AUSTRALIAN LEGAL STUDIES Legal Studies - Characteristics of Effective Laws: Fairness, Access, Time and Values Fairness, Access,

Time and Values This resource explores the characteristics of effective laws as well as mechanisms within the dispute resolution framework. * _fairness_ and unbiased legal procedures and hearings * _access_ to mechanisms for dispute-resolution * _timely_ resolution of disputes * _values_ and rights recognised EFFECTIVE LAWS ARE CHARACTERISED BY ANY OR ALL OF THESE FEATURES. Hence an effective law may be one that produces the right outcome, a correct court decision or jury verdict, or the proper use of sentencing laws by a court. This broad definition suggests the concept of an effective law is open to a degree of interpretation. Precision in a definition of effectiveness is therefore difficult as the perspective of effectiveness may vary depending on the status of the viewer, i.e. perspectives of effectiveness can differ depending on the extent to which they affect particular individuals. For example, in criminal cases, the legal system often needs to reconcile conflict between the protection of individual civil liberties, whilst maintaining mechanisms for the suppression of crime and retribution on behalf of victims and society as a whole. In this instance, a convicted offender may see a jury verdict as effective, whereas a victim of crime may see the same verdict as ineffective. In addition, the legal system and convicted individuals may have different versions of the effectiveness of procedures used in a criminal case. However, it must be noted that society's perspective of the law's effectiveness is often more important than an individual's because in certain cases it represents the majority view in a democratic legal system. Procedural justice. Substantive justice. Two types of effective justice exist: 'procedural' and 'substantive' justice. _Procedural_ justice refers to the processes for reaching an outcome or decision or verdict (eg the criminal trial procedure in the Supreme Court before a judge and jury); whereas _substantive_ justice refers to the actual outcome or decision or verdict within the legal system (e.g. guilty and imprisonment for 28 years). In this way, an outcome may be argued as being procedurally just but substantively unjust if the processes for reaching the final decision were fair and unbiased, but the final decision raises doubts on questions of law, is wrong on the facts or against the weight of the evidence.

Elements or Characteristics of Effectiveness The explanation of the characteristics of effectiveness must be explained by reference to the elements for achieving effectiveness under the law. The Element of Fairness Fairness refers to the notion that legal processes and procedures are not prejudicial to parties involved in them and will be demonstrably unbiased in reaching an outcome. Fairness under the law is achieved through various means, including: * right to remain silent * right to apply for bail * right to legal representation and legal aid * restrictions on questioning and detention time by law enforcement agencies * certain restrictions on the power of arrest * rights to refuse ID parades and searches (subject to court order) * right to committal proceedings in indictable offences * court hierarchy and specialised courts for particular legal disputes * right to legal representation and legal aid * presumption of innocence * burden and standard of proof * independent judiciary and magistracy * rules of evidence and procedure * right to trial by jury for indictable offences * public verdict * consistent sentencing laws * open courtrooms, court reporting and media coverage * right of appeal * appropriate correctional procedures

* right of pardon/executive intervention (e.g. Royal Commission into conviction - Chamberlain Case 1982) The Principle of Access Legal mechanisms are those institutions and processes used in the appropriate and just resolution of disputes, according to the law and the principles of natural justice (i.e. equality and fairness). This aspect of effectiveness refers to access to the mechanisms which constitute the framework for dispute resolution within the legal system. The mechanisms fulfilling this role may be characterised as informal, semi-formal or formal in structure and operation. Whilst there is a range of mechanisms for dispute resolution, most disputes are in fact resolved outside of the traditional court hierarchy. The law aims to achieve just outcomes in disputes which are inevitable in society. Mechanisms for dispute resolution are required to minimise disorder and disruption. Disputes are inevitable in society and one primary way the law helps to achieve just outcomes is by establishing institutions and processes to resolve disputes. Mechanisms for effective and just dispute resolution are required by the legal system because society demands that conflict and disagreements be resolved in an orderly manner. That is, mechanisms for dispute resolution are required to minimise social disorder and division, and to avoid possible retaliation. Dispute resolution A large complex democratic society contains a wide range of conflicting values, beliefs, arguments and views that require management and resolution in order to prevent the breakdown of law and order. Where such a breakdown occurs, the rights of all citizens in the legal system are at risk (e.g. Los Angeles riots April 1992, following the acquittal of police officers charged with the assault of taxi driver Rodney King). As there is a diversity of views in a democratic legal system, there are a variety of different types of disputes requiring resolution. In this way, the legal system provides a range of mechanisms to resolve the different disputes that arise. The traditional mechanisms used for dispute resolution are the courts (eg Supreme Court, Magistrates' Court); however, in the contemporary legal system, more alternative types of dispute resolution mechanisms have developed. As such, today, there are options for dispute resolution which progress beyond the traditional court hierarchy and adversarial system of justice. Society demands that disputes be settled peacefully and in a just and consistent manner. The Resolution of Disputes Society demands that disputes be settled peacefully and in a just and consistent manner. Unresolved and uncontrolled conflict threatens the

