Law1111 Foundations Of Law And Assessment Answers

Aspects of the Australian Legal System

“Fundamental aspects of the rule of law include that matters are publicly adjudicated in courts that are independent from the government and that all members of society are equal before the law. Yet, in Victoria, we have a labyrinth of organisations dispensing ‘justice’, including a court hierarchy, tribunals, Ombudsmen and various types of ADR, including arbitration, mediation and conciliation. As such, it is impossible to ensure consistency in the justice system and the rule of law is being undermined.”

Critically evaluate the statement above. You should consider whether the rule of law is being undermined in Victoria by there being various methods of obtaining justice.

Could the legal processes be simplified in order to ensure that the rule of law is properly honoured?

Answers:

Part 1

Answer 1

The issues which have to be analyzed with respect to the given scenario is what actions committed by Luisa and Jeremy account to the breach of provisions provided by the Act the available defenses to such actions.

In the case of George v Carpentry Council of Victoria High Court of Australia (1922) the question before the court was to determine whether the absence of definition related to the word sale would make provisions to allow for its interpretation in a very wide scope[1]. It was held by the court that absence of a word leads to literal meaning.

Arguments for breach

Section 15

According to Section 15 of the Act a person is not allowed to sell within an area controlled by an agency within the meaning of this Act.  The article is not allowed to be sold if the sale has not been authorized by the agency. The person is liable to leave the premises if he has been instructed to do so by an office. The officer also has the powers with respect to the Act to confiscate the goods if the person does not comply with the officer.

The badge sold by Jeremy or Luisa can be taken to be within the scope of prescribed items provided by Reg 4 as it is a wearable item. It also defames the integrity of the park as the item is connected with an intoxicating substance. Thus with the sale of the weed batch Jeremy or Luisa have breached section 15 of the Act.

They had also refused to leave the place as instructed by the warden which is also a breach of Section 15 (5) of the Act. The section has to be provided with a literal meaning according to which if a person does not leave after being asked to do so by an officer he is liable for the breach of this section.

Section 18

According to section 18 a person is not entitled to advertise within an "advertising controlled site" for a prescribed period. They have also breached section 18 of the Act which does not allow them to advertise within a controlled site. This conclusion can be made based on the fact provided in the scenario that they had put a poster on the tree promoting their goods. As advertisement is not defied in the Act the dictionary meaning must be used which means promotion of goods and services.

Arguments against breach

The defenses which may be used by Jeremy or Luisa are:

The word sale according to the case of George v Carpentry Council has to be interpreted in a literal sense. It is not provided expressedly in the Act that trade and exchange account to sale. The sale of the badges was not initiated with the intention of making profit. In the scenario Jeremy and Luisa engaged in trade in form of exchange of goods. The dictionary meaning of the word sale is if applied cannot include trade with exchange in it. Thus the liability can be evaded by Jeremy and Luisa under section 15. Similarly advertisement can also be taken to be for the purpose of sale if section 18 and 15 are read together. As the purpose of Jeremy and Luisa was not sle they cannot be held for advertising.

Answer 2

The issues which have to be analyzed with respect to the given scenario in this Part is the rights of the Warden with respect to the actions taken by him.

Arguments for breach

The objects of the Parks and Gardens Week Act 2017 (the Act) are to provide for a co-ordination agency, provide functions to such agency, co-ordination and co-operation with other dePartments of government, to promote activity and recreational scope for the people of Victoria[2].  Thus the activities of the warden is against the purpose of the act which is to provide people of Victoria a recreational scope as he was over aggressive

Case law

In the case of Farley v London Police UK Supreme Court, 2014 the issue before the court was to determine whether the officer has used reasonable force within the provisions of the legislation or not[3]. In this case quadriplegic had been rendered by the defendant as he was shot in the back by a police officer. The police officer had based her actions on what she heard and what a reasonable person would have done in circumstances Ejusdem generis. Thus, the court held that the actions taken by the police officer was reasonable within the meaning of the Act. The circumstances in the present scenario were not same and the warden had enough time not to use the force which was used by him. Moreover the threat of the contravention made by Jeremy and Luisa was not so significant.

