Part 1: The Legal System
Basic Legal Concepts
Meaning Of Law
Law is the system of control (a set of rules) which society operates. Law declares how we must
behave and consists of rules which are enforced through the legal system.
Rules, Customs And Law
➥ Rules: Rules are directions for conduct in certain situations. Rules are made by and enforced
by the leader of a group.
➥ Customs: Customs are collective habits or traditions that have been developed in society.
Customary laws are principles and procedures that have developed through general use.
➥ Laws: Laws are made by the government and affects everybody in society. Laws have
punishments if broken.
Basic Legal Concepts
Values And Ethics
➥ Values: Values are beliefs that guide or motivate attitudes or actions. They help people and
Judges to determine what is important. Values are principles or attitudes that a society holds as
important.
➥ Ethics: Making a judgement about what is the best thing to do in certain situations.
Characteristics Of Laws
◦ Laws are binding on the whole community.
◦ Laws can be enforced.
◦ Laws are officially recognised.
◦ Laws are accessible or discoverable.
◦ Laws relate to public interest.
◦ Laws reflect rights and duties.
◦ Laws cannot be retrospective (When people do something legal and it becomes illegal in the
future they cannot be charged with that crime)
Basic Legal Concepts
Nature Of Justice
The interpretation and enforcement of laws by a country’s system of courts is known as the legal
system. Equality, Fairness, and Justice are central concepts that allow us to distinguish good law
from bad law. However, if not all citizens have full and equal access to the legal system then
equality, fairness and justice are just empty concepts.
➥ Equality: Justice requires laws that do not discriminate and that are applied equally to all
people. The enforcement of the law must also be equal.
➥ Fairness: Fairness includes ensuring the law does not have a particularly harsh effect on an
individual and the right to appeal a decision.
➥ Access: Individuals have to be able to access the law in order for justice to be achieved. Law
should be understandable.
Procedural Fairness
Procedural Fairness is a doctrine of the law with the important principle being the concept of
fair treatment before the law. The body of principles is used to ensure the fairness and justice
of the decision making procedures of courts.
1.
The right to be heard, this includes the right to a fair hearing.
2.
The right to have a decision made by an unbiased decision maker, even an appearance
of bias, is enough to constitute a breach of natural justice.
Rule Of Law
The principle of the rule of law is that no one is above the law, including those who make the law.
The rule of law simply means that everyone is subject to the same laws no matter what rank.
Basic Legal Concepts
Types Of Law
➥ Public Law: Public law deals with issues that affect the general public or state (society as a
whole). This includes Administrative Law, Criminal Law, Constitutional Law etc.
➥ Private Law: Private law affects the rights and obligations of individuals, families, businesses
and small groups and exists to assist citizens in disputes that involve private matters. Its scope
is more specific than public law handling cases such as Contract Law, Tort Law, Property Law,
Family Law etc.
➥ Criminal Law: Criminal Law is a system of laws used to punish or reform those who have
committed a criminal act against a state or nation, this also includes crimes committed against
individuals.
➥ Civil Law: Civil law deals with individual rights or interests that have been violated by another
individual or organization and warrant a case filing.
➥ Common Law: Law that is developed in court by Judges.
➥ Statute Law: The body of law made by Parliament.
Anarchy
Anarchy is a state of lawlessness. Anarchy is a term used to describe a state of chaos and
disorder resulting from the absence of rules and laws. A state of anarchy is most likely to arise
after a revolution or disaster resulting in absence from law enforcement.
Tyranny
Tyranny is a state controlled by one person, a dictator.. A tyrant is a single leader who has
unlimited power over people in a country or state.
Sources Of Australian Common Law
British Origins
Australia adopted common law from England when the country was settled by British colonies.
Over time, Australia developed its own system of courts and law as it became independent from
Britain.
Equity
Body of law supplementing common law, corrects injustice by applying principles of fairness.
Precedent
A judgement which acts as authority for a later legal decision. The aim of precedent is to ensure
that people will be treated equally. Precedent is created when a Judge arrives at a decision in a
case when there is no existing common or statute law. In these cases the Judge relies on
common sense.
