suicide by introducing the
CRIMES AMENDMENT (BULLYING) ACT 2011 (VIC).
LEGAL STUDIES
- :
REASONS FOR LAW REFORM [4]

INTRO [4]
- Although a significant feature of the law is that it is stable and predictable, the law is not rigid and fixed as it
should be a reflection of the society in which it operates.
- There is always a need for changes to the law as it must be able to evolve and change to keep it relevant to
the changing needs that take place in society.
- The process by which pre-existing laws are amended or changed is referred to as law reform.
- Law reform is able to be determined through either court decisions or by parliament passing legislation.
CHANGES IN COMMUNITY ATTITUTES AND VALUES [4]

- Views of community will change over time and laws need to reflect these changes
- If they are outdated that will not be adhered to and will become unenforceable
- For example, the 2017 MARRIAGE (AMENDMENT) ACT legalised same sex marriage in Australia
- This is as the community’s beliefs changed, and the shift regarding the end of discrimination against LGBTQI+
individuals occurred.
COMMUNITY AWARENESS [3]

- individuals now demand greater involvement in the processes of decision-making about the law and its
institutions.
- Law is then reformed to reflect the increasing community awareness of rights and demands for access to law.
- This can be seen in Tribunals introduced to meet the growing use of ADR
CHANGES IN TECHNOLOGY [3]

- As society progresses, there are constant advancements in technology
- The law must be reformed to ensure to meet these new demands in order to protect the community.
- Law reform as a result of technology can be seen in how laws regarding stalking have extended to cyber-
stalking.
Formal Means of Law Reform

PETITIONS [9]
DEFINE [5]
- Method whereby an individual or group can place their grievance directly before parliament.
- Petitions are a formal, written document
- Consists of a collection of signatures from members of the community who request the parliament to take
action in regard to a particular area of law reform.
- In both the commonwealth and state parliaments a member of parliament may present a petition on behalf of
the people in their electorate.
- One recent petition was the august 2016 “plastic bag free Victoria” to ban the single use of plastic bags in
Victoria.
EFFECTIVE [2]
INEXPENSIVE IN NATURE [2]
- As such many individuals have access to this means of influencing law reform,
- Petitions are not expensive as other methods and easy to organise.
ABLE TO HIGHLIGHT THE EXTENT OF PUBLIC SUPPORT [2]

- through a collection of many signatures.
- May attract the attention of a parliamentary member who can table it into parliament, allowing for law reform
INEFFECTIVE [2]
PASSIVE IN NATURE
- This may not be able to generate media attention or implement the desired pressure on parliament
- Prevents parliament from taking a look at the petition and make an actual change to the law.
- Furthermore, there is no guarantee that parliament will take any further action.
DEMONSTRATION [3]
DEFINE [10]
- A demonstration, also known as
➢ Protests
➢ Rallies
➢ Boycotts
➢ Marches
- Involves a large public gathering consisting of members of the community coming together
- To express their common concern or dissatisfaction with a specific area of law, in need of reform.
- Demonstrations influence law reform as it:

• generates media coverage regarding the issue
• allows for greater community awareness for the need for change
• generates greater support
- This ultimately brings the attention of parliament on the matter, in the hopes of influencing change.
- One example is, on Jan 26th Australia day of 2017 “invasion day” demonstrations were held in Melbourne
“fed square”
• These demonstrations raise community awareness to the issue, and call for parliament to take action
EFFECTIVE [2]
GENERATE MEDIA ATTENTION [2]
- allows for the greater publicising and social awareness regarding a specific issue
- which encourages the public to get further involved in the issue.
ATTRACT A LARGE NUMBER OF PARTICIPANTS [2]

- This highlights the extent of public support for an issue
- May attract the attention of a parliamentary member who can table it into parliament, allowing for law reform
INEFFECTIVE [2]
IT CAN OFTEN TURN VIOLENT [2]
- Can generate adverse media attention and reduce community support.
- May make the community and members of parliament more reluctant to support a certain issue due to the bad
media attention.
OFTEN ONE-OFF EVENTS [1]

- may not create the ongoing amount of pressure in order for the parliament to respond through implementing
law reform.
USE OF THE COURTS
DEFINE [8]
- An individual can
• Challenge validity or interpretation of legislation
• Take a case to court that sets a new precedent
- A judge hearing a case may identify a problem and call for a reform in the law
- The rules of common law allow judges to reform laws

• through judicial decisions by setting new precedents when an appropriate case comes before them.
law
EFFECTIVE/INEFFECTIVE (same as precedent)
FORMS OF MEDIA [5]

DEFINE [4]
- Both the traditional media as well as social media provide a platform that can be used for the widespread
communication of information
- Individuals are able to influence law reform by catalysing on the scope of the reach of media outlets.
- For example, the 2016 Australian film, “chasing asylum”, was released on social media
• raised awareness on the mistreatment of asylum seekers in Naru detention centres.
TRADITIONAL MEDIA [2]

