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Flashcards

LAW 1

Gayatri Ravishankar English 172 cards

Cards in this deck (172)

  1. 1What is lawLaw prescribes acceptable standards of conduct and breaches of these laws will incur a legal consequence
  2. 2What are legal rulesLegal rules can be statutes made by parliament, regulations made by statutory authorities and case law made by judges. If breached, consequences can include a fine or a term of imprisonment
  3. 3What are non-legal rulesNon -legal rules are rules that cannot be enforced by courts because they have no legal force over them. This can be school rules, sport and social club affair rules and rules parents set for their children. If breached, consequences are up to the person who imposed them
  4. 4What are the 4 aspects of social cohesionSocial cohesion refers to laws that:
    - Preserve and protect human rights and values
    - Set acceptable standards of
    behaviour everyone is expected to conform to
    - Create institutions of government to create and enforce laws and adjudicating bodies to resolve disputes
    - Adapt to changing needs and circumstances
  5. 5What are social valuesSocial values are also a part of social cohesion:
    - Marriage should be voluntary (social)
    Marriage Act 1961
    - Right to personal privacy (moral)
    - Right to hold private property (economic)
    - Freedom of religion (religious)
    - Secret ballot (political)
  6. 6What are some examples of laws that preserve and protect human rightsExamples of laws that preserve and protect human rights and values include:
    - Racial Discrimination Act 1975
    which refers to how no one should be discriminated against by their race
    - The Equal Opportunity for Women
    in the Workplace act 1999 refers to how women should be treated equally as men in regard to pay and conditions
    - The Electoral Act 2003 refers to how Northern Territorians have the right to vote for who they want to be represented by in the NT parliament.
  7. 7How to set acceptable standards of behaviour everyone is expected to conform toSetting acceptable standards of behaviour everyone is expected to conform to relates to how if consequences are placed for individuals who breach these standards of behaviour, individuals are more likely to respect each other and obey the law.
    Unacceptable standards of behaviour can be categorised into:
    - Public wrongs are breaches that warrant condemnation by the community at large (e.g. crimes)
    - Private wrongs relate to when one legal entity infringes the rights or interests of another legal entity (e.g. negligence and breach of contract)
  8. 8What are the institutions of governmentInstitutions of government (legislative, executive and judicial) are created to create and enforce laws and adjudicating bodies to resolve dispute. The constitution sets out the basis of the powers that each institution can exercise and establishes a system of government that will achieve social cohesion.
  9. 9How laws need to constantly adapt to changing needs and circumstancesLaws need to constantly adapt to changing needs and circumstances in response to
    changing environmental factors, growth in technology etc. An example of this is the
    Surveillance Devices Act 2004 which looks at the use of surveillance devices which is in response to the growth in technology.
    According to ABC’s Cold case families 'relieved' as new laws make it easier for
    coronial inquests to be reopened. The Victorian Government recently introduced
    new laws to make it easier for coronial findings to be set aside. The new law will
    afford the Coroner's Court the power to set aside findings made under the 1958
    and 1985 Coroners Acts, and re-open investigations if there are new facts and circumstances.
  10. 10What are the 3 aspects of social progressSocial progress refers to laws that better society’s social, economic and political structures. These laws facilitate in areas such as:
    - Universal education
    - Good health practices
    - Protecting the Environment.
    An example of this is the Education Act 2015 which looks at matters such as building schools
  11. 11How the legislative, executive and judicial help social cohesionLegislature: Legislation reflects the values of the community e.g. laws to sanction unacceptable behaviour. The legislature passes laws to uphold rights’. E.g. anti-discrimination laws.
    Executive: Councils enforce parking laws, and punish breaches through fines. The executive can pass emergency regulations to help the community in times of emergencies e.g. bushfires.
    Judiciary: The judiciary upholds society’s values and people’s rights when a dispute comes. Judges impose sanctions on
    people found guilty of criminal acts and award damages to successful plaintiffs
  12. 12How the legislative, executive and judicial help social progressLegislature: The legislature responds to change in the community values e.g. recognition of same sex relationships in Domestic Partners Act. The Legislature tries hard to provide for future generations by enacting laws to protect the environment.
    Executive: The executive provides long-term protection for future generations through passing regulations such as health regulations to protect young people. The executive provides money through the budgets to promote the education of young people so there will be an educated workforce in the future.
    Judiciary: The judiciary look to the future in deciding principles such as the duty of care
    principle which has been extended over time and protects young people. Judges have increased the rights of accused persons over time such as the right to an
    interpreter and the use of suppression orders
  13. 13What is the legislativeThe three institutions of government include the legislative, executive and judicial. The legislative makes laws using legislative powers prescribed in constitutions. The legislative’s primary role is to create laws that will achieve the dual functions of law, social cohesion and social progress.
    The principal institution of the legislative is the parliament. They make laws using legislative powers prescribed in the constitution. They are created through elected representatives of the people.
  14. 14What is the executiveThe executive enforces and administrates the laws made by parliament.
    They can also make law through law-making power granted by the parliament. An example is the Local Government Act 2008 (NT) which delegates certain law making power to the local government.
  15. 15What is the judiciaryThe principal institution of the judiciary is the court. Judges preside in criminal and civil courts to determine if laws have been breached and if so impose a penalty. Judges can also make case law when statutes need to be interpreted or no statute exists. They can only make laws to the extent of solving the dispute. The judiciary is also completely independent from the legislative and executive. This ensures that judges are impartial and free from external influence. Along with this, to ensure judicial independence, there must be a clear division between the appointment and dismissal of judges to prevent interference from other branches of government, judges’ salary cannot decrease, judges are appointed until they reach retirement age, and judges have freedom of speech in courts.
    Judge made law or Case law is made by judges when statutes need to be interpreted or created. They can only make law to the extent of solving the dispute.
  16. 16What is sovereigntyParliament is the sovereign law -making body in Australia. They have influence over
    executive and judge made law. Therefore, codified law prevails over case law when there is conflict. Parliament can also pass remedial legislation to prevail case law or alternatively to override case law. Statute law prevails over regulations when there is conflict.
    Additionally, under the terms of the constitution, federal statute law prevails over state statute law when there is conflict.
  17. 17What is public lawPublic law governs the operation of government and sets acceptable standards of behaviour everyone is expected to conform to. Examples of public law include:
    - International law which regulates the relationship between nations as well as Australia and other international institutions such as the United Nations and the World Reserve Bank. It is designed to preserve international peace and security as well as ensure political, social and cultural interactions are orderly.
    - Criminal law refers to when an individual goes against the state and performs unacceptable behaviour and incurs a sanction as the community’s condemnation.
    - Administrative law refers to laws that govern the activities of administrative
    agencies of government.
    - Constitutional law refers to how all institutions of government and people are bound by the rules prescribed in the constitution. An example of a statute that has been enacted as part of constitutional law includes Australia Acts 1986
  18. 18What is private lawPrivate law is divided into contract law and law of tort:
    - Contract law regulates legally binding agreements entered voluntarily by legal entities.
    - Laws of tort is a civil wrong where someone’s actions or omissions infringe the rights or interests of another person. This may be to do with nuisance, negligence, defamation and trespass.
  19. 19What is a crimeA crime is an offence or unlawful act where an individual performs unacceptable behaviour against the state.
    A crime can be categorised into:
    - Offences against person – e.g. Murder
    - Offences against property – e.g. Arson
    - Offences against public order – e.g. Traffic.
    Criminal law refers to when an individual goes against the state and performs unacceptable behaviour and incurs a sanction as the community’s condemnation
  20. 20What is a civil wrongA civil wrong is when an individual’s actions or omissions infringe the rights or interests of another individual. This can be categorised into breach of contract and law of tort:
    - Breach of contract is where a party fails to honour a condition on the contract.
    - Law of tort relates to when an individual infringes the rights or interests of another in regard to things like defamation, negligence, nuisance and trespass.
    Civil law is applied when the plaintiff seeks civil remedy in a court of jurisdiction because the wrongdoer will not accept liability for his/her wrongful actions.
  21. 21What is the citations for criminal cases and civil casesIn criminal cases, the police bring matters into local court while the DPP bring matters into supreme court. The prosecution’s name comes first followed by the defendant in criminal law as they have the burden to prove. In appeals regarding criminal cases, the defendants name comes first followed by the Queen. They are heard in the Court of Criminal Appeal
    The plaintiff’s name comes first followed by the defendant in civil law as they have the burden to prove. Appeals are heard in the Court of Appeal
  22. 22What are summary offences and indictable offences- Summary offences are the least serious offences. They are usually heard in the Magistrates Court and have a maximum penalty of two years imprisonment. An example of offences heard here are traffic
    offences such as Road Traffic Act 1961.
    - Indictable offences exceed 2 years imprisonment and is divided into minor indictable offences and major indictable offences. Minor indictable offences have a maximum penalty of 5 years imprisonment and are usually heard in the Magistrates Court or the District Court. Major indictable offences are the most serious offences and are usually heard in the District Court or the Supreme Court and have the maximum penalty of life imprisonment.
  23. 23What are the two aspects the prosecution must proveThe prosecution has two aspects to prove when convicting someone. This is the guilty act and the guilty mind. The prosecution must prove that the accused physically committed the crime. The prosecution must also prove the accused had the mental intent to commit the crime. Strict liability offences however only need the prosecution to prove that the accused physically committed the crime as proving they had the mental intent is almost impossible. This is usually to do with traffic offences.