The Judge's Decision
➥ Ratio Decidendi: Legal reasoning behind decision. Legally binding.
➥ Statute Law: Other personal comments made about the case. Not legally binding.
Adversarial System Of Trial
◦ Two party’s prove their case.
◦ The burden of proof lies with the plaintiff/prosecution
◦ Judge acts as a mediator.
Sources Of Australian Common Law
Court Hierarchy
The position of the court within the hierarchy indicates the type of case that is being dealt with.
There are three main tiers:
1. Inferior
2. Intermediate
3. Superior Courts
➥ Appellate Jurisdiction: Jurisdiction to hear appeals from lower courts.
➥ Original Jurisdiction: Jurisdiction to hear cases for the first time.
Statute Law
Statute law is made by the Parliament. It is introduced as a bill and if passed, it becomes an act.
The Legislative Process
◦ Proposed change (bill) introduced in lower house.
◦ Bill is read, then discussed and amended if necessary.
◦ Vote is taken after third and final reading, if it passes it moves to the upper house.
◦ Process repeats in the upper house.
◦ If passed, it moves to the Governor for royal assent.
◦ It is now an Act Of Parliament.
Delegated Legislation
◦ Made by non Parliamentary bodies.
◦ Concerns less important matters.
◦ Given power through an ‘enabling act’.
Sources Of Australian Common Law
The Constitution
A set of rules governing the running of a nation state. The purpose of the constitution is to limit
the power of Governments and protect civilian rights.
➥ Division Of Powers: The division of powers refers to the separation or allocation of law
making powers to Commonwealth and the States determined at the time of federation.
➥ Separation Of Powers:This means that the executive, the judiciary and the legislative have
to separate to achieve justice, fairness and equality.
➥ Role Of The High Court:The role of the High Court is to interpret and enforce the Constitution.
The High Court is the highest court of appeal. The High Court was made under section 51 of the
Constitution.
Aboriginal And Torres Strait Islander Customary Law
Customary laws are the laws of Indigenous people. Customary laws are based on the Dreaming
and Spiritual connection with the Land. Customary Law is not officially recognised but is
integrated into the Australian legal system.
Diverse Nature Of Customary Laws
Due to many different Indigenous tribes in Australia, customary law is diverse amongst tribes,
but similar.
Difference Between Domestic And International Law
Sources Of Australian Common Law
State Sovereignty
The right of a Nation State to create its own laws. State Sovereignty allows a state to not only
make laws but enforce them.
Sources Of International Law
➥ International Customary Law: Develops from long standing ethics and customs which
become recognised by the international community. Only official when it is accepted as
necessary by said Nation State (Opinio Juris Sive Necessitatis).
➥ Instruments (Declarations + Treaties):
◦ Treaties are a legally binding agreement or contract that establishes obligations between two
or more Nations.
◦ Declarations are written documents of opinions or facts that are not legally binding but may
develop into a treaty.
➥ Legal Decisions: The main international court is the International Court Of Justice. The ICJ
hears treaty disputes and decisions that may persuade future treaties.
The United Nations
The United Nations was established in 1945 “To maintain Global peace and security, and to
develop friendly relations among Nation States based on respect for equal rights.
Intergovernmental Organisations
Organised groups of nation states which work towards a mutual goal. Examples include
International Labour Org. (ILO) or Interpol.
Non-Governmental Organisations
Oganisations with no government affiliation. They lobby and provide information to the public.
Examples include St Vincent De Paul’s and Amnesty International.
Classification Of Law
Public Law
Public law is the branch of law governing the relationships between individuals and the state,
and the structure and operation of said government.
➥ Criminal Law: The body of law under which acts are punishable by state. NSW - Crimes Act
1900.
➥ Administrative Law: Deals with powers and decisions of government bodies.
➥ Constitutional Law: Focuses on rules governing the separation of powers.
Private Law
Private law is the branch of law governing relationships between individuals and organisations.
