Untitled

Page 1

Heading1

The differences between legal and non-legal rules.

Read

p3-5 of text

Legal rules

Non-legal rules

Who must obey the

rules?

Legal rules deal

with the conduct of individuals in society. Legal rules apply to all members

of the community

Non-legal rules

apply to select groups in the community. For example, the rules of a sporting

club apply only to the members of the club. We can decide to be part of the

group and to abide by its rules, or we can opt out.

Who makes the

rules?

Legal rules (laws)

can only be made by four groups: parliaments, subordinate authorities, local

councils and courts.

Individuals or

groups (such as parents, teachers, the church or a team captain) make

non-legal rules. Sometimes these groups can be quite formal; for example,

sporting bodies such as the Australian Football League.

Who enforces the

rules?

The consequences of

breaking legal rules may be the imposition of a sanction, such as imprisonment

or a community based order, if we violate another person’s we may be required

to pay damages

Legal rules are

enforced by the court system or by tribunals. Law enforcement agencies and

the courts enforce criminal laws. When a conflict occurs between individuals

concerning their rights under civil law, a court or a tribunal may be asked

to resolve the dispute

Usually we obey

rules because we know that if we break a rule there will be unpleasant

consequences. Perhaps the most hurtful consequence of breaking a rule is to

be ostracised or socially embarrassed.

Courts do not

enforce non-legal rules. Sporting clubs, for instance, may set up their own

decision making bodies to resolve disputes. These bodies do not have the same

powers as legal courts and tribunals.

Who interprets the

rules?

The meaning of a

legal rule can only be interpreted by a judge or magistrate in a court, or by

a member of a tribunal.

Non-legal rules can

be interpreted by a variety of people.

For example the

umpire formally interprets the rules of a netball game. The rules of a game

of marbles may be informally interpreted by the group playing the game.

Complete Learning

Activity 1.1 (except Q4) on p4 of text.

Heading

2 The need for laws

(Read p 6 of the text)

The main function of

law is to maintain social

cohesion, in other words,

having a community where people are able to live with each other in a peaceful

manner. The law enables us to live together by recognising the rights of

ourselves and others. To achieve a peaceful and cooperative community, the law

needs to set down boundaries of acceptable conduct.

THE DEFENCE OF

NECESSITY

R v Dudley and Stephens (1884)

1.

Carefully read the facts of the case.

2. Make a ‘time line’ from Day 1

to Day 24.

3. Complete Questions 1 to 5.

R.

v. Dudley and Stephens (1884)

Regina

v. Dudley and Stephens [1884] is a leading British criminal case famous for its

precedence in establishing the use of ‘necessity’ as a criminal defence, and for its use of the

‘slippery slope’ argument in formulating its holding.

Facts

of the case

Dudley,

Stephens, Brooks and Parker (a 17 year old cabin boy) were all members of the

crew of an English yacht called The Mignonette. The yacht foundered in a

storm on the 5th July 1884. The boy and the three crewmembers

escaped in a lifeboat that had no supply of water or food except for two tins

of turnips. For the first three days the four sailors lived on the turnips. On

the fourth day they caught a turtle, which they ate that day and for the next

seven. For the following eight days they had nothing to eat. The only fresh

water they had was the small amount of water they collected in their oilskin

coats at night. During all this time their boat drifted. They were a long way from

shore and there was no sign of help.

On

the eighteenth day, after seven days without food or water, Dudley and Stephens

discussed a plan with Brooks. Their plan was that if no help came they should

sacrifice Parker to save the rest. Brooks disagreed. The plan was not discussed

with Parker.

On

the twentieth day, no vessel being in sight, Dudley told Parker to go and have

a sleep. Dudley told Stephens and Brooks that the time had come to kill Parker.

Brooks disagreed. At this time Parker was lying at the bottom of the boat quite

helpless. Dudley offered up a prayer for forgiveness and, with the consent of

Stephens went to parker and told him that his time was up. He killed

parker by cutting his throat with a knife.

For

the next four days, Dudley, Stephens and Brooks fed on Parker’s body and blood.

On the fourth day a passing boat picked up their lifeboat and they were charged

with the murder of Parker.

At

the trial it was established that if the men had not fed on the boy’s body they

would have not survived to be rescued and that Parker was likely to have died

before the rescue boat arrived. At the time of the killing there was no sail insight

and no possibility of rescue.

Courts

Decision

The

initial trial in Exeter was in front of a sympathetic jury. Although

cannibalism was not an accepted practice at the time, the seafaring community

was receptive to the unique perils of being cast away at sea. Even Parker’s

family testified that the defendants were probably justified in their actions.

