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Social cohesion.

Rules vs laws
Friday, 24 May 2019
2:19 pm

Social cohesion- a society where individuals work together to ensure the safety and wellbeing of
others
Individuals + Social Cohesion
 Abiding by the law
 Being aware of the law
 Respecting human rights
 Assisting police investigations
 Reporting crimes
 Resolve disputes through the legal system
Legal system + Social cohesion
 Provides methods and institutions for the resolution of disputes and enforcing laws
 Applying the law
 Enforcing the law

Rule of law- the principle that every member of society is bound by the law and must obey the law
Rules
 Apply to a small number of people
 Not enforceable through the legal system
Laws
 Apply to all members of society
 Enforced through courts or tribunals
 Breaking a criminal law results in sanctions
 Breaking a civil law results in remedies
Why do we need laws?
 To help create a peaceful and united society
 To resolve disagreements
 To provide a guide to acceptable behaviour
 To protect each person's rights
 To reflect society values
 To lead and encourage others to change

Principles of justice
Friday, 24 May 2019
2:24 pm

Fairness
 Fair legal processes are in place
 All parties receive a fair hearing
 People should be able to understand court processes, present their case and rebut other
parties points- rules and processes on how this operates should be fair
 People are not discriminated based on a personal attribute or characteristic
Equality
 all people treated equally before the law
 Equal opportunity to present their case
 No advantage or disadvantage based on personal characteristics
Access
 Understanding of legal rights
 Ability to pursue their case (legal claims in the justice system)
 Example: those who are unable to afford their own legal advice should still have the
opportunity to be provided with legal advice and possibly representation to ensure their case
is adequately made.
Includes access to:
 Appropriate legal advice and assistance
 Legal representation
 Processes and procedures for the determination of criminal cases or resolution of civil claims
 Legal institutions (courts and tribunals)

Characteristics of an effective law


Friday, 24 May 2019
2:38 pm

The law must reflect society's values


 Law must reflect the values of the majority of society values
 If a large number of people approve of a law, then a high proportion of citizens will comply
with it
 Laws that do not reflect community values are likely to be broken
The law must be enforceable
 If the law is broken, there should be a reasonably high likelihood that the offender will be
caught and punished
The law must be known
 Knowledge of the law means members of society are less likely to break the law
 Average person should ensure they have a broad knowledge of laws relating to their daily life
The law must be clear and understood
 Simple, clear language should be used when writing laws, resulting in the average member in
society being able to understand what the law actually is and how they are impacted
 Rights and responsibilities of citizens must be explicit within the law, promoting equality,
fairness and justice
The law must be stable
 Laws should be stable, yet flexible enough to adapt to inevitable changes in society values
 Constantly changing laws may cause individuals to become ignorant, and could not reasonably
be expected to know what the actual law is
 Good laws should be clear enough to be understood by society, yet broad enough to provide
scope to incorporate future concerns

Precedent
Friday, 24 May 2019
2:45 pm

 Statute law- laws made by parliament


 Common law- laws made by court
Precedent
 Precedent- reasoning behind a court decision that establishes a principle or rule of law
 Principle must be followed by lower courts in the same hierarchy when deciding on future
similar cases (similar facts of the case)
 Creates consistency and predictability- fairness
 When a person takes a case to court, they have an idea of the outcome because like cases are
decided in a like manner

Types of precedent
Persuasive precedent
 Judges are not obligated to follow the precedent but may choose to do so in their final
decision
 Obiter dictum/decision of a lower court in the same hierarchy/courts from other states
Binding precedent
 Judges must follow the precedent
 Based on a case with facts that are similar and is the decision of a superior court in the same
hierarchy
 Lower courts must follow

Elements of the doctrine of precedent


Stare decisis
 "to stand by what has been decided"
 The principle that the doctrine of precedent is based on
 Principle requires lower courts to follow the decision of higher courts in cases where the
material facts are similar
Ratio decidendi (binding part)
 The reason for the decision
 The statement of legal principle that forms the binding part of the precedent
 Must be followed by lower courts in the same hierarchy (binding)
Obiter dictum
 Statements made in the course of reaching a decision
 Do not have a direct impact on the final outcome of the case
 Doctrine of precedent- judges must follow the reasons for past decisions, and the obiter
dictum can be referred to in future cases as a source of persuasive precedent to help a judge
understand the case better

