Tag Archives: advice

vce legal studies advice

A question from Katherine

Hi all,

I recently got asked the following:

“Would the juries act 2000 be considered as a recent reform? And would i be able to use brodies law as an example of changing expectations of the legal system?”

Ill tackle the easy part of that question first.

Brodies Law:

Brodies law was introduced following the outcry of the general public prompted by a well advertised case of work place bullying. To Katherine and all the other readers, Brodies can be used both as a means to reflect the changing expectations of the legal system (ie of the people who it serves) and the fact that the Commonwealth Government must represent the people (ie it was introduced to reflect the seriousness of the publics opinion of bullying).

As such Brodies is a useful example because it can be used in a variety of situations.

Juries Act 2000:

Thanks to my legal teacher Mr Mavridis for setting me on the right track:

“Reforms should be 5 years. In terms of recent reforms for jury, there was an amendment in 2010 to the 2000 act. This reduced groups previously ineligible and halved the waiting time of ineligibility after leaving job.

The recent reform increased jury eligibility by allowing for increased numbers of those previously ineligible. eg since 2010, former judges, lawyers etc who left their legal job at least 5 years before are eligible.”

Therefore, the Juries Act 2000 is too early, but the 2010 amendment makes a good reform for the course!

I personally always liked the Broadmedows Mediation Pilot program which expanded the use of mediation in the Magistrates court up to the value of $40,000. And its recent because since 2007 it has been expanded across 6 other locations (in 2009, 2011 and then just 2 days ago on November 2nd 2013).

I hope that provides a little food for thought,

Regards,

Jordan Ball

What are you doing currently?

Hello to all my readers,

In light of many of us now being on holidays, I am wondering what you are all up to for study over the break. Are you reviewing all of unit 3 or do you still have that one topic to polish off.

Let me know where you are up to and I will have a look for some questions rearding that area of study.

Let me know and I will try to help you as much as I can

Regards,

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Final Part:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

A key criticism is that the Doctrine of Precedent creates rigidity; however, there are four mechanisms in place to keep the common law flexible. These techniques are: reversing, overruling, disapproving and distinguishing. For example, distinguishing has allowed the common law to develop as any court can distinguish as long as the material facts are different. For example, the tort of negligence has developed from manufacturer’s liability (Donoghue & Stevenson 1932) to professional advice (Shaddock 1981).

However, some judges may be conservative and take a non-interventionist approach as seen in Justice Mason’s ruling in the Trigwell case 1978 as he said “the right to make laws should be confined only to parliament”. This is a weakness of the courts because it allows archaic precedents to perpetuate such as rape in marriage. Therefore, Parliament is able to abrogate these archaic precedents as it did in the Wrongs (Animals) Act 1984.

On the whole, the courts primarily are able to resolve disputes before them, and, despite weaknesses, the Doctrine of Precedent is an effective, and important law-making function of the courts.

 

I hope this can help you all.

JB

Legal Studies Unit 3 AOS 3 – The role of courts

Dear Readers,

The next question I will do in a few parts.

Part two:

Explain the operation of the Doctrine of Precedent and evaluate two strengths of this method of law-making.

However, lower courts must follow binding precedents, even if they disagree if they don’t have the scope to legally manoeuvre. Therefore the Doctrine of Precedent also creates rigidity which can limit the effectiveness of the doctrine as  Judges have to follow archaic precedents (as seen in R v Hakopian) and are forced to wait for a superior court to reverse or overrule the precedent or wait for Parliament the abrogate the outdated precedent.

 

Persuasive precedents do not have to be followed although due respect is paid. Persuasive precedents are from courts of equal standing, of lower standing, from other common law countries (e.g. South Africa), and other state hierarchies (e.g. NSW). Furthermore, judges may include ‘obiter dicta’ which are “matters spoken by the way” and are persuasive. These hypothetical statements are beneficial because the y help guide judges with similar cases in the future and assist in the evolution of common law.

 

I hope this can help you all.

JB

A readers question

Dear Readers,

I recieved a question from a reader about the cases that I studied for High Court interpretation. So I thought Id take a brief break from the Constitutional Protection of Rights questions and provide you with a little bit of information regarding the two that I did.

The first case:

Roads Case 1926 between Victoria and the Commonwealth. A dispute the fact that the Commonwealth had said we will give you this grant, if you spend it on the roads system.

Consequently:
o Substantial increase in Commonwealth financial powers
o Could dictate terms of grants
o Commonwealth can now indirectly control residual powers
o Recent example: Howard Gov grants influence education in 2004

The second case:

Franklin Dam case 1983 between Tasmania and the Commonwealth. A Dispute regarding the Commonwealth disallowing the Tasmanian government from damning the Franklin river (which was part of a ‘protected’ area if I remember correctly).

Consequently:
o Increased commonwealth power by using external affairs power(S51 (xxix))
o Plan to damn Franklin and Gordon rivers for hydroelectric scheme
o Rejected 4-3 decision
o Commonwealth powers increased in areas previously residual
o If:

  • Treaty signed
  • Legislation passed to ratify treaty
  • And the situation is of national and international significance

o Then power can be used in unlimited ways
o Example where the interpretation had influence later legislation: Koowarta case 1982 stopping discrimination