  24. 24What is civil liabilityCivil liability refers to a number of factors:
    - Duty of care: Everyone has a duty of care when going about their business to prevent harm or injury to a person or property
    - Legal neighbour: Which refers to anyone who could have been affected by the defendant’s actions
    - Foreseeability: The damages done by the defendant were foreseeable
    - Reasonable person test: This is done to determine if the actions were negligent or not. A judge would see what a reasonable person would do in the same circumstances. The standard is lowered for a child and high
    for an expert in the field
    - Contributory negligence: The plaintiff contributed to the defendant’s actions therefore the defendant was not entirely responsible for the damages
    - Vicarious liability: The legal liability placed on an individual or organisation for the wrongful actions of an agent or employee
  25. 25What is the burden of proofThe prosecution has the burden to prove the truth of the allegation in a court of law. The plaintiff has the burden to prove the truth of the allegation in a court of law.
  26. 26What is the standard of proofThe standard of proof is the degree or measure of evidence needed by the prosecution to convict the accused in criminal law. This must be beyond reasonable doubt. The standard of proof is the degree or measure of evidence needed by the plaintiff to be able to win the case in civil law. This must be based on the balance of probabilities.
  27. 27What are sanctionsIf convicted of a crime, a sanction will be imposed. This could be a loss of personal freedoms such as the loss of a driver’s license or a term of imprisonment. This could also be a loss of financial freedoms such as a fine. The objective of sanctions include:
    - Punishment: For committing an illegal act
    - Protection of society: Removing
    criminals from society to protect individuals
    - Deterrence: To prevent the offender from reoffending and potential offenders
    - Rehabilitation: To provide support for the
    criminal to accept responsibility and develop a better social attitude to prevent from reoffending
  28. 28What is a civil remedyA civil remedy is the legal consequence for being found liable in court for committing a civil wrong.
    This includes damages which is a sum of money granted to the plaintiff to return he or she to the position they were before the civil wrong occurred. This is divided into special and general damages.
    Special damages are where the exact dollar
    amount can be calculated. General damages are when the exact dollar amount cannot be precisely calculated as it may be to do with pain and suffering.
    Along with this are injunctions which compels or restricts a party in regard to a specific action. This is divided into preventative and compulsory injunctions. Preventative injunctions restrict certain behaviour such as a restraining order. A
    compulsory injunction gives order to the party to do something such as removing a noisy machine.
  29. 29What is negligenceThe plaintiff needs to prove 3 factors in order to convict the defendant of negligence:
    - The defendant had the duty of care to the plaintiff as a legal neighbour
    - The defendant breached the duty of care
    - The damages done by the defendant were foreseeable to a reasonable person
    A study of the case Donoghue v Stevenson will show how the principle of negligence was first established and why it was necessary
  30. 30What is the rule of lawThe rule of law essentially means that no one is above the law. Three main ideas the rule of law proposes is:
    - The supremacy of constitutional law: Each organisation and person and all the institutions of government are bound by the principles prescribed in the constitution. This means that the Constitution is supreme
    - Equality before the law: All
    institutions of government must exercise their powers in such a way that so that all
    individuals are treated equally before the law and no individual faces arbitrary discrimination
    - Existence of fundamental human rights: All institutions of government must exercise their powers in a way where individuals retain their fundamental human rights at all times
  31. 31How does parliament facilitate the rule of lawThe parliament facilitates the rule of law by ensuring that:
    - No legislation is passed without ensuring it is consistent with the constitution
    - Legislation allows for democratic processes such as voting for elections
    - Legislation is passed to protect the existence of fundamental human rights such as the Racial Discrimination Act 1975
  32. 32How does the courts facilitate the rule of lawThe courts also facilitate the rule of law by ensuring that:
    - The High Court sits in the original jurisdiction to resolve disputes
    - All courts resolve disputes by observing
    fundamental legal rights of the individual such as the presumption of innocence
  33. 33What is Australia’s official head of state and the Governor GeneralAustralia’s official head of state is the British Monarch which is the Queen. The Queen however does not reside in Australia therefore her representative, the Governor General does her duties for her. The Governor-General is appointed by the Queen on advice of the Prime Minister. The term usually last 5 years with an option for a second term. The Governor-General acts on the advice of the Prime Minister and his/her responsible ministers provided the Prime Minister and the ministers can:
    - Guarantee the passage of supply bills
    - Gather the majority of support in the House of Representatives
    - Ensure advice given to the Governor General is constitutional.
  34. 34What are the legislative roles of the Governor GeneralThe legislative role of the Governor General includes summoning MP’s to attend parliamentary sessions and giving royal assent to bills to become Acts after passing
    through both houses in the same form. The constitution itself states according to Section 64, that Ministers are appointed and dismissed by the Governor General and that Ministers must be from either house of Parliament.
  35. 35What are the roles of the Governor GeneralThe roles of the Governor General include:
    - Non -reserve powers: The
    Governor General acts on the advice of the Prime Minister and his or her responsible ministers
    - Reserve powers: The Governor General can act on the principles prescribed in Section 64 of the Constitution and not the advice of the PM
    - Ceremonial powers: For example entertaining visiting heads of state and being a patron for charities
  36. 36What is the division of powersThe division of powers exists as a doctrine because it is not explicitly listed in the Constitution. It refers to the allocation or separation of powers between the Commonwealth and the States
  37. 37What are the commonwealths powersCommonwealth’s powers include:
    - Specific powers: It is expressly written in the constitution with the majority in Section 51. It includes trade, taxation, marriage and divorce
    - Exclusive powers: Which only the Commonwealth can exercise and includes defence and currency
    - Concurrent powers: Which both the Commonwealth and the States can exercise. This includes tax and corporations. However due to the Inconsistency Rule in Section 109, when federal law and state law are in conflict, the commonwealth will prevail
  38. 38What are the states powersStates’ powers include:
    - Residual powers: It is powers retained by the states at the time of Federation. It is not expressly listed in the Constitution however it relates to aspects such as education, health and transport.
  39. 39What are prohibited powersProhibited powers are powers that neither the Commonwealth or states can exercise:
    - Commonwealth’s prohibited powers: They cannot make laws that are discriminatory or on religion
    - General prohibited powers:
    Both Commonwealth and the states cannot make laws limiting free trade
    - State prohibited powers: Cannot make laws relating to defence or currency
  40. 40What is the separation of powersThe separation of powers is the vesting of the legislative, executive and judicial powers of government in separate bodies. The objective of the separation of powers is to not allow one branch of government to withhold too much power.
    - The principal institution of the legislative is the parliament who enacts statutes to achieve social cohesion and social progress
    - The principal institution of the executive is the government and they enforce the
    laws created by the legislative
    - The principal institution of the judicial is the court and they bring just outcomes to legal disputes
  41. 41What is parliamentary supervision- Parliamentary supervision: An example is bicameral scrutiny which refers to how
    each house is able to scrutinise legislation that originated in the other house. This
    is particularly true of the Senate where the government usually does not have a majority of seats and therefore relies on negotiation to pass legislation.
    - Executive supervision: An example is responsible government in which ministers are held responsible to parliament for their actions and decisions. Ministers establish
    systems to review the administrative role of government departments and are regularly informed of events so they can report accurately to parliament if
    questioned.
    - Judicial supervision: All individuals, organisations and associations have the right to challenge the validity of legislation in an appropriate court. The High Court may declare legislation invalid if were made ultra vires the constitution.
  42. 42What are the checksThere are checks each arm can do to prevent the other arms from gaining too much power. The legislature can disallow delegated legislation made by the executive, or disallow case law made by the judiciary. The judiciary can check to see whether the legislature and executive branches are acting lawfully. The executive usually has a strong influence over the legislature, because they are the government, and the government has the majority of seats in the lower house.
  43. 43Separation of powers evidence 1In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan the High Court of Australia held that a strict division between the legislative and executive was not practical and re-affirmed the Constitution to outline this (German, 2012)
    In Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan, the High Court of Australia held that it was impossible, consistent with the British tradition, to insist upon a strict separation between legislative and executive powers. It was found that legislative power may be delegated to the executive, and as a result
    upheld the validity of delegated legislation. By contrast, in its insistence on a strict separation of "judicial power", the High Court has been less willing to compromise.
    Furthermore, the role of the courts was discussed in Kable v Director of Public
    Prosecutions (NSW), whereby a NSW statute was invalidated since it purported to confer not-judicial functions to court.
  44. 44Separation of powers evidence 2A consequence of the Australian version of the separation of powers is its role in encouraging judicial deference to the "political" arms of government. The normal
    propensity of the High Court is to recognise that separation of powers requires not only that the "political branches" should not interfere with judicial activity, but also that the judiciary should leave politicians and administrators alone. The importance of deference has been acknowledged in extrajudicial writings, and in decisions such as Drake v Minister for Immigration & Ethnic Affairs (No 2)
  45. 45Separation of powers evidence 3The Boilermakers’ case represented an important step in the development of Australia’s understanding of the separation of powers. The High Court held that certain sections of the Conciliation and Arbitration Act 1904 were invalid because they vested judicial power in an arbitral tribunal. The High Court made it clear that an executive body could not be vested with judicial powers so the principle of judicial independence was held to be implied in
    chapter 3 of the constitution by judicial decree.
  46. 46Separation of powers evidence 4Perhaps the true importance of the separation of judicial power was recognised centuries ago by the French lawyer and philosopher credited with first describing the separation of powers: There is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.