smooth functioning of the legal system and society as a whole. All adjudicating and enforcement mechanisms have a role to play in the ensuring that society's basic fabric is not damaged by such conflict. The emphasis here for the dispute resolution mechanisms is that of resolution and prevention. The Legal System To be effective, the legal system must seek to resolve disputes in a timely and appropriate manner. Unnecessary delay or obstruction in the resolution of disputes results in justice not being achieved. Delays often force potential litigants to abandon or forfeit litigation or a defence to a criminal prosecution, due to lack of financial resources or disruption to their personal and/or professional lives. As well, delays can create problems in trial procedures. The quality of evidence may be undermined over time as witnesses' memories fade about critical incidents, facts and perceptions. Overall, the appropriate time periods and without undue delay or interference to their lives. The timely resloution of disputes is important to the legal system's effectiveness. Various Mechanisms in the Dispute Resolution Framework * main mechanism responsible for formally making laws/rules * enables potential future disputes to be prevented or minimised in advance * operates by creating new laws or amending existing laws, in accordance with jurisdictional limitations and as a result of social input in a democratic process * authority is conferred by law-maker * major role is to discover crime, deterrence, apprehension of offenders and bring them before the courts * presence and existence helps to prevent disputes and disruptive conduct before it occurs The traditional court hierarchy is the major forum for dispute resolution within the legal system, and is often used when other (alternative) methods of dispute resolution fail or are inadequate for the purposes of justice. Each court in the traditional hierarchy has its own particular jurisdiction (e.g. the High Court of Australia (HCA) is the only court that resolves constitutional disputes). The courts are the mechanisms where: (1) accusations of wrongful conduct (civil wrongs) and (2) alleged law-breakers (criminal) are legally processed. They are presided over by qualified and skilled personnel who have considerable expertise in the law. The traditional courts are arranged in a hierarchy which makes the dispute-settling process more efficient by offering degrees of specialisation in the resolution of particular types of disputes, allowing a system of appeals to operate, and facilitating the use of the doctrine of precedent in law-making. The courts' main function is to resolve disputes

by punishing wrongdoers, enforcing obligations and protecting individual rights. Mechanisms in the Dispute Resolution Framework Specialised courts and tribunals (SCATs) make a contribution to the efficient dispute resolution process by offering expertise in recurring areas of dispute resolution, reducing delays and costs in disputes and being generally more accessible mechanisms for citizens to use. Including pre-trial, trial and post-trial stages (see 'Equality' and 'Fairness'): * specific pre-trial procedures are required (e.g. civil - exchange of documents) * enables both parties to know issues in dispute (civil) and assist out-of-court settlement * enables decision about whether sufficient evidence to support conviction exists (committal - criminal) * independent judiciary/magistracy * rules of evidence and procedure assists disputes to be settled fairly, with both parties provided opportunity to prepare and present cases * legal aid allows parties otherwise undefended to undertake legal proceedings * system of appeals allows dissatisfied litigants chance of redress * major role-players in resolution of clients' disputes before the courts * knowledge of the law and legal procedures enables fair trial to occur and assists litigants to reach more informed decisions about the conduct/presentation of court cases (to their advantage) * Roles: 1. Provision of advice for prospective litigants regarding rights, duties, legal status. 2. Representation in court and assist in resolution of disputes. * authority conferred by parliament * mechanisms of lawful detention where offenders are detained for disruptive or criminal conduct * essential to proper functioning of legal system and just outcomes so as to make criminal law effective and enforceable

Legal Studies - Classification of Laws Classification of Laws (In November 1999 designer Bettina Liano won a Federal Court injunction to stop another company from copying her styles.) There are many different types of law that can be categorised in a number of different ways. Laws can be classified according to their purpose, area of regulation, origin and public or private nature. Generally, classifications focus on the area of regulation or control provided by different branches of the law. _Criminal law_ is made up of offences against the state. These offences represent violations of established legal rules about expected patterns of conduct in society. These violations are prosecuted in the courts and are subject to sanction when a person is convicted. Criminal law involves offences such as murder, kidnapping, conspiracy, armed robbery and tax evasion. However, criminal law can be further categorised into the two main types of offence: indictable offences and summary offences. An indictable offence is a serious criminal offence such as rape, which is tried before a judge and jury in a superior court such as the County Court. A summary offence is a less serious offence such as speeding, which is tried without a jury before a magistrate in the Magistrates' Court. _Civil law_ is the area of law regulating relationships between individuals and groups and providing for compensation where an individual's rights are infringed by others. The purpose of the civil law is to obtain a remedy for a party who claims to have had their rights infringed and who has subsequently suffered loss or injury in some way. As a general rule, any legal dispute not involving a crime is classified as coming within the civil law. Civil law can be divided into many parts including: * law of torts * law of contract * family law * company law * administrative law * property law * consumer law * discrimination law It should be noted that not the entire area of each of the above is

considered civil law. For example, certain criminal offences related to child abuse and domestic violence within the broad area of 'family law' are clearly criminal law matters. Legal Studies - How the Law Changes: Introduction How the Law Changes: Introduction The law is made or changed in three ways: * parliament (enacting legislation) * delegated or subordinate bodies (passing regulations, local laws, statutory rules etc) * courts (establishing case law or precedent) Parliament * creates, amends, repeals, consolidates and codifies legislation * passes bills through various stages of a set procedure in both houses * Royal Assent is given by Monarch's representative * process of law-making is open and democratic Delegated Bodies Categories of delegated body include: * statutory authorities * government departments * local councils * executive council(s) Delegated bodies create, amend, and repeal delegated legislation called variously regulations, local laws, statutory rules, proclamations and ordinances. Delegated legislation passes through an essentially administrative procedure rather than the formal legislative parliamentary steps. Delegated legislation is generally subject to parliamentary scrutiny. Courts Courts make law in three ways: * creating new principles of law where none exist * adapting or modifying existing common law principles to new cases

* interpreting legislation Law-making through the courts is a secondary role; the major function of the courts is to resolve disputes. Law-making is a closed, judge-made process. Why the Law Changes As society changes so does the law As society changes, so must the law. If the law is not changed, it becomes irrelevant and redundant. Further, the inability to respond appropriately to current issues may lead to ineffectiveness in the legal system. Therefore, change in the law occurs due to: * social developments * changing technology * changing values Social Developments Social developments that produce legal change can arise from: * disputes not being prevented * new patterns of conduct emerging * particular social incident/controversy * conflicting social or political attitudes about an issue Changing Technology * IVF technology * speed cameras * automatic teller machines * intellectual property - computers, copyright * white collar crime Changing Values * moral values: medical treatment laws/euthanasia * social values: mandatory reporting of child abuse * economic values: introduction of tax file numbers/GST agreed in 1999

