LEGAL STUDIES 3&4

SEPTEMBER REVISION LECTURE

Presented by:
Shani Wilson
 OVERVIEW

• Content Block One: Unit 3 Revision

• Content Block Two: Unit 4, AOS 1
• Content Block Three: Unit 4, AOS 2

• At the end of each content block, I will spend some time

answering any questions that you have asked! 
 ABOUT ME
• Graduated in 2018 with an ATAR of 98.75.
• Received 40+ study scores in Business Management,
Accounting, Legal Studies, Methods and English.
• Studying Law and Commerce at Monash University.
 PRINCIPLES OF JUSTICE

Fairness Legal processes, systems and institutions are fair and unbiased
• Presumption of innocence
• Impartial judge + jury
• Open, public hearing
• Koori Court

People are treated equally before the law and given an equal
Equality opportunity to present their case, regardless of personal factors
• All individuals are able to use the justice system
• All individuals experience the same rights

All people understand their legal rights, and have the ability to
Access pursue their case
• Victorian Legal Aid (VLA)
• Community Legal Centres (CLC’s)
• Koori Court
 THE PRESUMPTION OF INNOCENCE

• The presumption of innocence is the notion that a person

who is accused of a criminal offence is considered not guilty
of that offence, until they have been proven guilty beyond
reasonable doubt in a court of law.
• This is considered to be a fundamental aspect of the
Victorian criminal justice system, as well as a fundamental
human right.

Protected by:
- s. 25 of the Human Rights Charter
 RIGHTS OF AN ACCUSED
Tried without Right to have his or her charges heard in a timely manner, and that delays
unreasonable delay should only occur if they are considered reasonable
• Supported by section 21 (5) of the Human Rights Charter
• Acknowledges that delays will occur with the justice system; they simply cannot be illogical/unreasonable

Right to have the charge decided by a competent, independent and

Fair hearing
impartial court after a fair and public hearing
• Supported by section 24 (1) of the Human Rights Charter
• Involves two main aspects; an impartial judge/jury and an open/public hearing

Involves members of the community being empaneled to listen to the

Trial by jury
facts of the case and determine the verdict
• Section 80 of the Commonwealth Constitution
• Involves a jury of 12+ members
• Only accessible to individuals charged with an indictable offence
• Also protected by the Human Rights Charter
 RIGHTS OF VICTIMS

Give evidence as a
vulnerable witness
Be informed about
proceedings
Be informed about the likely
release date of the accused
 GIVE EVIDENCE AS VULNERABLE WITNESS

Allows victims that are considered vulnerable (such as

individuals under 18 or individuals with a cognitive
impairment) to access to certain provisions to protect and
support them when they give evidence in court

- Examples of extra provisions they can receive

➢ A support person when giving evidence
Additional information
➢ Judges/legal representation can disrobe (e.g. take off
to use when explaining wigs)
this right: ➢ Give evidence through short circuit TV
- Supported under the Victim’s Charter
 INFORMED ABOUT PROCEEDINGS

Entitled to information regarding the investigation of the

offence and the prosecution of the accused, and having court
processes explained to them

- Supported by section 7,8 and 9 of the Victim’s

Charter
Additional information
to use when explaining - This can involve the prosecution sitting down with
this right: the victims and outlining what is occurring in the
case (e.g. prosecution may inform the victim that
they plan to proceed with a plea negotiation)
 LIKELY RELEASE DATE OF ACCUSED

Victims of crime are entitled to be informed of when the

perpetrator of a crime against them is likely to be released
from prison

Additional information
to use when explaining - Supported by section 17 of the Victim’s Charter
this right:
 VICTORIAN LEGAL AID
A government-funded organisation which
provides legal advice and representation to people
charged with offences, who cannot otherwise
afford legal representation

ADVANTAGES LIMITATIONS

• The eligibility test is extremely strict;

• Ensures individuals who cannot afford
legal support are able to receive it
• VLA received funding in 2016-2017
meaning it is hard to pass and hence
receive legal support
• VLA still does not receive as much
funding as they need
• Individuals may receive some support
from VLA but may not receive a lawyer in
court; a factor that can be necessary to
win a case
 COMMUNITY LEGAL CENTRES
• These are independent community organisations that provide free
legal services to members of the public
• These are in existence all across Victoria, and can be used by
people who face economic, social or cultural disadvantage in
relation to their court case
ADVANTAGES LIMITATIONS

• Usually all are able to access a CLC
• Gives accused’s chance to obtain
legal support when they otherwise
wouldn't have it
• With their support allows case to
be presented in a fairer light
• Individuals can usually only go to a
CLC within their catchment area
• Usually CLC’s do not provide legal
representation (limited funding)
• Usually can only offer advice in
certain areas of law
 ROLE OF INSTITUTIONS
Example of a CLC: St Kilda Legal Service
– Catchment area: Port Phillip, Stonnington and Bayside
– Offer night service
– 3 specialist programs: Drug outreach program, family violence program,
LGBTIQ Legal Service
– Promote self-help
– http://www.fclc.org.au/find_a_clc.php

Areas of law that the St

Kilda CLC can help
 COMMITTAL PROCEEDINGS

Committal Proceedings are the procedures which take place in the Magistrates
Court before a criminal matter is heard in a higher court

• Purposes:
– Determine whether a ‘prima facie’ case exists
– To ensure a fair trial (evidence against the defendant will be
disclosed)
– To save time by determining how the accused will plead to the
charges
– Clarifying issues in dispute before trial
15
 PLEA NEGOTIATIONS
Definition Discussions where the prosecution and accused work out an
agreement to the charges laid.