Section 5

The Act in relation to this case is The Metropolitan Policing Act 2005 which allows police officers to use “reasonable force”. According to Parks and Gardens Week Act Regulations 2017 (Reg) section 5 a warden may use reasonable force if a person has to be detained or restrained from breaching a provision of the Act.  According to section 6 of the Reg a penalty can be given if a warden has opinion that the act may result in danger and threat to the park. Prescribed articles means article of clothing such as hat and similar items and defames the event according to Section 4[4].

Section 21

Section 21 provides the wardens to exercise their powers provided to them by the Act. The wardens have the power to confiscate the goods which are restricted to be sold if the person selling the goods does not comply with the order of the warden according to Section 15 (6) of the Act.

Section 22

According to Section 22 a penalty notice must be conveyed to the offered in person or by post. But the notice must be provided by post or personally. The warden threw the notice at Luisa who ignored it. As both the provisions are not fulfilled and the provisions are interpreted literally than the warden has not provided the notice in a proper manner.

Arguments against breach

The warden may cite that he has been given the power to use reasonable force by the act if the person is not co-operating with the warden.  However with respect to the use of reasonable force if the provision of the case of Farley v London Police are applied in this case it can be found that the force used by warden was not reasonable. In that case the police officer did not have time to make a decision and believed that a significant harm may be caused if force in not applied. However in this case there was no need of applying force as immediate action was not needed. The situation could have been controlled after providing another warning and handling the situation without violence.  Section 5 also provides powers to use reasonable force and as there is no definition with respect to what is reasonable the court may provide that it was reasonable for the warden to apply the force as no harm was caused.

According to Section 22 a penalty notice must be conveyed to the offered in person or by post. But the notice must be provided by post r personally. The warden threw the notice at Luisa who ignored it. If the purpose of the act is taken into account it can be said that the intention of the parliament is to make the wrongdoer aware about the notice. Such awareness was provided in this case thus they are liable to the notice

Answer 3

The issues which have to be analyzed with respect to the given scenario in this Part the Actions of Sharona which might account to the breach of the Act and the available defenses.

Arguments for breach

Section 10

According to Section 10 of the Act, a person must not enter with Motor vehicle in an area which is restricted to motor vehicles. A person is also liable under the section if any barrier or sign has been damaged due to the vehicle. Sharona has breached section 10 of the Act as the act provides that a person is not allowed to bring motor vehicle in an area which is restricted. The provision has been breach as she had entered the area on a trolley.  She has also breached the provisions of this section as she had damaged the property of the park with her vehicle as the barriers belonging to the agency had been damaged due to the vehicle.

Section 17

According to section 17 of the Act a person is not allowed to bring any aircraft into the air space which is restricted without approval from the agency or traffic dePartment. The section is not applicable on government aircrafts. Sharona has further breached Section 17 of the Act by fying drone into a restricted space. It has been provided by the section specifically that only military aircrafts and aircrafts for energy purpose can be brought into the air space. Sharona is liable because the she was flying a drone over the restricted area. A drone can be taken to be an aircraft as it is a man made device which flies.

Arguments against breach

The defenses which may be availed by Sharona in this case are the ways in which the word Motor Vehicle and Aircrafts are to be interpreted. An air craft is usually controlled by a pilot within an aircraft whereas Sharona was flying a drone which may not be taken as an aircraft if the literal or dictionary meaning of the word “aircraft” is provided to it as the dictionary does not regard drone as an aircraft.

With respect to the case of vehicle the Act applies section 10 to Motor vehicles. It has not been expressed through the act that vehicles which does not have an engine or run through motors can be brought under the scope of this section or not. Thus Sharona can use it as a defense.

