Legal_Studies

Legal Revision – Unit 3/4 AREA OF STUDY 1 the principles of the Australian parliamentary system: representative government, responsible government, the principle of separation of power Representative Government • Governments are chosen by the people • Governments stand for the views of the people (majority thereof) • Regular elections are held to ensure that the government remains representative of the voting public Responsible Government • If the government loses the support of the lower house it must resign, hence the government is responsible to parliament. The parliament, voted for by the people, is therefore in return responsible to them • Ministers are responsible to parliament and therefore to the people; ministers can be called upon to explain in parliament their actions and those of the department/agencies under their control, known as ministerial accountability • Ministers are answerable for any problems that occur within their department • MPs have the opportunity to question ministers about their actions (question time) o Dorothy Dicks questions (waste of time') • Ministers must carry out their duties with integrity and propriety or resign Separation of Powers (Under the Constitution) • Legislative Power – Law-making power vested in the Commonwealth Parliament under S1 of the Constitution • Executive Power – Power to administer laws and manage the business of government is exercised by the Governor General, but in practice it is the PM and ministers who exercise this power • Judicial Power – Power to enforce laws and settle disputes outlined in S71 of the Constitution; judges through the courts carry out this role • Separation of Powers principle protects the stability of the government and the freedom of the people, provides independence between the bodies that make the law and the bodies that enforce it, and provides a check on the power of parliament to ensure that it does not go outside its area of power • The main reason we have the Separation of Powers is so nobody has absolute power, however in practice both Legislative and Executive Powers are exercised by the government the structure of State and Commonwealth Parliaments Structure of Commonwealth Parliament • Queen’s Representative – Governor General, appointed on advice from the PM • Senate (Upper House) – 76 members (39 for majority), 12 per state, 2 per territory • House of Representatives (Lower House) – 150 members (76 for majority), elected from geographic electorates based on population Structure of Victorian Parliament • Queen’s Representative – Governor, appointed on advice from the Premier • Legislative Council (Upper House) – 40 members (21 for majority), 5 per 8 eight regions • Legislative Assembly (Lower House) – 88 members (45 for majority), elected from geographic electorates based on population the roles played by the Crown and the Houses of Parliament The Role of the Crown • Represented by Governor General and six Governors • Constitution states executive power is vested in the Queen and exercisable by the Governor General • Governor General appoints a federal executive council, which has the power to establish government departments, appoint ministers and approve delegated legislation. In practice however the Governor General acts in these matters on the advice of the PM • Governor General is responsible for designating times of parliamentary sessions, bringing those sessions to a close and dissolving the House of Representatives to bring about an election • Royal Assent – Governor General and Governors’ main role is to give royal assent to acts of parliament o Governor General has the power to withhold royal assent in some circumatances, however in 1986 the Australia Act 1986 (Cth) withdrew this power from the state governors • Reserve Powers – Queen’s representatives hold reserve powers that can be exercised without the advice of the PM and Cabinet. They were originally intended to be used to protect Britain’s interests. The 1975 dismissal of the Whitlam government by Sir John Kerr is an example of reserve powers • Executive Council – Queen’s representatives are responsible for making delegated legislation, while acting in council with relevant ministers The Role of the House of Representatives • To initiate new laws • To determine the government • To represent the people • To publicise and scrutinise government administration • To control government expenditure The Role of the Senate • To initiate new laws, although can’t initiate or amend money bills • Can recommend amendments to other bills from the lower house • “States’ House” as there is equal representation from all states; this is intended to protect each states’ interests • “House of Review” as the majority of bills are initiated in the lower house, the Senate most often has the task of reviewing (questioning/debating/scrutinising) the bills already passed through the House of Representatives The Roles of the Legislative Council and the Legislative Assembly are similar to those of the Senate and of the House of Representatives respectively. the legislative process outlining the progress of a bill through Parliament Progress of a bill through parliament • Original House o Initiation – relevant member gives notice of intention to present a bill o First reading – long title read out by clerk, copies given to members o Second reading – relevant member makes a speech on purpose and function of the bill, bill often referred to a committee for scrutinisation, second reading debate occurs beginning with opposition response, vote taken on whether to persist with the bill o Consideration in Detail/Committee Stage – Speaker/President leaves, replaced by Chairman of Committees, informal examination clause-by-clause, amendments can be made o Adoption of committee report – Speaker/President returns and requests the parliament accept the committee’s report o Third reading – long title is read again, perhaps some more debate, a vote, and if bill passes the first house the clerk once again reads out the long title to signify this • Second House o Same procedure as above, however any amendments made must be communicated to the original house, and the bill must be passed by both houses in identical form • Clerk of parliament certifies the bill • The governor or governor general gives Royal Assent to the bill • Proclamation – act comes into operation on a date stated in the act or on a day proclaimed by the Queen’s representative in the Government Gazette. If not otherwise stated, the act comes into operation 28 days after being assented to. reasons laws may need to change, using examples to illustrate Changing values and attitudes in society • Statute Law Amendment (Relationships) Act 2001 – recognises same sex couples in areas of probate, health and ownership of property Changes in society • Shop Trading Reform Act 1996 (Vic.) – deregulates shop opening hours Advances in technology • Prohibition of Human Cloning Act 2002 (Cth) Protection of the community • Working With Children Act 2005 (Vic.) – ensures people working with children have had their suitability checked Protection of Rights • Do Not Call Register Act 2006 (Cth) Access to the Law • Victorian Civil and Administrative Tribunal Act 1998 (Vic.) Generating further changing values in society • Equal Opportunity Act 1995 (Vic.) – makes it unlawful to discriminate against people with diseases the role played by a formal law reform body in assessing the need for change; for example, the role of: – Victorian Law Reform Commission Role of the Victorian Law Reform Commission • To make recommendations for law reform on matters referred to it by the attorney general of Victoria • To make recommendations on minor legal issues of general community concern (not referred by the attorney general) • Suggest to the attorney general that he/she refer a law to the commission • Educate the community on relevant areas of the law • Monitor and co-ordinate law reform activity in Victoria VLRC General Process • Research • Drafting • Consideration of interest groups and general community • Final draft • Publication of report • Tabling of report in the Victorian parliament Inquiry – Defences to Homicide • Referred in 2001, regarding reform of homicide defences and murder and manslaughter trial processes and sentencing, recommendations tabled in parliament on 18 November 2004 • Final Recommendations of VLRC report: o Abolition of provocation as partial defence, still factor in sentencing o Codification of the law of self-defence and other homicide defences o Reintroduction of partial defence of excessive self-defence o Introduction of defences of duress and extraordinary emergency o Retention of infanticide as an offence o Retention of defence of mental impairment • Defence of provocation abolished in Crimes (Homicide) Act 2003 (Vic.), however may still be taken into account at sentencing the