YEAR 11 LEGAL STUDIES: THE LEGAL SYSTEM CONTENTS Section 1. Basic legal concepts 2. Sources of contemporary Australian law A. Common law B. Statute law C. Constitution D. ATSI Customary laws E. International law 3. Classification of law 4. Law reform + murder of police officers contemporary law reform issue 5. Native title law reform Activity numbers 1-6 7-9 10-12 13-16 17-19 20-24 25-29 30-33 34-36 1 Section 1.01 SYLLABUS Part I: The legal system course time 40% of Principal focus: Students develop an understanding of the nature and functions of law through the examination of the law-making processes and institutions. Themes and challenges to be incorporated throughout this topic: ● ● ● ● ● the need for law in the operation of society the importance of the rule of law for society the relationship between different legal institutions and jurisdictions the development of law as a reflection of society influences on the Australian legal system. Students learn about: Students learn to: 1. Basic legal concepts ● define law ● distinguish between customs, rules, laws, values and ethics ● describe the characteristics of just laws and the nature of justice ● define and investigate procedural fairness and the rule of law ● define anarchy and tyranny ● outline the origin of common law ● examine the hierarchy and jurisdiction of state and federal courts ● outline the role and structure of parliament and the legislative process describe the function of delegated legislation ● ● ● ● ● – – – ● ● ● ● meaning of law customs, rules and law values and ethics characteristics of just laws nature of justice: equality fairness access procedural fairness (principles of natural justice) rule of law anarchy tyranny 2. Sources of contemporary Australian law common law ● British origins, including: – development of common law – equity, precedent – adversarial system of trial ● court hierarchy: – jurisdiction of state and federal courts Statute law ● ● ● role and structure of parliament legislative process delegated legislation ● 2 the constitution ● ● ● division of powers separation of powers role of the High Court ● ● explain the difference between division and separation of powers examine the role of the High Court in the interpretation of the constitution Aboriginal and Torres Strait Islander Peoples’ customary laws ● ● ● ● ● ● diverse nature of customary laws spiritual basis, significance of land and water family and kinship ritual and oral traditions mediation and sanctions relevance to contemporary Australian law ● examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary laws ● outline the extent to which Aboriginal and Torres Strait Islander Peoples’ customary laws have been integrated into Australian law ● distinguish between domestic and international law and examine the impact of state sovereignty ● examine the sources of international law ● describe the role of the various organisations involved in international law examine how international law impacts on and is incorporated into Australian law international law ● ● ● – – – ● – – – – ● differences between domestic and international law state sovereignty sources, including: international customary law instruments (declarations and treaties) legal decisions, writings role of: United Nations courts and tribunals intergovernmental organisations non-government organisations relevance to contemporary Australian law ● 3. Classification of law ● public law – criminal law – administrative law – constitutional law ● outline different types of law ● compare the purpose of different types of law ● private law (civil law) – contract law – tort law – property law ● distinguish between civil and criminal court procedures identify the role of legal personnel involved in the court process compare and contrast common and civil law systems ● ● ● ● criminal and civil court procedures including legal personnel common and civil law systems 3 4. Law reform ● ● examine the conditions that give rise to law reform ● ● describe the role of agencies involved in law reform ● examine the operation of the different mechanisms of reform Two examples of law reform must be studied. Law reform in relation to native title is mandatory. Another example may be taken from list B or may be a topic of the student’s choice. ● A) native title ● explain why terra nullius was an obstacle to achieving native title examine the roles of the High Court and federal parliament in recognising native title examine major Australian native title decisions assess the effectiveness of the law reform process in achieving just outcomes in regard to native title ● ● conditions that give rise to law reform including: changing social values, new concepts of justice, new technology agencies of reform including law reform commissions, parliamentary committees, the media, non-government organisations mechanisms of reform including courts, parliaments, United Nations intergovernmental organizations 5. Law reform in action – – – – ● terra nullius the roles of the High Court and federal parliament major native title decisions legislation B) a contemporary law reform issue (examples of topics that may be studied): – – – – ● young drivers and the law sport and the law animal welfare drug use and the law. ● ● ● identify and investigate a contemporary law reform issue examine the conditions that give rise to the need for law reform, the agencies of reform and mechanisms of reform assess the effectiveness of law reform in achieving just outcomes with regard to a contemporary law reform issue. 