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TutorOnDemand.com.auLegal Studies notes by Mr. S. Phelan

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LEGAL STUDIESTutor on Demand

Unit 3

Simon Phelan

Rosehill Secondary College

1

Link to the Video

https://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1a

https://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1b

https://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2a

https://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2b

https://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/858/VCE-Legal-Studies-Unit-3-AoS1-part-2bhttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/857/VCE-Legal-Studies-Unit-3-AoS1-part-2ahttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/856/VCE-Legal-Studies-Unit-3-AoS1-part-1bhttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studies-Unit-3-AoS1-part-1ahttps://tutorondemand.com.au/video/view/855/VCE-Legal-Studi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5 –> 3 in Unit 3 and 2 in Unit 4

What weighting does each Area of Study have over the whole course?

Is this weighting reflected in the exam?

How many Areas of Study are there in each unit?

Unit 3

AoS1

Unit 3

AoS2

Unit 3

AoS3

Unit 4

AoS1

Unit 4

AoS2

Study Design 12.5% 25% 12.5% 20% 30%

Examination 2011 14% 19% 13% 19% 36%

Examination 2012 16% 26% 11% 17% 30%

How well do you know the course?

Give each Area of Study the appropriate level of revision time –

don t focus too much on one topic at the expense of the others. 2


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What do I need to do to be successful?

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Unit 3: Law-makingAoS1: Parliament and the citizen

Topic 1 – principles of the Australian parliamentary system and thestructure of Parliament

Topic 2 – reasons why laws need to change, the role of the VLRC and

individuals and groups affecting change, the legislative process and

strengths and weaknesses of parliament as law-makers

AoS2: The Constitution and the protection of rights

Topic 1 – the division of law-making power, referendums, High

Court interpretation, referral of powers

Topic 2 – the protection of rights in the Constitution, structural

protection of rights, High Court protection and a comparison with

another country

How many Topics are there in the course?

AoS3: Role of the courts in law-making

Topic 1 – Precedent and statutory interpretation

Topic 2 – Strengths and weaknesses of courts and parliament as law-

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UNIT 3 Area of Study 1

Feature Criminal law Civil law

Party bringing the dispute to court

Burden of proof Party brought to court

Standard of proof Verdict at trial Outcome of successful verdict Aim of court action

Reason for court action

Beyond reasonable doubt

Breach of society’s laws Person’s rights infringed

Prosecution Plaintiff

Borne by prosecution Borne by plaintiff Defendant Defendant

Balance of probabilities Guilty or not guilty Liable or not liable

Restore plaintiff ’s rights Punish offender Remedy Sanction

Use these terms at all times to demonstrate your knowledge andunderstanding

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Structure of

parliament

• Bicameral

• Upper House

• Lower House

• Role of the Crown

Separation of

powers

• Legislative

• Executive

• Judicial

Representative

Responsible

Principles of Australia s parliamentary system

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Australian

Crown’s

representative

Upper House

Lower House

Governor-General

Senate – House of

review, States House.

76 Senators (12 each

state, 2 each

Territory, Elected for

6 years, half every 3

House of

Representatives –

Elected for 3 years,

150 members, each

represent an ‘area’

Victorian

Crown’s

representative

Upper House

Lower House

Governor

Legislative Council –

40 members, 8

members elected

from 5 Districts,

equal in size,

Elected for 4 years

Legislative Assembly –

Elected for 4 years, 88

members each

representing an equal

area

Structure and role of ParliamentBicameral

Constitutional Monarchy

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Australia Victoria

Crown

Upper House

Lower House

Royal Assent to Bills

Chair meetings of Executive

Council

Dismiss and swear-in PM

and Parliament

Issue writs for elections

Ceremonial duties

Royal Assent to Bills

Chair meetings of Executive

Council

Dismiss and swear-in Premier

and Parliament

Issue writs for elections

Ceremonial duties

Review Bills passed by lower

house, represent the views of

the States as they review Bills

Introduce most Bills into

Parliament, debate Bills,

determines government

Review Bills passed by lower

house

Introduces most Bills into

Parliament, debate Bills,

determine government

Roles

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Power Held by? Function

Legislative ParliamentResponsible for making

the laws

Executive

Judicial

Executive Council (G-G and 2

Ministers)

In essence held by government

Courts (High Court at Federal

level)

Responsible for administering

and enforcing the laws

passed by Parliament

Responsible for interpreting

and applying the laws in

cases that come before the

courts

Must be kept separate to avoid abuse of power – allows for

checks and balances in our system

Separation of Powers

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Representative & Responsible

Parliament (and its members) must represent the views and

values of the majority of society.

Societies views are represented through regular elections where

we vote for those that we think will best represent us.

Ministers –

those charged with delivering policy throughgovernment departments, are accountable for their actions.

Ministers who don t act responsibly can be sacked or stood

down (Peter Garrett, Craig Thompson, Peter Slipper, Geoff Shaw

are recent examples).

If Ministers don t act responsibly we can lose confidence in the

government and vote them out at the next election

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* New crimes – ‘Upskirting

’/ Brodies law

* Update penalties – ‘Towle case’. Penalties for Culpable Driving changed

* Remove ‘old’ crimes from the statutes

* New technology – internet, cyber stalking

* Changes in society – ‘driving laws for 18 year olds/search powers for

knives

* Protection of community –

‘drug driving

’ laws

* Improved access to the law – Koorie Court Division in County Court

It is important for students to know why laws need to change and a

recent, relevant example can only improve your answer.