means by which individuals and groups participate in influencing change in the law Demonstrations and protests • 30 November 2006 – protests in all capital cities against new I.R. laws • People of Mildura protested on steps of parliament in 2004 against a toxic waste dump Defiance of the law • 1980s – Frank Penhalluriack opened his hardware store on Sunday, served jail time but influenced change in the law by 1996 Petitions to government • Must be presented to lower house by an MP, and be within law-making jurisdiction • Hazardous Waste: Lyndhurst, presented on 27/02/07 Lobbying • Requests to MPs to influence a change in the law • Bruce Clark campaigned for it to be illegal for an adult to give a minor alcohol without parental permission Media • Much publicised death of doctor and cancer sufferer John Elliot, who ended his life in Switzerland • Neil Mitchell (3AW) campaigned for compulsory reporting of child abuse, and Four Corners and The Age Newspaper prompted the government to commission Mr. Justice Fogarty to look into the operation of child services Private Member’s Bill • Any bill that doesn’t go through government meetings (that is, through cabinet) • Democrats Andrew Bartlett and Natasha Stott-Despoja in June 2006 proposed a bill to allow for same-sex unions in Australia, however it was unsuccessful Role played by courts in influencing changes in the law • Courts can only influence/change law when a case comes before them and only relating to issues of that case • Individuals can take a matter to court and pursue it to a high enough court so a point of law is clarified or established • Parliament can pass an act which overrules the common law decisions made in courts • Courts can influence change in the law by stating that there should be a change, rather than overruling a precedent through obiter dictum the strengths and weaknesses of law-making through Parliament |Strengths |Weaknesses | |Parliamentary Structure | |The system allows the government to act on their mandate to make |Parliament could be seen as a “rubber stamp” as party | |laws, effectively and efficiently, as party discipline ensures bills|discipline ensures that government bills pass through the | |become laws quickly, and that the government can govern |lower house (and upper house if controlled by the government) | |The upper house provides a forum for scrutiny of bills passed by the|The upper house can block bills passed in the lower house, | |lower house (government) |which could be seen as an intrusion on the government’s | | |mandate to the public | |Passing of bills can be delayed for public debate and consideration |There is no compulsion to ask the public for consideration | |As a representative body, parliament has supreme law-making power |Economic viability and political consequences of some laws can| |(only restricted by the Constitution) which enables them to make |prevent parliament from making laws in the public interest | |laws in any area and in the public interest | | |Parliament is a “representative” body, and therefore would reflect |There are limits to the extent that parliament is truly | |community values |representative; voting restrictions, voting systems, time span| | |between elections | |Legislative Process | |Able to change the law when the need arises |There are Constitutional restrictions on what areas of law can| | |be made or changed, economic viability is a consideration, and| | |a hostile upper house can hinder this ability | |An elected body, representing the people |There are conflicting views within the community, so | | |parliament cannot be completely representative, also | | |legislation may become outdated | |Well resourced to “investigate” an area of law | | |Able to conduct focused investigation into a whole area of law |Parliament sits for a limited number of days and time for | | |debate is limited | |Able to delegate law-making power to expert bodies |Subordinate authorities are not elected by the people – too | | |many bodies making laws' | |Provides an arena for thorough debate and scrutiny on bills and |Parliament sits for a limited number of days and time for | |other issues |debate is limited | AREA OF STUDY 2 the division of power between State and Commonwealth Parliaments under the Commonwealth Constitution: explanation and examples of specific, concurrent, exclusive, residual powers and the impact of Section 109 ***Commonwealth of Australia Constitution Act 1900 (UK)*** Specific Powers • Powers referred to in the Constitution specifically; these mainly appear in S51 and are numbered hence they are also referred to as enumerated powers, or the heads of power • E.g.: (ii) Taxation, (xxi) Marriage Exclusive Powers • Can only be exercised by the Commonwealth Parliament • Listed in S51 but are made exclusive by other clauses in other sections of the Constitution • E.g.: S51 (xii) Currency, coinage and legal tender, but S115 states that the states shall not coin money • E.g.: S51 (iii) Customs and excise, but S90 states that this power is exclusive Concurrent Powers • Powers in the Constitution that may be exercised concurrently by both the Commonwealth and state parliaments • E.g.: Taxation is given to the Commonwealth Parliament, but states can also collect taxes such as stamp duty S109 • Under S109 of the Constitution, if there is a conflict between state and Commonwealth legislation in an area of concurrent law-making power, the Commonwealth law will prevail • E.g.: Infertility Treatment Act 1995 (Vic.) states that in order to receive the treatment, a woman must be married or in a de facto relationship, however the Sex Discrimination Act 1984 (Cth) states that it is illegal to discriminate against a person in the area of marital status Residual Powers • Powers not listed in the Constitution that fall to the states to legislate; these powers were not given to the Commonwealth at federation • E.g.: criminal law, education and public transport are not listed in the Constitution and are therefore residual powers • The Constitution protects the power of the states: o S106 – The constitution of each state of the Commonwealth shall remain … until altered o S107 – Every power of the states shall continue unless exclusively given to the Commonwealth or withdrawn from the states o S108 – Every law in force in the states shall remain in force restrictions imposed by the Commonwealth Constitution on the law-making powers of the State and Commonwealth Parliaments Restrictions on State Power • States are restricted in their law-making by the exclusive powers of the Commonwealth Parliament o E.g.: S114 – States can’t raise an army o E.g.: S115 – States can’t coin money • S109 (see above) also restricts the states’ power Restrictions on Commonwealth Power • Not permitted to make laws regarding residual powers not mentioned in the Constitution • Specific Restrictions o S116 – Freedom of Religion o S117 – Equal Rights of Residents of States o S99 – No Preference of one State over Another o S128 – Changing the Constitution • Principle of Separation of Powers o Is a restriction in that the Commonwealth cannot form a body which combines the judicial and legislative powers • High Court Rulings o Placed a ruling on the Commonwealth Parliament which makes it unable to make laws which restrict the “freedom of political communication” the process and impact of change by referendum under Section 128 of the Commonwealth Constitution Referendum • A compulsory vote on a proposed change to the wording of the Commonwealth Constitution • Firstly, however, prior to a referendum the Commonwealth Parliament must first pass (approve) the proposed change • A successful referendum is the only mechanism for changing the words in the constitution, however, a high court ruling may alter the operation and/or interpretation of the constitution Procedure • Both house must pass the alteration bill (however the Governor General may submit the change to the people if passed by one house twice) • Proposed change must be put to the people not less than 2 months and not more than 6 months after the bill is passed by Parliament • Referendum is submitted to all electors required to vote for House of Representatives elections • Referendum questions must be framed in a way that requires a ‘yes’ or ‘no’ response • A double majority is required for it to be successful o Greater than 50% of the overall vote, PLUS o A majority of states (4 or more) must pass the proposed change • Once a referendum is passed it is brought before the Governor General for Royal Assent ***Total Referenda held in Australia: 44 – Total Rejected: 36*** Impact of change by referendum: • Results in changing the wording of the constitution • Usually the change provides greater law-making power for the Commonwealth Parliament, and therefore may reduce state law-making power under S109 • Example of change: Compulsory Retirement of