how good is your legal spelling? which words are correct?

How good is your legal spelling?

Which words are correct?


Parliament

Parliment

Separation of powers

Seperation of powers

Appelant

Appellant


Admissable evidence

Admissible evidence

Heirarchy

Hierachy

Heirachy

Hierarchy

Agreement

Agreeance


Remember!Legal language is your tool of trade.

If you spell Legal Studies’ terms incorrectly it doesn’t imbue confidence

in markers of your written answers

Short response questions

Exam questions

Short response questions

Question 1 Pages 9 and 10

The Australian Parliamentary process

The Australian constitutional system

Question 2 Page 11

The adversary system

Criminal justice system

Question 3 Page 12

A negligence case

Doctrine of precedent, and presentation of legal argument

Australian Parliamentary ProcessQuestion 1 Page 9

(a) Why was Mr Rudd able to become Prime Minister of Australia?

Common response from past examinations:Because his party won a majority in the House of RepresentativesA good responseSelected as leader of the majority party in the House of RepresentativesSworn in as Prime Minister by the Governor-GeneralIn accordance with the conventions of responsible government


(b) How did the 2007 federal election change the composition of the Commonwealth Parliament?

Many students in the 2008 clearly didn’t understand what

“composition” meant.

It refers to the nature of the elected members of both Houses.

Two major changes occurred:

Labor won a majority in the House of Representatives and was

able to form the Government

Liberals lost the majority in the Senate, and Labor did not gain

it, so neither major party has a majority and the minority

parties and Independents hold the balance of power

Australian Parliamentary ProcessQuestion 1

(c) Explain the difference between the “Rudd Government” and the “Commonwealth Parliament”?

It is amazing the number of students in past years who do not really understand the difference between “Government” and Parliament”.

COMMONWEALTH PARLIAMENTThe principal elected law-making institution in the legislative arm comprised of a House of Representatives, Senate and the Governor-General. The Parliament makes laws.

RUDD GOVERNMENTThe principal executive body which is formed from within the political party which commands a majority of seats in the House ofRepresentatives. The Government enforces the Parliament’s laws.

Australian Parliamentary ProcessQuestion 1

(d) Why was the States’ challenge heard in the High Court?

Many students in past exams simply stated, “because

it’s a constitutional dispute”.

But why, the answer is inadequate.

The Australian Constitution (in section 76) vests

original jurisdiction in the High Court to resolve

disputes concerning an interpretation of it.


(e) Why will the High Court’s work choice decision remain unchanged after the election?

This question assumes student have an understanding of the doctrine of the separation of powers and the independence of the High Court.

A High Court decision, in its original jurisdiction, remains a part of Australian constitutional law until “overruled” in a lawful way. A federal election is irrelevant to those mechanisms and has no effect on the decision.


(f) What was the impact of the High Court’s decision on the Australian federal system?

Once, again students have got this type of question wrong in past exams as they didn’t read the question properly.Many simply state, “it created a binding precedent”. OK, regarding what?

The decision broadened the meaning of the corporations power in the Constitution, thereby increasing the specific powers of the Cwlth at the expense of the States.


(g) Why will Mr Rudd’s Government face stricter scrutiny of Bills than the Howard Government?

The text provides a very strong clue. It states “the conservative parties lost their control of the Senate”.

As the Labor Party did not gain a majority of seats in the Senate, the Rudd Government faces a hostile Senate where the minority parties and the Independents hold the balance of power. This means the Rudd Government will be forced to concede amendments to pass its legislation.

The court room cartoonQuestion 2 Page 11

(a) How does the cartoon symbolise the main features of the Australian adversary system?

TWO AUTONOMOUS PARTIESThe parties are in control of their cases. The prosecution is lunging with a sword, symbolising it made the allegation and hasthe burden to prove it.The shield symbolises the defence Counsel rebutting those allegations.

INDEPENDENT JUDGEThe passive judge in the background symbolises the judge taking no active part in the presentation of evidence, other than enforcing the adversarial rules.


(a) Outline two constraints placed on the judge at an adversial trial.

There are many options available, but students MUST

“outline” their answer.

Choices include: The judge cannot take an active role in the examination of

witnesses to elicit the facts.

Judges cannot give legal advice to counsel.

Judge must disqualify him/herself if he/she has some direct relationship with the defendant eg a relative


(c) Explain how relevant evidence is presented at an adversarial criminal trial?

The main features are: Witnesses can only give sworn evidence Counsel examine witnesses in the interrogatory

fashion Evidence is examined orally Best evidence is only admissible if the relevant

witnesses can be orally examined about it. All witnesses can be cross examined


(d) Describe two processes .. protect legal rights of the accused?

There are many options available, but students MUST “describe” their answer.

Choices are The accused has the right to remain silent and cannot be compelled to

give evidence at his/her trial As the accused is presumed innocence the DPP has the burden to

prove guilt The standard of proof is very strict, beyond reasonable doubt, to

prevent the conviction of innocent people. The defendant can present his/her own case before an independent

judge or employ legal counsel to perform that role. The accused has the right to challenge the admissibility of evidence

and to cross examine the DPP’s witnesses.


(e) Briefly describe the pre-trial stages… and why? The defendant is INDICTED before a Magistrate on INFORMATION. At this stage

the accused is transferred from the custody of the police (E) to the court (J)

The defendant can make a BAIL APPLICATION to be released from the custody of the court pending a preliminary hearing.

The defendant can make an APPLICATION FOR SUPRESSION OF NAME from media publication to give effect to the presumption of innocence principle

A PRELIMINARY HEARING is conducted in the Magistrates Court to determine if there is a case to answer (prima facie case) to commit the accused to trial in a higher court. This acts as a screening mechanism to prevent ill-considered cases from proceeding to the higher courts and wasting their valuable time and resources

PRE TRIAL CONFERENCES are conducted to prepare the case fopr trial if guilt is denied.

A case of negligence at schoolQuestion 3 Page 12

(a) How would the case be cited for trial?

Benton v Education Dept and ContractorPlaintiff against co-defendants


(b) What status would the following authorities have at Jimmy’s trial?

The question is asking students to identify if the

“authority” is a binding or persuasive precedent.

Donoghue v Stevenson 1932 HL

Binding precedent, as it has been endorsed in many

High Court decisions since Australia severed judicial

ties with Britain.


(b) What status would the following authorities have at Jimmy’s trial?

Nguyen v NSW Dept of Health 1995 NSW FCPersuasive precedent as it has been decided in another

court hierarchy


(c) Outline a LEGAL ARGUMENT ….

A good answer would refer to at least two authorities

and explain (argue) why the court should adopt them

Example

Donoghue v Stevenson 1932 HLThe Department and contractor failed to exercise a standard of

care to Jimmy as their legal neighbour to prevent him being

injured. A reasonable person could have foreseen their breach of

that standard of care could cause injury to a school student.


(d) How could the Supreme Court depart from Penrith Council v Edwards 2000 HCA?

As Penrith was decided in Australia’s most superior

court, the High Court, the SA Supreme Court (ceteris

paribus) would be bound by it.

RULE OF DEPARTUREThe SA Supreme Court could DISTINGUISH the Penrith rule if

there were significant material differences. The court could decide

that a student is not person held in lawful custody.

how good is your legal spelling? which words are correct?

Documents

type of question

rudd government

australian federal system

australian adversary

balance of power slide

court room cartoon question

majority party

australian constitutional