Purposes - Save time, resources and money

- Provide certainty
- Prevent further harm to victim/witnesses
Appropriateness - Seriousness of crime
- Strength of evidence
- Whether victim wants to proceed
 SENTENCE INDICATORS
Definition Statement by the court of the likely sentence that the accused
would receive if they were to plead guilty before a trial

Purposes - Save time, resources and money

- Encourage guilty plea
- Assist the accused in weighing up their legal options
Appropriateness - Complexity of facts
(things to - Guilt of the accused
consider) - Mitigating factors (should be fully explored)
 COURT HIERARCHY
Specialisation The existence of the
hierarchy allows
courts to become
familiar with/develop
expertise in particular
types of criminal
cases.
Appeals Prosecution/accused
can apply to have
their case/sentence
reassessed by a more
superior court.
 SANCTIONS
Punishment Denunciation Deterrence Protection Rehabilitatio
n
Fines Financial loss Can impose Threat
large fine of/future loss
of money

Community Demanding Can attach Do not wish to Engaged in Meaningful

Correction terms and extensive be subject to in work/conditio community
Order conditions conditions the future ns attached work –
decreasing
opportunity to
offend
Imprisonmen Loss of High sentence Do not wish to Unable to Programs in
t freedom and shows be subject to in commit further prison
liberty disapproval the future. crimes
and that the However, high
crime is recidivism
serious rates
 FACTORS CONSIDERED IN SENTENCING
Aggravating Circumstances relating to the offence, victim or the
Factors offender which increase the offender’s culpability
Mitigating Factors Circumstances relating to the offence, victim or the
offender which decrease the offender’s culpability
Guilty Pleas Sentencing Act requires that a less severe sentence is
imposed.
Will consider the stage at which the plea was entered.
Victim Impact Detail the effects of the offence on the victim through
Statements words/drawings.
Can be made on behalf of a victim in certain circumstances
(e.g. under 18)
 REFORMS

Recent Reform - decreasing jury challenges

• Enacted by the Justice Legislation Amendment (Court
Security Juries and Other Matters) Act 2017.
- Reform reduced the number of peremptory challenges from
6 to 3.
o A peremptory challenge is a challenge without reason.
Can exclude that person from being on the jury.
o Studies revealed that 2 women were challenged for men.
This lead to juries which were highly unrepresentative
(e.g. 8 men, 4 women if all challenges used on men).
 MARK THE ANSWER

Explain how Victoria Legal Aid upholds one of the principles of

justice (3 marks)

Victoria Legal Aid (VLA) upholds the principle of access.

Through their online website VLA outlines basic legal
information that an accused should be aware of before going
to court. This can help an accused understand how legal
processes work and the rights they should experience as an
accused within the criminal justice system. As such, an
accused can pursue their case within the justice system more
effectively.
 UNIT 3, AREA OF STUDY TWO

The Victorian civil justice system

The Victorian civil justice system aims to restore a wronged party to the position
they were originally in before the breach of civil law occurred. The system
involves a range of institutions to resolve a civil dispute, including courts (the
Magistrates’ Court, County Court and Supreme Court), complaints bodies and
tribunals. In this area of study students consider the factors relevant to
commencing a civil claim, examine the institutions and methods used to resolve
a civil dispute and explore the purposes and types of remedies. Students
consider factors that affect the ability of the civil justice system to achieve the
principles of justice. They examine recent reforms from the past four years and
recommended reforms to enhance the ability of the civil justice system to
achieve the principles of justice. Students synthesise and apply legal principles
and information relevant to the civil justice system to actual and/or hypothetical
scenarios.
 KEY CONCEPTS

The obligation of a party to

BURDEN OF PROOF THE PLAINTIFF
prove a case in court

ON THE BALANCE OF
The degree or extent to which a
STANDARD OF PROOFPROBABILITIES
case must be proved in court
 REPRESENTATIVE PROCEEDINGS

• A representative proceeding can also be

called a ‘class action’
• This is where one person brings a case
against a defendant on behalf of seven
or more people
• In order to qualify as a representative
proceeding, the questions of fact or law
that are raised must be similar in all of
the cases that are being brought
together
• There are two parties that benefit from
representative proceedings; individuals,
and the court room
 REPRESENTATIVE PROCEEDINGS
FOR THE COURT
BENEFITS DISADVANTAGES

• It is a streamlined process of a
representative proceeding, meaning
• Once again, less focus on individuals
that multiple individual cases with the
within the court room
same fact scenario are not tying up
court resources

FOR THE INDIVIDUAL

BENEFITS DISADVANTAGES

• It will allow them to pursue a case
that they otherwise might not have
been able to afford to pursue
• Usually, large corporate law firms will
take on class actions for
free/minimal cost to the plaintiffs
• Loss of control over their case
• Less individualised, causing
individuals involved to feel
unimportant/that their voice isn’t
heard within the case
 CONSIDERATIONS

Negotiation
Costs
Options
Enforcement
Issues

Limitation of Scope of Liability

Actions
 NEGOTIATION OPTIONS

The plaintiff in a civil dispute entering into informal

discussions with the defendant in an attempt to
cooperatively resolve the dispute

Examples:
- ADR methods (mostly mediation and conciliation for
negotiating)
- Parties are able to directly negotiate with each other without
the use of a third party (e.g. may involve one party making an
offer at any stage in the proceedings)
 COSTS