Judges 1977 • Example of rejection: Republic of Australia/Constitution Preamble 1999 the significance of High Court cases that interpret the Commonwealth Constitution and their impact on the law-making powers of the State and Commonwealth Parliaments High Court interpretations of the Constitution • High Court determines the day-to-day operation of the constitution, because it is the institution which provides interpretation and meaning to the words in the constitution • Through its interpretation it can resolve disputes between the Commonwealth and state parliaments • In its findings, the High Court can change the balance of power between the Commonwealth and state parliaments. Usually, but not always, High Court interpretations have resulted in the Commonwealth assuming greater law-making • S71 – Outlines the establishment of the High Court • S75 and S76 – Outline the jurisdictions of the High Court South Australia v. Commonwealth of Australia (1942) – First Uniform Tax Case • WWII – there was a need to co-ordinate concurrent powers and government functions • Commonwealth passed a number of acts implementing schemes, one of which declared a new income tax for all Australians, which conflicted with a South Australian income tax • The High Court ruled the South Australian tax law invalid under S109 of the Constitution (see previous) • Hence the balance of legislative power shifted towards the Commonwealth Parliament • Also, the High Court precedent effectively made it impossible for the states to levy income taxes The Commonwealth of Australia v. The State of Tasmania (1983) – The Franklin Dams Case • Commonwealth Parliament passed the World Heritage Properties Conservation Act 1983 to prevent excavation of Gordon and Franklin Rivers, Tasmania for a dam • Act protects the cultural and natural heritage of the area, suggested by the UNESCO convention • Tasmania claimed Commonwealth had no jurisdiction to do so, as it was an area of residual power • High Court ruled that under S51 (xxix) – external affairs – the Constitution grants the Commonwealth the power to make laws to fulfill Australia’s obligations under international treaties, and therefore that the act was valid • Impact was of extension of the meaning of the external affairs power to include upholding international treaties, expanding the Commonwealth’s power • As Commonwealth was now able to legislate in an area of residual power, the balance of power shifted away from the states the protection of democratic and human rights by the Commonwealth Constitution Democratic Rights • Rights that arise out of living in a democratic system • Protect our ability to participate in the political process • E.g.: Right to Vote Human Rights • Rights that relate to the dignity and well-being of the individual • E.g.: Right to Food, Water, Shelter, Healthcare, etc **There are four main ways in which our democratic and human rights are protected** 1. Common Law • Right to Silence • Right to Own and Enjoy Property 2. Statute Law • Equal Opportunity Act 1995 (Vic.) • Charter of Human Rights and Responsibilities 2006 (Vic.) 3. International Treaties • 1948 Universal Declaration of Human Rights 4. Entrenched Rights (Express Rights) • S116 – Freedom of Religion • S92 – Free interstate trade and commerce • S117 – Not to be discriminated against on the basis of the state where you reside • S51 (xxxi) – Receive “just terms” when property is acquired by the Commonwealth • S80 – Trial by jury for indictable Commonwealth offences Freedom of Religion – S116 • Constitution provides that the Commonwealth Parliament cannot pass a law which: o Establishes a state religion o Imposes any religious observance o Prohibits the free exercise of any religion o Requires a religious test as a requirement for holding any Commonwealth office 4. Implied Rights • The term ‘implied’ means that the words are not actually written in the constitution. However, the right exists because the High Court has made a ruling, based on interpretation of sections of the constitution, that an implied right exists and to uphold that right Implied Right of Freedom of Political Communication • Australian Capital Television v. The Commonwealth (1992) o Commonwealth legislation banned political advertising on radio and television during election periods o The laws allowed some advertising to already elected MPs, but none to anyone else who had a political comment to publicise o High Court held that the legislation was invalid because it contravened the implied right of freedom of political communication o Judges main reason was that it did not uphold representative government • Lange v. Australian Broadcasting Corporation (1997) o Clarified the implied right further, confirming that Commonwealth, State and Territory legislation, and common law must conform to the freedom of political communication to uphold representative and responsible government The Right to Vote • Universal suffrage not expressly guaranteed by the constitution • S7 and S24 provide that the House of Representatives and the Senate will be chosen directly by the people • High Court judges have stated in obiter dictum that if groups were discriminated against in determining their right to vote, then this would be unconstitutional as the houses would not be “chosen by the people” Enforcement of Rights • Express rights are guaranteed by the constitution and upheld by the High Court – only an amendment to the Constitution (referendum) can remove these rights. The High Court will rule that laws that breach express rights are hence invalid • Implied rights are not mentioned/guaranteed by the constitution but are protected by High Court Precedent a comparison with the approach adopted for the constitutional protection of democratic and human rights in one of the following countries: United Kingdom, United States of America, Canada, New Zealand or South Africa |U.S.A. |Australia | |Similarities | |Many rights entrenched within Constitution – some |Some rights entrenched within the Constitution | |similar to Australia | | |Rights can only be removed by amending the |Entrenched rights only removed through referenda under S128 | |Constitution (complex procedure) | | |US Supreme Court has found the Constitution |Australian High Court has found the Constitution contains an implied right of | |contains implied rights |freedom of political communication | |E.g.: Griswold v. Connecticut (1965) and Roe v. |Australian Capital Television v. The Commonwealth (1992) and Lange v. | |Wade (1973) – implied right to privacy |Australian Broadcasting Corporation (1997) | |All rights are fully enforceable by the Courts |Protected rights are fully enforceable by the Courts | |Separation of powers acts as a safeguard to abuses |Separation of powers acts as a safeguard to abuses of power | |of power | | |Differences | |Procedure for amending the Constitution is complex |Referenda take place on one day, with the vote determining success | |and lengthy | | |List of entrenched rights is extensive |There are only five entrenched rights and one implied right in the | | |constitution, and most democratic and human rights are protected under common | | |law and legislation | |Executive, Legislative and Judicial bodies are |Executive and Legislative bodies, in practice, are combined | |completely separate | | |Voting is not compulsory |Voting is compulsory | **The founding fathers of the United States of America included a Bill of Rights to the Constitution, entrenching a number of rights, initially ten. There are currently twenty-six amendments to the Bill of Rights, providing strong constitutional protection for many rights. The founding fathers of Australia decided not to include a Bill of Rights in the Constitution. A bill of rights is difficult to keep up to date and fresh (e.g. in USA, the right to bear arms), the entrenched rights within would be difficult to change with a conservative Australian electorate, and human rights enforced by legislation are more easily maintained/changed** AREA OF STUDY 3 the operation of the doctrine of precedent and the ability of judges to make law The Operation of the Doctrine of Precedent (Good answer) • The doctrine of precedent, also known as stare decisis (‘to stand by what is decided’) is the process of courts following the decisions of others. • There are two types of precedent – binding and persuasive. • Binding precedents must be followed if material case facts are similar, persuasive precedents do not. • Binding precedents are decisions of courts that are higher in the same hierarchy relative to the court in which a current case is being decided. • If the judge deems the material facts of the current case and the precedent case to be sufficiently similar, he is bound to follow the decision made in the precedent case. • It is the ratio decidendi (‘reason for the decision’) that forms the binding part of the