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Focus question 3: Should the courts be independent?

Teaching and learning activities

Activity 1: Why did judges and courts need to be independent of the governor? (60 min) ESL Activity 1
Activity 2: You be the judge (40 min) ESL Activity 2
Activity 3: Role-play - the court of the early governors (90 min) ESL Activity 3
Activity 4: The courts today - judge and jury are independent (40 min) ESL Activity 4
Activity 5: The law rules (20 min) ESL Activity 5

Introduction

In this focus question we will see how one of the most important principles of law came to Australia. A fair trial depends on a court that is unbiased. The three main ways we ensure this today are:

  • the judges who interpret the law are independent
  • the jury is chosen at random from the community
  • no-one is allowed to interfere in the decisions of judge and jury.

These changes came to Australia because of a serious argument which developed between one of the early governors (Macquarie 1810-21) and a new judge (Bent).

Activity 1: Why did judges and courts need to be independent of the governor? (60 min)

This activity shows students why one-man rule of the court system couldn't continue when there were more free people in the colony than convicts. Two points are important:

Handout 9 1a Distribute Handout 9.

1b Read through the text up to the diagram.

1c Ask students to discuss in their groups in what ways the population of the colony had changed between 1788 and 1820 (eg larger, more non-convicts than convicts, more complex legal problems).

Handout 10 1d Distribute Handout 10. Using the pictures of free settlers, ex-convicts, Macquarie and the British Government, ask students to cut out or redraw these pictures and write a caption for each picture.

Activity 2: You be the judge (40 min)

This activity focuses on the conflict between the governor (Macquarie) and the new judge (Bent) appointed by the British Government. The key points are that:

Bent opposed decisions of the governor when he thought they were wrong and the governor refused to change decisions he thought were right. This led to Bent shutting the Supreme Court. Even though the British Government supported the governor, it eventually ordered a report on the running of the colony which recommended:

Handout 11 2a Distribute Handout 11 and read through the cartoon with students.

2b Ask students in their groups to consider the following questions:

  • Why do you think Governor Macquarie wanted to force Bent to do what he was told?
    - The governor thought his decisions were in the best interests of the colony.
    - It was the governor's job to make all the decisions and run the colony.

  • Why do you think Bent thought he should stand up to the governor?
    - He believed the governor's decisions were wrong.
    - He believed that as judge he should run the courts without interference from the governor.

Handout 12 2c Distribute Handout 12. Ask students to discuss these questions in their groups and then write down their ideas.

2d Conduct a report-back and list the student ideas on the board. The British Government sent Commissioner Bigge to report on the colony and to make recommendations on any changes that needed to be made. He recommended that:

  • the governor appoint a council to advise him
  • the judge take over the running of the courts from the governor.

Handout 13,14

Activity 3: Role-play - the court of the early governors
(90 min)

3a Display Handout 13. Discuss the structure of the court, highlighting:

Today, the judge is not involved in jury deliberations. Usually the jury must reach a unanimous decision although some courts accept a 10:2 decision.

  • the position and potential influence of the governor
  • the numbers of military personnel in the system.

3b Explain to the class that they will be acting like a court in the time of the early governors. They will need a judge, a jury, a prosecutor, a defence lawyer, a clerk, a convict who has been accused of a crime, and witnesses for the prosecution and for the defence.

3c Distribute Handout 14. Role-play the activity as set out.

3d Ask students to write a letter to a friend explaining what happened in court. The letter should focus on the bias of the courts in the time of the early governors.

Alternatively, have students act as commentators and respond orally from different perspectives.

  • The judge and jury are military people.
  • As they are under the command of the governor they would be expected to do as he wanted.

Activity 4: The courts today - judge and jury are independent (40 min)

The job of the courts in Australia today is to decide whether someone has broken the law or not. How does today's system protect the independence of the courts?

4a Review Handout 5 and discuss the roles of the judge and jury in the court system today.

Handout 4,15

4b Display Handout 15 and discuss the structures in place today. Ask students to suggest reasons for these structures and list the ideas on the board.

4c Ask students to recall the Bent versus Macquarie argument about the independence of judges. What were Bent's main arguments? (The governor should keep out of the courts. The courts should be staffed by qualified free lawyers.) Ask students if they think that the courts are independent from government today.

The jury decides whether a defendant has been proven guilty or not. The judge decides on the consequences of the findings.

4d Ask students to imagine that Macquarie and Bent were transported to today's Australia. Could Macquarie (as the prime minister) have Bent sacked for his court decision?

4e Write on the board: 'Everybody must obey the law.' Reinforce this by saying that there isn't a single person who is above the law. Refer to current cases in the news.

4f Ask students to complete 'The Law Rules' chart, filling in the section 'Independence of the courts'.

Activity 5: The law rules (20 min)

Courts are independent of government and although parliament can vote to remove a judge from the bench it is only for the most serious offences. The Prime Minister alone cannot remove a judge.

5a Provide opportunities for individuals or groups to work on the Stories of Democracy CD ROM interactive 'The Law Rules'. It provides details of the Macquarie versus Bent story.

5b Students should make notes using the notebook facility on important principles of law raised in the narrative and the game section. These points can be used in the final activities in Focus question 5.

ESL activities

Back to 'The Law Rules - At a glance'

Stories

AcknowledgementsLegal Information