Any related costs incurred through the civil justice

system

Examples of costs in taking a civil claim to court:

- Lawyers (e.g. solicitors usually cost between $200-$600 per
hour
- Jury costs (e.g. first day charge for a jury in the County Court is
around $756.90
- Pleadings (e.g. a filing fee for a claim less than $100,000 is
around $677.50
- Pre-trial procedures add significantly to costs as well
 LIMITATION OF ACTIONS
The restriction placed on the time within which a civil
action can be commenced
- Most limitations are
listed in the Limitation
of Actions (Amendment)
Act 2002
- This Act does allow for
extensions (individuals
need to apply)
Examples of limitation of
actions:
1. Adult injury claims is
three years (it used to
be six)
2. Defamation cases can
only be commenced
within one year of the
act occurring
 SCOPE OF LIABILITY

Requires that the defendant was the cause of the

damage and the loss/damage was not too remote

Examples:
- Test for remoteness (whether the damage was ‘reasonably
foreseeable’)
- ‘Eggshell skull rule’ (you must take the victim as you found them. For
example, if the plaintiff was significantly fragile and weak when the
incident occurred and that led to more injury than a regular
person, the defendant is liable for all damage to the
victim/plaintiff)
 ENFORCEMENT ISSUES

Complications which can occur

during the application or execution
of a court order

Examples of enforcement issues:

- Whether the defendant is able to afford the damages the plaintiff has
been awarded/is asking for
- Whether the defendant is in the country (if the defendant is not, it may
be difficult to enforce the damages awarded to the plaintiff
 CONSUMER AFFAIRS VICTORIA (CAV)

Purposes:
• Conciliating disputes between consumers and traders,
tenants and landlords
• Educating individuals on their rights and responsibilities

Broken down, this means:

• Ensuring businesses comply with consumer laws
• Encouraging people to exercise consumer rights
• Providing fair and safe residential tenancies
• Encouraging modern effective consumer law framework
 CAV
APPROPRIATE INAPPROPRIATE

• When parties are willing to discuss the

• When parties refuse to discuss the issue
issue (conciliation) and are able to
(CAV cannot force a party to discuss)
come to resolution themselves
• When a case does not fit under their
jurisdiction
• When parties have limited money
 VCAT

VCAT’s purpose is to hear smaller civil cases more efficiently and

effectively

They are:
- Affordable (through reducing costs such as lawyers, certain fees
and recently the three tier payment system)
- Timely (typically quicker than the courts as there aren’t as many
procedures, e.g. average time taken to resolve disputes on the
civil claims list in 2015-2016 was 10 weeks)
- Efficient (less formal, less costly)
 VCAT

APPROPRIATE INAPPROPRIATE

• When a party wants to resolve their

dispute through mediation or
arbitration
• When a party does not wish to go to
court but wants a legally binding
decision (arbitration)
• When a party does not wish to have a
lawyer/cannot afford to go to court
• Although costs are usually lower, it can
still be expensive
• Sometimes the waiting times are quite
long
• When a case does not fit under VCAT’s
jurisdiction (in terms of monetary
jurisdiction and VACT’s lists)
 PURPOSES OF PRE-TRIAL PROCEDURES

Pleadings
- Writ Discovery
- Statement of Claim - Production of
- Notice of documents
Appearance
- Statement of Interrogatories
Defence

• Inform parties of the nature and specifics of claims

• Allows the court to schedule proceedings
• Promotes discussion
• Encourages out-of-court settlement
• Allows parties to determine if trial is worthwhile
 CASE MANAGEMENT
• Power to order mediation
– The Civil Procedure Act 2010 gave Victorian
judges a number of powers when dealing with
civil cases, such as the power to refer a case to
mediation
– This means that judges can refer either one
issue, or the entire case, to mediation at any
point during the trial
– This does not mean the dispute must be resolved
through mediation, but simply that there has
been an attempt to do so

• Power to give directions

– The legislation also gives judges the power to give
any direction or order that they consider
appropriate in order to facilitate the just, efficient,
timely and cost-effective resolution of the issues
in a dispute
– These can impose any reasonable limits or
restrictions as the judge sees necessary
 METHODS TO RESOLVE CIVIL DISPUTES
We need to be able to provide both advantages,
disadvantages, and comparisons between mediation,
conciliation and arbitration
- A third party (mediator)
- Listens to both sides of disputes
MEDIATION - Facilitates discussion between the two parties
(does not provide own opinion)
- VCAT uses this
- A third party (conciliator) who is an expert in the
particular dispute issue
- Listens to both sides of disputes
CONCILIATION - Facilitates discussion between the two parties by
providing suggestions
- CAV uses this

- A third party (arbitrator)

- Listens to both sides of dispute and then
ARBITRATION provides a legally binding decision
- VCAT can use this; CAV cannot
 CIVIL REMEDIES

What is a remedy?
• A remedy is the means by which a plaintiff’s civil rights are
protected or corrected for injury caused by a defendant.
Purpose of a civil remedy:
• To restore the injured party to the position they were in
before the harm occurred.
• We will be looking at damages and injunctions
 DAMAGES
What are damages?
• Damages involve an amount of money paid by the
defendant to the plaintiff in the settlement of their claim
• There are several types:
Compensatory Exemplary

where a large sum of money is

the most common form, that aim
awarded with the aim of punishing
to compensate the plaintiff for the
the defendant and making an
injury suffered
example out of them