precedent. • Persuasive precedents can be decisions made by other courts in other hierarchies, be they interstate or international, or by courts at the same level or lower in the hierarchy relative to the court in which a current case is being decided. • Statements made by judges that do not form part of the ratio decidendi, known as obiter dictum, can also be used as persuasive precedents. • Persuasive precedents can be influential on a judge’s decision, but a judge is by no means bound to follow them. Ways of treating previous precedents • Distinguishing o Judges may find a difference in material facts between the precedent case and the present case and can therefore decide that the court is not bound by it • Overruling o A superior court can decide not to follow a precedent set in a lower court, thus creating a new ratio decidendi and therefore a new, overruling precedent • Reversing o Where a superior court alters the decision regarding a case on appeal from a lower court • Disapproving o Where the judge is bound to follow the precedent and does so, but makes statements in obiter dictum pertaining to their disapproval of the precedent Judges’ ability to make law • Cases need to be brought before a superior court for a judge to actively shape the law o A person needs to be wronged/aggrieved for the court system to rectify the issue with the legislation • Judges are bound by precedent • Differences in judgments in similar cases may also emerge, making it difficult to establish a clear precedent • Courts can only ‘fill a gap in the law’ when a case is brought before them • For a precedent to be set it usually needs to be taken to a higher court on appeal (which can be expensive and prohibitive) • Courts make law ex post facto, and while this can provide a fair result for the affected party, a defendant may have acted within the law at the time of the incident • There is no real limit to the extent of “creativity” that judges can exercise, either through the creation of precedent or through statutory interpretation (at the highest level, that is) statutory interpretation and the reasons for the interpretation of statutes Statutory Interpretation • Process by which judges interpret the words/phrases in an act of parliament (statute) • Need for interpretation when a case is brought to a court in which there is a dispute about whether the words in an act apply to a situation • For future cases, the act and the precedent, which was created by the court when interpreting the act, are read together and form the law • Acts are written to cover all situations, but it is impossible to be specific enough to do so, thus the need for interpretation and application Statutory Interpretation as a means of law-making • Deing v. Tarola (1993) – The Studded Belt Case o Man charged with possessing a regulated weapon under Control of Weapons Regulations 1990 (Vic.) o The ‘weapon’ was a black leather belt with raised silver studs, which was holding up his trousers o Supreme Court Justice Beach held that a studded belt used as an article of clothing is not a weapon, although it could be used as one o Restricted the definition of ‘weapon’ to those things likely to be used for an offensive or aggressive purpose only Reasons for statutory interpretation • Most legislation is drafted in general terms – but has to be applied to specific circumstances • Meaning of the words may be ambiguous o Davies v. Waldron (1989) – does “starting the car” mean “attempting to drive” o Grace v. Fraser (1982) – does “driving” include not actually being behind the wheel' • Mistakes can occur during the drafting of an act – parliamentary counsel may make mistakes when drafting a bill o S51 of Crimes Act 1958 (Vic.) • Deals with sexual exploitation of people with impaired mental functioning – a witness was required to support the victim’s evidence before prosecution • It is unlikely that there would be a witness to such acts, so no prosecutions were brought • Act has since been amended – a witness is no longer required • The meaning of words can change over time – what do “man” and “woman” mean' • Acts may not take into account future circumstances o The constitution gives the Commonwealth Parliament power to legislate over “the naval and military defence of the Commonwealth and of the several states…” S51 (vi) • This does not refer to any air force, as this was not envisaged at the time of passing • Acts may not include new types of technology – an act referring to records, audio tapes and CDs may or may not include DVDs the effect of interpretation by judges Precedents are set for future cases to follow • The interpretation of the words in an act forms a precedent which is then read together with the act of parliament as part of the law • This type of law-making is carried out by the Supreme Court, the Court of Appeal and the High Court • These precedents may be extended of changed in higher courts Parliament can abrogate law made by courts • Parliament is the supreme law-making body and is able to change laws made through the courts. • If parliament believes that the courts’ interpretations are not in line with its intention when passing the act of parliament in question, the parliament can pass a law that overrides (abrogates) a decision of a court • This has the effect of cancelling a precedent set by a court Restricting the law through a narrow interpretation of a statute • If the court interprets a word or phrase narrowly, this could restrict the meaning, or scope, or the law • E.g.: Deing v. Tarola (1993) restricted the definition of regulated weapon to items likely to be used for an offensive or aggressive purpose only Extending the law by a wide interpretation of a statute • This may extend the law to cover a new situation or area • E.g.: the decision in the Franklin Dams case extended the interpretation of the external affairs specific power of the Constitution to include areas covered by international treaties the strengths and weaknesses of law-making through the courts Strengths (and counter-strengths) • Consistency and certainty through the operation of the doctrine of precedent o There may be difficulty in finding appropriate precedents • Fills gaps in legislation – it is vital for the courts to be able to adjudicate cases where no law exists. This can occur as it is impossible for parliament to foresee all potential disputes o Delving into the sphere of law-making, which is constitutionally parliament’s domain • Flexibility – Courts have the capacity to change laws made via precedent, if they have become outdated. Superior Courts can overrule or reverse precedent, and courts have the capacity to set a distinguishing precedent, if the material facts of the case differ o In many instances, judges are bound by precedent • Change the law quickly – Courts can determine the law immediately via their judgment in a case before them. Parliament cannot act with such immediacy o Statute law is however very thorough and scrutinised, unlike common law • Judges are not subject to political influence – Judges are appointed, not elected and therefore are not subject to the political pressures pertinent to parliament. In this sense they could be considered unbiased o Anyone unelected “making” law is therefore by-passing the important parliamentary structure of representativeness o Furthermore, unelected law “makers” will hence be out of step with community values • As legal experts judges have a greater understanding of how a law will be applied • Courts have the capacity to develop an area of law – Courts have the capacity to make a ruling on an area of law, and then adapt its application to broaden that area e.g. Law of Negligence established in Australia – duty of care now applied to other situations o Delving way too deep into the sphere of law-making, which is parliament’s domain Weaknesses (and counter-weaknesses) • Restricted to cases before the courts – in this sense individuals only have their rights protected if they are aware of the courts’ capacity to resolve an issue and they can bear the costs associated with taking their case to court. Furthermore, judges do not have the capacity to address confusing or outdated interpretations unless a case comes before them (they must also be free of any binding precedents) o Individuals must be aware of both common and statute laws to enforce their rights, and there is cost associated with court litigation regarding common and statute laws o It could be argued that there is little point to change an interpretation if there is not a relevant case in dispute before the courts • Changes can be slow – While the courts’ decision is final and can result in immediate change in the law (through interpretation and application) it can take time for an area of law (e.g. negligence) to develop, because it is dependent on cases being brought before the courts o It could be argued