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 Process Question 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 Representatives A good response Selected as leader of the majority party in the House of Representatives Sworn in as Prime Minister by the Governor-General In accordance with the conventions of responsible government
Australian Parliamentary Process Question 1 Page 9 (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 Process Question 1 Page 9 (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 PARLIAMENT The 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 GOVERNMENT The principal executive body which is formed from within the political party which commands a majority of seats in the House of Representatives. The Government enforces the Parliament’s laws.
Australian Parliamentary Process Question 1 Page 10 (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.
Australian Parliamentary Process Question 1 Page 10 (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.
Australian Parliamentary Process Question 1 Page 10 (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.
Australian Parliamentary Process Question 1 Page 10 (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 cartoon Question 2 Page 11 (a) How does the cartoon symbolise the main features of the Australian adversary system? TWO AUTONOMOUS PARTIES The parties are in control of their cases. The prosecution is lunging with a sword, symbolising it made the allegation and has the burden to prove it. The shield symbolises the defence Counsel rebutting those allegations. INDEPENDENT JUDGE The passive judge in the background symbolises the judge taking no active part in the presentation of evidence, other than enforcing the adversarial rules.
The court room cartoon Question 2 Page 11 (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
The court room cartoon Question 2 Page 11 (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
The court room cartoon Question 2 Page 11 (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.
The court room cartoon Question 2 Page 11 (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 school Question 3 Page 12 (a) How would the case be cited for trial? Benton v Education Dept and Contractor Plaintiff against co-defendants
A case of negligence at school Question 3 Page 12 (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.
A case of negligence at school Question 3 Page 12 (b) What status would the following authorities have at Jimmy’s trial? Nguyen v NSW Dept of Health 1995 NSW FC Persuasive precedent as it has been decided in another court hierarchy
A case of negligence at school Question 3 Page 12 (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 HL The 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.
A case of negligence at school Question 3 Page 12 (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 DEPARTURE The 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.