Contemptuous Nominal

where the court awards a small amount

the plaintiff may not have suffered any
of money as recognition that whilst they
actual harm, and so the principle is more
have a legal right to damages, the court
important than the compensation – this
believes that they do not have a moral
will also be a small amount
right
 INJUNCTIONS

What is an injunction?
• An injunction is a court order against the losing party in a
civil case that either prohibits a particular act (a restrictive
or prohibitive injunction) or compels them to perform a
particular act (a mandatory injunction)
• They can either be short term (interlocutory) or permanent
(perpetual)
• Interlocutory injunctions are usually issued to prevent a
party from continuing an action before or during a court
hearing
 RECENT REFORM

• eFiling of Supreme Court Documents (2018)

• From July 2018, all Supreme Court documents for Common
Law, Commercial Court or Costs Court matters must be
electronically filed
– Allows 24/7 access
– Ensures up-to-date information
– Reduces costs (for parties and the court)
44
 MARK THE ANSWER

With reference to one example, explain the purposes of pre-

trial procedures (4 marks)

The purposes of civil pre-trial procedures is to inform the

parties. One pre-trial procedure is discovery, where parties
disclose the evidence that they intend to bring to trial fully and
honestly. In turn, this helps those involved to prepare and
evaluate the strength of the opposing parties’ case.
 MARK THE ANSWER – 2019 EXAM
Zena bought a second-hand dress for $300 for her Year 12 formal. She took it to her local dry-
cleaning store, No Guarantees, to get it cleaned before the formal. When Zena went to pick up
the dress four days later, she was told that the store did not have any record of her dress.
No Guarantees has refused to answer Zena’s calls or emails. Zena shared her story with a
local newspaper and, since then, at least 12 other people have come forward with similar
stories. Recently, Zena went past the store and noticed that it seemed to be permanently
closed. Zena wants to claim the full cost of her dress from No Guarantees.
Discuss the appropriateness of the Victorian Civil and Administrative Tribunal (VCAT) in
resolving the dispute between Zena and No Guarantees

VCAT aims to provide low cost, accessible outcomes for minor civil disputes, and may be
appropriate for Zena.
While VCAT offers a variety of dispute resolution services including mediation and conciliation,
they also have the ability to make binding decisions. This may be appropriate for Zena, as, No
Guarantees has shown that they are unwilling to answer her calls and negotiate. Furthermore,
VCAT is a low cost dispute resolution body.
However, VCATs fees may still be expensive when compared to the cost price of the dress.
Indeed, the dispute is likely to cost at least $150 to pursue. Therefore, it may not be
worthwhile for Zena to file a claim, given that the outcome is uncertain.
 UNIT 4, AOS 1

• the roles of the Crown and the Houses of Parliament (Victorian and
Commonwealth) in law-making
• the division of constitutional law-making powers of the state and
Commonwealth parliaments, including exclusive, concurrent and
residual powers
• the significance of section 109 of the Australian Constitution
• the means by which the Australian Constitution acts as a check on
parliament, including:
– Bicameral structure of the commonwealth parliament
– Separation of powers
– Express rights
– Role of the High Court in interpreting the Australian Constitution
– Double majority requirement
 COMMONWEALTH PARLIAMENT

Queen’s Representative
Commonwealth Parliament - Governor General
State Parliament - Governor

Lower House Upper House

Commonwealth Parliament- House of Commonwealth Parliament- Senate
Representatives State Parliament - Legislative
State Parliament - Legislative Assembly Counsel
 ROLE OF THE LOWER HOUSES

• The Lower Houses are….

The House of
The Legislative Assembly
Representatives
 LOWER HOUSE

House of Representatives
✓ Lower House
✓ 150 members, each representing an electorate of approx. 80,000 voters
✓ Each state, therefore, has a different number of representatives
✓ 3 year term
 LOWER HOUSE

Legislative Assembly
✓ Lower House
✓ 88 members
✓ Each electorate elects one member
✓ 4 year term
 ROLE OF THE UPPER HOUSES

• The Upper Houses are………

The Senate The Legislative Council

THE UPPER HOUSE

THE SENATE

✓ Upper House
✓ 76 members – 12 from each
state, 2 from each territory
✓ Acts as a check and balance, as
all states have equal
representation
✓ 6 year term
THE UPPER HOUSE
THE LEGISLATIVE COUNCIL

✓ Upper House
✓ 40 members
(8 regions, made up of 11 electorates
each. Each region elects 5 members.)
✓ 4 year term
 THE CROWN

• Australia is a constitutional
monarchy
• This means that our head of state
is the British monarch (the
Crown)

• The Crown is represented by

either the Governor-General
(Commonwealth) or Governor
(State)
• Largely ceremonial role
 ROLES

Upper House - House of review

- States house
- Scrutinise bills through the committee process
- Initiate and pass bills
Lower House - Determine government
- Initiate and make laws
- Provide responsible government
Crown - Give royal assent
- Appoints Executive Council
- Appoints federal judges
- Reserve powers (e.g. dismiss government, end parliamentary
sessions). These are not listed in the Constitution, and do not
require legislative approval.
59
 DIVISION OF POWERS

• When Australia was first colonised, each ‘colony’ (roughly

the states) were permitted to make their own laws.
• When Federation occurred, the Constitution was passed,
setting out which areas of law were now the domain of the
Commonwealth of Australia.
• NOTE: The purpose of the Constitution was not to take away
power from the states – it was to ensure that they retained
their power.
 DIVISION OF POWERS
Commonwealth State

Exclusive
Powers Residual Powers
Concurrent
Powers
 EXCLUSIVE POWERS

• These are powers that ONLY the Commonwealth Parliament

has the power to legislate around

• All exclusive powers are also specific powers, but not all
specific powers are exclusive powers!