that it ought to be slow to allow parliament to intervene if they deem it necessary • Difficulty in finding precedents – precedents need to be located and then applied with consistency; this can be time-consuming and inefficient o The operation of the doctrine of precedent ensures precedents are applied where appropriate and with consistency • Ex post facto – In areas where a new precedent (interpretation) is established, the law is made after the fact. In this sense a defendant may not have known that they acted outside the scope of the law at the time of “offence” o It could be argued that there is an inherent need to fill gaps in legislation (see Strengths) and judges can only do so when a “wrong” occurs • Inflexibility – through binding precedent o The High Court is not bound by precedent o Precedent creates consistency and certainty, which are desirable in the legal system • Courts are not an elected body – judges are not elected to make laws on behalf of the people. In that sense they are not accountable to community views/values o There is an inherent need to fill gaps in legislation (parliament can’t think of every possible dispute) o Judges are unbiased legal experts who understand a law’s application and impact • Courts are not able to investigate an area of law as a whole – decisions made by a judges in a superior court or up to seven judges of the Full Bench of the High Court, hence, they do not have the investigative resources that parliament can allocate. Thus, common law is less thorough and researched than statute law o In interpreting statues, courts may make use of extrinsic materials, such as parliamentary hansard reports, to offer an indication of the intention of parliament • Courts cannot seek public opinion about changes in the law • Reluctance of courts to change the law (i.e. follow precedent) which may lead to injustices o Courts shouldn’t be delving into the sphere of law-making anyway, it is constitutionally parliament’s domain the relationship between the courts and Parliament in law-making Parliaments pass acts to establish courts o For a court to exist, a relevant act must be passed to set it up and its jurisdiction o E.g.: Supreme Court Act 1986 (Vic.) Courts apply and interpret the law o For legislation to be effective, the courts must apply the statutes and delegated legislation to cases before them o Courts must interpret the meaning in the clauses of the law to make decisions to resolve disputes and create precedent in common law o E.g.: Franklin Dams Case Parliament can change or confirm law made by courts o Parliament, being the supreme law-making body in its own jurisdiction, can confirm or overrule a common law precedent by passing legislation to that effect o E.g.: Rape within marriage case (1985) ▪ Common law was that a husband was immune from action for the rape of his wife when the couple was living together ▪ Values have changed and parliament abrogated the common law in the Crimes (Amendment) Act 1985 (Vic.) o Parliament may be influenced to change the law because o Courts may be too conservative (i.e. reluctant to change the law because of a need for parliament to investigate a whole area of law) o Creativity by courts may alert the parliament to an area of law where new laws are necessary e.g. Mabo Case (1992) AREA OF STUDY 4 the reasons for the existence for the court hierarchy Court Hierarchy – courts graded in order of importance and severity of cases heard with the High Court dealing with the most complex issues Justifications for the Hierarchy of Courts • Doctrine of Precedent – reliant on the court hierarchy for its operation (entitlement to a fair and unbiased hearing – see strengths of precedent) • Appeals – create fairness and may correct any mistakes, dependent on the court hierarchy for the channel of appeal (entitlement to a fair and unbiased hearing) • Administrative Convenience – more complex cases generally take longer, so are heard in higher courts; less complex cases are quicker so should therefore not be waiting for the outcome of a more complex case (ensuring effective access to mechanisms of dispute resolution and makes the resolution of disputes more timely) • Specialisation – judges in lower courts hear similar cases often and so develop experience in dealing with them, same for higher court judges, and the Family and Children’s Courts are examples of how judges’ expertise is used (entitlement to a fair and unbiased hearing, and improves the timely resolution of disputes) the functions and original and appellate jurisdiction of the following courts: Magistrate’s Court, County Court, Supreme Court, High Court, Children’s Court, Coroner’s Court, Family Court |Court |Original Criminal |Original Civil |Appellate Criminal |Appellate Civil |Other Notes | |Magistrates’ |Summary offences, |Up to $100,000 |None |None |Drug Court, Koori| | |indictable offences |claimed, arbitration| | |Court, Family | | |heard summarily, |for less than $10K | | |Violence | | |committal | | | |Divisions | | |proceedings, | | | | | | |Issuing warrants, | | | | | | |bail applications | | | | | |County |Indictable offences,|Claims of an |Mag Court on |None | | | |not homicide treason|unlimited amount |conviction, sentence | | | | |corporate offences | |or WorkCover matters. | | | | | | |Children’s Court on | | | | | | |sentence. Single | | | | | | |judge | | | |Supreme Court |Homicide cases |Unlimited amount |Mag/Children’s Court |Mag/VCAT on point of law. | | | | |claimed |on point of law. |Single judge | | | | | |Single judge | | | |Court of Appeal |None |None |County/Supreme on |County/Supreme/VCAT on points | | | | | |point of law, |of law, questions of fact or | | | | | |conviction or |amount of damages. 3 judges | | | | | |sanction. 3-5 judges | | | |High Court |Commonwealth |Matters under Cth |None |None | | |Single Justice |offences – treason, |law, treaties, where| | | | | |sedition |Cth is a party, | | | | | | |disputes btw states | | | | |Full Court of |Applications for |Applications for |Appeals from Supreme |Same as appellate criminal |No automatic | |the High Court |appeal to High |appeal to High |Courts, Full Court of |jurisdiction, but also |right to appeal. | | |Court. 2+ justices |Court. 2+ justices |the Federal Court, Fed|including appeals from the |Leave must be | | | | |Mag Court, single |Family Court |given | | | | |justice of the High | | | | | | |Court | | | |Full Bench of |None |Matters under |Appeals from the High |Appeals from the High Court. |No automatic | |the High Court | |Constitution, or |Court. Cases of major|Cases of major public |right to appeal. | | | |where principle of |public importance |importance |Leave must be | | | |law is major public | | |given | | | |interest. 5-7 | | | | | | |justices | | | | |Children’s |Jurisdiction | | | | |Criminal Division: |Family Division: |Koori Court (Criminal | | | | |All crimes except |interim |Division): For | | | | |homicide where |accommodation and |offences of aboriginal| | | | |offenders aged 10-18|protection orders, |children except sex | | | | |at time of offence, |guardianship orders,|offences. Must plead | | | | |and committal |etc. for those under|guilty or have been | | | | |proceedings for |17 |found guilty by | | | | |indictable offences | |regular criminal | | | | |by children | |division | | | |Coroner’s |Jurisdiction | | | |Investigates reportable deaths, i.e. those|Investigates to find the true cause of a fire either |May lead to | | |that are sudden, violent, unnatural, |causing death, serious injury, significant damage to |changes in the | | |suspected homicides, etc. to find the true|public property |law, | | |cause of death | |investigative in | | | | |nature, i.e. no | | | | |one is on trial | |Family |Jurisdiction |Is a federal | | | |court, also | | | |offers | | | |counseling, | | | |mediation and | | | |conciliation | | |Trial Division: Matters dealing with |Full Court of the Family Court: Appeals from single | | | |dissolution of marriage, property |justice of the Family Court, or from Fed Mag Court, | | | |settlements, decrees of nullity, parenting|Mag Courts or single justice of state supreme courts,| | | |orders for de facto couples, etc. |adjudicating in Family Law | | alternative methods of dispute resolution: negotiation, mediation, conciliation, arbitration Negotiation • Two or more parties attempt to negotiate a settlement, reach a compromise • Legal representation is not required, but a lawyer may be present to assist in the process and ensure a fair compromise for their client • Decisions are not binding Mediation • Is a cooperative method of resolving disputes in the presence of an impartial mediator who provides a structure for the settlement of a dispute • Strengths o Agreements made by parties, not imposed on them – more likely to be followed/accepted o Confidential hearing • Weaknesses o Agreements have no legal status