In

its verdict the jury stated they found all the facts of the prosecutions case

to be accurate, but that they were unsure whether the circumstances would

constitute legal homicide. This question was sent to London for review.

At

the Court of the Queen’s Bench Division, the panel of 5 judges found that there

was insufficient ‘necessity’ for the killing. The

5 judges argued that allowing an exception to murder for certain perilous

circumstances would set a dangerous precedent for the future, as courts could

interpret the decision to acquit other forms of killing. The Chief Judge, Lord

Coleridge, went as far to call Dudley and Stephens actions inconsistent with

the morals of civilized societies.

Dudley

and Stephens were found guilty and sentenced to death, which was later commuted

to six months imprisonment by Queen Victoria.

1.

Do you think that the men should be found guilty of murder in these

circumstances? Why or why not?

I think they

should be found guilty of murder, but there sentences should be lessoned due to

the circumstances.

2.

Under what circumstances, if any, would killing the cabin boy be justified?

If it had

been discussed and agreed on with the cabin boy.

3.

Suggest why Brooks was not charged with an offence.

Because he

disagreed with, and played no part in the murder of Parker.

4.

The jury hearing this case left it to the judge to decide whether the act

amounted to murder. This is very unusual. In reaching his decision the judge

stated:

“It must not be supposed that in refusing to admit temptation to be an

excuse for crime it is forgotten how terrible the temptation was; how awful the

suffering; how hard in such trials to keep the judgment straight and the

conduct pure. We are often compelled to set up standards we cannot reach

ourselves, and to lay down rules which we could not ourselves satisfy. But a

man has no right to declare temptation to be an excuse, though he might himself

have yielded to it, nor allow compassion for the criminal to change or weaken

in any manner the legal definition of the crime. It is therefore our duty to

declare that the prisoners act in this case was willful murder. “

5.

Do you think that the law is effective if it establishes standards that “we

cannot reach ourselves”? Discuss

No it is not

because then your laws are misguided and you will convict people who had no

other option. But if the situation in which the crime occurs is so rare and

complex that you find yourself wondering how you would act, you must look at

the basic facts given to you.

Heading

3 characteristics of an effective law

(Read

p8-9)

Just because a law has been made

does not mean it will be enforced or will effectively control the behaviour of

individuals. In order for law to be effective it must satisfy the following

criteria.

1.

Known to the public

2.

Acceptable

to the community

3.

Able to be enforced

4.

Stable

5.

Able to be changed

Using p8-9 of the text,

explain each of the above characteristics and provide an example of each

Known

to the public- For a law

to be enforceable, the public must know about it. If people do not know about a

new law, they will not follow it. It is the responsibility of individuals to

find out what the law is on a particular matter, but the law makers also need

to keep the public informed of any new laws that are passed. For example, there

are road signs to tell us what the road laws are.

Major changes in the law are usually reported

in the media, and many are debated in the media before the change takes place.

An example of this is the law allowing a registered medical practitioner to

preform an abortion on a woman who is not more than 24 weeks pregnant. This

change in the law was comprehensively debated in the media before the change in

the law rook place. This debate both informs the lawmakers of public opinion

about a proposed change in the law, and informs the public of a change in the

law that is about to take place.

Acceptable- If a law is not in line with community

values, and then people may be inclined to disregard the law. For example,

prior to the law allowing 24-hour shopping seven days a week in Victoria, many

stores opened illegally because consumers and store owners wanted extended

shopping hours even though the law prohibited it. People had decided that

restricted shopping hours were no longer acceptable to them. On the other hand,

people accept the law that makes wearing seatbelts compulsory because they can

see the value of wearing seatbelts.

Enforced- An effective law must be enforceable. That

is, if people break the law, they must be able to be caught a brought to

justice. If this does not happen, people may be less inclined to follow the

law. In an effort to reduce road toll, police have rigorously enforced road

traffic laws in Victoria. Traffic enforcement strategies such as random breath

testing and drug testing, the use of speed and red-light cameras and heavy

penalties for infringement deter most drives from breaking the law.

Stable- In order to be effective, it is also

necessary that the law, in general, remains stable. If the law were changing

constantly, no-one would be certain what the law was and there would be chaos.

Heading

4: The distinction between criminal law and civil law

(Read

p10-13 of the text)

FEATURE

CRIMINAL

LAW

CIVIL

LAW

Definition

The criminal

law hears cases of crimes, which are acts or omissions that are

against the law, harmful to an individual and punishable by law.

They are

offences against the state.

The civil

law protects the rights and obligations that exist between parties

(individuals, organizations or groups)

Aim

To protect

society and uphold the rules of society, and punish offenders.

To

regulate conduct between parties, and provide compensation to an injured

party.

Parties

to the case

Prosecution

(Crown).