• There are three ways a power can be deemed exclusive:

– Stated as exclusive (s 52)
– Exclusive by nature.
– States are prohibited.
 CONCURRENT POWERS

• The specific powers that ARE NOT made exclusive one of the
three ways we just went through, are what is referred to as
‘concurrent powers’

• This means that both the state and federal parliaments can
legislate in these areas

• But…this can create a problem, if both parliaments create

legislation that contradicts itself. So…
 SECTION 109

• Section 109!

• This section of the Constitution states that “When a law of a

State is inconsistent with a law of the Commonwealth, the
latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid”.

• It is important to note that the State legislation only

becomes invalid to the extent of the inconsistency.
 RESIDUAL POWERS

• Any power that is NOT mentioned in the Commonwealth

Constitution is therefore, by default, a State parliament
power

• This turns out to be the majority of law-making powers, in

order to keep in line with the purpose of the Constitution –
not to take power away from the States, but to allow them to
retain it.

• Examples include criminal law, and public transport.

 CHECKS ON LAW-MAKING

The study design requires you to know the means by which the
Australian Constitution acts as a check on parliament in law-
making, including:

The bicameral
Separation of Express protection
structure of Cth
powers of rights
parliament

Role of High Court

Requirement for a
in interpreting the
double majority in
Australian
referendum
Constitution
 BICAMERAL STRUCTURE

Commonwealth Constitution provides that parliament is comprised of two houses.

• One party rarely achieves the majority in both houses.

• Six year Senate terms ensure good spread of political views.
• Legislation must be considered and debated extensively.
 SEPARATION OF POWERS

Legislative Executive Judicial

(Chp I) (Chp II) (Chp III)

• Prevents power from being concentrated in one body.

• In practice, the separation of powers is blurred.
SUCH AS…
 EXPRESS RIGHTS

Acquisition of property on • Government can acquire property, however must do so justly.

just terms (s 51) • Think of ‘The Castle’

Right to trial by jury • Trial by jury for Commonwealth indictable offences.

(s 80)

Free interstate trade and • Invalidates laws that are discriminatory/prevents free trade between the
commerce (s 92) states.

• Cannot restrict worship, cannot establish a state religion.

Freedom of religion (s 116) • This is just freedom – does not prevent discrimination.

Protection against
discrimination on the basis • Citizens cannot be discriminated against based on the State that they
reside in.
of state residence (s 117)
 EXPRESS RIGHTS
STRENGTHS LIMITATIONS

•Limited in scope
• Entrenched in the Constitution
•Only a small number
• Enforceable by the High Court
•Not well known
 HIGH COURT INTERPRETATION
• The Constitution sets out the role of the High Court, and gives it
its power through ss 75 and 76
• The High Court has the power to rule on all matters involving the
interpretation of the Constitution
• Has the power to declare laws ultra vires and infer implied rights

STRENGTHS LIMITATIONS

• Entrenched in the Constitution

•Case must be brought before the
• Accountability
court – requirement for standing
• Independence
•Cost and time
 DOUBLE MAJORITY IN REFERENDUMS
• A referendum is the only way that the Constitution can be
changed. It is“a compulsory vote on a proposed change to the
wording of the Commonwealth Constitution”
• Section 128 sets out the process, which can only be initiated by
Parliament.
• The majority of states must agree to the referendum, as well as a
majority of all individuals in Australia.

STRENGTHS LIMITATIONS
• Costly
• Timely
• Difficult to pass • Difficult to word
• Entrenched in the Commonwealth • Australians are generally conservative and
Constitution will fear change
• Focuses on the states • Difficult to pass
• Territories can be considered to have less
of a voice
74
 MARK THE ANSWER

Explain what a ‘concurrent power’ is, and the effect that Section
109 may have on these powers (3 marks)

A concurrent power is a power that may be exercised by both state

and Commonwealth parliament. They are outlined in s51 of the
Constitution, for example: marriage.

As both parliaments may make laws, s 109 prevents inconsistencies.

That is, if there is a conflict between the state and Commonwealth
legislation, the Commonwealth law will prevail to the extent of the
inconsistency. This increases the Commonwealth’s power, and
ensures that there is an easily mandated outcome.
QUIZ
SHANIVCE
 UNIT 4, AOS 2
• factors that affect the ability of parliament to make law, including:
– the roles of the houses of parliament
– the representative nature of parliament
– political pressures
– restrictions on the law-making powers of parliament
• the roles of the Victorian courts and the High Court in law-making
• the reasons for, and effects of, statutory interpretation
• factors that affect the ability of courts to make law, including:
– the doctrine of precedent
– judicial conservatism
– judicial activism
– costs and time in bringing a case to court
– the requirement for standing
• features of the relationship between courts and parliament in law-making, including:
– the supremacy of parliament
– the ability of courts to influence parliament
– the interpretation of statutes by courts
– the codification and abrogation of the common law
Law reform
• reasons for law reform
• the ability and means by which individuals can influence law reform including through petitions, demonstrations and the
use of the courts
• the role of the media, including social media, in law reform
• the role of the Victorian Law Reform Commission and its ability to influence law reform
• one recent example of the Victorian Law Reform Commission recommending law reform
• the role of one parliamentary committee or one Royal Commission, and its ability to influence law reform
• one recent example of a recommendation for law reform by one parliamentary committee or one Royal Commission
• the ability of parliament and the courts to respond to the need for law reform.
 PARLIAMENT AND LAW MAKING

Roles of the The representative

houses of nature of
parliament parliament

Restrictions on the
Political pressures law-making powers
of parliament

You need to be able to discuss these factors in relation to

how they affect the ability of parliament to make law.
 ROLES OF THE HOUSES OF PARLIAMENT
Lower House: Initiate and make laws, represent the people, house of
government.
Upper House: Initiate and make laws, house of review.

