QCAA Legal Studies cheat sheet

Rule of law: all persons and institutions, including government, are subject to and accountable under law publicly made, equally applied and independently adjudicated.

Sources of Australian law are statute law (legislation made by parliaments) and common law (judge-made law from decided cases), with statute prevailing where the two conflict.

The Australian Constitution (a British Act, operative 1 January 1901) creates federalism: powers are divided between the Commonwealth Parliament and state parliaments.

Section 51 enumerates concurrent Commonwealth heads of power; section 52 lists exclusive Commonwealth powers; section 109 renders a state law inoperative to the extent it is inconsistent with a valid Commonwealth law.

Section 128 requires a referendum to alter the Constitution, passed by a majority of voters nationally and a majority of voters in a majority of states (the double majority).

Separation of powers divides legislature (Parliament), executive (ministers and public service) and judiciary (courts); Chapter III courts exercise federal judicial power.

Common law doctrine of precedent: a superior court's ratio decidendi binds lower courts in the same hierarchy; obiter dicta and decisions from other hierarchies are persuasive only.

Australia's legal system is a common law (adversarial) system inherited from England; courts interpret statute and develop precedent, while parliament retains sovereignty to override common law.

Statute law process: bill introduced and read a first time, debated and read a second time, considered in committee (committee of the whole), read a third time, passed, then receives royal assent.

A bill becomes an Act on royal assent; commencement may be on assent or a date specified in the Act, and Commonwealth Acts generally commence 28 days after assent if no date is set.

Delegated (subordinate) legislation is made by the executive under authority granted by an enabling Act; it is subject to parliamentary disallowance and judicial review.

Courts make law through precedent when deciding novel issues or interpreting ambiguous statutes; this judge-made law is prospective in effect and can be abrogated by statute.

Ratio decidendi (the reason for deciding) binds; obiter dicta (remarks by the way) do not bind but may be persuasive.

Precedent may be avoided by distinguishing material facts, overruling by a higher court in the same hierarchy, or reversing on appeal.

Statutory interpretation uses the literal, golden and purposive approaches; the purposive approach and extrinsic materials are favoured by modern interpretation legislation.

Parliamentary sovereignty means a later parliament can amend or repeal earlier legislation, including common law rules, subject to constitutional limits.

Court hierarchy (state): Magistrates Court, District Court, Supreme Court (trial division), Court of Appeal, with the High Court of Australia at the apex of the federal system.

Original jurisdiction is the power to hear a matter first instance; appellate jurisdiction is the power to review decisions of lower courts.

The High Court hears constitutional matters and appeals; it is the final court of appeal and its decisions bind all Australian courts.

Adversarial trial process: parties present evidence and argument, the judge is an impartial umpire, and the burden of proof lies on the party bringing the case.

Standard of proof: beyond reasonable doubt in criminal matters; on the balance of probabilities in civil matters.

Tribunals (e.g. state civil and administrative tribunals) provide cheaper, less formal dispute resolution but generally lack the power to enforce their own orders.

Alternative dispute resolution includes negotiation, mediation (facilitated settlement), conciliation (adviser-assisted settlement) and arbitration (binding third-party award).

Legal institutions include parliaments, courts, tribunals, police, prosecution agencies, legal aid bodies and corrective services, each with distinct statutory functions.

Australia has no national bill of rights; rights are protected by statute, common law presumptions and international instruments such as the ICCPR.

Common law rights include procedural fairness (natural justice: hearing rule and bias rule), presumption of innocence, and access to courts.

Express constitutional rights are limited: section 80 jury trial for indictable Commonwealth offences, section 116 religious freedom, section 117 non-discrimination by state residence, section 51(xxxi) just terms acquisition.

Implied constitutional freedom of political communication (Lange v Australian Broadcasting Corporation) protects communication on political and government matters.

Statutory protections include anti-discrimination legislation, privacy legislation and charters of human rights in the ACT and Victoria.

Justice principles: fairness, equality before the law, access to justice, and the right to a fair hearing; these guide evaluation of legal processes.

Responsibilities accompany rights: obey the law, pay taxes, serve on juries when summoned, and comply with court orders.

Access to justice is affected by cost, delay, distance and legal literacy; legal aid and community legal centres address disadvantage.

Elements of a crime: actus reus (the prohibited act or omission) and mens rea (the guilty mind), which must coincide; strict liability offences dispense with mens rea.

Burden of proof lies on the prosecution; standard is beyond reasonable doubt; the accused is presumed innocent until proven guilty.

Summary offences are heard by a magistrate without a jury; indictable offences are heard in a higher court, often before a judge and jury.

Defences include complete defences (e.g. mental impairment, automatism, self-defence) and partial defences (e.g. provocation, diminished responsibility) that reduce murder to manslaughter.

Sentencing purposes include punishment, deterrence (general and specific), rehabilitation, denunciation, community protection and restorative justice.

Sentencing factors: aggravating and mitigating circumstances, maximum penalty, guilty plea, prior record, and victim impact statements.

Police powers (search, arrest, detention, questioning) are governed by statute and common law; unlawfully obtained evidence may be excluded.

The criminal trial process includes charge, committal, arraignment, plea, trial, verdict and sentence; appeals lie to higher courts on law or fact.

A civil action requires the plaintiff to prove the elements of the cause of action on the balance of probabilities; the defendant may raise a defence or counterclaim.

Tort of negligence elements: duty of care, breach of that duty, and damage caused by the breach that is not too remote.

Contract elements: offer, acceptance, consideration, intention to create legal relations, and capacity; breach gives rise to remedies including damages and specific performance.

Civil remedies include compensatory damages, nominal damages, aggravated and exemplary damages, injunctions, specific performance and rescission.

Limitation periods restrict the time within which proceedings may be commenced; expiry is a procedural defence the defendant must raise.

Civil procedure: pleadings, discovery and disclosure, directions hearings, mediation or other ADR, trial or settlement, judgment and enforcement.

Alternative dispute resolution is often court-ordered; mediation is confidential and non-binding unless a settlement deed is executed.

Costs generally follow the event, meaning the unsuccessful party pays a portion of the successful party's legal costs, subject to the court's discretion.