Accused

(Defendant)

The

prosecution takes the defendant to court and prosecutes. e.g. R v Drennen.

Plaintiff.

Defendant.

The

plaintiff/complainant takes the defendant to court and sues e.g., Dodd v

Drennen

Burden

of proof

On the

prosecution.

On the

plaintiff.

Standard

of proof

Beyond

reasonable doubt

On

the balance of probabilities

Examples

of laws

Indictable

offences (serious

offences triable before a judge and jury 12) include: murder, manslaughter,

rape, arson.

Summary

offences (minor offences heard in the

Magistrates Court) include: traffic offences, shoplifting.

Negligence,

defamation, nuisance, trespass, contract

Jury

No jury in

the Magistrate’s Court.

Compulsory

jury of 12 (up to 15 in lengthy cases) in the County and Supreme Courts.

No jury in

Magistrate’s Court.

Optional

jury of 6 in County and Supreme Courts.

Verdict

Guilty or

not – guilty.

Unanimous

verdict in murder, treason, serious drug offences.

Majority

11-1 accepted in other cases after 6 hours deliberation.

If no

verdict, then hung jury.

Find for

the plaintiff or defendant.

Majority

5-1 accepted.

Purpose

of criminal sanctions/civil remedies

Punishment,

deterrence, rehabilitation, protection.

To restore

the injured party or wronged party (plaintiff) back to the position they were

in before the act or omission occurred.

Types

of criminal sanctions/civil remedies

Imprisonment,

home detention, suspended sentence, community based order, fine, youth

training order.

Damages

(compensatory, nominal, exemplary)

Injunction,

Specific performance.

Key

terminology used in cases

Crime,

prosecution, accused, arrest, bail, remand, imprisonment, guilty, sentence,

jury12, charge, committal,

Sue,

compensation, damages, injunction, plaintiff, writ, defamation, defendant,

remedy, pleadings, contract.

Complete Learning

Activity 1.4 (except Q1, 5, 6, & 7) on p 13 of text.

Heading 5: An overview of the role and

characteristics of parliament and subordinate authorities

The sources of law

(Read text p14-16)

People tend to think

of ‘the law’ as law made by parliament. However, there are two main sources of

law in Australia: laws made by parliaments—known as statute law—and laws made by judges—known as

common law.

Like many other countries that were colonised

by the British, Australia based its legal and parliamentary systems on those

operating in Britain. The British parliamentary system is known as the

Westminster system, named after the area in London where the parliament is

located.

The Parliamentary System

There are 9 parliaments in Australia

1

Commonwealth Parliament (Federal/National parliament)

6

State Parliaments (Vic, SA, WA, NSW, TAS, QLD)

2

Territory Parliaments (ACT, NT)

Federation

Australia has a

federal system of government. A federation is a joining together of states for

a common purpose. The power to make laws is shared between a central parliament

and state and territory parliaments. The central parliament is the Parliament of

Australia also known as the Commonwealth or Federal Parliament.

The Constitution ©

A constitution

is a legal document that outlines the basic rules of government and the

law-making powers of the elected parliament.

The Constitution established a division of power whereby the Commonwealth

Government would look after issues of national interest, while the state

governments would deal with and administer important state issues. Commonwealth

and state powers fall into one of the following categories: specific, exclusive, concurrent and residual.

Specific powers

Under the

Constitution, the power of the Commonwealth Parliament to make laws is limited

to matters that are specifically (enumerated) in the Constitution. These powers

are called specific powers and they can be found in Sections 51 and 52 of the

Constitution. These include laws about foreign trade, taxation and defence.

Exclusive powers

Some of the specific

powers of the Commonwealth Parliament listed in the Constitution can only be

used by the Commonwealth Parliament. These powers are known as exclusive

powers. These exclusive law-making powers cover laws such as printing money,

defence and immigration.

Concurrent powers

Some powers listed in

the Constitution are shared between the Commonwealth Parliament and state

parliaments. These are known as concurrent powers. Both the Commonwealth

parliament and state parliaments can make laws in these matters. For example,

both parliaments can make laws on taxation. However, if concurrent laws made by

state parliament and the Commonwealth Parliament are inconsistent, the

Commonwealth law prevails.

Residual powers

After federation each

state retained its own constitution and some powers to make laws. Any power not

specifically given to the Commonwealth Parliament remained a state law-making

power. Such powers are called the residual powers of the states. They include

large areas of law-making, such as criminal law,and education.

Complete Questions 11

and 12 from Learning Activity 1.5 on p16/17 of your text.

Australia

has three levels of law-making bodies

Three

levels of law-making

Some

of the areas of law-making

1.