Parliament
Friday, 24 May 2019
3:11 pm

Parliament
 Highest law-making authority in Australia and in the states
 9 parliament in Australia
 Pass written laws in form of acts (legislation/statutes)
 Ultimate law making power within their jurisdiction
 Jurisdiction- the power of a court to hear and determine a case
 Ability to change/repeal previous legislation/override common law

Structure of parliament
 Bicameral- a parliament consisting of two houses and the crown (commonwealth/Victorian
parliament)
 Crown- the authority of the queen in parliament and the legal system
 Unicameral- a parliament consisting of only one house (Queensland/Northern territory)
 House of representatives- the lower house of the commonwealth parliament
 Senate- the upper house of the commonwealth parliament
 Legislative assembly- the lower house of the Victorian parliament
 Legislative council- the upper house of the Victorian parliament

What does parliament do?


 Most important: past laws
 Decide and control finances
 Check the laws made by bodies to which they have delegated law-making powers
 To provide a forum for the discussion and debate of issues
 Investigate and report on various issues relating to government functions

Government
 Parliament- all members of both the upper house and lower house of a parliament and the
crown
 Government- political party/coalition that has the majority of seats in the lower house
(leader=prime minister)
 Coalition- an alliance formed between two or more parties
 Federal > state > local

Law-making powers
Division of power- the way that law-making power is shared between the commonwealth and the
state parliament
 Specific powers- law-making powers listed in the sections of the commonwealth constitution
(foreign trade/taxation/defence)
 Exclusive powers- law-making powers listed in the constitution that belong only to the
commonwealth parliament (printing money/defence/immigration)
 Concurrent powers - law making powers listed in the constitution that are shared by both the
state and commonwealth parliament
 Residual powers- law-making power not listed in the constitution that belong to the state
parliament

Federation
 The joining together of states to form one nation with a common purpose
 Power to make laws is shared between the parliaments
 Constitution- a document that sets out the structure and powers of a parliament

Making laws
 Legislation- laws made by parliament
 Legislative process- the process of making laws by parliament.

Court hierarchy
Friday, 24 May 2019
4:48 pm

Jurisdiction- power of a court to hear and determine cases


Original jurisdiction- the power of a court is hearing a dispute for the first time
Appellate jurisdiction- the power of a court to hear a case on appeal from a lower court in the
herirachy

Reasons for court hierarchy


Specialisation
 Courts specialise in different cases which allows judges and magistrates to develop expertise
in the particular matters they hear which helps promote consistency in decision-making
Appeals
 Hierarchy allows decision from lower courts to be reviewed by a higher court (when a person
is not satisfied with the outcome of the case)
 Appeals promote fairness and is a safeguard against unjust decisions
Administrative efficiency
 Cases of similar nature is heard by the same court, experiencing legal personnel, leading to
administrative efficiency
 A hierarchy presence means ability to streamline cases and direct them to appropriate courts,
reducing costs and delays
Doctrine of precedent
 The use of past decisions in determining current cases relies heavily on the existence of a court
hierarchy
 Usually only the higher courts set precedents that lower courts must follow
Parliament and the courts
Friday, 24 May 2019
4:50 pm

Statutory interpretation
 Judges may also have to use statutory interpretation to give meaning to words or terms within
an act
Reasons for statutory interpretation
Meaning of a word is unclear
 English language is complex and can be difficult to avoid words that have more than one
meaning
 Meanings can change over time
 Judges need to interpret statutes to clarify the meaning of those words and give them their
current meaning
The legislation does not cover all circumstances
 Parliament cannot predict all future circumstances when drafting a legislation
 Legislators are unable to accurately predict changes and developments in technology, which
may alter the applicability of words in a statute
Parliament's intention is not clear
 Legislations are written by a parliamentary drafts person acting on instructions from
parliament
 If these instructions are unclear, then the legislation may be flawed and a court may
undertake research to assist it in determining the intention of a law

Parliament and the courts


Parliament create courts
 Parliament creates the courts through legislation
 Parliament sets out the rules of the court, and can change these rules
Courts interpret legislation passed by parliament
 Function of courts- apply and interpret laws made by parliament
 Courts may form a precedent by interpreting words and phrases in acts
 Statements made by courts may also influence parliament to change the law
Parliament can change (abrogate) laws made by the courts
 Court decisions highlight problems- parliament perceives a need for laws to be updated to
reflect community views/enable more effective operation of the legal system
 Decisions made in court can lead to public outcry
Parliament can codify laws made by the courts
 Decisions by courts can influence the parliament to change an area of law, or develop an area
of law
 Incorporating common law into statute law to strengthen the legal principle established in a
case