– Majority = pass easily and will less debate

Enhance ability of – Minority = thorough scrutiny, good laws
parliament to make – Majority in both houses = easily pass
laws – Minority in upper house = careful scrutiny

– Hung parliament
Limit ability of – Government may need to compromise ideals
parliament to make when there is a minority government
laws – Hostile/rubber stamp Senate
 REPRESENTATIVE NATURE OF
PARLIAMENT
How is parliament representative?
1. Regular elections are held. This allows people to elect the representatives that they want to
make decisions for them in Parliament.
2. Follow majority views. These members of parliament that are elected in need to ensure that
they are following the wishes of the majority of people, or they won’t be re-elected.

Because of this, it can be argued that the need for Parliament to adequately represent the
people that they were elected by, can decrease their ability to create effective law.

Enhance ability of – Laws are consistent with people’s values

parliament to make – Regular elections
laws – Compulsory voting

Limit ability of – Hung parliament

– Government may need to compromise ideals
parliament to make when there is a minority government
laws – Hostile/rubber stamp Senate
 POLITICAL PRESSURES
Political pressures refers to the influences on positions when making
decisions. This may include internal or external pressures.
• Internal pressures refer to pressures on individual politicians
placed upon them by their party.
• External pressures refer to pressures on an individual or group of
politicians placed upon them by others in society.
 RESTRICTIONS ON LAW-MAKING
POWERS
• While parliament is the supreme law-making body, they do
not hold ultimate law-making power.
• As a Constitutional monarchy, Commonwealth Parliament is
restricted by the Constitution (e.g. express rights).
• State Parliaments have plenary power, however are
restricted with regards to their legislative power and s 109.
 REASONS FOR STATUTORY
INTERPRETATION
• Because of the complicated nature of statutes, a judge who
may need to examine and interpret the meaning of words,
phrases or sections contained in a relevant statute
Broad wording used in the Act
Mistakes within the Act
The changing nature of words within society
There is a gap in the Act
The intention of the Act may be unclear
The Act may not cover new types of technology
 REASONS FOR STATUTORY INTERPRETATION
Broad wording used in the Act
• Sometimes words within an Act are ambiguous and/or broad.
• Therefore the courts must specify the meaning of certain words

• An example of this is the studded belt case:

Deing v Tarola (1993): The Studded Belt Case
• FACTS: A man was charged with possessing a ‘regulated weapon’
under the Control of Weapons Act 1990…he was wearing a
studded belt.
• INTERPRETATION: The word that needed to be interpreted by the
judge was ‘regulated weapon’.
 REASONS FOR STATUTORY INTERPRETATION

Mistakes within the Act

• When drafting the bill, parliamentary counsel may have to

write on areas that are outside their expertise
• This can lead to them making errors within the Act

How do the courts overcome this?

- The judge usually looks at the readings from when the bill was
being drafted in order to understand the true meaning/purpose
of the Act
 REASONS FOR STATUTORY INTERPRETATION

The changing nature of words within society

• The meaning of certain words within society change can

change over time
• Therefore, it is important that legislation is interpreted to
give the Act a current meaning

• Example: ‘De facto relationship’

• ‘De facto relationship’ used to mean a man and woman
living in a domestic relationship - now it just refers to a
couple, of any gender, living in a domestic relationship
 EFFECTS OF STATUTORY INTERPRETATION

1. Words or phrases are given meaning: R v Brislan – ‘other like

services’ interpreted to include radios
2. The decision reached is binding on the parties, unless the
precedent is reversed, overruled or abrogated
3. Precedents are set for future cases to follow: decisions in a
higher court (SC, HCA) are binding on lower courts
4. The meaning of the legislation can be restricted or expanded:
e.g studded belt case
 FACTORS AFFECTING THE ABILITY OF
THE COURTS TO MAKE LAW
• The study design requires you to know five factors in relation
to this. They are:
– The doctrine of precedent
– Judicial conservatism
– Judicial activism
– Costs and time in bringing a case to court
– The requirement for standing
 PRECEDENT – KEY TERMS
• Ratio Decidendi:
• Literally translates as ‘the reason for the decision’. This is NOT the decision that is given.
Rather, it refers to the REASONS WHY the judge made the decision that they did. This is
the part of the precedent that is binding on lower courts.
• Obiter Dictum:
• This means statements made ‘by the way’ (plural: obiter dicta). This refers to statements
that are made by judges on points of law, but they are not binding and not part of the ratio.
• Stare Decisis:
• To ‘stand by what has been decided’ – basically the entire principle of the doctrine of
precedent! Courts lower in the hierarchy have to follow the decisions of courts higher in the
hierarchy.