Commonwealth Parliament

immigration

postal and telecommunications

airports and air safety

defence forces

income and company taxes

2.

State parliament

schools

hospitals

roads

motor registration

3.

Local council

libraries

street signs and traffic controls

sports grounds

child-care centres

The Structure of

Commonwealth Parliament

Commonwealth Parliament has three tiers:

1.

CROWN à

represented in Australia by the Governor-General

2.

UPPER HOUSE

à In Australia Federal Parliament, called the Senate (76 members)

3.

LOWER HOUSE

à In Australian Federal Parliament, called the House of Representatives (150

members)

This system

of having two houses is called a ‘bicameral’ system

of parliament. It comes from the Latin: ‘bi’-meaning ‘two’ and ‘camera’,

meaning ‘chamber’. New bills (proposed new laws)

must pass through both of houses of parliament before they become law.

WARNING!!

The most common mistake when

outlining the structure of parliament is forgetting to include the Crown or

her representative. We have bicameral parliaments at Victorian and federal

levels, but parliament will always include the crown as she is our head of

state.

The

Structure of Commonwealth Parliament

Governor-General

(The Crown’s

Representative Quentin Bryce)

The House of Representatives

·

The Lower House of parliament

·

Made up of 150 members – each representing an electorate of approximately

95,000 voters.

·

Members are elected for 3 years

The Senate

·

The Upper House of parliament

·

Made up of 76 Senators – with 12 Senators elected from each state and two

from each territory. Thus states have equal representation, regardless of

their population.

·

Senators are elected for a 6 year term

The

Structure of Victorian Parliament

The Victorian Parliament operates in the same

way as the Commonwealth Parliament.

State parliament has three tiers:

1.

CROWN

à Represented in Victoria by the Governor

2.

UPPER HOUSE

à In state parliament it is called the Legislative Council (40 members)

3.

LOWER HOUSE

à In state parliament it is called the Legislative Assembly (88 members)

This system

of having two houses is called a ‘bicameral’ system

of parliament. It comes from the Latin: ‘bi’-meaning ‘two’ and ‘camera’,

meaning ‘chamber’. New bills (proposed new laws) must

pass through both of houses of parliament before they become law.

The

Structure of State Parliament

Governor

The Crown’s

Representative

(Alex Chernov AO, QC)

The Legislative Assembly

·

The Lower House of Parliament.

·

Made up of 88 members.

·

Victoria is divided into 88 districts. Each electoral district (around 40,000

electors) elects one member to represent them in Victoria.

·

Members are elected for a fixed 4-year term.

The

Legislative Council

·

The Upper House of parliament

·

Made up of 40 members

·

For upper house elections, the state of Victoria is divided into 8 large

regions. Five representatives are elected from each region. Within each

region there are 11 electoral districts and over 400,000 voters.

·

Members are elected for a fixed 4-year term.

The Roles of the

Federal Houses of Parliament

Lower house – the House of

Representatives

1. Makes laws

Most proposed laws or bills (and

all money bills) are initiated in the lower house. Any Member can introduce a

bill, but a member of the government introduces most.

2. Seat of government

The political party (or coalition

of parties) that has the most members in the lower house forms the government.

Its leader becomes Prime Minister and other Ministers are appointed from

among the party’s members.

COMPOSITION OF THE

HOUSE OF REPRESENTATIVES 12h DECEMBER 2013

Political party

No.

Total

Government

Liberal Party (The Nationals

and the Country Liberal Party)

90

90

Opposition

Australian Labor Party

55

55

Independents

2

2

Palmer United Party

1

1

Australian Greens

1

1

Katter’s Australian Party

1

1

TOTAL

150

150

*With 150 electorates,

a majority is 76.

If no one party holds an absolute

majority of seats, then the parliament is called a hung

parliament. In this instance, the

main political parties may seek the support of minor parties and/or

independents to form a minority government. This was the situation after the 2010 election

where the Labor government relied on the support of the Greens and the three

independent members of the House of Representatives.

3. Represents the

people

Often referred to as the People’s

House, the lower house reflects the current opinions and views of the people.

This is achieved through having sufficient members to represent all

Australians, that all votes by Australian voters are worth the same, and that

elections are held regularly so that members continue to represent the views of

the voters. Members may present petitions from citizens and raise citizens

concerns and grievances in debate.