4 SECTION 1: BASIC LEGAL CONCEPTS Section 1.02 ACTIVITY 1: CUSTOMS, RULES & LAWS Customs- Socially accepted ways to act between people EXAMPLES- Shaking hands is a socially accepted way for people to act, it is polite and what you are meant to do (societies view of what you are meant to do) In different places there are customs for people to follow - In japan when people greet each other they bow (not bowing back is disrespectful), however in different countries this would be seen as different and odd Rules- Something that you have to follow however it is not illegal to not follow them but only certain people are affected by these rules. EXAMPLES- No mobile phones in Willoughby girls high school however this only applies to certain people - students not teachers, Teachers also have to follow rules that students do not have to follow. Laws- Enforceable rules that apply to everyone and have a punishment for non-compliance. EXAMPLES- There are laws for murder, these apply to everyone. Anyone who commits murder will be sent to courts and sent to jail as a punishment. There are different forms of punishment, there is jail, community service and many other forms of punishment for non-compliance. OTHER- There are laws that effect certain people and not others, for example there are rules for just teenagers and not adults, however it still applies to everyone that does not fall into the area. Who does it apply to? Customs Members of the community that accept the custom Rules Members of the organisation Laws Everyone within the jurisdiction How is it enforced? Social pressure Governing body of the organisation Judicial system and the police How was it developed? General usage by the community over time By members of the organisation Parliaments, courts How is it discovered? Experience, verbal Written down Written down 5 Section 1.03 Section 1.04 ACTIVITY 2: VALUES & ETHICS Sam is a year 12 Legal Studies student who strongly values academic achievement. He receives an essay task from his teacher. Sam thinks it is very important to get good marks and asks his brother for help. Sam’s brother gives Sam his essay from 2 years ago and Sam uses this as a base for his own essay, so that some sentences are taken directly from his brother’s essay and other sentences are from his own efforts. He submits the essay with a cover sheet where he states that the essay is all his own work. His essay receives the top mark in the class. Questions: 1. How does this example illustrate the difference between values and ethics? Sam values academic achievement over academic integrity, he values good marks over honest, ethical work. It’s ethically sound to do the work himself and submit it with the cover sheet that states that it’s all his own work, rather than copy his brother’s essay just to get a good mark. Evolving values & ethics lead to law reform. e.g. - Same sex marriage - Abolition of death penalty - Gun control - Abolition of corporal punishment in schools - Stricter domestic violence laws - COVID-19 regulations Conversely, law reform can also promote a change in values & ethics. Eg anti-discrimination laws Section 1.05 ACTIVITY 3: ANARCHY & TYRANNY Chosen Example: Freetown Christiania 1. Internet research: Find an example of anarchy that has occurred anywhere in the world in the past couple of decades. In relation to this example, briefly address the following: a. State where and when the example occurred Freetown Christiania (Copenhagen) b. Outline the nature of the situation c. Explain why anarchy prevailed 2. Internet research: An example of tyranny is Kim Jong Un’s rule in North Korea. Find two examples of Kim Jong Un exercising power as a tyrant. 6 Section 1.06 ACTIVITY 4: SHORT ANSWER PRACTICE When answering these questions, pay attention to short answer technique. Consider what the directive verb requires, how long the response should be and which key points are needed to answer the question. 1. Define laws (1 mark) Laws are enforceable rules that apply to everyone and have a punishment for non-compliance and are enforceable by the state 2. Distinguish between laws and rules (2 marks) Laws are applicable to everyone while rules only apply to certain people, it is also not illegal to break a rule. Laws are enforced by the police as well as people in higher power, while rules are often enforced by people who do not have as much power. 3. Explain why a state of tyranny breaches the rule of law. Provide an example to support your response (3 marks) The rule of law states that everyone is subject to obey the law, including the government. Tyranny breaches the rule of law because laws do not apply to the government, as during tyranny laws do not apply to one or more people in government. An example of Tyranny is Kim Jong Un’s rule in North Korea. 