  47. 47What is the house of representativesThe House of Representatives is made up of political representatives of the people. They are elected by the people in a particular geographical electorate known as the Division. Single member electorates are elected through the preferential voting system. This usually allows for a clear majority to be formed so a government can form. The government is formed when a political party gains the majority of seats (50%+1). If not, a political party will enter into agreements with other members to form a minority government. Elections are held every 3 years.
  48. 48What is the senateThe Senate is comprised of 12 senators from each original state and 2 from each territory. The voting system is proportional
    representative voting. This allows for more minor parties and independencies to be elected and also prevents a major political
    party from having control of the senate. The Senate is also known as the states’ house of review as a bill must pass three
    reading stages in the Senate after passage through the House of Representatives. The main function of the senate is to pass
    supply bills.
  49. 49What are the four main functions of parliamentThe four main functions of parliament include:
    - Democratic function: Maintains the democratic process which allows elected representatives to make laws on the behalf of people, determines the executive government which commands the majority of support in the House of Representatives and determines political leadership where political leaders are selected by each political party
    - Legislative function: The main function of Parliament is to enact statutes to achieve the dual functions of law: social cohesion and social progress
    - Supply function: Supply bills are one of the most important bills that must be passed. Without supply bills, the process of the government will come to a halt and will
    not be able to occur as they cannot collect tax or spend money
    - Scrutinising function: Parliaments can review proposed laws of the government and suggest amendments or block controversial bills
  50. 50What is representative governmentRepresentative government: Where citizens elect people to debate and vote on laws on their behalf. Some key features of representative government include:
    - Rule of law: All citizens must be treated equally when they vote or stand for parliament. Strict rules must be in place
    to ensure the legal and political rights of all citizens are treated equally
    - Universal Franchise: All citizens should be allowed to vote irrespective of sex, political beliefs, cultural backgrounds etc.
    - Regular elections: Elected representatives are held accountable to the people at regular elections
    - Parliamentary salary: If parliamentarians don’t receive a salary, only the people
    who could afford it would stand
    - Parliamentary privilege: Allows for open and frank debates without the fear of being sued for defamation
  51. 51What is convention governmentConvention government: Constitutional conventions mean the following occurs in practice:
    - The executive government is formed by the political party that gathers the majority of seats in the House of Representatives.
    - The Prime Minister is sworn in by the Governor-General as the head of the
    Government as the political party selected that person as leader
    - The Governor-General swears in Ministers on the advice of the prime minister
    - The Governor-General exercises their powers on the advice of the Federal Executive Council
  52. 52What is federal governmentFederal Government:
    - An election is held in the House of Representatives and members are elected in each division through the preferential voting system
    - The party with the majority of
    seats has a private meeting to select its leader
    - The Governor-General exercises his/her powers to swear in the leader of the party to act as prime minister
    - The Prime Minister allocates
    portfolios to his/her ministers of cabinet and advises the Governor General to swear them in
    - Cabinet members meet regularly in private and decisions are confidential for 30 years. It is at these meets the government advises the Governor General to approve decisions made by the Cabinet
  53. 53What is responsible governmentResponsible Government: Responsible government means that the Government
    is held directly responsible to the parliament. Parliament holds the executive
    accountable for its decisions and actions. Parliament holds the government to
    account because the parliament consists of representatives of the people. Along with this, the executive needs the confidence of the lower house and ministers need to answer questions posed to them by parliament. Accountability is a part of responsible government. Ministers in the government can only be drawn from members of parliament. This means that ministers are indirectly elected which shows that there is not a complete separation of powers between the legislative and the executive.
    In regard to the chain of accountability, each minister is allocated at least one area of government such as education and defence. These are known as portfolios. Each portfolio will have a government department to administer and enforce statutes relevant to that area.
  54. 54What are the roles of governmentRoles of Government:
    - Oversees drafting of bills for submission into parliament to be made laws
    - Administrates and enforces statutes made by parliament
    - Appoints judges
  55. 55What are original and appellate jurisdictionsOriginal jurisdiction hears cases for the first time. For example, the Magistrates Court have original jurisdiction to summary offences and the District Court and the Supreme Court have original jurisdiction to
    indictable offences.
    Appellate jurisdictions are where a case is heard on appeal from a lower court in the same hierarchy. For example, the Court of Criminal Appeal in the NT may hear an appeal from the NT Supreme Court. In High Court, there are 7 justices in original jurisdiction presiding over cases. Decisions are final and cannot be overruled by acts of parliament There are 5-7 justices in appellate jurisdiction to resolve cases from federal and state superior courts.
  56. 56What is the Australian constitutionThe Australian Constitution is a legal document which outlines the basic rules
    by which Australia should be governed. Legal rules regarding the constitution
    include constitutional rules prescribed in the constitution, statutory rules made by parliament and constitutional case law made by the High Court. Non- legal rules do not have the force of law however are still essential for an effective government for example political party rules and constitutional conventions.
  57. 57What are some examples of chapters in the constitutionsThe constitution also outlines the power sharing relationship between the states and sets out the roles and powers of the
    legislative, executive and judicial. The chapters that outline this are chapter 1, 2 and 3. Chapter 1 outlines the legislative powers of the parliament. Section 1 refers to how the Commonwealth parliament must be bicameral with a House of Representatives and a Senate. Section 7 refers to the structure of each house and
    that there needs to be an equal number of senators from each state. Section 58 refers to how the Governor General will make a
    Bill become an Act only after it passes
    through both houses in the same form. Chapter 2 outlines the executive and how executive power is vested in the Governor General which is usually exercised on the advice of ministers. Chapter 3 outlines the
    judiciary and how the judicial, legislative and executive are separated to ensure judicial independence.
  58. 58What is a referendumA referendum is a general vote by the electorate on a single political question which has been referred to them for a direct decision. Referendums fail quite often. Only 8 out of 44 referendums have passed. This could be due to the fact that some referendum issues may be difficult to understand for the average voter. Along with this, arguments have been made that the government does not do a good job in adequately promoting referenda and that the information booklets sent out are poorly understood.
  59. 59What are the stages of a referendumReferendums usually begin with the consultation stage. Although not in the constitution, common sense shows that a referendum would not pass unless the community is involved in deciding if the constitution needs to be changed. The referendum stage includes sending out booklets outlining the yes case and the no case if there is one to all voters as federal elections are compulsory. Then the post referendum stage occurs in which if the referendum is successful, the Governor General will assent the Bill and the
    constitution will be amended if not, the Bill will lapse.
  60. 60What is the 1967 referendumThe 1967 referendum referred to the alteration of the Constitution entitled ‘An Act to alter the Constitution so as to omit certain words relating to the People of the
    Aboriginal Race in any State and so that Aboriginals are to be counted in reckoning the Population'. It amended section 51(xxvi (race power) and section 127.
  61. 61What is federationFederation happened for a number of reasons including defence, free trade, national pride, consistency and immigration.
  62. 62What is free tradeSupporters of free trade were strong advocates for federation. Before federation, trade between colonies was slow and expensive. It was thought that having a single market would make the economy much stronger.
  63. 63What is defencePeople also believed that having small colonial armies would be ineffective in preventing an attack from another colonial power such as Germany, France and Russia. Some believed China and Japan could be a threat. Therefore, it was thought that having a united Australian defence force would be much more effective.
  64. 64What is immigrationAlong with this, despite the multicultural nature of Australia today, in the 1890’s many people wanted to retain the British heritage of the colonies. In addition, there were concerns that cheap labour from China and the South Pacific islands would lower wagers. They believed that having a national government would be effective in controlling and restricting immigration.
  65. 65What is national prideAlthough the colonies had their own sense of pride, many started noticing the relationship between the colonies such as a common language and culture somewhat distinct from the British. Sporting teams included representatives from all colonies began to represent Australia. Soldiers that fought in the Boer War fought as Australians.
  66. 66What is consistencySome also believed that having a united nation would ensure consistent national communication and transport.
  67. 67What are the oppositions to federationOppositions to federation however included how people in Western Australia believed they were too far away from the eastern colonies to make federation effective. Smaller colonies also feared that the larger colonies, NSW and VIC would dominate the federal system.
  68. 68What is the pre-convention stage- The British Colonial Secretary, Earl Grey encouraged colonies to have a central body to oversee regional issues such as trade.
    - Canadian federation occurred
    - Australian Natives Association had formed of Australian born colonists pushing for federation
    - A Federal Australasian Council formed to discuss increasing colonial activity from the German, French and Russians. However, they had no executive power and limited function so this was highly ineffective.
    - Major General Edwards reported on issues regarding defence and stated that Australia would not be able to defend itself without having a national approach.
    - Sir Henry Parks used his position to encourage the colonies to federate
    - The Australasian Federation Conference was held in Melbourne with colonial premiers and representatives from New Zealand. The colonial premiers decided to recommend to their colonial parliaments to pass an enabling act to allow for the National Australian Convention to discuss federation and draft a constitution bill
  69. 69What is the first Australasian conventionHeld in Sydney with 46 delegates from the colonies and New Zealand. They drafted a constitutional bill that will be presented to the colonial parliaments. This draft recommended that the parliament be bicameral with a lower house and an upper house with equal representatives from each state. It also recommended the Queen be the head with the Governor General as her representative.
  70. 70What is the second Australasian conventionTwo sessions were planned – draft the constitutional bill and to consider amendment feedback from the colonies to finalise the bill. A final draft could not be agreed upon so further sessions were planned. The sessions were dominated with the discussion of the fear that the smaller colonies had in regard to being dominated by the larger colonies (NSW and VIC). This issue was solved by having equal representation in the senate by each state no matter the population.