* political values: dangerous offenders legislation in 1990s Methods used in Changing the Law There are a variety of factors or causes that produce pressure for legal change and reform, including groups, institutions, individuals, circumstances and social events. These sources or factors occur both within and outside the formal law-making institution, parliament, establishing pressure for change: WITHIN PARLIAMENT government party policy Cabinet ministers government departments opposition party policy shadow cabinet shadow ministers private members' bills

OUTSIDE PARLIAMENT law reform commissions royal commissions/inquiries Statutory authorities local councils pressure groups public/social opinion The effectiveness of all the above factors depends upon the political response to the factor or cause. If the government of the day essentially supports the idea for law reform in a certain area, then new or amending legislation usually results. If the political will for the change does not exist - despite the merits of a proposal for law reform - then no change occurs. _Law reform is a political decision._ Examples of Factors causing Changes in the Law Government party policy * agreed change to tax laws to introduce GST from 2000 * changes to gun laws:_ Firearms (Amendment) Act 1996_ (Vic.) Government departments * introduction of tax file numbers in 1988-89 Private members' bills

* _Euthanasia Laws Act 1997_ (Commonwealth) - the Andrews Bill repealing the Northern Territory's _Rights of the Terminally Ill Act 1996_. Law reform commissions * amendment to penalty for murder in_ Crimes Act 1958_ (Vic.) - from mandatory life imprisonment to a maximum of life imprisonment Royal commissions/inquiries * creation of National Crime Authority (NCA) to investigate organised crime arising out of the recommendations of the Costigan Royal Commission 1980-84 Statutory authorities * Victorian Board of Studies: changes to VCE from 2000 Local councils * initiate changes to law in range of local matters Pressure groups * generated pressure for the amendment to heritage law proclaiming the Franklin Dam area as a world heritage site (_World Heritage Properties Conservation Act 1983_) and the Tasmanian Dams Case before the High Court in July 1983 Public opinion * the amendments produced by the_ Family Law Reform Act 1997_ (Commonwealth) concerning the more effective operation of the original Act In addition, there are a variety of _methods_ used by the above factors, people, groups and organisations to assist in generating pressure for change including: submissions to parliament lobbying of politicians protests and demonstrations media coverage test cases industrial action joining or starting a political party defiance of the law petitions private members' bills As with the above factors, these methods enjoy varying degrees of success

depending upon the political response from the government or parliament of the day. Role of a Law Reform Body There are a number of law reform bodies that can be examined including: * law reform commissions * royal commissions * parliamentary committees * government inquiries The emphasis here is on the law reform body's role in the process of legal change. Role of Courts in Changing the Law The courts are able to change the law by establishing and adapting new case law principles in giving decisions (i.e. precedents). This law-making or law-changing role of the courts is, however, a secondary function to their dispute-resolution role. In this way, the courts are reactive law-makers: they can only 'make' law when a case arises for decision, not decide the timing of a case law change. Even then, it is effectively only the superior courts which make law when a matter proceeds to appeal before the courts higher in the hierarchy (e.g. Full Bench of the High Court of Australia). Courts have been very significant in the development of our law and many branches of the law stem from case law principles established by judges in court cases over time. These include: * tort law: manufacturers' liability for negligence * contract law: the elements of a valid contract * criminal law: the elements of murder as an indictable offence * constitutional law: the meaning of 'free trade' between the states of Australia Legal Studies - Role of Parliament and the Court Role of Parliament and the Courts Judges make law by deciding cases. The law made by judges is called case law or common law. All courts can make new 'decisions' but in practice it is the superior courts of record that establish case law. These courts include both the original and appellate jurisdictions of the High Court, Family Court, Federal Court and Supreme Court. Law made by judges is contained in the law reports, held in law libraries for future reference by judges, barristers and solicitors.

It is important to remember that judges have no formal authority to make law. Law made by judges is a secondary consequence or by-product of the dispute-settling role. Parliament's primary role is law-making. As such, judges can only 'make' law if and when a case for dispute comes before them for resolution. In resolving the case, a court may make a new precedent, modify an existing precedent or interpret the meaning of words in legislation in a new or novel way. The Doctrine of Precedent (The doctrine of precedent involves following the decisions of previous cases to resolve current ones.) _The legal practice of following decisions of previous cases to resolve current cases (based on the notion of 'stare decisis' - to 'stand by things already decided')._ * binding precedent - a previous decision that must be followed. The binding element of a precedent is known as the 'ratio decidendi' (reason for the decision) * persuasive precedent - a previous decision that may be followed but is not required to be followed. The binding element of a precedent is known as the 'obiter dictum' (other matters addressed by the court in reaching a decision, not part of the main reason for the court's decision) * superior courts bind inferior courts in the same hierarchy * equal courts do not bind each other * courts in other jurisdictions do not bind our courts Old precedents should not necessarily be avoided or rejected. * a hierarchy of courts (with superior and inferior courts) * a system of formal law-reporting (for future reference and comparison) * a recognition by courts of the worthiness of the doctrine (i.e. that precedents are worth following) Interpretation of Past Decisions Generally, courts will follow the decisions of previous courts in the same hierarchy. This assists consistency and certainty in the law pronounced by the courts. However, even where a decision appears to be binding on a court, it may not necessarily be followed by virtue of particular judicial approaches taken to the interpretation of past decisions. These approaches include: * _reversing_ a previous decision This involves a superior court in the hierarchy changing the decision of a lower court in a case being heard on appeal. Reversing involves the same case being heard on appeal.