- Forms of media can involve:
➢ news or feature stories
➢ radio programs
- Another form is print media such as:
➢ Newspapers
➢ Opinion pieces
SOCIAL MEDIA [6]

- Social media such as Facebook or Twitter
• has emerged as a powerful means to influence law reform
- allows for the instant dissemination of information to a universal audience
- Therefore, allowing around 3 billion users of social media access to information
• allowing them to form their own political stance
- In some circumstances allows for social media itself to act as a pressure group
EFFECTIVE [4]
- social media is a powerful influence
• increasing access and allowing easy communication to express views.
- Media can create public awareness of an issue that increases support

• can form pressure groups, acting to bring about change and pressure parliament.
INEFFECTIVE [3]
- All media published is subjective which may lead to divisive opinions
- Opinion pieces can be criticised for being biased

• It is the position of only one member of the public and the views might not represent the majority of Victorians.
Royal Commissions
INTRO [5]
- Royal commissions of inquiry, commonly referred to as royal commissions, are temporary major public inquiry
bodies
- Are independent of the government that are appointed by either the governor or the governor-general on
behalf of the crown
• The crown is able to do this as a result of SECTION 61 of the Australian constitution
➢ Established under the COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT (UK) 1900
- Can be established by the commonwealth government under the ROYAL COMMISSIONS ACT 1902 (CTH)
- At a state level, the Victorian government can establish a royal commission under the INQUIRIES ACT 2014
(VIC) such as the royal commission into family violence (2015-16).
ROLES [7]
- The royal commissions have the role of
• providing advice on or investigate into areas of public importance or concern in Australia
• report back to the parliament with recommendations that are tabled in parliament
- A royal commission may be established to draw upon expert opinion about the approach that should be
adopted by the government on a complex issue (usually controversial issues)
- Used by a government to shift the decision-making responsibility in controversial areas from the government
to another body, to avoid public criticism
- Royal commissions can also perform an educative function as they:

➢ allow various views to be published
➢ the reasons for government action to be known to the community.
- Therefore, the royal commission allows for accountability, and for investigations into controversial issues
requiring clarity
PROCESS INTRO [3]
- One example of an established royal commission was the “royal commission into family violence”,
- Which was an inquiry body established from February 12th 2015 to 2016.
- To propose practical recommendations on taking steps to eliminating family violence.
PROCESS [4 STAGES]
GOVERNOR-GENERAL OR GOVERNOR ISSUES ‘LETTERS PATENT’ [4]

- A royal commission and its process is initiated when the governor-general or governor issues ‘letters
patent’ which are issued under the public seal of state, that will state:
➢ Who will form part of the royal commission?
➢ Who will chair the royal commission?
➢ The terms of reference.
- The terms of reference may also set the time by which the royal commission is to report.
- the recognition of the harm family violence causes resulted in the establishment of this royal commission
• through granting a terms of reference on 22 February 2015.
CONDUCT RESEARCH AND THE RELEASE OF AN ISSUES PAPER [1]

- Only once the commission has received the terms of reference, they are able to conduct research and the
release of an issues paper
CALL FOR SUBMISSIONS, CONSULT WITH MEMBERS OF THE COMMUNITY AND WILL HOLD PUBLIC
HEARINGS. [6]
- A royal commission has extensive powers to conduct hearings that involve interviewing witnesses and taking
evidence.
• Has the power to:
➢ compel people to appear before the hearings
➢ give evidence
➢ compel a witness to produce documents.
- With mention to their investigation into family violence, the royal commission, after 12 months of
investigation:
• conducted 44 community consultations
• 25 public hearings with 13 witnesses,
• A total of 968 total public submissions made to the commission.
PUBLISHED IN REPORTS [9]

- The findings and recommendations of royal commissions are published in reports
• are formally submitted to the governor-general or the governor.
- The report is tabled in parliament,

• There is no requirement for parliament to adopt any of the recommendations made.
• However are often influential, with the government enacting some or all recommendations into law
- A final report was tabled on the 30th of March 2016

• containing 227 recommendations
- These recommendations can include safety and support hubs to make it easier for victims to find help and
gain access to a greater range of services
- The impact of these recommendations was significant, with them implemented in:
➢ “FAMILY VIOLENCE (AMENDMENT) ACT 2017 “
➢ THE VICTORIAN FAMILY VIOLENCE REFORM IMPLEMENTATION MONITOR ACT 2016
➢ THE CORRECTIONS LEGISLATION AMENDMENT BILL 2016 (VIC).
EFFECTIVE [5]
- It provides the highest form of inquiry on matters of public importance
• and therefore will most likely be implemented in legislation.
- Has an impact on society by encouraging momentum for policy change and law reform
• by allowing members of the public to tell their stories
• by thoroughly investigating and reporting on issues and events, particularly in complex or controversial issues.
INEFFECTIVE [4]
- Furthermore, they can be costly and time consuming
• with an average of 2-4 years and $60,000 for the processes of the royal commission
- Parliament is under no obligation to uphold recommendations