Ratio
Obiter Stare
Deciden
Dictum Decisis
di
 PRECEDENT
ADVANTAGES DISADVANTAGES

– By avoiding precedents,
the court can make new – Stare decisis means
precedents/laws precedents that are unjust
– Judges can make new or outdated have to be
common law when a followed by lower courts
dispute arises and the – Disapproval of precedents
legislation is silent or don’t always lead to
ambiguous changes in the law
– The HCA is not bound to – Ratio’s are inherently
any precedents, meaning limited as they only apply
they can always make new to the case at hand
precedents
 JUDICIAL CONSERVATISM AND ACTIVISM
Judicial
Activism
These judges are more
likely to find distinguishing
features in the cases before
them, and are therefore
able to make law more
readily. They may consider
a range of social and
political factors when
making the decision.
Judicial
Conservatism
These judges are less likely to
see making law as part of their
role, and therefore are likely to
draw similarities between their
case and cases before them.
They don’t believe it’s their role
to change the law, and
interpret the law narrowly.
 JUDICIAL ACTIVISM
ADVANTAGES DISADVANTAGES

– Can lead to more appeals

– Activism can signal the
on questions of law as the
parliament to change the
decisions may be radical or
law if it is outdated or
unprecedented
unjust

– Judges are not elected, so

– Allows judges to be more
any change they make in
creative when making
the law would not be in a
decisions and consider
capacity as an elected,
social and political factors
representative body
 JUDICIAL CONSERVATISM
ADVANTAGES DISADVANTAGES

– Law-making power is
reserved for the parliament,
and judges power in this
– Helps maintain the stability
capacity is diminished
of precedents and the law

– Any precedent made is

– Lessens the possibility of
unlikely to reflect the
appeals on a question of
sociopolitical environment
law
of the country/state at the
time, and only reflect the
word of law
 REQUIREMENT FOR STANDING
• The requirement for standing means that a party must have a
legitimate legal basis to bring a case to court.

ADVANTAGES
– The courts time and
resources are not wasted
with frivolous cases or
disputes
– Parties are only able to
bring cases to court that
will directly affect them
DISADVANTAGES
– Even if a person has
standing, the impact on
daily life may not justify
them bringing a case to
court
– The court is reactive and
not proactive, meaning
they can’t go out and
change the law but can
only do so if a dispute is
brought before them
 RELATIONSHIP BETWEEN COURTS
AND PARLIAMENT
• The study design requires you to know five factors in relation
to this. They are:
– The supremacy of parliament
– The ability of courts to influence parliament
– The interpretation of statutes by courts
– The codification of common law
– The abrogation of common law
RELATIONSHIP BETWEEN COURTS AND PARLIAMENT

The ability of the courts to influence Parliament

• This refers to how courts can influence parliament to make and change law.
• This can be done through:
• - Obiter dicta
• - Explicitly expressing disapproval

• By doing this, judges can inspire or encourage parliament to initiate law reform as to
a law or precedent that is unjust or outdated

• Example case: Trigwell case

• Originally, farmers were responsible for damage caused by their livestock that ran
away.
• In this case, the High Court was reluctant to interpret the Act and establish the
principle that they are liable, but stated that Parliament should change it; and it was
changed!
RELATIONSHIP BETWEEN COURTS AND PARLIAMENT
Codification of common law

• Codification means to collect all common law and other law on

one topic together into a single statue; to put it simply,

• This means moving an existing legal principle/precedent from the

common law to legislation. This new legislation would then be
binding on all courts and people until it is otherwise amended or
repealed.

–Example case: Mabo

–The legal principle of terra nullius was overturned in the High Court,
and the federal government soon after codified it’s removal in
federal legislation.
RELATIONSHIP BETWEEN COURTS AND PARLIAMENT
Abrogation of common law

• Abrogation means to cancel or abolish a court-made law by

passing an Act of Parliament. The precedent is therefore annulled,
overridden and abolished.

• Example case: Trigwell

• Parliament abrogated the legal precedent saying that farmers
have immunity should their livestock run astray and cause
damage.
• From then on, farmers didn’t have immunity, therefore the court-
made law has been abrogated.
REASONS FOR LAW REFORM

New
technology

Changing
Anything
social
else?
values
Why do we
need to
change the
law? Changes
Law may
in
be
economic
outdated
growth
Responding
to new
issues
 PETITIONS
Definition: A petition is a formal, written request to the government or
other body attempting to get them to take some sort of action, such
as reforming a particular law

• Most effective when supported by a large number of people.

STRENGTHS
They are simple, easy and inexpensive
MPs are more likely to consider law reform if a
petition has a large amount of signatures
WEAKNESSES
Good ideas may be overlooked if there is little
support able to be shown for it
The influence of the petition could vary depending
on the particular government at the time

Once a petition has been given, the parliament is Parliament received hundreds of petitions and
required to table it for discussion there is no guarantee law reform will be
implemented as a result
A digital petition enables petitions to reach a
much larger audience, and can easily display the
amount of signatures
 DEMONSTRATIONS
Definition: A gathering of a group of people to protest or express their
common concern or dissatisfaction with a particular thing or event.
These are often used to influence law reform.