  71. 71What is colonial ratificationThe Colonies had to agree to referendum which all ultimately passed. SA, NSW, VIC and TAS held referendums to approve to federation which all passed in the affirmative except NSW which did not by the margin required. However, the decision to move the Australian capital to NSW increased support of federation. QLD and WA did not hold referenda’s as they still had concerns over the constitution bill. But QLD after seeing the support from NSW was convinced to support federation despite reservations. Eventually all the referendums passed in each colony except WA. The British parliament wanted to include WA so it allowed provision for WA to join before the formal proclamation of federation. Ultimately, WA passed its referendum.
  72. 72What is British approvalThe final Bill was introduced to the House of Commons and passed without any amendments, was assented by Queen Victoria and proclaimed.
  73. 73Federation evidence 1ABC’s Federation is outdated, we need to consider new states says Barnaby Joyce Federal Agriculture Minister Barnaby Joyce would like his region of New England, to become a new state. He argues the states are too focussed on the capital cities, and they are not governing in the interests of their hinterlands.
  74. 74Federation evidence 2George Williams, professor of Law at the University of New South Wales, says the Australian Constitution allows for the creation of new states. The process is not difficult in a legal sense. You don't need a
    referendum, all you need is the consent of the relevant state parliament. The Commonwealth would also need to make relevant laws, including how many senators a new state would have. The existing states all have 12 senators, but Professor Williams says the Commonwealth could allocate fewer senators to a new small state
  75. 75Federation evidence 3Defence Connect’s ‘Room for improvement’ across defence spending: Senator Reynolds CSC Senator Reynolds, a former Australian Army brigadier, said the 117 years since Australia's Federation has failed to deliver the certainty and value for money across Defence projects. "I'd make the observation that I think from Federation, the Parliament hasn't been engaged enough in terms of the defence strategy for Australia in terms of its long-term implementation and oversight," Senator Reynolds said
  76. 76Federation evidence 4In the last decades of the nineteenth century, concern was growing in the Australian colonies about the level of 'coloured' immigration to Australia, particularly from China, and many colonies passed restrictive immigration legislation. Following Federation in 1901, one of the first pieces of Commonwealth legislation passed was the Immigration Restriction Act 1901, based on the earlier colonial legislation. The overall aim of this and other related legislation was to limit non-white immigration to Australia, particularly Asian immigration, and thereby preserve the predominance of the British within Australia. A new feature of the Act was the Dictation Test.
  77. 77Federation evidence 5The Pacific Island Labourers Act 1901 stipulated that no Pacific Island labourer could enter Australia on or after 31 March 1904 except under a licence, and that the Minister for External Affairs could order the deportation of any Pacific Island labourer found in Australia after 31 December 1906. It was one of the founding laws of the White Australia policy.
  78. 78How do the reasons for federation relate presently- Internal trade: Trade freely occurs between states today, and most would argue that trade barriers between states should not return. From time to time, however, there are some issues where interstate operations threaten operations in a state, which can result in localised unemployment or related economic issues.
    - Defence: it still makes sense for Australia to have a centralised defence force. Since Federation Australia has been involved in a number of defence and peacekeeping operations – World War Two in particular required a strong national defence. Australia’s population is still comparatively low with regard to our landmass, so a national defence force is still relevant.
    - Immigration: As Australia has no internal border checks, it still makes sense for immigration to be managed centrally. If one particular state had different standards for immigration, there would be nothing preventing them from relocating to other states.
  79. 79How do the reasons for federation relate presently - part 2- National Pride: Most citizens will identify as Australians. Those who are patriotic will be patriotic towards Australia and not their state. State pride primarily exists in sporting and cultural events – for instance, State of Origin matches are a source of pride for Queensland and New South Wales.
    - Consistency: Consistency in areas such as telecommunication, currency, postal services etc. are still relevant today.
  80. 80What is international lawInternational law regulates the relationship between nations as well as Australia and international institutions such as the United Nations and the World Reserve Bank. Its main objective is to retain
    international peace and security and ensure political, social and cultural interactions between nations are orderly.
  81. 81What are the international courtsInternational courts include the International Court of Justice and the International Criminal Court. The ICJ resolves disputes between UN member nations regarding international law. The ICC deals with matters such as crimes against humanity and genocide.
  82. 82What are conventionsConventions are an agreement between states covering particular matters especially one less formal than a treaty.
    Unwritten conventions are not listed in the Constitution however play a very strong role in how Australia is governed. Examples include in Section 64, the Governor General will be advised by a Federal Executive Council consisting of members the Governor General chose.
    Multilateral conventions regarding human rights include the Elimination of all Forms of Racial Discrimination 1969 was incorporated into domestic law by the Racial Discrimination Act 1975. Another example includes the Elimination of all Forms of Discrimination Against Women 1981 was incorporated into Australian law by the Sex Discrimination Act 1984.
    Multilateral conventions regarding non- human rights include the World Health organisation 1946 relates to promotion for the highest health outcome for all people around the world.
  83. 83What are treatiesA treaty is a bilateral agreement between two nations. An example is the United States/Australia Free Trade Agreement 2004. Treaties are made by:
    - The executive government decides to enter into an international treaty and negotiation with other parties will occur
    - The executive government signs a treaty with at least one other nation
    - The executive government’s Minister for Foreign Affairs tables an intention to take treaty action as per the 1996 reforms
    - The Joint Standing Committee On Treaties conducts an inquiry on the treaty to be submitted into parliament and the government
    - The executive government drafts ratifying legislation for submission into parliament
    - The parliament, taking in consideration of the JSCOT’s recommendations, debates and votes
    - The act would be subject to judicial review by the High Court
  84. 84What are the references in the constitution regarding international lawsThere are only two references in the Constitution regarding Australia’s relationship with the International community:
    - Section 51(xxix) – The Commonwealth Parliament has specific powers with respect to ‘external affairs’
    - Section 75(i) – The High Court has original jurisdiction to hear matters ‘arising under a treaty’
  85. 85International law evidence 1According to The Age, just recently, Victoria passed Australia’s first treaty bill, setting up a path so the government can one day ratify agreements with Aboriginal people. The Advancing Treaty Process with Aboriginal Victorians Bill 2018 passed the Legislative Council on the 21’st of June. It allows for the creation of a representative body elected by Aboriginal Victorians that will help design the treaty negotiation framework.
  86. 86What are global linksGlobal links: Treaties are seen as a function of the executive government therefore they will sign and ratify treaties. Once a treaty is signed and ratified, it needs to then go through legislative action, co-operative federal agreements and executive actions. The legislative demanded a greater say on international matters and established a committee of inquiry to overlook the treaty-making process in Australia. The Joint Standing Committee on Treaties was established as well as a treaties council consisting of the PM, premiers and chief
    ministers. Australian Courts generally tend to accept that treaties ratified by the Federal Government have no impact on
    domestic law. Additionally, Australians are in general fearful of surrendering sovereignty. Although supportive of international principles, Australian governments have made it clear that they will not tolerate international law interfering with Australia’s sovereignty.
  87. 87What is delegated legislationDelegated legislation is made by delegated bodies operative by the executive branch of government. Examples of delegated bodies include local councils. States and territories have passed enabling acts to allow local councils to make laws in regard to matters such as pollution and building codes. The Local Government Act 2008 (NT) is the enabling act in the NT. Another example is government departments who administer and enforce law as well as being able to make some delegated legislation. For example, the Department of Water Resources and Agriculture can create regulations regarding matters such as quarantine. Professional and sporting bodies may be formed by enabling acts that have the force of law. For example, the Melbourne Cricket Ground Regulations 1994, has the power to enact regulations to control crowd behaviour.
  88. 88What are the advantages of delegated legislationReasons why we have delegated legislation include the relief of parliamentary workload which allows parliament to debate on issues that have a broader impact. It also allows administrative convenience in which allows delegated authorities to quickly respond to changing needs and circumstances. Along with this are emergencies. As regulations can be made more quickly, they are better able to respond to urgent matters such as a contagious disease rapidly spreading overseas.
  89. 89What are the disadvantages of delegated legislationDisadvantages of delegated legislation is the fact that it is undemocratic law making. Other than local councils, delegated bodies are not elected and are not held directly accountable to the community for the laws it makes.
  90. 90What is the pre-parliament stage- The department will draft the bill and make sure it will do what it is designed to do
    - The office of Parliamentary council will review the draft bill and make sure it is legal and constitutional
    - Government will then approve the draft bill
  91. 91What is the parliament stage - first readingThe first reading occurs in which:
    - The bill is introduced
    - An explanatory memo of the bill is presented
    - The bill is referred to a committee in some situations
  92. 92What is the parliament stage - second readingThe second reading then occurs in which:
    - The minister moves the bill to be read a second time
    - The minister delivers a speech on why the Bill should be passed
    - The debate is deferred to a later date so MP’s/senators can review the bill and discuss with colleagues and voters
    - Debate resumes with the opposition presenting its views
    - No amendments at this stage but the opposition may indicate they will seek amendments
    - Vote
  93. 93What is the parliament stage - consideration in detail- Bill may be returned to a committee for further research or investigation
    - Each element of the bill is debated and amendments are proposed and voted on
    - The consideration in detail is adopted
  94. 94What is the parliament stage - third reading- Bill is read again
    - Third vote
    - Usually no debate
  95. 95What is the parliament stage - transmission to the reviewing house- Same process as the House of Representatives
    - Senate has a committee of the whole rather than a consideration in detail
    - If amendments are accepted, the Bill returns to the originating house where amendments must be voted on and accepted
  96. 96What is the assent by the Governor General- The bill is assented by the Governor-General to become an Act of Parliament
    - It is then published in the Government Gazette
  97. 97What is the post parliament stage - proclamation- Minister will advise the Governor-General to proclaim the Act to become Law
  98. 98What are the types of bills- Original bill – proposes a new law, such as the Family Law Act 1975 (Cth)
    - Amending bill – changes parts of an existing act, such as the Native Title Amendment Act 1997 (Cth) which came about as a result of the Wik Native Title case
    - Repealing bill – terminates an existing Act
    - Consolidating bill – repeals a number of existing Acts to combine them into one statute
  99. 99What are deadlocks and disagreementsA deadlock as defined in Section 57 is when the House of Representatives passes a public bill twice and it is rejected twice in the Senate after a lapse of three months between votes in the same tenure of parliament. When the conditions of Section 57 are not met, the two houses are said to be in disagreement rather than deadlock. Deadlocks and Disagreements are either solved by compromising or abandonment. Compromising relates to when the government negotiates with the opposition, minor parties and independent cross-benches to reach an agreement to guarantee support. Abandonment is when the bill is shelved to be presented at a more suitable time. This usually happens if many members of the general public also oppose the bill.