Federal Cabinet

Cabinet

consists of the prime minister and senior ministers. The cabinet’s main role is

to decide on general government policy and to formulate proposed laws (known as

bills) to be introduced to

parliament

SOME FEDERAL

CABINET MINISTERS 2014

Prime Minister of Australia

Tony Abbott

Deputy Prime Minister

Warren Truss

Foreign Affairs

Julie Bishop

Immigration and Border

protection

Scott Morrison

Education

Christopher Pyne

Defence

David Johnson

Social Services

Kevin Andrews

Environment

Greg Hunt

Attorney-General

George Brandis QC

Trade and Investment

Andrew Robb

Treasurer

Joe Hockey

Upper House – The

Senate

1. State’s House

The Senate’s primary role is to

protect the interests of the State’s, and to ensure that laws are made in the

best interests of the whole community, not just those of the most populated

states. By giving all states equal representation in the Senate, the aim was to

protect the less populous states from being dominated in Parliament by those

states with a larger population. However, not long after Federation,

parliamentarians began to vote as members of political parties rather than

representatives of states.

COMPOSITION OF THE

SENATE DECEMBER 2013

Political party

No.

Total

Government

Liberal Party of Australia,

The Nationals and the Country Liberal Party

34

34

Opposition

Australian Labor Party

31

31

Minority Party

Australian Greens

9

9

Minority Party

Democratic Labour Party

1

1

Independent

1

1

TOTAL

76

76

*With 76 Senators a

majority is 39.

The

Liberal/National coalition holds 34 seats. However if the Australian Greens

vote with the ALP in the Senate the total of votes will be 40.

2.

House of Review

The Senate reviews legislation

passed by the House of Representatives. It can amend, or reject any proposed

law. This ensures that bills are scrutinised, and are not rushed through

parliament, and are not too radical. However, if the government also has the

majority in the Senate then it tends to act as a ‘rubber stamp’. Simply

affirming the decisions made in the lower house. If a minority party or an

independent controls the balance of power in the Senate, then they can have

significant power in demanding amendments to bills.

3. Initiation of Bills

Like the House of

Representatives, the Senate can initiate proposed laws, with the exception of

money bills, which can only originate in the lower house: however the Senate

can suggest amendments to these bills. Most bills are initiated in the House of

Representatives, because that is where the majority of ministers sit.

Roles of the

Victorian Houses of Parliament

Lower House - The

Legislative Assembly

· The

main role of this house is to make laws. Most bills are initiated in this

house. All legislation that raises government revenue through taxation and

spends government money MUST be introduced in the lower house.

·

Political party with majority in this house forms the government.

·

Like the lower house of the Commonwealth Parliament, the Legislative Assembly

represents the will of the majority of people.

Upper House – The

Legislative Council

·

It acts as a house of review for bills that have been passed through the

legislative assembly. It does this by scrutinising, debating and, on occasions,

amending or rejecting legislation that has been initiated by governments.

·

New bills can be initiated in this house.

·

How does the role of the

upper house of the Victorian parliament differ to the role of the lower house?

(2 marks)

Composition of

Victorian Parliament by political parties as at January 2014

Legislative Assembly

Legislative Council

Australian Labor Party

43

16

Liberal party

34

18

National party

10

3

Greens

0

3

Independent

1 (Geoff Shaw)

0

TOTAL

88

40

State Cabinet

Cabinet

consists of the premier and senior ministers. The cabinet’s main role is to

decide on general government policy and to formulate proposed laws (known as bills) to be introduced to

parliament

SOME STATE CABINET

MINISTERS 2014

Premier

Dennis Napthine

Deputy Premier

Peter Ryan

Multicultural affairs

Nicholas Kotsiras

Health

David Davis

Education

Martin Dixon

Crime prevention

Edward O’Donoghue

Public transport

Terry Mulder

Planning

Matthew Guy

Attorney-General

Robert Clark

Ports

David Hodgett

Treasurer

Michael O’Brien

Law making by subordinate authorities

The

commonwealth parliament and state parliaments do not have the time or expertise

to pass all the laws necessary for the running of the country. They, therefore

give some of their law-making power to subordinate authorities are experts in

their field and are more accessible to members of the public. They are

subordinate to the parliament they gave them the law-making power.

Parliament

passes an enabling act giving the subordinate giving the subordinate

authorities power to make laws. The parliament can take this away by repealing

the enabling act. The subordinate authority cannot make laws outside the

guidelines set out in the enabling act.

Other than

local councils, subordinate authorities are not elected, but their activities

are supervised by parliament to ensure that they do not go outside the power

given.

There

are four types of subordinate authorities.

You

are to copy the following into your notes.

1.

Statutory authorities

(p31)

2.

Government

departments (p32)

3.

Executive

council (p32)

4.

Local

councils (p32)

Statutory

Authorities:

Statutory authorities are bodies

that are created by an act of parliament to investigate and make regulations on

a specific range of issues; for example, the Environment Protection Authority,

which deals with waste disposal and environmental issues, gains its power from

the Environmental Protection Act 1970 (Vic.).