STRENGTHS
Demonstrations can attract large numbers
of participants, which can attract media
attention and grow awareness of the issue
Demonstrations can raise social awareness
on issues the public may not have heard of
or considered (eg Uber protests)
WEAKNESSES
If a demonstration involves violent, illegal or
inconveniencing behavior, it can actually
harm the message trying to be conveyed,
and the government is likely to not change
the law if this happens
Judges are not elected by the public and
their decisions may not represent the views
and values of the community
Demonstrations are often single events that
may not generate ongoing support for the
desired law reform
 COURTS
THE MOST DIRECT WAY
Using the courts is the most direct and perhaps the most effective
way for individuals to influence law reform.
• By bringing a case to court, a new precedent may be formed, or
the court may change a precedent, or through it’s judgement
influence or encourage parliament to reform a particular law.
STRENGTHS WEAKNESSES
Even if a court challenge is unsuccessful, it Courts are limited as they are reactive and
may gain significant media coverage and not proactive, and can only change or
help raise awareness influence the law once a case has been
brought before them

Judges are independent of the legislature
and therefore determine cases based on the
law and the facts
Judges can encourage change to the law
through their dicta or ratio
Judges are not elected by the public and
their decisions may not represent the views
and values of the community
Judge-made law can always be abrogated or
changed by parliament
 VICTORIAN LAW REFORM COMMISSION

• The VLRC was established in 2001 to assess the need for

changing laws in Victoria.
• Although it was created by an Act of Parliament and is a
government-funded body, it acts independently.
• The VLRC conducts inquires into certain areas of law, at the
request of the Attorney-General.
 PROCESS

A request is received from the Attorney-General (this is called a ‘reference’; the VLRC then
conducts it’s review under the terms of that reference)

There is a review of the current law

The VLRC will consult with groups or individuals that may be currently affected by the law,
or would be affected by any possible changes, as well as experts in the area

Papers are prepared

A final report is given to the Attorney-General, which is tabled in each House of Parliament
(Victoria only!)

The Government then decides whether or not to draft any legislation that takes on board
the recommendations
 MARK THE ANSWER
Evaluate two features of the relationship between courts and parliament in law-making (6 marks)

One feature of the relationship between courts and parliament in law-making is the interpretation of
statutes by the courts.
This allows for the courts to be involved with the legislation passed by parliament. Statutory
interpretation allows the courts to clarify the meaning of Acts of Parliament, broadening or narrowing
their meaning. For example, in the case of Deing v Tarola (1997), the courts had to interpret the words
‘regulated weapon’ from an Act of Parliament to see whether it included a studded belt. Thus, a strength
of statutory interpretation is that it ensures legislation written by parliament is not ambiguous and can be
understood by not only the courts but individuals who are using the law. However, a weakness of
statutory interpretation is that parliament can easily override the way in which the courts interpret
legislation, as parliament can pass a new Act that may again change the meaning of a certain Act.
Therefore, statutory interpretation can allow the courts to further understand the meaning of legislation
passed by Parliament.
A second feature of the relationship between courts and parliament in law-making is the codification of
common law. This allows parliament to pass legislation as a result of common law established in the
courts. Parliament can confirm the precedents established through the courts and make laws affirming
this. For example, the case of Mabo v Queensland (1992) involved the courts overturning the principle of
‘terra nullius’. As a result of this, parliament passed legislation that confirmed this precedent,
establishing land rights for the Meriam people. Thus, a strength of codification is that it can allow
parliament and the courts to work together effectively to improve legislation for people in Australia, such
as Mabo. However, a weakness of codification is that parliament may still be able to completely change
a law they may have originally codified due to their supremacy, meaning that the courts have little say in
the change. Ultimately, codification of common law is effective as it can ensure parliament and the
courts work together .
 MARK THE ANSWER

Describe one reason why statutory interpretation may be used

(2 marks)

One reason why statutory interpretation may be used is due to

problems that occur as a result of the drafting process. Thus,
such legislation may need to be interpreted to overcome these
issues.
 MARK THE ANSWER

Describe one factor affecting the ability of courts to make law

(3 marks)

One factor is judicial conservatism. This refers to when judges

find distinguishing features in cases and make law more
readily. Another role of the courts in law-making is to establish
precedents. A precedent refers to the establishment of a legal
principle that is to be followed by other courts ranked lower in
the same court hierarchy for future and similar cases.
Precedents ensure that the law remains consistent, reliable
and predictable, ensuring that judges have past cases to follow
and utilise.
 THE EXAM

• There are four key elements that you need to look at when
you are confronted with a question on the exam:
– Task words: This is the part of the question that will tell you how to
craft your answer – for example, evaluate, discuss, critically
evaluate, identify
– Content words: These are the words which will tell you what section
of the study design you should be looking towards
– Limiting words: These are vital, as they tell you what NOT to write –
e.g. “one example”
– Mark and time allocation: As an average rule, in the end of year
exam, it’s approximately a minute and a half per mark
 EXTENDED RESPONSE

• There are quite a few extended response questions on the

end of year exam, ranging from 6 to 10 marks
• Often they will draw multiple sections of the study design
together
• Tips:
– Planning
– Logical structure
– Introduction/Conclusion
– Don’t be afraid to have an opinion!
 10 MARKER TIPS

• 1) Plan before you write!

• 2) Break down the question, and figure out where you are
getting each mark from (usually there will be a final ‘holistic’
mark which refers to the way you wrote and structured your
answer)
• 3) LEAVE SPACES BETWEEN YOUR PARAGRAPHS!! (VCAA
actually labelled this as an issue in the 2018 exam)
• 4) Have a sentence to open up/conclude your ten marker
 STUDYING

Management • Knowledge
Time

• Understanding

• Application
 STUDY TIPS

• The first and unfortunately most unhelpful tip is that absolutely

everyone is different when it comes to what works for them…

• However, here are some pretty common ones:

– Flash cards
– One page summaries
– Communication with your family
– Timed practice exams
– Using the examiner’s reports
– Scheduling
– Using your teachers
116
QUESTIONS?