• with the likelihood of recommendations being implemented depending on bipartisan support present
LEGAL STUDIES
- :
PARLIAMENT
ROLE OF PARLIAMENT [5]
- The main role/purpose of parliament is to make laws responsibly governing for the public
• with elected members to represent the interests of the public
• set out in SECTION 1 of the commonwealth constitution that states that
➢ ‘the legislative power of the commonwealth shall be vested in a federal parliament…’.
- The Victorian constitution as set out in the CONSTITUTION ACT 1975 gives general powers to the Victorian
parliament to make laws for Victoria.
• Set out in SECTION 15 Victorian constitution states that
➢ the legislative powers of Victoria are vested in the Victorian parliament
ROLE OF PARLIAMENT IN LAW-MAKING [4]

- To remedy existing problems or in anticipation of future problems referred to as “in futuro”.
• This allows issues that are likely to occur to be dealt with before they become a problem.
- Can also respond to the need to change the law by making repealing, amending a law or undertake
substantial reform of the law
- Furthermore, parliament is the “supreme law-maker” and, as such if a statute law and common law conflict,
statute law will prevail,
EFFECTIVE [4]
BICAMERAL (same thing)
RESOURCES [3]
- Parliament has the resources and expertise necessary to ascertain the views and will of the community and
the need for a change in the law. [COURTS DO NOT HAVE]
- Are effective as they are able to investigate issues of public importance, and areas of the law that require
reforming.
- The establishment and use of law reform bodies, such as the VLRC and the royal commission, allows for the
thorough investigation into the needs for changes in the law
RESPONSIBLE GOVERNMENT [5]

IN FUTURO [4]
- The parliament is effective in their ability to respond to the need for law reform due to its ability to make laws
“in futuro”
- To prevent harm occurring to the public
- Ensures law reflects the changes in views and values of the community
• which allows for the more effective, up to date, and proactive law reform to be created.
INEFFECTIVE [3]
REPRESENTATIVE [same ineffectiveness] [3]
- However, the representative nature of parliament may be ineffective, as parliament may support legislative
changes popular with the community instead of necessary yet controversial laws.
- Furthermore, it can be difficult to assess the majority view of a controversial issue, as such legislation
necessary may not be implemented.
- Members of parliament may also be reluctant and not legislate in areas with vocal groups against it.
PARTY POLITICS [3]

- Parliament may not provide a forum for debate that reflects the public’s best interests
- Leads to members of parliament may represent the views of their political parties rather than their electorates.
- This is because political parties can exercise strong discipline over their members of parliament who are
expected to vote according to their party’s policy
STRUCTURE OF PARLIAMENT [ineffectiveness of bicameral structure] [3]

houses
laws.


community.
COURTS [4]
ROLE OF COURTS [2]
- The primary role of the courts as a lawmaker is to resolve disputes
• in doing so develops precedent as judges reach decisions in the disputes, and laws are made as a result.
ROLE OF COURTS IN LAW MAKING [3]

- PRECEDENT
- INTERPRET THE STATUTES OF PARLIAMENT/STATUTORY INTERPRETATION
- GUARDIAN OF CONSTITUTION
• The high court, in their role as guardian of the constitution, also acts as a check on parliament.
• Can declare legislation that contravenes the constitution and is outside the jurisdiction of parliament as
outlined in the constitution, ultra vires or invalid.
EFFECTIVE [2]
NON-POLITICAL ENTITIES [4]
- As such, judges in their creation of precedent are not subject to political pressures and are unbiased
• As the judiciary are independent from the other arms of government this means
- Ensures judges can administer the operation of precedent in a means that is fair and lacks political bias
- Judges will remain objective in their decision making, without the pressure of losing voter support or electoral
backlash impeding their ability to make a fair and effective decision
OPERATE UNDER DOCTRINE OF PRECEDENT [5]

- Provides judges and the legal profession with principles of law.
- Consequently, courts and lawyers can refer to previous cases in reaching their decisions.
- Under this principle, courts will be consistent and predictable in their response to law reform, and the
application of precedent
• as they are bound by the overarching notion of “stare decisis”
- Through the application of precedent, courts provide considerable flexibility for the law to adapt to the
changing needs of society.
COURTS ABILITY TO INFLUENCE PARLIAMENT (the same as before) [7]