* _overruling_ a previous decision This involves a later, superior court in the hierarchy overriding a decision of a lower court in a previous case, by saying the earlier case was wrongly decided and no longer to be considered 'good' law. Overruling, unlike reversing, involves two different cases altogether. * _distinguishing_ a previous decision This involves a court stating a material difference exists between a previous decision and the circumstances of the case presently before the court. As such, the earlier case does not have to be followed. * _disapproving_ a previous decision This involves a court stating its belief that an earlier case was wrongly decided. If the later court is inferior to the court that decided the previous case, the precedent cannot be overruled but only disapproved. If the later court is equal to the court deciding the previous case, the precedent also cannot be overruled but may be disapproved, establishing two competing precedents in this instance. Whilst precedent has many strengths, a number of difficulties exist with its usage including: * _Volume of case law_ The vast quantity of case law can make it difficult to know exactly what precedents should be used in deciding a case * _Age of case law_ Many precedents are dated making their application in the contemporary legal system difficult * _Distinguishing ratio from obiter_ It can be extremely difficult to determine exactly what principles a case stands for, i.e. working out the ratio decidendi from the obiter dictum can be complex and uncertain. * _Multiple precedents_ Where courts disapprove of previous decisions without overruling them, conflicting precedents can then exist making it difficult for future courts to make decisions with certainty about exactly what the law is on a certain area. Role of Courts (The major role of the courts is the resolution of disputes.) The role of courts in the interpretation of legislation is to give effect to the purpose of parliament in enacting the legislation, i.e. to put into effect parliament's objective, goal or reason for passing the law. This is referred to as the courts having a 'purposive' role, and this role is established by Acts of parliament at both Commonwealth and state levels. Statutes guiding courts about how to read statutes are called: * _Acts Interpretation Act 1901_(Commonwealth)

* _Interpretation of Legislation 1984_ (Vic.) A court may: * examine the statute (and other materials) and attempt to determine the purpose * attempt to apply the purpose of the Act to the facts of a case * make a decision in the case with parliament's purpose in mind To assist in determining parliament's purpose, the above Acts give guidance for other materials courts can use. These other materials are called 'extrinsic materials' and include: * reports of royal commissions, law reform commissions and government inquiries * reports of parliamentary committees * treaties and international agreements * explanatory memorandum in an Act * second reading speech of a minister in parliament in introducing a bill's purpose * any relevant document These extrinsic materials help to clarify and explain parliament's purpose in making law. The courts are not bound to use extrinsic materials, but may do so in determining the purpose of legislation. Reasons for the Interpretation of Legislation Legislation is required to be interpreted for many reasons including: 1. Drafting difficulties * original instructions may be unclear * legislation may be silent on a particular issue * legislation may be ambiguous * legislation may be unclear or confusing on a certain point/media 2. Difficulties in applying legislation in the future * In spite of anticipating future developments, not all events can be foreseen, making it necessary to interpret the words in statutes in new situations as they arise

3. Inconsistencies in legislation and other laws * Acts of parliament may be inconsistent with other acts of parliament or delegated legislation and require clarification Effect of the Interpretation of Legislation Giving life to the law The interpretation of legislation by courts gives 'life' to the statutes passed by parliament. The effect of interpretation is to make the law 'real' by giving definition and meaning to statutes. This function of the courts is a by-product of the dispute-resolution role performed by courts. Courts, therefore, make law by declaring what the law is, as contained in (mostly) legislation and delegated legislation. However, the interpretation of legislation only 'makes' law until either: * a superior court overrules a decision of a lower court, or * parliament changes or alters a court's decision with another act of parliament As such, law made by judges when interpreting legislation is not established forever as 'the' law but subject to later change or development. In order to truly know what the law on a particular subject matter is then, judges and legal practitioners must look at both: * the statute dealing with a particular area of the law, _and_ * case law arising from that statute and read them _together,_ as if the decisions of judges had been written into the statute itself. Legal Studies - Parliament, Delegated Authorities and the Courts Parliament, Delegated Authorities and the Courts Both parliament (including delegated authorities) and the courts can make law. However, parliament is democratically elected for that purpose whereas the courts are created by parliament to resolve disputes by applying law passed in parliament. Parliament, delegated authorities and the courts are designed to achieve just outcomes in the legal system. Similarities between Parliament and the Courts (One of the similarities between parliament and the courts is that both can make laws for the future.) Both parliament and the courts: Have a type of debate in law-making;

* parliament - bill passes through both houses * courts - arguments presented during a case Have a type of vote; * parliament - each state of a bill's passage * courts - appeal cases in which multiple benches conduct a 'vote' in favour or against particular cases Must adhere to particular law-making rules; * parliament - can only legislate according to constitutional powers * courts - obliged to follow the doctrine of precedent Can make law for the future; * parliament - sets out rules for conduct in the future * courts - precedent has the effect of settling similar future disputes in a similar manner Differences between Parliament and the Courts Parliament * has sovereignty in law-making * law made is called legislation * laws are found in statutes or Acts * law-making is main role * can determine the occasion and speed of law-making * responds to social pressure in law-making * can delegate law-making role * laws generally bind all in the legal system * makes law 'in futuro' (for the future) Courts * are inferior to parliament as a source of law * law made is called case law * laws are found in law reports

* law-making is secondary role * must wait for a dispute to be litigated to set precedent * no external influences are imposed on courts * cannot delegated law-making role * decisions generally only effect two particular parties involved in a dispute, but can be binding in future cases * makes law 'ex post facto' (after the event) Strengths of Law-making by Parliament Parliament * can deal with whole areas of law at one time * has sovereignty in law-making and can override all other forms of law * has an open and democratic law-making process * is responsible and accountable to the voters in the legal system * makes law which reflect current social values and human rights * can delegate law-making authority in order for law-making to be more efficient and expert in certain areas * establishes guidelines for social conduct * can determine the speed and occasion of law-making Weaknesses of Law-making by Parliament Parliament * does not change the law in politically difficult areas * does not sit continually, therefore cannot always react as needed to new situations which arise * does not exercise effective supervision over delegated authorities * produces a large volume of law which is difficult to access and understand * makes law under the influence of political lobbyists or sectional interest groups in society to the disadvantage of others * lacks expertise in law-making