Reasons why laws need to be changed

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Law

ReformBodies

• VLRC

Groups &

Individuals

• Pressure Groups

• Individuals

• Petitions

• Use of media

• Demonstrations

Courts

Influences on law-making

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The role of the VLRC

Undertakes review of areas of law to determine if changes are

needed

Two means of undertaking a review:

1. Instructed by the Attorney-General

2. Initiate review on minor areas of law based on own

observations/concern

Process of undertaking a review:

1. Instructed by the Attorney-General

2. Seek public input via website and community forums

3. Input can be sought from other sources such as, expert

opinions, laws and law reform undertaken interstate oroverseas

4. Report and findings presented to Attorney-General

5. Report tabled in Parliament and acted upon/not acted

upon at the discretion of the government

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The role of individuals & groups

What role do individuals and groups play in

influencing changes in the law and how effective arethey?

Method Definition Effectiveness

Petition

Demonstration

Lobbying

Use of media

A collection of signatures

in support of a change

An assemblage of people

in a public place

supporting some action or

legislative change

Joining a lobby group and

approaching MPs directly

Letters to the Editor or

using talkback radio

Reasonably – tabled in

parliament if presented to anMP

Gains media attention if

held in significant location –

often outside parliament

house

Organised, able to get

media attention

Requires multiple people

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Bills are generally introduced into the Lower House. Why?

• Lower House is the People’s House and the people often have a say

in the laws that are made

• Lower House is responsible for determining government and the

government introduces most Bills

• Majority of Ministers are members of the Lower House and Ministers

introduce most Bills

1st Reading

• Formal notice to introduce Bill

• Long Title is read

• Bill is timetabled for debate at a future time

2nd Reading

•Minister ’s speech to outline purpose of Bill

•Copies given to all MPs

•Bill is debated with a formal debate – controlled by Speaker

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Committee Stage (Consideration-in-Detail)

This stage may be omitted if house agrees

• Speaker (President) leaves the house

• Informal debate

• Bill is debated clause by clause.

• Amendments made

• Committee report is adopted

3rd Reading

•Long Title read again

•Further debate – last chance for amendments

•Voted on and moved to second house

Second House

• Same procedure occurs

• Any amendments made must be approved by other house

• Voted on and moved to final stages

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Certification

Clerk of House certifies Bill – given a number

Royal Assent

Signed by Queen’s representative

Proclamation

Published in Government Gazzette detailing the date at which law

comes into effect

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TutorOnDemand.com.au Legal Studies notes by Mr. S. Phelan©Edrolo


STRENGTHS AND WEAKNESSES OF PARLIAMENT

Strengths:

• Parliament can delegate law making authority tospecialised subordinate bodies (eg. Localgovernment and semi government authorities)

• Members of parliament are democratically elected – represents the will of the majority, ensuresresponsible and representative government

• Parliament is open to ideas for legislation from awide variety of sources.

• The stages in the passage of a bill allow thoroughdebate and review of the law to occur.

• Forum for debate – open to public and media.

• Investigates entire areas of law and creates original,amending or codifying acts to regulate a wholetopic (eg. Anti-terror laws).

• Can respond efficiently and effectively to changelaw in response to public opinion and global events(eg. Sept 2005 C/wlth anti-terrorism laws; 2010Health reforms).

• Can order government inquiries and RoyalCommissions to seek expert advice and involve thepublic (eg. Teague and Feb 2009 bush fires)

• Law-making in futuro: rights are clear in advance(eg. July 2008 peer passenger limits for P-platedrivers).

Weaknesses

• Parliamentary time is often dominated by partypolitics rather effective and representative law

making.• When parliament delegates law making authority,

laws are being made by authorities that were notdemocratically elected and these laws may lackscrutiny by parliament.

• Parliamentary debate and change in the law can bea very slow process.

• Parliament has relatively few sitting days, creating a

limit to the number of bills that can be presented.• Obstructionist – If both houses are controlled by

the government the role of the House of Reviewbecomes virtually meaningless (eg. (Howard 2004to 2007, Commonwealth Parliament and thechanging balance of power in the Senate from 1 July 2008; Brumby since 2006)

• Rubber Stamp – government controls both housesso debate in second house is often limited

• Controversial issues may not be fully addressed

• Legislation can be a compromise betweencompeting interests and becomes less effective

• Difficulties in creating law in futuro

• Residual powers lead to differences in key areasbetween states (eg. Road and water law)

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TutorOnDemand.com.au Legal Studies notes by Mr. S. Phelan©Edrolo

P d b T t O D d Pt Ltd

UNIT 3 2011

Area of Study 1 Q7a. 1.5/2

Question 7

A former member of parliament recently commented that ‘the use of the

media has been effective in influencing change in the law in recent times,

given that parliament itself has weaknesses as a law-maker ’.

a. Using one example, explain how individuals or groups may use the

media to influence legislative change. 2 marks

Full marks were awarded to students who used examples and explained

how individuals or groups used the media to influence a change in the

law. It is not enough to just provide an example.

Indiv iduals or grou ps m ay use the media to b r ing an issue out in

the publ ic domain and have members of the commun i ty discuss ingthe issue and pu tt ing pressu re on their par l iamentar ians to make a

change in the law. For example, the pressure grou p GetUp! uses

a range of media such as advert isements, websi tes, twi t ter and

Faceboo k to raise awareness of issu es, encou rage community

members to sign pet i t ions and comm un icate with par l iamentar ians.

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