Rule and Purpose of Law
Give an example of a rule vs a law
Various
Name one of the modern day applications to Customary Law
Land (native title)
Hunting and fishing rights
Family law
Explain the difference between Binding and Persuasive Precedent.
Binding precedent: a precedent is ‘binding’ when it is made by a superior court located higher in the court hierarchy. For example, a decision handed down by the Queensland Court of Appeal is binding on the District Court of Queensland in circumstances where the facts are substantially the same.
Persuasive precedent: precedent that a court may, but is not required to, rely on in deciding a case.
Explain the difference between Original and Appellate Jurisdictions
1.Original jurisdiction
Cases which commonly are heard for the first time at that level in the court structure
2.Appellate jurisdiction
Authority to hear cases brought on appeal from a lower court in the hierarchy
What is one difference between murder and manslaughter.
Intent for Murder or Punishments (less for manslaughter)
Define Rule of Law
the doctrine that all people are equal before the law and that the government is subject to the law.
Define Statute Law
law created and passed by a legislative body.
Explain the Division of Powers between the Commonwealth and the State including an example of each.
Exclusive powers – law making powers that can only be exercised by the Commonwealth of Australia. For example, the Commonwealth Parliament can only make law about immigration.
Concurrent powers – law making powers that are shared by the State and Commonwealth Parliaments. If an inconsistency was to arise between a State and Commonwealth law, the Commonwealth law prevails. For example: both Federal and State Governments collect Tax from citizens
Residual powers – powers that the states had as colonies before 1901 are preserved, unless exclusively taken away by the Constitution For example: States oversee education and health (QLD)
List the Queensland Court Hierarchy
Magistrates Court
District Court
Supreme Court
High Court
What are the two types of criminal offences?
Provide one example of each.
Summary offences include:
Indictable offences include:
List two objectives of laws
• support society to function effectively and create structure
• protect the community and keep people safe
• punish people who have broken the law
• compensate people who are wronged by others
• reflect a society’s morals, beliefs or values
• ensure the health, safety and wellbeing of people
• make sure that people, organisations or the government are not able to abuse their power
• promote an individual’s rights and freedoms
• create a legal relationship or make clear the rights and obligations of individuals, organisations or governments.
Define Common Law
a body of law based on judicial decisions that has been developed over time.
Describe who makes up two of the three difference arms of government in Australia including and their role.
1.Legislative power
- King (Governor-General), Senate, House of Reps (Parliament)
- makes, amends and repeals statute law
2.Executive power
– King (Governor-General), Ministers headed by the Prime Minister
- Puts law into action through government agencies
3.Judicial power
- The Courts and Tribunals
- interpretation of law
Describe how a judge would interpret statutes
A judge will examine the Act as a whole,
Specific sections that set out the definitions
Other primary materials such as Explanatory Notes that set out the objective(s) and purpose of the Act
Any other relevant materials or laws that might help.
What are the rights of suspect during questioning by police?
Right to remain silent. Except has to answer:
Name and Address
Date and Place of Birth (only in drug cases)
List 3 principles of rule of law
There be a presumption of innocence
There be a free press
All have access to justice
Courts are free from actual or apparent bias
Law does not discriminate between people unfairly
Due process be observed
Law is clear, certain, known and accessible
The judiciary be independent
Law reflects relevant international laws
Law and decision making occur in an open and transparent environment
There must be the ability to question, seek review of, or be critical of the government
Separation occurs between the bodies that make, administer and interpret the law
Define the Constitution
´Set of rules that specify the powers, responsibilities and roles of the governing bodies within a state or a country
Are the Arms of Government truly separate?
Australia does not have a complete separation of powers because:
´The Prime Minister, ministers and the Governor-General are part of the Executive and the Parliament.
´High Court judges, the Prime Minister and ministers are appointed by the Governor-General, who is part of the Parliament and the Executive.
Explain the judges role in the Inquisitorial System including one advantage and disadvantage.
In an inquisitorial system the judge:
•supervises or directs the police investigation
•determines which witnesses are called, the order in which they are to be heard and can question the parties directly
•plays a central role in deciding what issues are important and what evidence should be presented at trial
•makes all the legal and factual decisions, including the question of the guilt of the accused (there is no jury)
•does not rely on judicial precedent as much (leaving them free to decide each case independently).
Advantages
•Inquisitorial system promotes active involvement of the judge in gathering and assessing evidence.
•Allows for a more streamlined and efficient legal process compared to the adversarial system.
•Reduces the need for intense legal representation, making it more accessible.
•Aims to uncover the truth more effectively by emphasizing thorough investigation and inquiry.
Disadvantages
•It puts a great deal of power into the hands of a single judicial officer. If a judge is ignorant of a particular fact, does not attach much weight to a piece of evidence or has a bias, it will impact the outcome.
•There is a lack of separation between the prosecution, the police and the judicial officer.
•The passive role played by the lawyers in this type of process may mean that a defendant is disempowered and, coupled with the fact that a defendant does not have a right to silence, unable to defend themselves adequately.
Name 5 different types of evidence that can be used in an investigation of a crime.
Oral Evidence, Crime Scene Evidence, Fingerprint Evidence, DNA Evidence, Facial Recognition
List four characteristics of an effective law.
The Law should be known and have certainty
The Law should be prospective (not retrospective)
The Law must be acceptable to the community
The Law should apply equally to all
Law should be capable of being enforced
Describe the process of changing the constitution.
STEP 1: The proposed change must be passed by a majority (over 50%) in both Houses of Federal Parliament.
STEP 2: Over 50% of Australian voters must vote in favour of the change.
STEP 3: A majority (4) of the six states must each have over 50% of voters in favour of the change
Explain how a new law is created in federal parliament.
1. Bill – draft form of new legislation introduced into Parliament
2. First reading – introduce bill, give it's a long title and a brief statement about its purpose
3. Second reading – detailed discussion of the bill – may involve opposition attempts to amend it
4. In committee – detailed examination of each section of the Bill including wording
5. Third reading – Long title of Bill read again, and vote taken – majority required for Bill to be passed.
6. Process is repeated in the Upper House (not in Qld)
7. Royal Assent – Governor or Governor-General signs the Bill – it becomes an Act of Parliament and once gazetted it takes effect as a law.
Explain the judges role in the Adversarial System including one advantage and disadvantage.
Judges in an adversarial system ensure impartiality and fair play by upholding due process and fundamental justice.
Judges have the authority to make decisions on points of law and determine the admissibility of evidence in accordance with the rules of the court.
Judges act as umpires and referees, maintaining order in the courtroom and ensuring that both parties have an equal opportunity to present their arguments and evidence.
Advantages
•Each party is in control of his or her own case
•An impartial decision maker (a judicial officer or jury) that decides the outcome
•Independent judge who ensures the trial is conducted in a fair and just manner
•Evidentiary and procedural rules to protect both parties and ensure a fair hearing
•High standard of proof provides confidence and certainty in the verdict
Disadvantages
•Adversarial system is combative, with both sides striving to win.
•Can be slow and cumbersome due to the application of evidentiary and procedural rules.
•Relies on legal representation, which can be expensive and inaccessible for remote parties.
•Despite safeguards, miscarriages of justice or errors can occur.
•Depends on ethical investigation and adherence to the law to avoid wrongful charges or unfair trial outcomes.
Explain the two different forms of evidence and provide two examples of each.
Direct Evidence - First hand observations (eye witness accounts, videos, confessions)
Circumstantial Evidence - Indirect evidence that can be used to imply a fact but does not directly prove it (Finding weapons, clothes etc linked to a crime)