Aims to protect the private rights outlined in statute and common law.
➥ Contract Law: Recognition of legally binding agreements. Aims to compensate the plaintiff.
➥ Tort Law: Civil wrongs, an action which breaches the rights of another.
➥ Property Law: Concerns any commercially valuable entity, such as land, stock or goods.
Criminal And Civil Court Procedures
Relationships
Common And Civil Law Systems
The main difference between the two is that common law systems partially uses previous
decisions to determine verdicts, civil law systems do not.
➥ Judge/Magistrate: Judges presides over court cases to ensure proper procedure is followed.
Magistrate decides the verdict and suitable punishments.
➥ Barrister/Solicitors: Barristers present their clients case and advises the client.
➥ Jury: A panel of randomly selected citizens who determine the verdict based on evidence
presented.
Law Reform
What Is Law Reform
Law reform is adaptations/modifications made to legislation and laws to reflect modern
society.
Conditions Which Give Rise To Law Reform
➥ Changing Social Values: Ethics which guide an individual's view of their society, and found
beliefs of right and wrong. These change as society evolves over time. (Same-Sex Marriage).
➥ New Concepts Of Justice: Reflects moral and practical considerations, adapts to social
expectations and when the law is unable to deliver just outcomes. (Domestic Violence).
➥ New Technology: Technological innovations bring with them the requirement for law reforms
to how the technology is used. (Cyber-Bullying), (Social Media).
Agencies Of Law Reform
➥ Law Reform Commissions: Law reform commissions have been established by various
parliaments within their own jurisdictions to conduct inquiries from ‘terms of reference’ into
potential areas of law change. An essential feature of law reform commissions is that they are
independent of the parliament that established them.
➥ Parliamentary Committees: Established by both houses of Parliament to investigate specific
law reform issues.
➥ The Media: Objectively reports on Parliamentary decisions and encourages and applies
public pressure on law reform.
➥ Non-Governmental Organisations: Organisations that are independent of governments.
They are under no obligation to report to any government policy and therefore can be a source
of objective information about various issues around the world.
Law Reform
Mechanisms Of Law Reform
➥ Courts: Makes law reform through precedent (Mabo Decision)
➥ Parliaments: Parliaments today are the institution where most law reform is realised. The
process of changing the law occurs through the passage of bills.
➥ United Nations: Conducts law reform on an international scale by applying pressure to
Nation States.
➥ Intergovernmental Organisations: These bodies are established to meet and decide upon
certain international issues such as refugees, tariffs and wealth. To this extent they contribute
to international law reform on a global as well as a regional scale through the promotion and
development of multilateral and bilateral treaties.
Law Reform In Action
Terra Nullius
Terra Nullius means ‘land belonging to no one’. This was a term that British civilisation declared
upon Indigenous Australians as they did not see any visual laws or form of Government.
Native Title Act
The Mabo Decision influenced the High Court to abolish the idea of ‘terra nullius’ and recognise
the Native Title Act 1993 which recognises not only the rights of the traditional owners, but also
those of current landholders.
Part 2: The Individual And The Law
Rights And Responsibilities
Rights
Entitlement that people have by legal or moral authority, individual rights are strengthened in
the legal system as equality is increased between citizens.
Responsibilities
Legal or moral obligations that a person has to another person, group, state or sovereignty.
Legal Basis Of Rights
For a right to have a legal basis, it must be protected by law and this be enforceable. Legal rights
can be protected through statute or common law.
Legal Basis Of Responsibility
Where someone has a right, someone else has a corresponding responsibility.
Statute Law: Legal Responsibility is also called ‘obligations’ or ‘duties.’
Common Law: Example - Duty of care.
Bill Of Rights Vs Constitution
HSC
Part 1: Crime
Nature Of Crime
Meaning Of Crime
An act or omission of duty resulting in harm to society and punishable by the state.
Elements Of Crime
➥ Actus Reus: Prove that the accused actually committed the crime.
➥ Mens Rea: Prove that the accused committed the act knowing that their actions were wrong.