Australia post is a statutory

authority created under the Australian Postal Corporation Act 1989 (Cth)- The

Governor General may make regulations under this act.

Government

Departments:

The Government decides on the

general policies to be administered by government departments such as the

Department of Human Services. Some of the responsibilities of this department

include disability services, protecting vulnerable children, public housing,

youth programs and working with woman. Many regulations made by government

departments need the approval of the executive council.

Executive Council:

At a state level, the executive

council is made up of the state governor and relevant ministers and is known as

the governor-in-council. At a federal level, the executive council is made up

of the governor-general-in-council. Many acts of parliament give the executive

council the power to make regulations. The executive council makes many

regulations on behalf of statutory authorities and government department.

The

Graffiti Prevention Act 2007 (Vic.) creates graffiti-related offences and

provides search and seizure powers for members of the police force. Under this

act the executive council (governor-in-council) can make regulations in

relation to implements used in creating graffiti and the manner in which

searches and seizures can be conducted. These regulations will be created by

the appropriate government department and given approval by the executive

council.

Local Council:

Local councils make local laws

for their local area; for example, laws that relate to garbage collection and

local swimming pools. Each local area has different needs and local councils

are more aware of the needs of the people in their local area. Local councils

are also known as shire councils or municipal councils.

The Victorian Parliament, under the Local Government Act 1989 (vic),

gives 81 different local councils Victoria the power to make laws.

Law-making

through parliament

A Bill is a proposed law. A bill will become law

after it has been passed by both the upper and lower houses of parliament and

assented to by the Crown.

The

passage of a bill through parliament

A bill goes through various stages before it becomes law. These

are outlined below

Bill is introduced into either house of

parliament (except money bills which must

be introduced into the Lower House)

Original/first house: Initiation or introduction of the bill. The

member of parliament responsible for the bill will give notice of their

intention to present a bill.

First Reading

The long title of the bill is read out by

the clerk. This sets out in very broad terms the purpose or scope of the

bill. Copies of the bill are distributed to members of parliament and are

made available to the public on the parliaments website

Second Reading

The relevant member introducing the bill

makes a speech outlining the purpose, function and broad objectives of the

bill, called the second reading speech.

Members study the bill and its effect before speaking and voting on it. A

bill is then often referred to a committee for scrutinising.

Consideration in

Detail/Committee Stage*

An informal discussion of the bill takes

place where it is examined in detail, clause-by-clause, and amendments are

made and voted upon. This stage can be by-passed if the members agree that

the bill does not need to be examined in detail.

*Consideration in

Detail is the term used in the Lower House, and Committee Stage/committee of

the whole is used in the Upper House.

Third Reading

The long title is read again and there may

be some debate on the content of the bill.

Voting on the bill. If it passes the first house,

the clerk again reads the long title of the bill to signify that the bill has

finally passed the house.

Bill passes the first house, and proceeds

to the second house.

Second house

The bill goes through the

same procedure as original house:

•

Initiation and First Reading

•

Second Reading

•

Committee of the Whole/Committee Stage

•

Third Reading

•

Vote on the bill

Any amendments made in the

second house must be communicated to the first house, and the bill in its new

form needs to be passed in the first house. The bill must be passed in the

same form by both houses.

Certification

The Clerk of parliament certifies the bill

after it has passed through both houses of parliament.

Royal Assent

Bill is checked and signed by the queen’s

representative – the Governor- General (at federal level) or the Governor (at

state level)

Proclamation

Proclaimed in the Commonwealth of Australia

Gazette, and the date given of when the act will come into effect. (If not

stated, the act comes into operation 28 days after Royal Assent.

HEADING

SIX

principles

of criminal liability, including elements of crime, the presumption of

innocence, the burden and standard of proof, age of criminal responsibility and

participant crime.

Crime can be described as an act

or omission, which offends against on existing law, is harmful to an individual

or society as a whole and is punishable by law.

1.

Against an

existing law

2.

Harmful to

an individual or society

3.

Punishable

by law

Use pg40 of the text to

take notes on the above points

The principles of

criminal liability

Elements of crime

Generally, a person will only be

punished for a crime if the person understood when they committed the act it

was wrong. This accepted notion is expressed in the judge-made legal principle

of Actus non reum nisi mens sit rea. This

literally means ‘An act alone doesn’t make tyou guilty, unless you have a

guilty mind’

Generally for a crime to exit

there must be:

Actus reus Mens rea

| |

A guilty act A guilty mind

For example to be found guilty of

murder, the person accused must be shown to have caused the death (actus

reaus-wrongful act) and also to have intended to cause the death or to have

understood that the act was dangerous (mens rea- a guilty mind)

This

situation does not apply in all cases. Parliament has established strict liability in some criminal offences.