4. Explain why the rule of law does not exist in a state of anarchy. Provide an example to support your response (3 marks) The rule of law states that everyone is subject to obey the law, including the government. The rule of law does not exist in a state of anarchy because there are no laws and therefore nobody is subject to any laws. An example of anarchy is Freetown Christiania. Section 1.07 ACTIVITY 5: PROCEDURAL FAIRNESS Section 1.08 CASE: JUDGE ALEXANDER STREET Section 1.09 A judge with the Federal Circuit Court, Judge Alexander Street, has had a number of his decisions overturned on appeal on the ground that he denied the applicant procedural fairness. An investigation by ABC revealed that Judge Street has denied almost 99% of applications for judicial review of humanitarian visa applications from those seeking asylum in Australia between 2015 and 2019, whereas the likelihood for an application succeeding with any other Federal Circuit Court judge was found to be about 90%. The ABC investigation also found that 91% of Judge Street’s decisions in refugee matters have been overturned by the Federal Court, some of which were due to his denial of procedural fairness. In one case involving a Nepalese family seeking asylum in Australia, Judge Street refused to give them further time to prepare their case then dismissed their application on the spot. He also questioned their need for an interpreter. This case was overturned on appeal, where the appeal court judge stated "In my opinion, this is a case where the judge acted upon a wrong principle… He allowed an understandable desire for speed and efficiency to trump the appellants' right to procedural fairness." In another case, Judge Street instructed the interpreter for an Iranian refugee applicant to not interpret his reasons for dismissing the application. According to John Young, a lawyer who has successfully appealed several dismissals by Judge Street, asylum seekers are in particular need of the protection afforded by procedural fairness: "This above 7 all is an area where people do need to be assured of a proper hearing. If their claims are valid, in many cases their lives are at stake.” Source: ‘Almost 99 per cent of protection visa review applications fail when heard by controversial judge, new figures reveal’ Hagar Cohen, ABC News, 6/9/19 https://www.abc.net.au/news/2019-09-06/almost-99-per-cent-fail-whenheard-by-judge/11457114 Read the above case and answer the following questions. Tip: Remember that two aspects of procedural fairness are (1) the right to be heard (2) the right to an unbiased decision-maker 1. Explain how Judge Street failed to grant procedural fairness to the Nepalese family that was seeking asylum. Judge Street presents with bias against refugee matters, this bias means that he has failed to grant procedural fairness. He has also failed to grant procedural fairness because he did not allow the Nepalese family to be heard 2. Judge Street denied almost 99% of applications made to him on refugee matters. This statistic suggests that which element of procedural fairness is not being upheld? This statistic suggests that Judge Street did not uphold the second aspect of procedural fairness, the right to an unbiased decision-maker. 8 Section 1.10 ACTIVITY 6: BASIC LEGAL CONCEPTS RECAP Fill in the blanks Term Definition Law Enforceable rules that apply to everyone and have a punishment for non-compliance. They are enforceable by the state. Rules Prescribed directions for conduct in certain situations or by certain organisations Tyranny The state where the people/peoples in power do not have to follow the laws that other people have to follow (does not follow the rule of law) Rule of law The principle that everyone is subject to the law, including the government (because the government makes the laws) - there are some exceptions Ethics Moral principles that govern a person's behaviour or the conducting of an activity. Customs Collective habits or traditions that have developed in a society over a long period of time Anarchy A state of disorder arising from absence of government or enforced laws Eg. Freetown Christina Procedural fairness Procedural Fairness requires the process used by governments in decision making to be fair, they must be unbiased and it is required that they are heard Section 1.11 9 SECTION 2: SOURCES OF CONTEMPORARY AUSTRALIAN LAW SOURCE OF LAW: COMMON LAW ACTIVITY 7: THE DOCTRINE OF PRECEDENT Read ‘The Doctrine of Precedent’ in the textbook pages 23-25 then answer the following questions. Use the number of marks as a guide for the length of your response. 1. How does the doctrine of precedent help to achieve justice? (2 marks) 2. State two ways in which courts can set new precedents (2 marks) 3. Judgments are composed of ratio decidendi and obiter dicta. Distinguish between the two parts and identify which part sets precedent (2 marks) 4. Is a superior court obliged to follow judgments set by lower courts? Explain your response (2 marks) 10 ACTIVITY 8: ADVERSARIAL SYSTEM OF TRIAL 1. Brainstorm advantages and disadvantages of the adversary system Advantages Disadvantages 2. Evaluate the effectiveness of the adversarial system of trial in achieving justice (4 marks) Evaluation is a key skill in Legal Studies. To ‘evaluate’ means to make a judgment based on criteria. In Legal Studies, this usually requires you to make a judgment on how effective the law or the legal system is at achieving justice. The following structure can be used for most ‘evaluate’ questions in this subject: - Define or describe the relevant law/feature of the legal system - State ways in which it achieves justice (advantages/arguments for/pros) - State ways in which it is limited in achieving justice (disadvantages/arguments against/cons) - Make an overall judgment based on these arguments eg ‘Overall, the law is significantly effective in achieving justice because <insert brief reason>’ 11 ACTIVITY 9: COURT HIERARCHY Some general principles in applying the court hierarchy: - The High Court of Australia is the highest court in Australia in both the state and federal jurisdictions Lower courts must follow precedent set by higher courts Appeals from lower court decisions are usually heard by courts one level above in the hierarchy More serious criminal offences are