  100. 100What are double dissolutionsDouble Dissolutions relates to how deadlocks are resolved. One way is when the Prime Minister advises the Governor General to dissolve both houses and call an election for all members of the House of representatives and all 76 senators. Double dissolutions however are slow, expensive and uncertain while others argue that the double dissolution process ensures the house doesn’t have too much power.
  101. 101What are the strengths of the legislative process- Representative government: Members of parliament are democratically elected by the people and are accountable to them for the laws they make. Judges are not democratically elected, therefore judge-made law is not made by representatives of the people.
    - Parliamentary review: The executive government may determine bills to be introduced to parliament but the bill must pass both houses in the same form to become law. Ministers are also responsible to parliament on the administration of legislation and may be questioned during Question Time. Judges cannot be brought into parliament to be questioned about the principles they use to create case law
    - Parliamentary Privilege: It means that MP’s may not be sued for defamation for statements made in parliament. This means laws are free from external intimidation. Judges have equivalent protection when making judgements and creating case law.
  102. 102What are the weaknesses of the legislative process- Representative government: Means that many minority groups do not receive
    representation in parliament as most voters are not members of a minority group. Preferential voting in the House of Representatives favours the majority parties at the expense of minor parties
    who may better reflect the interest of minority groups. For example, Indigenous Australia have traditionally been unrepresented and their interests have not been considered in the parliamentary system which may have slowed social progress for them.
    - Parliamentary review:
    Although the parliamentary system ensure that the executive government is accountable to the parliament, this system can be misused for political advantage and result in deadlock.
    - Parliamentary privilege: MP’s can deliberately make statements in the knowledge that they could not make similar statements outside of parliament.
  103. 103What are grantsSection 96 of the Constitution of Australia authorises the Australian (Commonwealth) Parliament to grant financial assistance to any state on the terms and conditions that it sees fit, subject to acceptance by the state(s) concerned.
  104. 104Grants evidence 1In the Uniform Tax Case 1942, the high court held the legislation was a valid use of the commonwealth’s taxation powers giving the commonwealth financial dominance over the states
  105. 105What are examples of initiating legislation - political partiesThe different political parties usually have policy platforms that they take to the people during an election. They propose laws that align with their political ideology, and which they think the Australian people who vote for them (or are likely to vote for them) will want. During an election campaign, a party will put forward a platform of potential laws, and if they are successful at the election, they assert that they have a mandate from the people to implement its platform and to pass any relevant legislation
  106. 106What are examples of initiating legislation - pressure groupsLarge organisations who can pressure
    parliamentarians to support or oppose legislation. As these groups have large memberships or the financial means to mount a public case, they do have influence. Major pressure groups include the Australian Council of Trade Unions (ACTU) and the National Farmers Federation
  107. 107What is case lawCase law is judge-made law that is created to resolve a legal dispute. Judges seek to bring legal disputes to a just outcome. It is created based on issues and questions of law, not issues or questions of fact. Case law is made in two ways:
    - Judicial pronouncement (common law)
    This is the pronouncement of the law when no statutory law exists. Judges use past precedents to guide them, or if no relevant precedent exists (a landmark case), they create new case law to resolve the dispute
    - Statutory interpretation
    This is case law that is created when a judge gives meaning to words or phrases in statutes in order to resolve a dispute
  108. 108How are legal disputes resolvedWhen resolving a question of law, a judge will refer to the interpretation of statutes and the application of judicial precedent (or creating new precedent). A legal decision includes two components:
    - Ratio decidendi (the reason for deciding) which states the interpretation of statutes and precedent that was applied in resolving the dispute. The ratio decidendi sets the precedent for lower courts in the same court hierarchy
    - Obiter dictum (remarks in passing) which are observations made by the judge to support the logic of their ratio decidendi but does not form part of the binding decision
  109. 109What are the principles and practices of case lawThe principles and practices of case law include the Principle of stare decisis and doctrine of precedent. Stare decisis is central principle of case law. It states that once a superior court has resolved a dispute and created a ratio decidendi all lower courts in the same hierarchy will adopt the same ratio in order to promote consistency. The principle of stare decisis also allows citizens to predict the outcome of a court’s decision in order to better regulate their own behaviour, or to use the court system to protect an interest.
  110. 110What is the doctrine of precedentDoctrine of precedent states that lower courts in the same hierarchy are bound by decisions in the superior court when the material circumstances in the case are similar. The principle of stare decisis forms the fundamental basis of the doctrine of precedent. The doctrine of precedent allows each court to be bound by decisions of superior courts in the same hierarchy. A decision of a court in a different hierarchy may be considered and followed, but is not binding. Along with this, only the ratio decidendi is binding. Other elements of decisions, such as obiter dictum may be considered and followed, but are not binding. Additionally, precedents exist in perpetuity until overruled or departed from.
  111. 111What are the types of precedentsTypes of precedents include binding precedent and persuasive precedent. Binding precedent is where the decisions of superior courts must be followed by lower courts in the same hierarchy. For instance, the legal concept of native title decided by the Full Bench of the High Court of Australia in Mabo v Queensland 2 1992 binds every other court in Australia. Persuasive precedent guide other courts, but they are not bound to follow it. This includes:
    - Decisions of inferior courts in the same court hierarchy
    - Decisions made by courts not in the same hierarchy (such as those made in other states or overseas).
  112. 112What is statutory interpretationStatutory interpretation is the process where judges give meaning to words or phrases in statutes when it is necessary to settle a legal dispute. This must be done so that the law can be applied justly and to bring about finality in a legal dispute. To ensure that interpretations can be applied fairly and consistently, judges are guided in the process of interpretation from two sources:
    - Parliament (statutory guidance)
    - Superior courts (judicial guidance)
  113. 113What are the rules of statutory interpretation - literal rule and golden rule /approachLiteral rule/approach
    - Judges use the ordinary and natural English meaning of words and phrases as a starting point to determine the intentions of parliament when making the law
    - Judges should not be interpreting the wording of statutes because it is inconvenient or they believe it to be inappropriate
    Golden rule/approach
    -This is used to overlook any absurd issue that may arise from a literal interpretation. For instance, if a statute says “in the vicinity of any prohibited place” the golden rule can be used if someone was in a prohibited place. (This was used in a case in English Court of Appeal – Adler v George 1964
  114. 114What are the rules of statutory interpretation - purposive rule /approach-This is used when the judge considers the purpose parliament had for enacting a statute and using the consideration of that purpose to interpret statutes
    -The purposive approach was used in the case Bassell v McGuinness 1981 Full Court of the SA Supreme Court
    -The defendant, Mr McGuinness was charged with drink driving while operating a vehicle under tow
    -McGuinness claimed that he could not be convicted of drink driving, as the vehicle was being towed, so he was not a driver
    -The Full Court rejected this defence, finding that the Road Traffic Act 1961 (SA) applied to drivers under tow, as such drivers could steer and potentially cause dangerous ‘mischief’
  115. 115What are the canons of constructionThe canons of construction are assumptions made by the court on principles that are used in constructing legislation. Courts consider these assumptions when interpreting laws. Canons of Construction include the following assumptions:
    - Courts have the right to interpret statutes to resolve disputes
    - Unless clearly stated, laws are not created to interfere with fundamental rights
    - Unless stated, legislation does not bind the Crown (that is, the executive government is not bound by the terms of the obligations of the legislation)
    - If parliament passes complementary legislation it is assumed that parliament approves of a court’s interpretation
  116. 116What is statutory guidanceStatutory guidance are rules and procedures created by parliaments to guide courts in interpreting legislation. This is achieved in two ways:
    - Internal guidance: guidance provided in the wording of the Act being interpreted
    - External guidance: guidance provided by Acts other than the Act being interpreted – the main one for federal legislation is the Acts Interpretation Act 1901 (Cth) with states and territories having equivalent interpretation Acts.