Strengths of Law-making by Courts Courts * provide practical solutions to legal problems, which become guidelines for future similar situations * use a closed law-making process, i.e. courts are not influenced by political pressures but can decide the law without fear or favour * are experts in law-making * use an adaptable doctrine of precedent in establishing case law principles, which also provides for consistency in the laws enforced in courts * are organised in a hierarchy, which allows for particular courts to deal with different types of cases Weaknesses of Law-making by Courts Courts * can only make law when a case arises for resolution * are often conservative rather than progressive in adapting the law to meet new situation,: i.e. courts are often reluctant to adapt precedent to new circumstances * often only make law when a case reaches the appellate level, yet few litigants can afford the time or delay in a case reaching this far * are often too expensive and slow for a potential case to be litigated by an aggrieved party * often make law 'ex post facto' (after the event), which may be unfair to parties affected by their decisions * often produce lengthy and difficult to understand judgments * produce a large volume of case law, making it difficult to know exactly what the law is in a certain area * do not make 'final' law, i.e. laws established by courts are subject to overruling later by higher courts or by parliament in enacting overriding legislation * cannot seek assistance from specialists or experts in designated fields prior to establishing a new law

Strengths and Advantages of Delegated Legislation The main reason for the system of delegated legislation is to increase efficiency in the law-making process. The strengths of the system include: * Saving time in law-making Parliament does not have sufficient time to enact all legislation required for the legal system to function properly. * Expertise MPs are not specialists in all areas of law-making and delegated legislation allows them to concentrate on matters of broad policy whilst leaving issues of detail and practice to more expert delegated authorities. * Flexibility Delegated legislation can be made or amended more quickly than legislation and does not undergo the same processes as law made by parliament. As parliament does not sit all year long, delegated authorities are better able to respond to social needs as they arise. * Participation Delegated legislation allows for greater community participation in the law-making process which, in a democracy, is a positive feature. Local councils are comprised of local citizens elected to office and certain government departments provide for citizen participation to present a broad range of community and organisational views to the relevant minister (e.g. on consumer matters). Weaknesses/Disadvantages of Delegated Legislation Criticisms of the system of delegated legislation include: * over-government - large volume of delegated legislation * unelected law-makers - most delegated authorities are not elected by voters * inaccessibility of delegated legislation - general public finds it difficult to keep up with delegated legislation, where to locate it and how to understand the often complex detail of regulations * lack of consultation and public debate - most delegated legislation is made in a closed manner, i.e. little public debate or warning occurs when delegated legislation is made * inconsistency - differences or overlap in delegated legislation between various subordinate bodies Legal Studies - Adversary trial system: definition

Adversary trial system: definition The adversary system of trial is where disputing parties come before an independent adjudicator to present their cases within set rules of evidence and procedure. The outcome is based on the evidence presented in court, and each party is responsible for the preparation and presentation of their cases. Features of the Adversary System of Trial * Independent judge or magistrate. * Parties individually responsible for their case preparation and presentation. * Strict rules of evidence and procedure. * Presentation of cases through professional legal representatives. * Single continuous hearing to resolve cases. Note that trial by jury is not a key feature of the adversary method of trial. Strengths of the Adversary System * Historical method of trial: has worked effectively for centuries. * Most efficient method of trial: parties are responsible for cases and therefore truth will emerge. * Rules of evidence and procedure ensure neutrality and consistency in dispute-resolution. * Impartial adjudicators can best assess the merits of cases. * Continuous hearings/trials ensure greater coherency and efficiency in the trial process. Weaknesses of the Adversary System * Little attempt to discover the truth of legal proceedings. * High costs as a result of the necessity of legal representation. * Great reliance on oral testimony. * Adjudicator is too inactive during trial proceedings. * Excessive length and complexity of adversary trials. * Delays in getting matters to court.

Legal Studies - Inquisitorial system of trial: definition Inquisitorial System of Trial: Definition The inquisitorial system of trial is a method of trial used in jurisdictions where the civil law (as opposed to the common law or British system of law) is used including Germany, Italy, and France. The judge or magistrate has central control over the conduct of cases, calling for evidence and questioning witnesses. The emphasis is on the search for truth in litigation. The rules of evidence are far broader than those used in the adversary system. Reforms to the Adversary System * Provide for greater role/powers of the adjudicator (similar to Royal Commissioner and Coroner). * Decrease costs of litigation (see Section 5.2 Financial Restraints). * Reduce delays in getting matters to trial (see Section 5.1.1 Delays in legal processes and proceedures). * Simplification and/or broadening of the rules of evidence and procedure. Legal Studies - Reasons for the existence of the court hierarchy Specialisation and administrative efficiency * a hierarchy allows particular dispute-settling bodies to concentrate on particular types of disputes * the more serious cases are allocated to the more expert courts * the judicial workload is divided so that personnel and procedures can be adapted to the demands of particular cases. System of appeals * the concept of higher and lower courts allows for a review of court decisions to be made where an error or miscarriage of justice occurs * the right of appeal is a fundamental right within the legal system facilitated by a court hierarchy. Doctrine of precedent * the decisions of superior courts hold greater weight than those of inferior courts * the inferior courts are therefore bound by the decisions of higher courts in the hierarchy * precedent would cease to operate if no hierarchy existed and all courts were considered of equal status.

Reasons for the existence of specialised courts and tribunals (SCATS): specialisation * SCATs allow for separate bodies to devote resources and expertise to the settlement of disputes in recurring areas * Specialisation promotes greater efficiency in the dispute-resolution. Reasons for the existence of specialised courts and tribunals (SCATS): costs * Traditional legal proceedings are costly * SCATs provide recourse to justice at a much cheaper cost. Residential Tenancies List hearings require no legal representation and cost approximately $25 to initiate. Reasons for the existence of specialised courts and tribunals (SCATS): speed SCATs can deal with legal disputes more quickly because: * procedures are less formal * they concentrate on particular types of disputes. Reasons for the existence of the court hierarchy There are a number of key reasons for the existence of the court hierarchy. A court hierarchy: * allows for specialisation and administrative efficiency * enables a system of appeals to operate * allows the doctrine of precedent to operate. Reasons for the existence of specialised courts and tribunals (SCATs) There are a number of reasons for specialised courts and tribunals. These include that SCATs: * allow for specialisation in dispute-resolution * reduce legal costs * reduce legal delays. Legal Studies - Jury system Jury system: definition Trial by jury is a method of trial whereby an independent body of peers