- Instead of significantly changing the law themselves the courts can criticise the obsolete laws of parliament
law
- Create or form precedent to change the application of parliament law
- Similarly, the courts can declare the legislation of parliament invalid on the grounds of it being “ultra vires” and
therefore declare a law void.
- Court decisions can highlight a problem in the law which can lead to media and public outcry.
• Victorian parliament’s response to THE BRODIE PANLOCK CASE, regarding her suicide by introducing the
CRIMES AMENDMENT (BULLYING) ACT 2011 (VIC).
INEFFECTIVE
JUDGES ARE UNELECTED BODIES [2]

- This means that the judges are under no obligation to account of the majority or be representative of the
community as judges are appointed not elected.
- Therefore, in creating common-law, the decisions made by judges are not representative of the views of the
community.
JUDICIAL CONSERVATISM
EX POST FACTO [4]
- The courts, in responding to the need for law reform, can only act ex post facto,
• as such the ability of the courts to respond to the need for changes to the law may be slow and spasmodic.
- The courts decide a case ‘after the event’ and therefore, unlike parliament, only act in a reactive manner,
• fails to actively prevent the infringement of rights or harm from occurring.
FLEXIBILITY (same as before) [4]

- There is a level of flexibility within precedents,
- Therefore, methods of avoiding precedent may be exploited and abused
- Such as:
➢ Reversing
➢ Overruling
➢ Disapproving
➢ Distinguishing
- This denies the consistency in the approach to the courts law making

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LEGAL STUDIES

Charles Huynh <<<< giving credit because I am vain :)

LEGAL RULES [8]

- Legal rules include Speeding and committing murder.

NON-LEGAL RULES [5]

SOCIAL COHESION [3]

TYPES OF OFFENCES [4]

- OFFENCES AGAINST PROPERTY

- OFFENCES AGAINST MORALITY

- OFFENCES AGAINST THE LEGAL SYSTEM

TYPES OF CIVIL LAW CASES [3]

CONTRACT LAW [2]

- Also referred to as legislation or acts of parliament

COMMON LAW [6]

Principles of Justice in Criminal Law

PRINCIPLES OF JUSTICE IN CRIMINAL LAW [3]

HOW CRIMINAL LAW ACHIEVES POJ [3]

HOW IS FAIRNESS ACHIEVED [4]

- SECTION 8 of VICTORIAN HUMAN RIGHTS CHARTER (VHRC)

HOW IS EQUALITY ACHIEVED [3]

TIME/COST ISSUES [3]

CULTURAL DIFFERENCES ARE ADRESSED [3]

SPECIFIC SERVICES [2]

ACCESS TO FINANCIAL ASSISTANCE [4]

ACCESS TO INFORMATION [4]

PRINCIPLES OF JUSTICE IN GENERAL

Key Concepts in the Criminal Justice System

DEFINING CRIME [2]

TWO ELEMENTS OF A CRIME [4]

THE PURPOSE OF CRIMINAL LAW [4]

TYPES OF CRIMINAL OFFENCES [3]

INDICTABLE OFFENCES [4]

INDICTABLE OFFENCES HEARD AND DETERMINED SUMMARILY [7]

BURDEN OF PROOF, STANDARD OF PROOF, PRESUMPTION OF INNOCENCE

- STANDARD OF PROOF [1]

PRESUMPTION OF INNOCENCE [8]

VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES PROTECTING RIGHTS [4]

RIGHT TO BE TRIED WITHOUT UNREASONABLE DELAY [5]

RIGHT TO TRIAL BY JURY [8]

ROLE OF A JURY [3]

IMPORTANCE OF A JURY [3]

DEFINE THE RIGHT [3]

Rights of the Victim

THE VICTIMS’ CHARTER ACT 2006 (VIC) PROTECTING RIGHTS [5]

THE RIGHT TO GIVE EVIDENCE AS A VULNERABLE WITNESS [4]

DEFINE THE RIGHT [7]

THE RIGHT TO BE INFORMED OF THE RELEASE DATE OF THE ACCUSED [1]

DEFINE THE RIGHT [4]

OUTLINING COMMITTAL PROCEEDINGS [2]

CASES ARE FILTERED

REASONS FOR COURT HIERARCHY [3]

DOCTRINE OF PRECEDENT [4]

THE FACTORS THAT ARE TAKEN INTO CONSIDERATION IN SENTENCING [4]

VICTIM IMPACT STATEMENTS [6]

VICTORIA LEGAL AID [6]

INTRO VICTORIA LEGAL AID [2]

Key Personnel in a Criminal Trial

JURY IN A CRIMINAL TRIAL [V DIFFERENT FROM A JURY IN CIVIL LAW] [6]

ROLE OF A JURY [3]

FAIRNESS [same as civil juries] [3]

EQUALITY [same as civil juries] [3]

ACCESS [same as civil juries] [3]

DISADVANTAGES [different to civil juries] [3]