This

means that there is no necessity to prove intention to commit the crime (a

guilty mind) for a person to be found guilty. It is sufficient for the

person to have committed the act against the law.

·

Traffic

offences

·

Serving

tobacco products and liquor to under-age persons.

Types of crimes

Crimes can

be classified according to their seriousness

Summary

offences

Less serious criminal offences

requiring the accused to be tried before a Magistrate sitting without a jury.

(For example, serving liquor to under-age persons, driving with a blood

alcohol level at or over .05, failing to answer bail).

Indictable

offences

Serious criminal offences

requiring the accused to be tried before a judge and jury of 12 in a higher

court, after a committal hearing in a lower court has established that

sufficient evidence exists against the accused to warrant a conviction (for example,

murder, rape, theft, robbery).

Indictable

offences heard summarily

The less

serious indictable offences that are heard in the Magistrates’ Court are

known as indictable offences triable summarily. Indictable offences

that can be heard summarily include (obtaining property by deception where

the amount is less than $100,000, assault or intentionally or recklessly

causing injury.)

Provide

newspaper articles of each of the above types of crimes

Presumption of

innocence

According to the law, any person

accused of committing a crime is presumed innocent until proven guilty. This

principle is called the presumption of innocence.

The director of public prosecutions (DPP)

is responsible for bringing prosecutions in the County Court, Supreme Court and

High court on behalf of the state of Victoria.

Burden of proof

In criminal proceedings the prosecution has the burden of proving that the

accused is guilty. The accused is presumed innocent until proven guilty.

Standard of proof

In criminal trials the

prosecution must prove that the alleged offender is guilty of a crime beyond

reasonable doubt. If a magistrate or jury is not convinced ‘beyond reasonable doubt’ of the accused’s guilt,

the accused should be given the benefit of the doubt, and found not guilty.

In the Magistrate’s Court, a

magistrate decides on the verdict. In the County Court and Supreme Court, a

jury of 12 will make this decision and then the judge will sentence the

offender if required.

The jury must first attempt to

reach a unanimous verdict. If this is not

possible, a majority verdict consisting of

11 out of 12 is acceptable for criminal offences other than murder, treason and

Commonwealth offences.

If a unanimous decision or

majority verdict cannot be reached in a trial before a judge and jury, the jury

is said to be a hung jury. If there is a

hung jury the accused is free to go, but the Office of Public Prosecutions

(OPP) can decide at a later date to bring the accused to trial again.

Age of criminal

responsibility

·

It is

presumed that a child under the age of 10 cannot commit an offence. A child

less than 10 years cannot, therefore, be charged with committing a crime.

·

It is also

assumed that a child between the ages of 10 and 14 is mentally incapable of

committing a crime. This is known as the legal principle of doli incapax. This principle is can be overturned if

it can be shown that a child had mischievous disposition and knowledge that

what he or she was doing was wrong, e.g, in Sydney a child was charged with

manslaughter for the killing of a six year old playmate. The magistrate found

that the child did know that what he was doing was wrong.

Children as criminals

·

The Murder of James

Bulger

·

·

·

James Patrick Bulger (16 March

1990] – 12

February 1993) was a two-year-old boy from Kirkby, Merseyside, England,

who was abducted, tortured and

murdered by two 10-year-old boys, Robert Thompson (born 23 August 1982) and Jon

Venables (born 13 August 1982).[2] Bulger

disappeared on 12 February 1993 from the New Strand Shopping Centre, Bootle, while

accompanying his mother.

·

His mutilated body was found on a railway

line in nearby Walton on 14

February. Thompson and Venables were charged on 20 February 1993 with the

abduction and murder.

·

·

·

Thompson and Venables were found guilty of the murder of Bulger on 24

November 1993, making them the youngest convicted murderers in modern English

history. They were sentenced to custody until they reached adulthood, initially

until the age of 18, and were released on lifelong licence in June

2001. The case has prompted widespread debate on the issue of how to handle

young offenders when they are sentenced or released from custody.

· In March

2010, Venables was returned to prison for an unspecified violation of the terms

of his licence of release. In July 2010, he pleaded guilty to charges of

downloading and distributing child

pornography, and was given a sentence of two years' imprisonment.

·

The Death of Corey

Davis..... Murder or manslaughter??

·

In

March 1998, Corey Davis, aged 6, was found drowned in the Georges River at

Macquarie Fields, Sydney, NSW. Corey had been thrown in the river by an older

boy aged 10. Senior NSW Children’s Magistrate Stephen Scarlett found initially

that the evidence was insufficient to justify a trial before a jury of the NSW

Supreme Court, citing the unreliability of the two prime witnesses, both aged

6, as well as the unease at the concept of a 10 year old being on trial for

manslaughter. The DPP, however, directed the boy be charged ex officio and

stand trial for manslaughter. A Supreme Court jury subsequently found the boy

not guilty.