heard in higher courts Civil cases involving larger sums of money are heard in higher courts Section 1.12 Source: Cambridge Preliminary Legal Studies Source: Armstrong Legal 12 1) Skim the textbook pages 26-29 to fill out the following table. Some is completed for you. Court Local Court of NSW Jurisdiction (types of matters that it hears) o Summary (minor) criminal offences o Civil matters up to $100 000 o It does not hear appeals District Court of NSW Supreme Court of NSW High Court of Australia Federal Circuit Court of Australia o A range of federal law matters including family law, copyright and migration. o Does not hear criminal matters Federal Court of Australia o A range of federal law matters including family law, copyright and migration. o Hears some federal summary criminal matters o Hears appeals from the Federal Circuit Court Coroner’s Court 2) In which court would the following matters most likely be heard? a) A murder trial b) A criminal appeal from the NSW Supreme Court High Court of NSW c) A hearing for the offence of using offensive language d) An investigation into a suspicious death e) An armed robbery trial f) A civil dispute between business partners involving $100 million g) A case dealing with the interpretation of the Australian Constitution 13 SOURCE OF LAW: STATUTE LAW ACTIVITY 10: ROLE AND STRUCTURE OF PARLIAMENT Source: Cambridge Preliminary Legal Studies Refer to the diagram above and watch the video shown in class ‘What is Parliament’ then answer the following questions: 1. Outline the structure of Federal Parliament 2. Outline the role of Federal Parliament 14 THE LEGISLATIVE PROCESS Source: Cambridge Preliminary Legal Studies 15 ACTIVITY 11: CONTRASTING STATUTE LAW AND COMMON LAW Question: Brainstorm differences between statute law and common law. These can relate to operation (i.e. how statute and common law work or are made) or effectiveness (i.e. how effective they are at achieving justice or protecting rights) Common Law (Judge-made/case) Statute Law (Acts of parliament) o Comes about through judges/court, created as o Created and passed through parliament the outcome of a case or by a judge o Must be followed by all o Law as declared by judges o Primary source of legislation o Two types: o Elected o Where judgments passed become o Time consuming new laws where there are no o Statute law overules common law statutes o Is made due to any identified legal need o where judges interpret the existing o Not bound by anything law and determines new boundaries o Takes longer to enact and distinctions o Permanent (can still be changed through law o Not elected reform or repelled) o Only made during a case before court o Sets a precedent** ** A precedent is a legal decision/case that must be followed in similar cases and in lower courts. It achieves fairness as it means that all cases are judged in the same way - reduces prejudice Separation of powers: the judicial system must be separate from the legislative system - holds each party accountable for their role within law 16 ACTIVITY 12: DELEGATED LEGISLATION Federal responsibilities Constitutional, migration, customs, trade etc State Health, education, crime, transport Local Parking, zoning, waste/hazard management By-laws: Laws made by local councils are Delegated legislation: enforceable rules made by authorities that are responsible to parliament, but not elected to parliament; made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Willoughby City Council has decided to implement new parking rules, a type of delegated legislation, that prohibit parking for longer than 30 minutes along all roads within a 3-kilometre radius of Chatswood train station between 7 am and 6 pm except for local residents with permits. This decision was made by a committee within the Council over the course of a few weeks. The new parking rules were introduced to reduce traffic congestion during the day caused by city workers who catch the train to work. Drivers who breach these rules can be fined up to $400. Road-side signs were erected on the day the new rules came into force, although no prior warning was given to residents or drivers. The Council intends to review the effectiveness of these parking rules on an annual basis and will make changes as needed. Question: With reference to the above example, outline the advantages and disadvantages of delegated legislation. It may help to consider how delegated legislation differs to Parliamentary legislation. Advantages/Arguments For Disadvantages/Arguments Against Laws can be implemented much more May be made by unelected officials quickly as they don’t have to pass through 2 Made privately without public debate or houses (Senate, House of Reps) consultation More targeted/personalised to local Many different bodies make delegated residents legislation, so there can be inconsistencies Rules can be adapted to local e.g time you can park in nth syd differs circumstances from willoughby Frees up parliamentary time 17 SOURCE OF LAW: THE CONSTITUTION ACTIVITY 13: THE CONSTITUTION Watch the video shown in class ‘The Constitution’ then answer the following questions: Notes Guidebook for running a country, framework for our democracy Australia was 6 British colonies not a nation Each colony held referendums Statue law Written 1900, enacted 1901 Document that sets out the system of governance for Australia, establishing our parliamentary system, the High Court and how law-making power is divided between the federal government and the states. (Division of power) Describes the roles of the government and courts High dictates official Changing the constitution requires a nation-wide referendum Total of 8 changed since 1901 1. Outline the origin of the Australian Constitution The Australian Constitution was written in 1900 and enacted in 1901. Before this, Australia was made of up 6 British colonies, and Britain held all law-making power. Sets up the rules for how the newly federated nation of Australia would work. 2. What is the role of the Constitution? Sets out legal framework for how the country is governed. 