  117. 117What is statutory guidance - internal guidanceInternal guidance is where every statute will include a definition and object section to assist judges in interpreting the most important and commonly used words. For example, the Criminal Law Consolidation Act 1935 (SA) includes a definition of “cattle” which means ‘horse, mare, gelding, colt, filly, mule, ass, bull, cow, ox, heifer, calf, ram, ewe, sheep, lamb, camel, llama, alpaca, goat or pig’. So when the act states stealing cattle is a felony, it applies to any of those animals
  118. 118What is statutory guidance - external guidanceExternal guidance includes:
    - The Acts Interpretation Act 1901 (Cth) and Acts Interpretation Act 1915 (SA) gives guidance for judges on how they should interpret other statutes
    - The Acts Interpretation Act 1915 (SA) clearly states that the word “may” does not impose a statutory obligation, the word “shall” does
    - The Acts Interpretation Act 1901 (Cth) states that judges must determine the intention of parliament when interpreting a statute
  119. 119What is the departure from precedent - reversal and overrulingRegarding the departure from precedent (judicial review), to prevent a binding precedent from resulting in an unjust outcome, mechanisms have been developed in common law to depart from the precedent created by superior courts
    These include:
    -REVERSAL: A superior court may reverse a precedent created by a lower court during the appeals process. This happens when an appellate court determines that the precedent created in a lower court was inappropriate. This occurred in the Wik People v The State of Queensland and Ors 1996 High Court where the Full Bench of the High Court overturned a decision of the Full Court of the Federal Court which held that native title could not coexist with pastoral leases
    - OVERRULING: A superior court overrules a precedent of a lower court in a different case
  120. 120What is the departure from precedent - reversal and overruling - distinguishing and disapproval- DISTINGUISHING: Where a lower court departs from the binding precedent of a superior court by finding material differences between the cases, meaning the precedent does not need to be binding
    - DISAPPROVAL: A lower court judge is obliged to follow a superior court’s precedent but makes it clear that she/he disapproves of being compelled to do so. Doing this might encourage precedent to be reversed on appeal, or for parliament to pass remedial legislation to address the issue. Courts at the same level are able to disapprove of precedents and not follow them – the High Court, for instance, is able to disapprove or earlier decisions in order to maintain standards of justice when social change occurs. Courts may also disapprove of persuasive precedents (which are already non-binding)
  121. 121What are strengths and weaknesses of the doctrine of precedentStrengths
    - Ensures case law is applied consistently and uniformly in the same court hierarchy
    - Community members can predict the likely outcome of court cases and make decisions accordingly
    - Community members have confidence that the law will be applied consistently
    Weaknesses
    - Rigid adherence to precedence can create injustice, especially if judges do not depart from a precedent when a case suggests they should
  122. 122What are strengths and weaknesses of the judicial independenceStrengths
    - Case law is made by independent and impartial judges solely in accordance to the principles of the rule of law
    - Case law is made after opposing parties have presented powerful conflicting legal arguments, so the judge has considered the issue from different perspectives
    - Case law is made free from external pressures, political lobby groups and the like, which influence statutory law
    Weaknesses
    - Judges are not elected and are not directly accountable to the community for their decisions
    - Although accountability measures are in place, the community has little direct input into this process
    - The process for removing judges is difficult
    - Historically, much case law has favoured older, white, Protestant men – the group of which most judges belonged – thus not catering for the issues of women or minorities
  123. 123What are the strengths and weaknesses of the judicial reviewStrengths
    - The appellate process allows for case law decisions to be reviewed to see if errors of law were made
    - The appellate process gives community members an opportunity to test or challenge case law through the appeals system
    - The appeals process prevents case law from being made hastily or unfairly, without sufficient thought being given
    Weaknesses
    -Judicial appeals are very expensive, inconvenient and time consuming – often only wealthy individuals and groups have the means to pursue an appeal
  124. 124What are the strengths and weaknesses of the accessible lawStrengths
    -As case law is made in response to a legal dispute, community members can be actively involved in the creation of case-law
    –People can present their own legal arguments to the court and have them considered
    Weaknesses
    - Community members are far more able to influence statutory law through elections, lawful protests, lobby groups and similar. Popular opinion is more likely to influence why and how laws are made
    - Opportunities for individuals to be involved in the creation of case law is limited, as high specialised knowledge is needed to influence the decision-making of a judge
  125. 125What are the strengths and weaknesses of the complements statute lawStrengths
    - Legislatures are unable to make laws for every conceivable situation
    - Case law is better able to address the needs of specific legal disputes that can then be applied in future cases
    - This has been particularly true with regard to contract law and negligence cases
    - Courts also play a valuable role in interpreting statute law, and this interpretation can assist parliaments in reviewing or amending legislation to better meet community needs
    Weaknesses
    - Case law can only be made in response to a legal dispute – it can only occur ex poste facto – after the fact
    - Parliaments are in a stronger position to consider future needs or scenarios when creating statutes
  126. 126What is the alternative dispute resolution- Methods to resolve disputes without resorting to the court system or tribunals
    - Mainly available to civil disputes, as only courts have the power to impose legal outcomes for criminal cases. Two broad methods
    Direct party control:
    - Self help
    - Abandoning a claim
    - Consensus.
    Third party intervention:
    - Mediation
    - Conciliation
    - Arbitration
  127. 127What is direct party control - self helpThe aggrieved party seeks to resolve the dispute without the active involvement of the other party. It is prompt and inexpensive, but may not resolve the dispute (and might aggravate it). It may also be that the method used to resolve the dispute may be unlawful. A lawful self help method may be to build a new fence to prevent a neighbour’s dog from entering your property. An unlawful self help method would be to poison the neighbour’s dog
  128. 128What is direct party control - abandoning a claimThe plaintiff chooses not to proceed with a civil claim, perhaps because the cost of the claim would exceed the return, or to maintain harmonious relations with family or neighbours In criminal cases, the DPP and police might elect not to pursue a criminal case because it is relatively minor, or it is doubtful the case could be proven at trial
  129. 129What is direct party control - conceding a claimThe defendant admits wrong doing and compensates the plaintiff. This may be done to settle the matter quickly or to avoid the expense of a civil trial. This might occur in a family situation with regard to a property settlement. One partner may agree to the terms of the settlement rather than incur the financial or emotional expensive of pursuing the matter at trial. In criminal cases, this occurs when the accused pleads guilt to an offence, thus avoiding a trial
  130. 130What is direct party control - consensus- May also be known as mutual agreement, direct negotiation or, in industrial relations law, enterprise or workplace bargaining.
    Civil consensus:
    – The two parties meet and come to a compromise, which may be stated in a legally binding agreement. This may be amicable, or done with the assistance of lawyers. In industrial relations, it is common practice for workers and employers to meet to discuss employment conditions, the outcome of which is a registered contract or enterprise agreement
    Criminal consensus:
    – The DPP or police may use charge (or plea) bargaining, where the prosecuting authorities and the defence lawyers negotiate where a defendant will plead guilty to a lesser charge. Charge bargaining
    can only occur when initiated by the defence, where the lesser charge shares a reasonable relationship with the original charge, and an appropriate punishment is likely. The DPP can also cease criminal proceedings that have already commenced.