Conclusion

It can be concluded that section 15 has been breached by Jeremy or Luisa. They have a few defenses for the breach. The warden has used unreasonable force and Sharoma has breached section 10 and 17 which are also subjected to a few defenses.

Part 2

Answer 2

staredecisis et non quietamovere  means to stand by what has been decided and not disturb the undisturbedThe doctrine of precedent is used by the judges to address issues with similar facts and to provide certainty, equality, apprehension and efficiency of justice. However the judges may not be able to address all the rationales of precedent together as the application of one automatically eradicates the presence of the other. For example certainty is assured by the judges using the doctrine of precedent it might overrule the rationale of efficiency as the difference between two cases may be very minor and illogical for the courts to consider as a difference and thus an efficient decision is missed. Although certainty ensures predictability and consistence in law it may overrule the presence of other rationales such as apprehension of justice. Conversely if efficiency of justice is to be ensured than certainty has to be compromised with. In the same way apprehension of justice provides that all cases has to be decided based on their individual merit whereas if efficiency is observed by the judges that it would overrule the concept related to the apprehension of justice[5].

The inconsistencies arising out of precedents can be rectified. The beginning of such rectification can be constructed from the history of the progress in the Australian legal system. In the case of Mabo and Others v Queensland[6] how injustice was caused due to the discriminatory and inconsistent was solved through the application of rules in relation to the avoidance of precedents. It was held in this case that the case was not decided correctly previously and the change in the condition of society was inequitable. It was proved by this case that inconsistencies can be avoided if precedents are ignored in case where they defeat justice. However the lower courts do not have same access to overrule precedents as compared to the upper courts.

The judges have been provided the power to interpret statues made by the parliaments in accordance to the circumstances of the case. This power has been provided to judges in order to ensure that proper meaning can be provided to the statues enacted by the parliament[7]. The doctrine of precedent on the other hand has been provided to the judges so that the scope of their interpretation is not made very wide where they can provide any meaning to a statue. It is not always necessary that the rationales of the doctrine of precedent are contradictory to each other. Even if they are they do not bring any deterrent to the legal system. It might be according to the circumstances decided which rationale should be more applicable in the situation in order to provide justice to the Parties[8]. The five rationales of precedent can therefore be said to be consistent to the extent it is required by law to ensure justice. The five rationales of precedent had been applied successfully by the case of Telstra Corporation v Treloar [2000]. The changing attitude of the community can also be taken as an example where it can be shown that there is inconsistency with respect to the five rationales of precedent. For instance the doctrine of capital maintenance as initially been provided  by the land mark case of Trevor v Whitworth 1887 was very ridged and it has been changed various times in order to achieve efficacy by overruling consistency. In order to bring consistency in relation to the rationales of precedents the court may have to apply the rationales independently with respect to different situations[9]. The judges have to comply with the decisions of the higher court. This rule may not allow apprehension of justice but the problem can be solved when the case is brought before the high court. However if the high court interprets the law in a way which has not been done before than it would be against the principles of certainty as per the fundamentals of precedent[10]. Thus it can be said that the five rationales of precedent cannot be applied together in a case as there is no chance for them to be consistent unless two cases have very similar facts.

References

MacCormick, D. Neil, Robert S. Summers, and Arthur L. Goodhart, eds. Interpreting precedents: a comparative study. Routledge, 2016.

Kronmüller, Edmundo, and Dale J. Barr. "Referential precedents in spoken language comprehension: a review and meta-analysis." Journal of Memory and Language 83 (2015): 1-19.

Branting, Luther. Reasoning with rules and precedents: a computational model of legal analysis. Springer Science & Business Media, 2013.

Payandeh, Mehrdad. "Precedents and Case-based Reasoning in the European Court of Justice." (2014): 832-835.

Groppi, Tania, and Marie-Claire Ponthoreau, eds. The use of foreign precedents by constitutional judges. Bloomsbury Publishing, 2013.

Larsen, Alli Orr. "Factual precedents." (2013).