AoS1 – Law in Society Legal Studies Unit 1

Essential questions

What is the difference between a rule and a law?

Why do we need laws? How does criminal and civil law differ? How do we make effective laws? How are laws created and by whom?

The difference between legal and non-legal rules

Legal rules Non-legal rules

Who makes the rules?

Legal rules are made made by four groups: parliaments,

subordinate authorities, local councils and courts.

Individuals or groups like parents, teachers, the church, school and

sporting clubs make non-legal rules.

Who must obey the

rules?

All members of the community. Select groups in the community. People who decide to be part of

the group choose to abide by the rules of the group.

Who enforces the rules?

The court system and tribunals. The police force.

The group who establishes the rules also enforce the rules. For

example, the Board Members of a sporting club.

Who interprets the

rules?

A judge or magistrate in a court, or a member of a

tribunal.

A variety of people are responsible for interpreting the rules. For example, an umpire.

Examples? Not allowed to steal. Over 18 to drink and smoke.

No ‘offiside’. No swearing. No make-up at school.

Rules are all around us. However, legal and non-legal rules are different. They are created, enforced and interpreted by different parties and they are applicable to different groups in society.

The need for laws

Functions of the law: Establish a code of conduct to guide peoples behaviour. Reflect community values – social, moral, political and

economic. Resolve disputes. Provide for change to meet the needs of society.

Laws enable us to live peacefully by recognising our rights and others rights and providing a means to resolve conflicts in a transparent and consistent manner.

Characteristics of an effective law

The law must be known. The law must be easy to understand. The law must be acceptable to the community. The law must be stable BUT able to be

changed. The law needs to be applied consistently. The law must be enforced. The law needs to be accessible.

What does effective actually mean? If something is effective, it is successful in producing the desired or intended result. What are the characteristics of an effective law?

The distinction between criminal law & civil law

CRIMINAL LAW is concerned with the protection of society. A crime is an offence against society as a whole, and one which is punishable by the state. The law provides the avenue for the state to take legal action against an offender, that is, to prosecute the offender in a court of law to obtain some form of sanction or punishment for the crime. Criminal actions involve crimes against a person and/ or property.

CIVIL LAW is concerned with the enforcement of individual rights. Everyone has rights and obligations. If a person’s rights are infringed or someone fails to fulfil an obligation, the law provides an avenue to take legal action against the individual (i.e. sue a person in a Court and obtain a form of remedy). Civil actions usually involve the law of contract and the law of torts (civil wrongs including negligence, trespass, nuisance and defamation).

Please note that this is an introduction to criminal and civil law. We will be examining each of these areas in detail later in the course.

Criminal law and civil law

Scenario: An 18 year old male speeds and crashes his car into another driver, severely injuring the other driver.

Criminal case: The 18 year old will be prosecuted by the state for dangerous driving.

Civil case: The other driver may decide to sue the 18 year old to obtain compensation for his or her medical bills.

An overview of the role and characteristics of parliament and subordinate authorities in law-making

Main sources of law in Australia

Law made by parliaments (statute

law)

Laws made by judges (common law)

This is our focus right now.

An overview of the role and characteristics of parliament and subordinate authorities in law-making

Who knows what happened in 1901 in

Australia?

Federation

In 1901 the Commonwealth of Australia Constitution Act (UK) converted the separate, self-governing British colonies into a federation of states known as the Commonwealth of Australia

Under the constitution, it was agreed that the Commonwealth Government would look after issues of national interest and the state governments would look after state issues.

Parliament

There are 9 parliaments in Australia: A Commonwealth or federal Parliament 6 state parliaments 2 territory parliaments (NT and the ACT)

The role of these parliaments is to make new laws called Acts, legislation or statutes, change or repeal (cancel) previous legislation as well as override common law (law made by judges).

See p.15 of text book

Delegated legislation

The Victorian parliament, for example doesn’t have the time to make laws about dog walking in Templestowe (a suburb in Eastern Melbourne).

Australian Parliaments can give other bodies (known as subordinate authorities – like local Government) permission to make laws on their behalf (known as delegated legislation).

Activity time

Learning Activity 1.5 Sources of Law p.16

Activity time

Your task is to create a summary of the role and characteristics of the Commonwealth and Victorian parliaments.

You will need to do some research! Consult your text book, (pp.18-26) this PowerPoint and the following websites:

The Commonwealth Parliament: http://www.aph.gov.au/ The Australian Electoral Commission:

http://www.aec.gov.au/ The Victorian Parliament: http://www.parliament.vic.gov.au/ The Victorian Electoral Commission:

http://www.vec.vic.gov.au/ This piece of work will be handed in upon completion.

Parliaments in Australia

• The structure of parliaments in Australia are based on Britain’s Westminster system.

• The Commonwealth Parliament and the Victorian parliament are bicameral parliaments.

• The term bicameral means that the parliament consists of the Crown (the Queens representative and two Houses, a lower house and an upper house.

• Members of parliament are elected representatives of the people. All Australians over 18 years of age must vote for representatives in both houses of parliament in Commonwealth elections and their own state election.

The Crown

Lower House

Upper House

What do parliaments do?

Pass laws Check the laws

made by delegated bodies

Decide and control finances

Discuss and debate issues

Investigate and report on various issues

How are laws made by parliaments?

Laws made by parliaments are known as legislation, statutes or Acts.

The process by which laws are made is called the legislative process.

A law that is in the process of being made is called a “Bill”.

The structure of the Commonwealth Parliament

The Crown represented by the Governor-General: Limited power. Key roles include the appointment of ambassadors, ministers and judges, gives Royal Assent or approval to.

the laws made by parliament.

Upper House (The Senate): 12 members

for each state and 2 each for the territories. Members elected for 6

years and use the proportional system of

voting.