hears evidence in a legal dispute and gives a verdict on the basis of that evidence. Composition and Empanelling of a Jury * Potential jurors are chosen at random from the electoral roll and sent a questionnaire. * The questionnaire determines eligibility: judges, magistrates, police officers; convicted of a serious offence, imprisoned for more than 5 years; teachers, people over 65 years of age, pilots. (If the suggested reforms to the jury system take place, teachers will not be excused as of right). * If eligible, jurors attend court for minimum of three days. * Jurors are selected from the jury pool by being called at random from a ballot box by the judge's associate. * The potential juror named proceeds towards the jury box whereupon they may be challenged prior to taking their seat. * Challenges may be made to a potential juror: in criminal cases, an accused has six peremptory challenges (where no reason for challenge is stated), and unlimited 'for cause' challenges (where a reason is stated). Role of a jury * To attend court as required. * To listen to, remember, collate and analyse the evidence presented in court. * To abide by a judge's directions on the law. * To determine questions of fact. * To hear indictable criminal offences. * To deliberate over a verdict but not give reasons for a verdict. * To be satisfied 'beyond reasonable doubt' in a criminal case of its verdict. * To be satisfied 'on the balance of probabilities' in a civil case of its verdict. * To give a unanimous verdict in a criminal case involving murder (12/12), whilst majority verdicts are accepted in non-murder criminal cases (11/12). (This could change under suggested reforms. * To return a unanimous verdict in a civil case if possible (6/6), whilst

majority verdicts (5/6) are acceptable if this is not possible. * To assess damages in civil cases. Strengths of jury system * Represents trial by one's peers in serious matters. * Verdicts are more likely to be accepted in the legal system and society. * Assists the presentation of evidence in court being simple and more easily understood. * Represents public values. * History: jury has stood the test of time as a means of adjudication in court cases. * Provides protection for citizens' rights against misuse by governments and their agencies. Problems of jury system * Inability to understand complex trials. * Reasons for verdicts are not given. * Adds to cost and length of court hearings. * Media influence on jury deliberations can produce unjust outcomes. * Exemption categories are too broad to represent cross-section of the public. Reforms to the jury system * Require juries to give reasons for their decisions. * Introduction of professional juries or forepersons for particularly complex cases. * Reduce categories of exemption to provide better-qualified jurors. * Establish guidelines for the award of damages by civil juries. * Change the number of challenges of jurors. Alternatives to the jury system * Trial by judge alone. * Trial by a panel of judges. * Trial by a mixed of judges and laypersons

Legal Studies - Court processes and procedures Civil procedure This resource explores civil procedure. It covers the strengths and weaknesses of civil procedure as well as all stages of the process: pre-trial, trial and post-trial procedure. Civil cases attempt to restore injured parties to their original positions through compensation for harm suffered A civil dispute involves a dispute between two parties, one of whom alleges their rights have been infringed Civil disputes may take many forms including: torts, contract, family law, constitutional law Plaintiff vs defendant Civil pre-trial procedure Civil pre-trial procedure involves an exchange of documents between two parties about an alleged infringement of rights that has occurred. Where an out-of-court settlement (OCS) is not achieved, the parties prepare for formal litigation before the civil courts. * Infringement of rights occurs (e.g. road traffic accident) * Injured party consults solicitor and seeks advice * Injured party considers legal advice and reviews position * Injured party attempts to negotiate OCS with defending party with assistance of solicitor * If no OCS is achieved after a letter of demand is sent from injured party to defending party, the formal documentation exchange commences between the two parties. * Formal legal document commanding the defending party to appear at court to answer allegations against them. _Entry/Notice of Appearance_ * Acknowledges the Writ and indicates preparedness to defend the action. _Statement of Claim_ * Details the nature of injured party's claim against defending party. _Statement of Defence_ * Defending party's response to the Statement of Claim.

_Counterclaim_ * Defending party may claim injury stemmed partly or largely from injured party's own actions. _Reply and Defence to counterclaim_ * Injured party has the right of reply to defending party's defence. * Case is then listed by the court for hearing. * Numbered questions about the facts that must be answered in writing within 60 days. * Documents relevant to the dispute can be requested to be made available to the other party. * Interlocutory steps are taken between the issue of the Statement of Claim and actual hearing. Court officials (eg registrar in the County Court [1] and prothonotary in the Supreme Court) arrange a sitting between parties in the dispute and their legal representatives in the attempt to settle matter out of court prior to proceeding further). Plaintiff completes Certificate and the defendant receives notice of trial. Civil trial/hearing procedure Most civil hearings are conducted without the use of a jury, heard before a judge alone (tort and contract cases may be heard with a jury). The standard of proof in a civil hearing is "on the balance of probabilities" (i.e. one side's case is more probable than the other). The burden of proof [1] rests with the plaintiff (i.e. the party bringing the matter to court). If a civil jury is used, it will be comprised of six members. * Jury of 6 empanelled. * Plaintiff's counsel will outline a list of the facts and highlight any important documents and points of law. * Plaintiff presents case by calling and questioning witnesses: examination-in chief. * Witnesses are cross-examined by defendant's counsel. * Witnesses are re-examined by plaintiff's counsel. * Counsel for the defendant may submit there is no case to answer. * Judge will accept or reject this submission. * If accepted, the judge will recommend to the jury it dismiss the case