Proving intentions, recklessness and negligence.
Causation
The act caused harm or damage to an individual or society. There must be a link between what
the accused did and the injury to the victim.
R v Blaue (1975): Planned to sexually assult a woman but when she refused he stabbed her in the
lung. The woman was taken to hospital but refused treament due to Religious belief resulting in
her death.
Strict Liability Offences
Offences where there is no need to prove any mental element of the crime (mens rea) for a
person to be guilty.
Categories Of Crime
There are a number of ways to categorise crime which effect the investigation, prosecution and
punishment of the crime.
Offences Against The Person: (Homicide)
➥ Murder: Delibirate killing of a person with Mens Rea.
➥ Manslaughter: Less intentional killing.
-
Voluntary (did intend to cause death)
-
Involuntary (did not intend to kill, death was caused by negligence)
-
Constructive (Killing someone whilst the accused was doing something unlawful)
➥ Infanticide: Murder of a 12 month or younger by the mother.
➥ Assult: Causing or threatening to cause physical harm.
-
Aggravated: Using an object to cause harm.
-
Sexual: Sexual contact without consent.
Offences Against The Soverign:
Political offences against the head of state. Crime Act 1900 (NSW)
➥ Treason: Breach of allegiance to yourcountry by causing harm to the head of state or
working with the enemy. Max: 25 Years (NSW).
➥ Sedition: Encouraging hatred or contempt of the Government. Anti-Terrorism ACt 2005
(CTH).
➥ Terrorism: Act with the intent to promote political or Religious causes.
Principal Beliefs
The Three Jewels
The ideals at the heart of Buddhism are collectively known as the ‘Three Jewels’, or the ‘Three
Treasures’. These are the Buddha, the Dharma and the Sangha. It is by making these the central
principles of your life that you become a Buddhist.
➥ The Buddha: The first Jewel doesn’t merely refer to the founder. Since Buddha is believed to
have been the first man to reach Nirvana, this Jewel also signifies the fulfillment of
Enlightenment. Therefore when a Buddhist claims to take refuge in Buddha, he’s also saying that
Enlightenment, in itself, is his refuge.
➥ The Dharma: The second Jewel refers to the teachings of the Buddha. To Buddhists, these are
the ways to truth. To follow them is to be on the path to Enlightenment. The Dharma is based on
the ‘Four Noble Truths’.
➥ The Sangha: The Sangha is the Buddhist community. Traditionally referring to the community
of ordained Monks and Nuns. Taking refuge in the Sangha means embracing kinship with all
living things.
The Four Noble Truths
The Four Noble Truths are perhaps the most basic formulation of the Buddha’s teachings.
1.
Life is full of suffering (Dukkah)
2. Suffering comes from Desire (Samudaya)
3. Suffering ends when desire stops (Nirodha)
4. In order to stop desire you must follow the Eightfold Path (Magga)
Principal Beliefs
Noble Eightfold Path
In Buddhism, the Noble Eightfold Path is the path to end suffering.
1.
Right view
5. Right Livelihood
2. Right Intentions
6. Right Effort
3. Right Speech
7. Right Concentration
4. Right Action
8. Right Mindfulness
The Three Marks Of Existence
Buddhists believe that there are three characteristics that are common across everything in life.
These are known as the Three Marks Of Existence. The Three Marks Of Existence are important
as they help Buddhists reach Nirvana.
➥ Dukkha: Dukkha is suffering. Every experience is marked by some quality of suffering.
➥ Annata: Annata means ‘no-self’. There is no fixed sense of self because everything is
constantly changing, in other words people have no soul.
➥ Annica: Annica means ‘impermanence’. Things in life are always changing. Nothing stays the
same as everything is subject to change.
Karma And Samsara
➥ Karma: Karma is a concept that means that out past actions effect usm either positively or
negatively, and that what we do in the present time will affect us in the future.
➥ Samsara: Samsara is a Buddhist term, meaning the conditioned state of mind. It is the cycle
of ignorance and suffering.