Lower House (The House of

Representatives): 150 members. Each

member represents a region or electorate.

Each electorate contains around the

same number of people. Members are elected

every 3 years using the preferential system of

voting.

To represent the people, introduce and pass laws, and form Government.

To represent the states

equally, introduce and pass proposed laws, and

review bills passed by the Lower

House.

The structure of the Victorian Parliament

The Crown represented by the Governor: Limited power. Gives “assent” or

approves the laws made by parliament.

Upper House (Legislative

Council): The state is divided into 8

regions , each with 5 members.

Representatives are elected for 4 years

and use the proportional voting

system.

Lower House (Legislative

Assembly): The state is divided into 88

electorates of approximately equal

population. Each electorate has one

member. Representatives are elected for 4 years

using the preferential voting system.

To represent the people, introduce and pass laws, and form Government.

To represent

the Victorian

regions equally,

introduce and pass proposed laws, and

review bills passed by the Lower

House.

Victorian Lower House:

Essendon electorate

Victorian Upper House:

Western metropolitan region

How is government formed?

Government and parliament are not the same.

The parliament is all of the members (parliamentarians) of both the upper and lower houses and the crown.

The Government is the political party (or coalition) that wins a majority of seats in the lower house in an election.

The leader of the political party that forms government will become the Prime Minister (federal) or Premier (state).

Members of parliament from the government are then nominated as Ministers responsible for government departments.

The Ministers form a group called the Cabinet, which meets regularly to make decisions about government policies.

Influencing changes to the law

What prompts the law to change? How can ordinary citizens influence

the law?

Brodie’s Law Activity Who’s heard of Brodie’s law?

Where do ideas for new laws

come from?

Ministers

Ministerial advisers

Member of

parliament

Public service

Cabinet

Community groups

Powerful individual

s

Law reform bodies

Changes in public opinion

Comments from judges

Ideas from within the system of government

Ideas from outside the system of Government

This is where most of the ideas come from.

What methods could people outside the system of Government use to convince parliament to change a law?

Protest outside parliament.

Petition – gather signatures of support.

Send a letter to your local member of parliament.

Write a research paper and submit it to the local member.

Make contact with an influential person.

Use social media to raise awareness – facebook, twitter.

Fund raise.

Put posters up to raise awareness (illegal in most places).

Leave fliers on display in public places.

Going on strike.

Delegated law-making

Why might parliament decide to delegate (or give) some of their law-making powers to subordinate (below) authorities?

• Parliament does not have the time, expertise or local knowledge to make all of the necessary laws needed in the community.

• Can you image if parliament had to create parking rules in every suburb from Templestowe to Toorak?

• Delegating law making ensures that Parliament is able to focus its work on the most important / contentious / expensive policy areas.

• Parliament passes an enabling act giving a subordinate authority the power to make laws.

How does this delegation work?

• Parliament passes an Act called an enabling or parent Act.• This act enables another body to make rules on their behalf.• Delegated body can only make laws in the areas specified in

the Act.• If the delegated body goes outside the Enabling Act, the law is

void.• Rules and regulations are checked by Parliament.

Key terms!

Government department: Bodies responsible for a certain area of public administration at the federal or state level. Government departments are staffed by public servants. They put Government policy into practice and to do this, they need to make new rules and regulations. For example, the Department of Defence (federal) and the Department of Health (state).

Statutory authority: A statutory body is an organisation established by an Act of Parliament for a specific purpose. For example to deliver mail - Australia Post (federal), regulate business Australian Competition and Consumer Commission (federal), regulate the roads - VicRoads (state), or regulate workplace safety –WorkSafe (state).

Local municipal councils: The local government system was established by the Local Government Act 1958. This Act gives local governments (who are elected representatives of the local areas) power to regulate issues in their community. For example, garbage, libraries, car parking and street cleaning.

Executive council: The Governor or Governor-General and 2-5 ministers. Meets regularly to approve regulations on the recommendation of ministers.

The Domestic Animals Act 1994

(version incorporating amendments as at 1 January 2012)

The Domestic Animals Regulations 2005

The purpose of this Act is to promote animal

welfare, the responsible ownership of dogs and

cats and the protection of the environment.

For example, it defines the term ‘dangerous dog’ and mandates that such dogs must be restrained on the owners property.

The Act has been debated and passed through Parliament.

The Act outlines the big policy idea and how

the idea will be achieved.

The Regulations are not debated and voted

on in parliament.

They are developed by the Victorian

Department of Primary Industries, who is

responsible for controlling domestic

animals.

The purpose of the regulations are to

implement the Act.

The regulations outline how the owner must restrain the dog – For

example behind a fence that is a minimum height of 1.8 m.

Primary Legislation

Secondary (delegated) legislation

What are the advantages of delegating law-making to subordinate (lower) authorities?

It eases the workload of parliament. Passing some of the work onto other organisations creates a more efficient parliament system – allowing parliament to focus on the big issues.

It gives decision making power to those who know most about particular issues – experts.

It recognises that local areas have their own issues and that local people are best placed to make decisions about local issues.

It can provide for greater public participation, access for people to participate in the issues that relate to them – for example participating in council meetings.

Subordinate authorities can introduce new rules much quicker than is possible at through parliament.

What are the disadvantages / problems with delegating law-making to subordinate (lower) authorities?

Delegated authorities are not elected (except for local councils) therefore they are making binding decisions without our direct permission (e.g, public servants working on regulations). Delegated legislation DOES NOT pass through parliament.

There can be limited consultation (notification) which means there is less transparency about the rules being made – so you may not know about the change before it affects you!

Delegated legislation is difficult to track (because there’s so many) and community members may not realise when a law has been changed.

There is overlap between local council laws which means that on one side of the street you may be doing the right thing and on the other you may be breaking the law.