in directing them on issues of law. * If rejected, defendant's counsel is presented by calling and questioning witnesses: examination-in-chief. * Witnesses are cross-examined by plaintiff's counsel. * Witnesses are re-examined by defendant's counsel. * Counsel for the plaintiff will summarise their evidence for the court. * Counsel for the defendant will summarise their evidence for the court. * Judge will summarise the evidence and direct the jury (if present) on the relevant law. * Jury considers and returns its verdict and assesses damages (if no jury, judge determines verdict and assesses damages). * Successful party may request to the court that the losing party pay costs. * Court awards costs at its discretion. Civil post-trial procedure Civil post-trial or hearing procedure is determined by the original decision made by a court in its civil jurisdiction. The considerations for the court at this stage include the appropriate remedy in the matter and applications for awards for costs. In addition, this stage may see an appeal against the outcome launched by the losing party, and/or enforcement orders for civil cases issued. Civil remedies include: * Nominal: minor damages where injury or harm is minimal. * Compensatory: Special: damages which can be calculated (eg doctor or medical costs); General: damages which cannot be calculated but are based on pain and suffering (eg loss of expected earnings). Exemplary: high level of damages to 'punish' a defendant and/or deter others; Contemptuous: recognition of legal right of damages but not moral right. A court order that compels a party to perform or cease the performance of a particular act. * Interim injunction: an injunction issued 'in the meantime' until outstanding legal matters relevant to a full hearing of the case have been

determined by the court; * Perpetual injunction: a permanent injunction. Issued in cases involving breach of contract where a defendant is ordered to comply with an original agreement between two parties. A court order where a party is made to restore another party to the latter's original position prior to a dispute arising between the two parties (eg return of goods or assets to an original owner). Where a losing party to a civil case refuses to abide by the court's decision, the winning party has recourse to various enforcement orders: * _Warrant of distress_ Where a plaintiff seeks settlement of a civil matter by an application for the seizure and sale of a defendant's property. * _Garnishee order_ Where a plaintiff seeks settlement of a civil matter by an application for monies owing to a defendant's creditor to be paid directly to the plaintiff instead. Strengths of civil procedure Example of the elements of an effective legal system as the strengths of civil procedure: ELEMENTS OF AN EFFECTIVE LEGAL SYSTEM FAIRNESS * All injured persons are entitled to sue where harm or loss has been suffered. * Civil law is applied equally to parties. * Plaintiff carries the burden of proof * The standard of proof is 'on the balance of probabilities'. * Injury or loss is compensated. * Parties are made aware of the case against them at the pre-trial stage. * Rules of natural justice apply. ACCESS * Variety of civil ADR assists the resolution of disputes through out of court settlements. * Range of remedies exists for the variety of aims in a civil action.

TIMELY * Supreme Court has 'special status' list for civil matters, which prioritises matters due to urgency, length, and complexity. * Use of 'directions hearings' assists in timely resolution of civil disputes. VALUES * Civil law protects the right to live in freedom from harm and loss. * Careless parties should redress injuries they have caused. Problems of civil procedure * Certain statutory time limits for the conduct of proceedings. * Delays at the pre-trial stage. * Lack of guidelines for jury damages in civil cases. * Use of ADR may result in unjust outcomes. * Limits on legal aid for civil matters. * Interpreters not readily available for civil matters. Legal Studies - Criminal procedure Three types of Criminal Offence 1. 2. 3. Summary offences are less serious offences. Summary offences are tried by a magistrate. Indictable offences are serious offences. Indictable offences are tried by a judge and jury. Indictable offences triable summarily are serious offences which can be tried by a magistrate without a jury.

A crime is an offence against the law of the State and enforced by courts. Criminal law attempts to balance rights of citizens with law and enforcement. Criminal pre-trial procedure Criminal pre-trial procedure involves an investigation of allegations of criminal activity by law enforcement agencies and the conduct of committal proceedings to determine whether serious cases will proceed to trial. The following describes the general pre-trial processes for an indictable offence: * Offence committed. * Police and law enforcement agencies investigate alleged crime. * Suspects are questioned.

* Police lay a charge in the Magistrates' Court and a warrant for arrest is issued (summons for less serious offences). * Police detain and arrest suspect. * If an arrest warrant is issued, the accused person will either be granted bail or held in remand. * Committal proceedings in the Magistrates' Court conducted to determine if evidence is of sufficient weight to expect a conviction (if so, accused will be sent for trial in higher court). * Accused applies for bail: refused or granted. * Director of Public Prosecutions prepares case for trial by filing presentment. * Judge conducts directions hearings to streamline preparation for the trial (includes giving directions to hasten proceedings, reduce costs, clarify questions of law and procedure, and set dates for the delivery of court documents). Criminal trial procedure During criminal pre-trial procedure police investigations help determine whether cases proceed to trial Criminal trial procedure involves the prosecution of criminal offences before the courts, according to their degree of seriousness. * arraignment: accused has the charges read to them * plea of guilty or not guilty * if guilty, court hears submissions from both counsel (character evidence, prior convictions, mitigating circumstances) prior to sentencing the accused * if not guilty, jury of 12-15 empanelled * case for the Crown presented * witnesses are examined-in-chief, cross-examined, and possibly re-examined; at conclusion of Crown case, defence may submit 'no case to answer' * if defence submission of no case to answer succeeds, judge may direct jury to acquit accused * if defence submission fails, trial proceeds with defence evidence * witnesses are examined-in-chief, cross-examined, and possibly re-examined

* at conclusion of defence case, Crown Prosecutor presents final address and summary * defence counsel presents final address and summary * trial judge gives final address and summary to the jury, emphasising standard of proof being 'beyond reasonable doubt' * jury considers its verdict; * verdict returned: guilty or not guilty * if not guilty, accused is acquitted and freed * if guilty, judge accepts submissions from counsel about character evidence, prior convictions, mitigating circumstances * judge sentences accused * appeal may be launched. Criminal post-trial procedure Criminal post-trial procedure involves the imposition of a sentence or penalty by a court in accordance with sentencing principles established by a range of legislation. Criminal sanctions include: * indefinite sentences * imprisonment * hospital security orders * combined custody and treatment orders * youth training centre orders * forfeiture of property * intensive correction orders * suspended sentences * fines * community based orders * adjournment with or without conviction * deferred sentences.