  131. 131What is third party intervention - mediation- An informal dispute resolution method where two disputing parties agree to use an independent third party, called a mediator, to assist them in reaching agreement
    - It is relatively inexpensive and can be initiated quickly
    - The mediator works towards creating a climate where frank and open discussion between the parties can occur. The mediator manages the process of the discussion
    - Mediators may offer recommendations, but do not make decisions nor cast judgement on the dispute
    - When successful, parties will enter into a
    ‘good faith agreement’ which is not a legal document. Most states and territories have an Office of the Ombudsman, who is an independent government officer who investigates administrative complaints. The mediation model is frequently used to resolve disputes between community members and government authorities
  132. 132What is third party intervention - conciliationA more formal method of mediation to settle civil disputes. Conciliation processes are usually underpinned by legislation, and attendance at a conciliation meeting is compulsory. The conciliator takes a more active role in proceedings, and can offer suggestions. The decision of a conciliator is not legally binding, so a successful outcome of conciliation will usually be registered in a court or tribunal to give it legal force. A conciliation model is used in the pre-trial stage of civil proceedings to assist parties to reach agreement before trial in order to reach an out-of-court settlement. Conciliation is also frequently used to resolve industrial disputes before arbitration
  133. 133What is third party intervention - arbitrationIndependent arbitration is the most formal method of dispute resolution without recourse to courts or tribunals. Parties to a dispute must agree to have a matter go to arbitration as well as to comply with the arbitrator’s decision. Once agreement is reached, attendance is compulsory. The arbitrator takes a very active role, and can question parties, call witnesses and examine evidence. Any decision is formalised in writing, but will not have specific legal standing unless registered at a court or tribunal. This method is frequently used in contractual disputes, such as between builders and subcontractors. There is also institutionalised arbitration, underpinned by legislation. Legally enforceable decisions are made by government appointed registrars and commissioners. As this involves a formal adjudicating body, it is not an alternate dispute resolution process
  134. 134What are the grades of the court systemThe Commonwealth and each state and territory grade their court systems. At the top are superior courts (High Court or Supreme Court) down to inferior courts (Magistrates Court, Local Court in the NT) This hierarchy exists in our adversarial system of trial as it provides the legal right for a losing party to test the decision of the original court on appeal in an appellate court
  135. 135What are the courts in commonwealth, states and territoriesIn Australia - Commonwealth
    - High Court of Australia
    - Federal Court of Australia and
    - Family Court of Australia
    - Federal Magistrates
    Court SA and (NT)
    - Supreme Court
    - District Court
    - Magistrates Court -
    (Local Court)
  136. 136What is the appellate processAll Australian jurisdictions adopt the adversarial system of resolving criminal and civil disputes. The parties of a dispute argue their cases before an independent judge in a manner that conforms to strict rules of evidence. As the outcome of a case will often rely on the application of law by a single judge, then a right of appeal must exist to guarantee no error in law is made in the administration of justice. The hierarchical structure allows for this, as superior courts have appellate jurisdiction over lower courts, giving them greater power than the lower courts in the administration of justice
  137. 137What is administrative efficiencyCourt hierarchy allows for minor or less complicated cases to be heard in lower courts more quickly and at reduced cost to the public. There are fewer superior courts to resolve more serious or complex cases. As these courts require greater resources, they are more costly and therefore should only be engaged in considering serious and complex cases
  138. 138What is specialisationJudges in the various court hierarchies deal with fairly similar cases on a week-by-week basis, and thus become quite specialised in the law they use most frequently For instance, a Magistrate (or Local Court judge in the NT) will be very familiar with summary offences law, while a Supreme Court judge will be more familiar with crimes such as murder. Further specialisation occurs within the court hierarchy, with specialised courts and tribunals which deal with specific sections of law
  139. 139What is flexibility and choiceCourt structures allow for some degree of choice by defendants and plaintiffs In civil cases, a plaintiff may seek resolution in a superior court if he or she wants it to be more closely reviewed or a new legal principle created In South Australia, an accused may have some choice as to whether a minor indictable offence is heard in the Magistrates Court or District Court
  140. 140What are the main features of the adversary systemMain features
    - Two opposing parties – adversaries – Make allegations and counter allegations against each other before an independent judge
    Three fundamental elements:
    - Two autonomous parties
    - An independent and impartial judge
    - Strict rules of evidence and procedure
    A fourth element for criminal cases involving indictable offences
    - Issues of fact are determined by peers of the accused
    – A jury
  141. 141What are the two autonomous partiesIn criminal trials Prosecution:
    - Performed by the Director of Public Prosecutions (who operate in the executive arm of government)
    - The DPP works closely with police to accept the burden of proof to present a case that can establish guilt beyond reasonable doubt in the mind of the judge or jury
    Defendant (accused):
    - Person accused of committing a criminal offence by the DPP
    - Considered innocent until proven guilty at trial
    - Has a statutory right to know the nature of the offence and the evidence collected by the DPP prior to the preliminary hearing so that he/she can prepare a defence
    - Does not have to prove innocence – needs to cast reasonable doubt in the minds of the judge or jury
    - May exercise the right to silence, can represent him or herself or employ legal counsel to do so
  142. 142What is an independent judge- Completely independent from the other branches of government and impartial to the two parties
    - Primary role is to enforce adversarial rules so that both parties have a fair and equally opportunity to present evidence in order to reach a lawful and just outcome
    - Administers rules of evidence and procedure by applying case law and interpreting statutes as required If sitting without a jury, the judge must also determine fact, weighing up the admissible evidence presented at trial, applying it to the law, deliver a verdict of guilty or not guilty and give reasons to support the decision In jury trials, the jury determines fact, but the reasons cannot be disclosed
  143. 143What are the strict rules of evidence and procedure- All court proceedings, including bail applications, the preliminary hearing and trial
    – Are conducted according to strict rules prescribed in statute and case law These rules allow the DPP to present his or her case against the accused, and the defendant to rebut the DPP’s evidence under cross-examination and to present his or her own evidence
    - A trial must be one continuous event without unreasonable interruptions. If a person is found not guilty he or she cannot be tried for the same offence again because of the doctrine of double jeopardy
  144. 144What is admissible evidenceEvidence is anything brought to a court which determines the facts of a case Admissible evidence:
    - Direct evidence: Original evidence the court has seen, heard, smelt or felt, such as the testimony from an eye-witness
    - Indirect evidence: Circumstantial evidence from which facts can be inferred, for example fingerprints from a crime scene
    - Primary (best) evidence: Original objects and documents relevant to the case, such as the murder weapon
    - Secondary evidence: Suggests the existence of best evidence relevant to the case (such as photocopies of forged documents)
    - Opinion evidence: Evidence that can be adduced or deduced from what has been seen or heard, usually give by experts in their field, such as forensic scientists
  145. 145What is inadmissible evidence- Inadmissible evidence: Evidence not allowed at court hearing or trial because it is considered irrelevant, illegally obtained or unreliable
    - Hearsay evidence: Evidence which is not direct evidence, but which has been relayed from one person to another
    - Illegally obtained evidence: evidence collected by unlawful means, such as a police officer taking a statement without first advising the person of his/her right to remain silent, or a confession made under duress
    - Opinion evidence: evidence tendered by someone who is not an expert in the field under examination
    - Past criminal record evidence: evidence of past convictions of the accused, because a person is judged on the case before court and not his/her past
  146. 146What is the presentation of evidence1. Parties accept responsibility for collecting and presenting their own evidence
    2. The party making the allegation presents
    his/her evidence first as they have burden of proof. In a criminal case, the prosecution presents first. In a civil case, the plaintiff presents first
    3. Witnesses must be sworn in under oath or affirmation before giving evidence
    4. All evidence is viva voce – that is, oral evidence that can be cross-examined by the opposing party. Tangible objects, like weapons or photos, must be presented by the person responsible for this, so they can be cross-examined
    5. Witnesses are examined in the interrogatory fashion, that is by question and answer
    6. Witnesses are examined in a strict procedure (see over)
  147. 147What is the examination of a sworn witnessAssuming it is a witness for the prosecution:
    - Examination-in-chief: The DPP asks the witness questions to elicit the required
    evidence
    - Cross examination: after the DPP has finished questioning, the defence counsel conducts a cross-examination to cast reasonable doubt in the minds of the judge or jury about accuracy or veracity of the evidence, or the credibility of the witness
    - Re-examination: the DPP can re-question the witness to substantiate any points the cross-examination has called into question. No new evidence can be given, and if it is, a new cross-examination of that evidence can occur
  148. 148What is the right to appealIf the accused is found guilty, he or she has the right to consider an application to appeal in appellate court on the grounds of law or fact In the NT and SA, the Court of Criminal Appeal normally sits with a panel of three judges to review the issue brought before it by the appellant. The primary function of an appeal is to determine whether the trial was conducted property in accordance with the rules of law
  149. 149What are the underlying principles- Rule of law
    - Natural justice
    - Independence of the judiciary
    - The right to be heard
    - The right of the accused to know the facts of the allegation made against him/her
    - The burden of proof lies with the party making the allegation
    - An objective and strict standard of proof
    - Ignorance is no defence
    - Right to remain silent
    - Right to trial by jury
    - Double jeopardy principle
  150. 150What is the independence of the judiciary- Independence of the judiciary: The judge must show no favour towards either party, or show bias against either party, nor have any personal or financial interest in the outcome of the case. Independence is also assured as a judge cannot also be a member of the legislative or executive branch of government
    - The right to be heard: Everyone has
    the right to present his or her case to an independent judges before any action is taken against them. Essentially, everyone has the right to a fair trial
    - The right of the accused to know the facts of the allegation made against him/her: The accused must know the details of alleged offences in order to mount a defence. The prosecution must provide the defendant will all information regarding the offence and all the evidence collected that will be used at trial
  151. 151What is natural justice- The adversary system must abide by the rule of law and provide natural justice to those accused of committing a criminal offence.
    The following principles exist to
    protect natural justice:
    - Independence of the judiciary
    - The right to be heard
    - The right of the accused to know the facts
    of the allegation made against him/her
    - The burden of proof lies with the party making the allegation
    - An objective and strict standard of proof
    - Ignorance is no defence
    - Right to remain silent
    - Right to trial by jury
    - Double jeopardy principle
  152. 152What is the rule of law and natural justiceRule of law:
    - Everyone is treated equally before the law, and that court procedures occur with strict judicial and statutory rules, conventions and practices
    - The government plays no active role in the rule of law to ensure independence, and so that the community has confidence that the adversary system is conducted objectively and lawfully
    Natural justice:
    - People have the right to fair trial and to be considered innocent until proven guilty.
    - The principles on the following slides
    are essential for a person to receive natural justice.
  153. 153What is the burden and standard of proofThe burden of proof lies with the party making the allegation
    - Civil: the burden lies with
    the plaintiff
    - Criminal: the burden lies with the prosecution (police prosecutor in
    magistrates court and DPP in Supreme Court
    An objective and strict standard of
    proof is the amount or measure of proof required to prove an allegation in a court or tribunal:
    - Civil: Balance of Probabilities – what is most likely to have occurred
    - Criminal: Beyond a reasonable doubt – a higher standard of proof, as a person’s
    basic liberties are at stake Ignorance is no defence: a person cannot use ignorance
    of the law as an excuse
  154. 154What is the right to remain silent, trial by jury, double jeopardy principle- Right to remain silent: An accused person cannot be forced or tricked into giving evidence, and has the right not to take the witness stand during trial
    - Right to trial by jury: In criminal law the accused has a statutory right to trial be jury (in the NT, judge-only criminal trials are not permitted). There is no statutory right to trial by jury in civil matters. Section 80 of the Constitution gives a constitutional right to trial by jury for a federal indictable offence
    - Double jeopardy principle: A principle of criminal law where no person can be tried for a crime which he or she has already
    been acquitted or convicted In 2000, the SA parliament amended the Criminal Law Consolidation Act to give the DPP the right to appeal a not guilty verdict given in a judge only trial
  155. 155What is a jury- A randomly selected panel of 12 to 15 adult men and women who are summoned to decide a matter of fact at a criminal trial South Australia / Northern Territory
    - In South Australia and the Northern Territory, statutory law gives a person accused of an indictable offence the right of a trial by jury. In the Northern Territory,
    all indictable offences are heard by juries, while in South Australia, there is also the option for a judge-only trial for an indictable offence
    - There are no juries in the Magistrates Court (SA) or Local Court (NT)
    - In SA and the NT juries are not used for civil cases Commonwealth
    - Section 80 of the Australian Constitution gives a person the constitutional right to trial in federal indictable offences
  156. 156What is the role of the jury- Jurors are considered peers of the accused. The system is considered an extension of the democratic principle that allows ordinary citizens to be actively involved in the administration of justice
    The jury’s role is to hear all of the conflicting admissible evidence presented at trial by the two parties and weigh it in order to reconstruct its own version of the facts
    - The jury reaches a verdict of guilty or not guilt consistent with those facts and the legal principles advised by the judge
    - A jury can only convict a person if it believes guilt has been proved beyond a reasonable doubt
    - Jury decisions are reached in private and it does not give reasons for it. (This differs from judge-only trials, where the judge’s decision is made public
    – Some argue that this is a weakness of the jury system, as it lacks transparency and places limits on the possibility of appeal).