o One party may dominate another, or one party may be overly cooperative • Disputes unsuitable: where there is no future relationship, where there are overwhelming emotions, where there is a gross imbalance of power, serious criminal matters Conciliation • Parties attempt to resolve their dispute themselves, with the help of an independent and impartial third party – the conciliator – who facilitates the dispute resolution process and offers solutions for the settlement thereof • Strengths o Decisions made by the parties (with advice from the conciliator) – still likely to be followed/accepted o Specialised expertise in conciliation and in the different areas of dispute • Weaknesses o Not a legally binding decision o Party dominance/weakness o Less likely to be followed because the decision is less made by the parties Arbitration • Arbitration is the calling in of a third party, the authority of which the parties to a dispute have previously agreed to heed, to listen to the facts of the dispute and make a decision on behalf of the parties. Decisions are legally binding and enforceable • Strengths o Legally binding decision o Specialised expertise • Weaknesses o Decisions may not necessarily be accepted by the parties as they have not made them the effectiveness of the alternative dispute resolution methods |Strengths |Weaknesses | |85% approx. of civil disputes that use ADR find |Unreliable statistic – ADR may only resolve 1/20 issues in a dispute, yet | |resolution on some or all of the issues |this may count in this strong ‘success’ rate | |Conducted in a safe and supported environment, as well|People may not be as willing and open to discussion of issues as they are | |as a more suitable venue, and people are more |not compelled to do so as in a court | |comfortable, relaxed, and more open and willing to |Also, the terms “safe and supported environment” and “suitable venue” are | |talk about issues (Access) |relative to each person | | |(Access) | |Doesn’t follow strict rules of evidence and procedure |Rules of evidence and procedure are designed to keep a fair hearing for both| |Important aspects, as such, may be admissible that are|parties (Fair and Unbiased) | |not in a court (Fair and Unbiased) |Disclosure of cases may alert Parliament of other law-making body to a need | |Cases are confidential – not open to the public |for a change in the law | |Voluntary – parties may leave |Disputes in the public interest may therefore occur without public knowledge| |Flexible – can be modified to suit the parties |Voluntary hearings may result in a stubborn or scared party that does not | | |participate and hence escalates the problem | | |Modifications may not suit both parties – one party may be unfairly treated | |Generally far cheaper than litigation through court |Cheaper cost reflects lack of legally binding decisions (except arbitration)| |(Access) |and potential less legal expertise of mediators/conciliators/arbitrators | | |than that of court judges | |Not adversarial in nature |Focus on future relationship between the parties is irrelevant for | |More capable to address the needs of the parties with |particularly emotional disputes and all disputes where there will be no | |a focus on future relationship |future relationship | |Can be more likely to be followed – because mutually |Apart from arbitration, decisions are not legally binding so may be less | |agreed upon outcomes can be reached (win/win) |likely to be followed | |Can narrow scope of area of dispute even if dispute |Mutually agreed upon outcomes may not be as legally effective as a court | |cannot be completely resolved (Timely) |decision | | |ADR such as Self-Help may broaden and escalate a dispute (though not in | | |study design) | | |If all disputes aren’t resolved the case may still progress to court, and | | |delay the process further (Timely) | |Can prevent disputes from escalating, as can be used |ADR such as Self-Help and other methods without a third party may escalate | |for minor disputes |and/or broaden a dispute (a bit iffy) | the reasons for the existence of tribunals Low cost of proceeding • $33.30 to file an application (free for Anti-Discrimination List of VCAT applications) • In some instances legal representation is not allowed Less delay in hearing a matter • VCAT Residential Tenancies List average time delay from application to hearing is three weeks, and most hearing take less than a day Informal atmosphere • Not bound by rules of evidence and procedure as in courts Parties encouraged to reach a decision between themselves • May find this more satisfying than an imposed decision Less emphasis on adversarial process • Tribunals use a more conciliatory process • Emphasis on finding a solution acceptable to both parties • Focus on the social outcomes of the decision, rather than making a legalistic ruling, such as in the courts Tribunal decisions are binding (must be followed) The focus of tribunals is on a limited area of law, so they may build up expertise • VCAT operates a number of specialised lists such as Civil Claims List, Residential Tenancies List and the Anti-Discrimination List Relieve the strain on the court system by hearing minor civil disputes • E.g.: VCAT hears more civil cases than all of Victoria’s courts combined the jurisdictions of the Victorian Civil and Administrative Tribunal (VCAT) lists dealing with the following areas: anti-discrimination, residential tenancies and disputes between consumers and traders in relation to small claims |List |Function |Jurisdiction |Examples of disputes | |Anti-Discrimination List |To resolve disputes relating to|Cases where discrimination has occurred |Discrimination in | | |people suffering |relating to a recognised attribute of |employment due to being | | |discrimination, not resolved at|discrimination (e.g. age, sex, pregnancy, |pregnant. | | |the Equal Opportunity |marital status, race, etc.) and in a |Discrimination in terms of | | |Commission |recognised area of discrimination (e.g. |membership to a club due to| | | |employment, education, sport, clubs and club |race. | | | |membership, local government, etc.). Also | | | | |cases where sexual harassment has occurred in | | | | |above areas | | |Residential Tenancies |To resolve disputes relating to|Disputes between landlords and tenants, |Tenant claiming return of | |List |residential tenancy agreements |rooming house owners and residents, and |bond money by landlord. | | |between property owners and |caravan park owners and residents over leases,|Landlord claiming for | | |renters |rent, property damage, repairs, etc. Amount |property damage by tenant. | | | |claimed is under $10,000 | | |Civil Claims List |To resolve disputes between |Consumer claims against traders for payment of|Faulty or damaged goods and| | |consumers and traders, arisen |money and/or work performance up to $10,000. |services. | | |out of a contract for supply of|Also claims under Motor Trading Act, relating |Warranties, road worthies | | |goods or services |to dodgy dealings when purchasing a car |not honoured. | | | | |False odometer readings | | | | |given. | the strengths and weaknesses of the operation of the courts, tribunals and alternative methods of dispute resolution |Strengths of Courts |Weaknesses of Courts | |Can adjudicate on a range of disputes and cases, criminal/civil and major/minor |Adversarial nature results in a win/lose | |(Access) |scenario, which can cause further animosity | |Doctrine of precedent brings sense of predictability, certainty and consistency |Time-consuming resolution method, as delays are| |(Access, Fair and Unbiased, Timely) |common (Access, Timely) | |Legal representation ensures both parties are on equal footing (Fair and Unbiased) |High costs are involved, due to the need for | |Strict rules of evidence and procedure ensure both parties are treated equally and |legal representation and high court fees | |fairly (Fair and Unbiased) |(Access) | |Opportunity to have case decided by peers (jury) (Rights) |Formality of the court room may be intimidating| |Decisions are legally binding and enforceable |to some parties | |Appeal process allows those dissatisfied with the outcome to have the case | | |revisited in a more superior court (on correct grounds) and this may reverse | | |incorrect or inappropriate decisions (Fair and Unbiased) | | |Strengths of Tribunals |Weaknesses of Tribunals | |Less formal, and less intimidating than courts, as there are no rules of|Tribunals are only suitable for small claims/disputes | |evidence and procedure |In recent times, costs have escalated as more parties are | |Low cost method of resolution (e.g. most VCAT lists cost $33.30 to |using legal representation (Access) | |apply, and legal representation isn’t required) (Access) |Avenues of appeal are limited to questions of law only | |Faster than courts (Timely) |(Fair and