Legal Studies - Nature of disputes Nature of disputes Disputes are inevitable and the legal system must provide mechanisms by which disputes can be resolved in an orderly and just manner. The resolution of disputes is one of the most important roles performed by the law because if disputes are not resolved, social cohesion is threatened and breakdown of law and order may occur. This puts all citizens' rights at risk in a democratic legal system. Why disputes occur: 1. 2. 3. 4. Ignorance of the law Interference with legal rights or entitlements Disagreement about the law Intentional breaking of the law

Alternative methods of dispute resolution Various methods of dispute resolution exist. These may be classified as informal to fully formal and include: * Self Help Involves the resolution of a dispute by taking the initiative oneself (simple letter of demand/written contact requesting resolution of problem/discussion with disputing party about repair of damage to car in motor vehicle collision). * Abandon / Concede Involves deciding to abandon a claim because it may be too difficult or inconvenient to pursue (e.g. other motorist involved in an accident failed to stop or is reluctant to accept fault for the collision). Conceding a claim is similar in that a party decides to resist fighting a claim any longer as it might be too costly to do so, or they have an inferior case to the claimant. * Settlement by negotiation Involves two disputing parties agreeing to an outcome by discussion and consultation (e.g. driver of another car agrees to pay for repair of damage to one's car after discussion about the reasonableness of the cost). * Mediation Involves the appearance of two disputing parties before an independent mediator, who assists the disputing parties to arrive at a workable solution or outcome. The mediator is a trained person who assists the parties to define the dispute and promotes exploration of the options available for a resolution. The mediators do not attempt to impose a decision on the disputing parties or intervening in negotiations (eg Family Court mediation service assists disputing parties regarding proceedings

pursuant to the Family Law Act 1975 (Commonwealth). * Conciliation Involves the appearance of two disputing parties (usually) before an independent conciliator. The conciliator assists the disputing parties attempts to resolve the dispute. Conciliators take a more active and advisory role than mediators in dispute resolution, although their main function is, similarly, to help reach a resolution. The conciliator may assist to clarify questions of fact, the position of the law, strengths and weaknesses in respective cases, and possible outcomes if the dispute continues. The conciliator can suggest appropriate outcomes for the parties. * Arbitration Involves the step beyond conciliation. Where conciliation does not succeed, the conciliator can then move to arbitration and impose a decision (ie an 'order') on the parties to resolve the dispute. (eg Industrial Relations Commission: arbitrator/judge imposes an order on a striking union to return to work, as a trade-off that employment contract negotiations can continue with an employer). * Litigation The final method of dispute resolution, often used where all others fail or are inappropriate for the resolution of a dispute. Involves two (or more) disputing parties appearing before an independent adjudicator in order to resolve a dispute in accordance with rules of evidence and procedure. Litigation is a formal process, routinely involving professional legal representatives. The outcomes arrived at may include decisions of guilt or innocence (criminal cases) or liability (civil cases). Advantages and disadvantages of methods of dispute resolution

Selfhelp FOR: Quick, convenient, party has control over dispute. AGAINST: Could result in violence, without constraints or safeguards to protect individual rights. Abandon/concede FOR: Convenient, party responsible for decision, reduces cost. AGAINST: May result in rights not being protected or upheld, reluctance to concede when a legitimate claim exists. Settlement by negotiation FOR: Parties own outcome, usually mutually agreed upon, reduces potential costs and delays. AGAINST: Parties bargaining or negotiating power may be unequal, does not always result in mutually beneficial outcome. Mediation FOR: Cheaper, more accessible to parties, parties more likely to accept outcome. AGAINST: Decisions are not binding, cannot resolve issues of law. Conciliation FOR: Cheaper, more accessible to parties, can be made binding. AGAINST: Ineffective where parties will not compromise or negotiate, legal

representation not always used can result in unfair negotiation process. Arbitration FOR: Decision is binding, but can be appealed, can be quick, concludes a dispute. AGAINST: Costs can be high, especially if legal representation is used, decision is imposed on parties. Litigation FOR: Produces finality in dispute (although can be appealed), settles questions of law, can set precedent. AGAINST: Cost and delays associated with using traditional courts, decision is imposed on parties. Inappropriate mechanisms for dispute-resolution The adversary system: dissatisfaction with traditional method of dispute resolution exists because it can be inappropriate for effective justice.

Cause Adversary system: * Two opponents who disagree engage in correspondence. This leads to frustration, and invariably litigation follows. * Pre-trial steps assist to achieve an out-of-court settlement (OCS), but the mere issue of a writ is not always a solution _(discovery: all documents disclosed but can be complicated and costly)_. * The role of parties and legal representatives is to advocate claims are one-sided and non-objective. * Goal is to 'win at-all-costs'.

Effect Delays: * Length of pre-trial stage (eg 3 years) means increased cost, lack of motivation/interest as well as being inconvenient. * Can be 1-2 years prior to setting date for trial, which can mean a 4-year delay overall for some. * Backlog is too big; the process is too slow. COSTS: * Steps produce time-consuming process (increases legal representation costs). * Even if successful, plaintiff may not recover all costs (only 50-80% of costs). COMPLEXITY: * Discovery stage is too time-consuming. * Difficult preparation and analysis.

REFORMS: * Expand use of ADR techniques and forums (negotiation, arbitration and mediation). * Extend compulsory inclusion of ADR clauses into contracts. * Expand centres for commercial dispute resolution (eg State Insurance Office Centre - consumer disputes). TYPES OF DISPUTES Criminal Civil Constitutional Family Consumer Industrial Employment

Disputes occur across a range of different areas of social activity All types of disputes may be resolved through processes and mechanisms that range from informal to formal in their operation. Increasingly, alternative mechanisms for dispute resolution (outside the traditional courts) are being used. These are known as ADR (alternative dispute resolution) techniques. The two major types of disputes for the legal system are _criminal_ and _civil_ disputes. Jurisdiction of specialised courts Dispute resolution occurs in a variety of specialised courts. In addition to the traditional court hierarchy, specialised courts are available for dispute resolution. These specialised courts include: * Family Court divorce, property settlements * Federal Court industrial disputes, counterfeit, copyright, immigration * Children's Court obtaining property by deception, under age drink driving * Coroner's Court death in police custody, death during rehabilitation