In 1998, in the UK, the doli

incapax was removed as a

direct response to the Bulger case, where popular emotion, media sentiment and

political will all came together with the same response: those who commit such

acts are NOT children. The child who by his/her actions

has forfeited the legal protection of childhood and as such is seen to require

a different set of responses from the legal system.

Heading 7 Crimes

against the person and related defences

Offences against the person include murder, attempted

murder, manslaughter, culpable driving, rape and assault.

Homicide

Homicide is the killing of a person. Murder, manslaughter,

defensive homicide, infanticide are unlawful homicides.

The word homicide comes from two Latin words: Homo meaning ‘man’ and cide meaning ‘kill’.

Murder (imprisonment for life)

Murder is the

unlawful killing of another person with malice aforethought, by a person who is

of the age of discretion (10 years old and over) and of sound mind.

For a person to be found guilty

of murder the prosecution must prove the following elements of murder.

·

The killing was unlawful – this distinguishes murder from

lawful killing such as the use of the death penalty, killing in self-defence

and a solider killing an enemy solider in battle.

·

The accused was a person over the

age of discretion – the accused

must be at least 10 years of age. The law presumes that people under 10 are

incapable of forming the intent to commit a crime

·

The victim was a human being

·

The accused was a person of sound

mind- The

accused’s actions must be voluntary, conscious and deliberate. A person who has

a mental disability may not be sound of mind.

·

The accused caused the victims death

– the

accused actions must contribute significantly and substantially to a person’s

death. There must be a causal link between the accused’s actions and the death

of a victim.

·

Malice aforethought existed- Malice aforethought is the

intention to commit a crime (a guilty mind or ‘mens rea’). For malice

aforethought to exist, the accused must have acted voluntarily and have one of

the following states of mind.

Unintentional killing in the process of committing a violent

crime- A person who has no intention to kill, but does kill in the process.

CASE STUDYS P48-49

CASE STUDY ONE:

This is murder because we can

assume the accused is over the age of discretion and had a sound mind. Malice

aforethought exists in the term of reckless indifference, because if you stab

someone with a knife it can be assumed you mean to seriously injure or kill the

other person.

CASE STUDY TWO:

The quote from the judge leads us

to believe that the accused was of sound mind, and that malice aforethought

existed in the intention to kill. It is suggested through evidence that the

motive (whilst unclear) was robbery and sexual gratification. The man was 38,

human, caused the death and the murder was unlawful.

Q6

a) Reckless indifference

b) An intention to kill

c) Intention to inflict serious

injury

Q7

a) He was shot in the back by Donald

Alock

b) Robbery, the want to steal

$40,000 of honey from the victim

c) He intended to inflict serious injury

him which gives us malice aforethought

Causation

In respect of an offence of

murder or manslaughter, the accused’s act must have caused the victim’s death.

There must be an unbroken link (causal chain) between the act of the accused

and the death of the victim.

If the accused shoots the victim

and the victim falls down and dies as a result of the gunshot, then there is a

clear unbroken link between the act of the accused and the death of the victim.

If something intervenes to break the link, then the accused may not be found

guilty of the murder of the victim, but could be charged with assaulting the

victim.

For example, Mavis strikes Keith

and leaves Keith unconscious under a tree. Minutes later lightning strikes the

tree, a branch falls, and kills Keith. The lightning represents a break in the

causal link.

Taking

your victim as you find them

It is a general principle that an

offender must ‘take their victim as they find them’. If the victim dies as a

result of injury inflicted by the offender because of an unexpected

vulnerability (such as recovering from a head operation), the causal link is

not broken by the vulnerability. The offended will be seen to have caused the

death of the victim and therefore be liable for the charge of murder, if malice

aforethought exists, or murder.

Attempted

murder (25 years imprisonment)

If a person plans a murder and

their attempt fails then he or she can still be charged with attempted murder.

For a person to be found guilty of attempted murder, the person must be shown

to have:

·

Intended to

commit murder

·

Believed

that the murder was to take place

·

Been more

than merely preparing to commit the murder

·

Been

immediately, and not remotely, connected with committing the murder.

Complete learning

activity 2.5 Q1B on p56

Manslaughter

(20 year imprisonment)

Manslaughter applies in

situations where death occurs as a result of criminal negligence or an unlawful

and dangerous act. A person may be charged if their actions fall within these

two categories.

1. Criminal

negligence- The accused

must owe a victim a duty of care. The accused’s actions (or inaction) must fall

below the standard of care that a reasonable person would

have e

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