Unbiased) | |Tribunals also use other methods of ADR (hence apply strengths of ADR) | | |Tribunals develop expertise and specialise in disputes in their | | |particular area | | |VCAT decisions are legally binding and enforceable | | |There are avenues of appeal from VCAT, though only on a question of law | | |(Fair and Unbiased) | | **See pg. 20 for Strengths/Weaknesses of ADR** AREA OF STUDY 5 the elements of an effective legal system: entitlement to a fair and unbiased hearing, effective access to mechanisms for the resolution of disputes, timely resolution of disputes and the recognition of prevailing values and basic human rights Entitlement to a fair and unbiased hearing • According to the principles of natural justice every individual is entitled to a fair hearing, an equal opportunity to present their side of the story, and to be treated equally Effective access to mechanisms for the resolution of disputes • A legal system must provide ways in which disputes in the community can be resolved. This means the provision of avenues of dispute resolution so that the parties to a dispute can reach a resolution without having to resort to methods outside the law Recognition of prevailing values and basic human rights • The law should reflect the dominant values and beliefs of the community, and recognise basic human rights of individuals in society Timely resolution of disputes • The legal system must resolve disputes in a timely manner. Too slow, and disputes fester in the community, there is less social cohesion and people lose confidence in the legal system. However the resolution should not be so fast as to not allow proper consideration of both sides to a dispute criminal pre-trial procedures, including examples of police powers and the rights of individuals, bail and remand, committal and directions hearings Police Powers • E.g.: power to question a suspect for a reasonable time, demand the name and address of person(s) suspected of committing an offence, take fingerprints of a person who is 15 or older, use reasonable force where a suspect resists arrest • Searches o Under Crimes Act 1958 (Vic.), police may obtain a warrant (from a Magistrate) to search premises if it is believed on reasonable grounds that the search will disclose: stolen goods, goods that may be evidence of a crime, goods that may be used in a crime, or goods that might be relevant to the commission of a crime o May search a person if lawfully arresting the person and there is reasonable suspicion of stolen goods, drugs or a weapon (Common Law) o May search/enter premises for the purposes of arrest o Weapons ▪ May search a person in a public place or a non-government school, if suspected that they are carrying a prohibited or controlled weapon, or a dangerous substance ▪ May search a person’s person, vehicle, package or thing in the person’s possession or control, and seize a weapon if found o Major public events ▪ An authorised officer at public venues and major events may search a person or bag before being admitted to the venue Rights of individuals • E.g.: right to communicate with lawyers, family and friends before police questioning, right to request the name, rank, ID number and station of a police officer, right to be informed of the charge, right to refuse to participate in an ID parade • Right to Silence o Suspects are entitled to remain silent when being questioned by police, and to remain mute and not be questioned/cross-examined in court o Suspects are however compelled to give their name and address to the police if required o Common Law right – designed to protect an accused from stressing and saying something that may be misconstrued as indicating guilt o Also protected by Victorian Charter of Human Rights and Responsibilities o A person must be cautioned as to this right before questioning o Right to silence has been eroded in the area of organised crime investigation, where police can apply to the Supreme Court for a coercive questioning order, to compel a witness to answer questions from an appointed examiner. Refusing to answer questions under the order is punishable by up to 5 years imprisonment Bail • Refers to the procedures that enable accused people to be released from custody after being charged and before their hearing or trial • Bail may be granted by: o A police officer at the station when a person is charged o A magistrate at a bail hearing at the Magistrates’ Court o A bail justice for more serious cases • Conditions of bail o Provide their own undertaking that they will appear in court, either with or without depositing a sum of money or other security o Provide a surety who will guarantee they will attend court, i.e. another person who takes responsibility for the accused attending court o Other conditions may be imposed e.g. reporting to police o Money is forfeited if the accused fails to attend court • When bail can be refused o Person charged with murder, treason or arson causing death o Person charged while already in custody for another crime o Person charged with drug trafficking o Person previously failed to answer bail o Person considered an unacceptable risk to society as: ▪ May abscond ▪ May commit further offences ▪ May endanger members of the public ▪ May interfere with witnesses or otherwise obstruct the course of justice o Bail may be refused also for the protection of the accused Remand • People refused bail are held in remand until their case comes to trial or bail may be granted in the future • People should be held no more than six months before committal proceedings, though in the case of children it is less than 21 days before Committal Hearings • Aims to avoid wasting the time and expense of taking a case to trial that is unlikely to succeed i.e. to determine whether a prima facie case exists, and to bring forward the legal issues in dispute in order to clarify those legal issues in question • Hearings conducted using the “hand-up brief” method, where written statements of the witnesses and defendant are gathered together and handed up to the Magistrate. Witnesses may be questioned if necessary. If the Magistrate deems that there is sufficient evidence to go to trial, the case will proceed to either the County or Supreme Court, and evidence collected in the Committal hearing is given to the DPP to use at the trial • The accused may request the DPP to skip committal proceedings (direct presentment), or the DPP may send case to trial even if there is no prima facie Directions Hearings • Purpose o To make the whole process quicker o To make the whole process shorter for the accused and therefore less expensive o To reduce pressure on the court system • Parties must provide the court with an estimated duration of the trial, the number of witnesses each side intends to call, and whether legal representation will be present • Points of law may be resolved and admissions to elements of the prosecution’s case may be made, all to speed up the trial • Directions hearings may be first and subsequent criminal trial procedures including burden of proof and the purpose of sanctions (including examples of sanctions) Guilty/Not guilty pleas o If guilty plea, matter goes straight to hearing/trial for sentencing o Judge/magistrate will take guilty plea into consideration (often a shorter sentence) o If a not guilty plea, trial/hearing begins and burden is on the prosecution Burden of proof (onus of proof) o Lies with the prosecution to prove guilt – accused is assumed to be innocent until proven guilty Standard of proof o Strength of evidence needed to prove the case is beyond reasonable doubt of the magistrate or the jury Legal Representation o A representative of the OPP will conduct the prosecution o Defendants may engage legal representation or may elect to represent themselves o If unable to afford a legal representative may be eligible for legal aid from Victoria Legal Aid Rules of Evidence o Evidence not permitted – hearsay evidence, prior convictions o Courts may hear propensity evidence – that demonstrates that the accused has a tendency or inclination to engage in the offence in question o Witnesses may sometimes give evidence by audio or visual link, which may save court time o There are laws regarding the obtaining of, use of, types of evidence, the questioning and competency of witnesses, and other relevant matters set out in Evidence Act 1958 (Vic.) Aims of Criminal Sanctions o Punishment o Should be punished to an extent and manner that is just so society can feel there has been retribution and that there has been revenge taken on the offender o Deterrence o Should be that punishment deters offender or other people from committing the same or similar offences o General deterrence – deters the general public o Specific deterrence – deters the original offender o Rehabilitation o Aim should be to assist offenders to change their attitudes and re-enter