  157. 157What is the jury selectionTwo steps in the selection of jurors:
    - Compiling juror lists: Where the Sheriff compiles monthly jury lists of people randomly drawn from the general community
    - Empanelling a jury: The selection process
    used to select between 12 and 15 jurors who will sit on a specific criminal trial
  158. 158What is compiling a jury list- The Sheriff, an officer of the Supreme Court, is responsible for preparing annual jury lists
    1. The Sheriff instructs the Electoral Commissioner to randomly select names from the electoral roll. There are approximately 6000 names selected in South Australia. Only people aged over 18 and below 70 can be selected
    2. Sheriff vetting occurs: the Sheriff removes all disqualified people from this list, in cooperation with the police commissioner and electoral commission.
    In the Northern Territory, disqualified people:
    - Have been sentenced to a term of life imprisonment
    - Has been sentenced to a term of imprisonment, and: This term has not been completed, is on parole OR less than seven years has elapsed since the sentence was completed
  159. 159What is compiling a jury list - part 2People are also disqualified if the live outside of the jury districts. In the NT, this includes anyone living outside of the Darwin/Palmerston/Rural area or Alice Springs. After this process, potential jurors are summonsed to attend court on a given date. They must attend court on this date, or apply to be excused through the individual vetting process
  160. 160What is compiling a jury list - part 33. Individual vetting occurs, where individuals summonsed for jury service can apply to be exempted, excused or have his or her jury duty deferred
    - DISQUALIFIED:
    - The person cannot read, write or speak English
    - Is of unsound mind, in a hospital or approved treatment facility or undergoing treatment under the Mental Health & Related Services Act;
    - EXEMPT:
    - Is blind, deaf or dumb or otherwise incapacitated by disease or infirmity from discharging the duties of a juror
    - Is a member of a particular occupation, such as police officer, dentist, medical practitioner, prison officer or minister of religion
    - EXCUSED/DEFERRED:
    - Ill health or matters of special urgency or importance (determined by the Sheriff or judge on application)
    - Has served as a juror in the previous three years
  161. 161What is empanelling a jury- Eligible jurors go through an initial induction process where they are sworn in. They are allocated to a jury selection, which are allocated to trials as they begin during the month
    - At the start of a trial, the jury selection will observe the arraignment of the accused where he or she will plead guilty or not
    guilty to the offence
    - After the arraignment, the DPP will read out all of the names of the witnesses who will be called to give Crown evidence. The judge will excuse any juror who has any association with the accused, judge, counsel or witnesses
    - The Jury Manager randomly selects juror’s names from a box. When a name is called, prosecutor or defence counsel can challenge jurors. Three challenges may be made without reason, after which a
    challenge must be supported by reasons given to the judge, who will decide whether or not to approve the application or dismissal of a juror
  162. 162What is empanelling a jury - part 2Challenging jurors occurs so that the jury is constructed in a way that is impartial and reflects a reasonable cross section of the
    jury 12 to 15 jurors are selected
    – More are selected for longer trials in case some jurors cannot continue for ill health or other reasons. However, only 12 of the 15 – selected by ballot – can make the final verdict. In SA, trials can continue with 10 jurors if required.
  163. 163What are jury verdictsGUILTY VERDICT:
    - The accused person is found guilty of the offence and is convicted. The prisoner is remanded by the judge for sentencing by the trial judge. A guilty verdict may be appealed in an appellate court and potentially quashed
    - Unanimous verdict: all jurors make the same decision (mandatory for murder and treason)
    - Majority verdict: may be accepted for offences other than guilty verdicts for murder or treason. There are statutory minimums for majority verdicts (for instance 11-1, 10-2) In murder and
    treason cases, a majority verdict is accepted for non-guilty verdicts.
    NOT GUILTY VERDICT:
    - The accused is found not guilty of the offence, and is acquitted. The person cannot be prosecuted again for the same offence due to the doctrine of double jeopardy. A jury’s not-guilty verdict cannot be appealed
  164. 164What are the other outcomesHUNG JURY: Occurs where the jury is unable to reach a statutory minimum requirement for a verdict
    – For instance, 11-1 for a guilty
    verdict on a murder trial, or 9-3 on any other offence. When this occurs, the
    accused does not stand convicted or acquitted, and the judge declares a
    mistrial. The DPP is able to consider whether to proceed with a fresh indictment and a retrial before a new jury
    ALTERNATIVE VERDICT: Where a
    jury delivers a not-guilt verdict to a principal offence, but guilty of a lesser crime. For instance, manslaughter is a common alternative verdict on a charge of murder
    PERVERSE VERDICT: A verdict that is either against the weight of the evidence or contrary to the judge’s direction on questions of law. A not-guilty verdict cannot be quashed, regardless of its merits, but a guilty verdict may be appealed
  165. 165What is the criminal justice systemReflects the interests of ordinary people, who expect certain standards of behaviour in order to maintain a safe and cohesive community.
    Three elements:
    - Parliament: who define criminal behaviour and penalties in legislation
    - Law enforcement agencies: executive bodies who enforce criminal laws, including the police, prosecuting authorities and correctional service officers
    - Courts of criminal jurisdiction: original and appellate jurisdictions who conduct criminal trials and hear appeals that arise from them
  166. 166What is the criminal dispute resolution processDivision of responsibility
    POLICE: investigate the crime, collect evidence, arrest the suspect
    DEFENDANT: accepts responsibility to prepare and present his or her
    own case at trial
    PROSECUTION: has the burden to prosecute the accused to prove guilt
    JUDICIARY: trial judge controls the conduct of the trial to determine guilt
    JURY: the determiner of fact – decides if the
    accused is guilty or not guilty.
    The criminal justice system commences when a serious crime is committed
  167. 167What is the pre-trial stage - role of the executiveROLE OF THE EXECUTIVE POLICE INVESTIGATION:
    - Collect evidence
    - Question witnesses and take statements
    - Arrest suspect and conduct interrogating
    DIRECTOR OF PUBLIC PROSECUTION:
    - Receives evidence from police
    - Prepares documentation of the case (known as Information)
    - Has the burden to prove prima facie case
  168. 168What is the pre-trial stage - role of the judiciaryMagistrate or Local Court Judge:
    - Conducts a preliminary hearing
    - Hears plea of accused
    - Considers written submissions of the DPP
    - Commits the defendant for trial
    DIRECTIONS HEARINGS:
    - Pre-trial hearings to prepare the case for trial
  169. 169What is the trial stage - district court or Supreme Court- Arraignment
    - Empanelling of jury
    - Prosecution’s case
    - Defendant’s case
    - Closing address by both counsel
    - Judge summation of issues of law and fact to the jury
    - Jury’s verdict - Judge enforces jury verdict
  170. 170What is the post-trial stage - sentencing hearingConducted by the judge some time
    after the trial
    Appellate hearing: Parties can appeal issues of law or fact to the Court of Criminal Appeal, or by special leave to the Full Court of the High Court of Australia
    Correctional Services: The enforcement of the court order is the responsibility of the correctional services division of the NT Department of Justice.
  171. 171What is the pre trial stage of indictable offences - investigationThe investigation conducted by the
    police who are responsible for responding to and investigating a crime and hopefully arresting and charging a suspect. The police also collect sufficient evidence so that the DPP can prove guilt beyond a reasonable doubt. The police will also question a suspect for up to four hours without a court order, and may continue questioning for an additional four hours with permission of a judge. Once the decision has been made to charge a person with a serious indictable offence, the person must be taken as soon as practicable to a magistrate so an indictment can be made. A suspect has a number of legal rights, including the presumption of innocence, the right to remain silent, freedom from arbitrary arrest, right to apply for bail and right to legal representation
  172. 172What is the pre trial stage of indictable offences - bail applicationThe DPP will prepare information on the case to a Magistrate/Local Court judge, after which a bail application can be considered.
    Bail is a legally enforceable undertaking whereby a charged person can be released from custody assuming certain conditions are met:
    - The person will attend all relevant court hearings
    - Conforms to certain conditions (such as regularly reporting to police)
    - Forfeits a sum of money if he or she does not comply with these conditions. A bail hearing is heard on the presumption of innocence and the principle that a person’s liberty should only be removed with good reason. Such reasons may include the seriousness of the offence, the probability of the person absconding or re-offending, the need to protect victims or witnesses, past bail record and the strength of the evidence

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Flashcards on LAW 1 , created by Gayatri Ravishankar on 30/08/2018.
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