How good is your legal spelling? Which words are spelt correctly?

How good is your legal spelling?

Which words are spelt correctly?

http://www.letasa.asn.au/


Parliament

Parliment

Separation of powers

Seperation of powers

Appelant

Appellant

How good is your spelling?


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

Short response questionsin the Legal Studies exam

2010

Legal Education Teachers Association of SA

L•E•T•A•S•A


Short response questions

Question 1 Pages 7 and 8

The Australian Parliamentary process

Question 2 Page 9

The adversary system of criminal justice

Question 3 Page 10

Doctrine of precedent, and presentation of legal argument in a negligence case

Short Response Questions


Australian Parliamentary ProcessQuestion 1 Page 9

Why was Ms Gillard able to become Prime Minister of Australia?Common response from past examinations:Because her party won a majority in the House of RepresentativesA much better 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

Short Response QuestionsQuestion 1(a), Page 7


Briefly explain how the following concepts are implied in the text(i) REPRESENTATIVE GOVERNMENTCOMMENTRead the question carefully, it states “implied in the text”, so you cannotprovide a general answer

Possible answers: Members of the community were elected to the Cwlth Parliament at the 2007 federal election.

Elected representatives of the community debated and passed the Work Choices Act and Fair Work Act.

Short Response QuestionsQuestion 1(b), Page 7


Briefly explain how the following concepts are implied in the text(ii) RULE OF LAWCOMMENTRead the question carefully, it states “implied in the text”, so you cannotprovide a general answerRecommended answer

Cwlth Parliament can only enact legislation where it has a specific power The States challenged the validity of the Work Choices Act in the High Court arguing the Cwlth had exercised a legislative power ultra vires the Constitution



What legislative power would Ms Gillard use to have the FairWork Act enacted?

Specific legislative power (Corporations power)

Short Response QuestionsQuestion 1(c), Page 8


Why was the States’ challenge to the Work Choices Act heardin the High Court?NOTEIt is inadequate to simply state – “it is a constitutional dispute”, as it doesn’t explain WHY they are heard in the High Court.

Australian Constitution prescribes (in sections 75) that the High Court is

vested with original jurisdiction to resolve constitutional disputes regarding an interpretation of the Constitution.

Short Response QuestionsQuestion 1(d), Page 8


Why will the High Court’s work choices decision remainunchanged after the 2007 election?

High Court is the sole independent judicial body with the power to decide constitutional cases.

Its decisions can only be overruled by constitutional change by referendum or the High Court departing from precedent.

Arbitrary factors, like federal elections, have no impact on a High Court’s decision.

Short Response QuestionsQuestion 1(e), Page 8


What was the impact of the High Court’s decision on theAustralian federal system?

The decision broadened the corporations (specific) power of the Cwlth, and therefore reduced the residual powers of the States.Stated alternatively The decision swung the balance of the division of powers in favour of the Cwlth.

Short Response QuestionsQuestion 1(f), Page 8


Why did Mr Rudd’s Government face stricter scrutiny of its Bills that the Howard Government?

The Howard (Coalition) Government commanded a majority in the Senate from 2004 to June 2008, so its Bills could pass unamended if Mr Howard instructed its Coalition Senators to support its legislation.

The Rudd Government faced a hostile Senate for its entireTerm, so it could not use its numbers to pass its Bills.

Short Response QuestionsQuestion 1(g), Page 8

The court room cartoonQuestion 2 Page 11

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 of procedure and evidence.



Outline two constraints placed on the judge at an adversarial trial.

COMMENTThere 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



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. All witnesses must be capable of cross examination



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.



Briefly describe the pre-trial stages… and why?

INDICTMENTThe defendant is INDICTED before a Magistrate on INFORMATION. At this stage the accused is transferred from the custody of the police to the court.

BAIL APPLICATIONThe defendant can make an application to be released from the custody of the court pending a preliminary hearing.

SUPPRESSION OF NAME The defendant can make an application to have the accused person’s name suppressed from media publication to give effect to the presumption of innocence principle



Briefly describe the pre-trial stages… and why?

PRELIMINARY HEARINGConducted 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 Conducted by a judicial officer to prepare the case for trial if guilt is denied.


A case of negligence at schoolQuestion 3 Page 12

How would the case be cited for trial?

Benton v Education Dept and ContractorPlaintiff against co-defendants



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

Donoghue v Stevenson 1932 HLCOMMENTThe question is asking students to identify if the “authority” is a binding or persuasive precedent.

Binding precedent, as it has been endorsed in many High Court decisions since Australia severed judicial ties with Britain.



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



Outline a LEGAL ARGUMENT ….

A good answer would refer to at least two authorities and explain (argue) why the court should adopt them

ExampleDonoghue v Stevenson 1932 HLThe Department and contractor failed to exercise a standard ofcare 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

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 would be bound by it, if the factual basis of the cases are similar.

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.



Question 3 Page 12Can you identify the following people?

Australia’s first Governor-General,Lord Hopetoun



Australia’s Governor-General,Sir John Kerr, who dismissed Prime Minister

Gough Whitlam



Leader of the Liberal Opposition in South Australia.Isobel Redmond



First Premier of South Australia,Boyle Travers Finniss



Ivan MilacConvicted serial murderer

http://www.crimeandinvestigation.co.uk/crime_video_gallery_clip/6/videoclip/29/Ivan_Milat.htm



Nine Justices of theUnited States Supreme Court



Robert FrenchChief Justice of the High Court

Documents

How good is your legal spelling? Which words are spelt correctly?