society as law-abiding citizens o Denunciation o Disapproval by the court of the offender’s conduct o Protection o Sometimes necessary to protect society from the offender, or to protect the offender from certain members of society Examples of Sanctions o Imprisonment – fulfils punishment, protection, deterrence and denunciation o Drug Treatment Order – fulfils rehabilitation o Suspended sentence (wholly or partly) – fulfils specific deterrence, rehabilitation, and may fulfill punishment o Community-based order – fulfils punishment and rehabilitation Supreme Court civil pre-trial procedures including letter of demand, writ, pleadings, discovery and directions hearings Letter of Demand o Formal letter from the plaintiff’s solicitor to the defendant which details the nature of the claim and suggests compensation or remedy sought o Letter gives set time in which the defendant must comply with the wishes of the plaintiff before legal proceedings are commenced **The purpose of pleadings is for the parties to discover facts about the claim** Writ o Explains that an action is being taken o Informs of place (court) and mode (i.e. jury or not') of trial o Writ is sent to the court and copied to the defendant o Indication of cause of action and remedy sought o Statement of Claim is usually endorsed on the writ, which explains the claim, the cause of the claim and remedy sought Notice of Appearance o Indicates that the defendant wishes to defend the case against them o Sent to court and the plaintiff o At this stage a counter claim may be entered Statement of Defence o Issued by defendant to plaintiff giving information about the defendant’s version of the facts, admitted and denied, and the defence the defendant intends to use Reply o From plaintiff to defendant if they want to agree on an issue or confirm some material fact o After this, there are no further pleadings without a court order, except further and better particulars Further and better particulars o Any party can demand more information about the other party’s claim o Court can order this to happen if a party does not comply **The purpose of the Discovery Stage is for the parties to discover details about the facts of the case** Interrogatories o Questions relating to the known facts of the case, served by either party to the other o Saves court time by dealing with matters before court and reducing the element of surprise o A notice of default may be served on a party if they do not answer interrogatories Notice of discovery o Either side may request the other to disclose any relevant documents o All relevant documents must be disclosed in an affidavit from which the other party may request to see and/or to copy any number of them o However, documents may be protected by privilege, e.g. letters between solicitor and client Medical examination and provision of hospital and medical reports o If claiming damages for bodily injury, the defendant may request the plaintiff undergo appropriate medical examinations by medical experts at specified times and places Directions hearings (not part of the discovery stage) o Conducted for proceedings seeking damages, long cases, and cases involving businesses and WorkCover o Similar purpose to regular directions hearings civil trial procedures including burden of proof and the purpose of remedies (including examples) Burden of proof • The plaintiff carries the burden of proof, that is, the plaintiff must prove that the defendant is in the wrong Standard of proof • Is on the balance of probabilities, that is, the plaintiff must prove that they are most probably in the right and the defendant is most probably in the wrong Remedies • Aim is to restore the injured party to the position they were in before the wrong occurred • Compensatory Damages – aim to restore the injured party to previous position o Specific Damages – can be given an actual and precise monetary value e.g. medical expenses, loss of wages o General Damages – damages for things such as future loss of wages, long-term job prospects, pain and suffering o Aggravated Damages – further compensatory damages if the defendant’s conduct causes undue humiliation and insult to the plaintiff’s feelings during the civil process • Nominal Damages – plaintiff may only intend to make a point that their legal rights have been infringed but do not seek a large financial gain • Contemptuous Damages – where a court finds in favour of the plaintiff, but believes they do not have a moral right to damages; damages are very small, usually $1 • Exemplary Damages – damages that seek to punish or deter the defendant for an extreme infringement of rights; to make an example of the defendant • Injunctions o Restrictive/Prohibitive – orders a person to stop or refrain from doing something o Mandatory – orders a person to do a particular act o Injunctions may be: ▪ Interlocutory/Interim – temporary until a final court decision is made after a proper hearing ▪ Perpetual – permanent injunction granted after the case has been heard • Order for specific performance – orders a person to fulfill a promise or the conditions of a contract • Order for specific restitution – orders a person return land or goods to the rightful owner if wrongfully detained • Costs and interest – unsuccessful party may be ordered to pay the legal costs of the successful party, or even the defendant to pay interest on damages, as well as the damages themselves the problems in criminal and civil procedures and the purpose of possible solutions |Criminal | |Problem |Possible Solution | |Entitlement to a fair and unbiased hearing | |Pre-trial | |Awareness of rights – suspects may not be aware of their |Crimes (Custody and Investigation) Act 1988 makes cautioning | |rights when dealing with police |compulsory | |Right to silence – protects individuals but can hamper |Major Crimes (Investigative Powers) Act 2004 – coercive questioning | |criminal investigation |powers have been granted for organised crime | |Trial | |Rules of evidence – may mean that the truth does not come out|The Australian Law Reform Commission and VLRC are investigating | | |changes to the admission of hearsay evidence | |Inconsistency of sentencing |Guideline judgments introduced in Sentencing (Amendment) Act 2003 to | | |reduce inconsistency | |Effective access to mechanisms for the resolution of disputes | |Distance from court – matter usually heard in the court |Proposed for longer court hours and night courts for the Magistrates’| |nearest to the place of occurrence, which may or may not be |Court, to improve access | |convenient for the accused | | |Too costly – especially legal representation |Legal aid from Victoria Legal Aid available but is means tested, also| | |‘no win, no pay’ system and proposed use of contingency fees | |Recognition of prevailing values and basic human rights | |Innocent until proven guilty – a person may, however, spend |Bail is usually given except when offender may abscond or is a risk | |time in prison awaiting trial |to society | |Double jeopardy – view in society is that no person should be|The Model Criminal Code Officer’s Committee of the Standing Committee| |tried twice for the same crime, however DNA testing may make |of Attorneys-General has agreed that the double jeopardy rule needs | |it clear that someone should have been found guilty |further examination to allow for re-trials in exceptional | | |circumstances | |Timely Resolution of Disputes | |Delays – can be caused by committal and directions hearings |Committal hearings use hand-up brief method which is quicker than | |taking too long, compounding costs, etc. |oral evidence | | |Committal proceedings may result in a case not having to go to trial | | |Directions hearings are designed to get accused to trial quickly and | | |shorten the trial by resolving issues, points of law | | |Proposal for sentence indication and specified sentence discounts to | | |encourage more defendants to enter an early guilty plea, saving court| | |time | |Civil | |Problem |Possible Solution | |Entitlement to a fair and unbiased hearing | |Use of jury – inconsistency in damages awarded |Restrictions now placed on damages in certain circumstances under| | |the Wrongs and Other Acts Act (Vic.) | |Different cultural backgrounds/lack of legal knowledge – the |Directions hearings and case conferences can help to clear up any| |adversary system may confuse some |confusion | |Effective access to mechanisms for the resolution of disputes | |Costs – pursuing litigation is too costly (legal fees, court |Magistrates’ Court has increased its jurisdiction to $100,000 – | |fees) |less cases to County Court, where fees are higher | | |County Court has increased its jurisdiction to an unlimited | | |amount – less cases to Supreme Court, where fees are higher again| | |Tribunal system used more readily | | |ADR now used in the court system (e.g. disputes