3. How can the Constitution be changed? A nationwide referendum must be held 4. Which court resolves conflicts in relation to the Constitution? Only the High Court of Australia. A referendum is the only way the constitution can be changed, it has to get more than 50% of the entire vote, has to be passed by the majority of voters in the majority of states. NT and ACT don’t count in the majority of states, but they still have to vote for the 50% of voters nation-wide. A plebiscite is used to decide a national question that does not affect the constitution. It tests whether there is enough public support. 18 ACTIVITY 14: THE DIVISION OF POWERS The division of powers refers to the division of law-making power between the federal govt and state govts, as set out in the Constitution. • Federal govt have exclusive powers, e.g. external affairs, defence, migration • State govts have residual powers, e.g. education • Concurrent (overlapping) powers are exercised by both, e.g. tax • In cases of conflict, the federal law prevails over the state law. • The division of powers help to guard against abuses of power by avoiding the concentration of too much power in any one level of government. Constitution states that the federal government has exclusive right to create law Read Commonwealth v Tasmania (1983) (‘The Tasmanian Dam Case’) on page 37 of the textbook and answer the following questions: If either the Commonwealth or a state government passes a law that contravenes (contradicts) the Australian Constitution, that law would be deemed unconstitutional and thus be declared invalid. Technically the government would be said to be acting ultra vires (acting beyond one’s legal power). But what happens if the state and Commonwealth laws were both valid, as can often be the case with a concurrent power? 1. What are the facts of the case? (In a few sentences, state the background to the case. This should exclude the issue and the court’s decision. In other words, what happened that led to the case being brought before the court?) - Tasmania wanted to build a hydroelectric dam on the Franklin and Gordon River system Environmentalists started a protest campaign against this (‘No Dams’ campaign), with the Wilderness Society as well as the Australian Conservation Foundation getting involved, there were nation-wide protests Tasmanian Government argued that this was a residual power, and protests would not impact the project Australian Labour Party promised to stop the project if elected, they were elected however the dam project continued The Wild Rivers area was listed under the World Heritage Convention, meaning the area is of special significance and should be protected, arguing that it’s an external power There was state law allowing the construction of the dam, contradicted by a federal law that did not allow it. 2. What was the legal issue before the High Court? (In one sentence, state the legal question that the court ultimately had to decide) In the case of contradictory laws between concurrent powers, which law must be adhered to? 3. What was the High Court’s judgment? (In a few sentences, state what the court’s answer to the legal issue was and explain the court’s reasoning for its decision. Refer to the division of powers when stating the court’s reasons). The answer to this legal issue was that, in the case of an inconsistency between state and commonwealth law, “the latter will prevail, rendering the former invalid”. The court’s reasoning was that the Commonwealth’s laws refer to Australia’s obligation under an international treaty, therefore within the division of powers, the Commonwealth’s law must be followed. 19 ACTIVITY 15: THE SEPARATION OF POWERS Branches • The Constitution sets out the separation of powers, which is the separation of the three major functions of govt into: o Legislature (Parliament) – enacts laws o Executive (ministers and govt departments) – responsible for administering and enforcing laws o Judiciary (courts) – responsible for interpreting and applying laws In Commonwealth v Tasmania (The Tasmanian Dam Case) (1983), the High Court made a ruling on whether the federal parliament’s Act was a valid use of its ‘external affairs’ power as set out in the division of powers in the Constitution. In other words, it was deciding whether the law was consistent with the Constitution. The High Court ultimately ruled that the federal parliament’s Act was indeed Constitutionally valid and therefore could remain in force. The Tasmanian government was consequently not legally able to build its dam as federal law prevails. If, however, the High Court had decided the federal parliament’s Act was not a valid use of its ‘external affairs’ power, then the Act would have been declared invalid and would have no legal force. The Tasmanian government then would have had the legal power to build the dam. Question: In the previous activity we saw how the Tasmanian Dam Case demonstrates the operation of the division of powers. How does the Tasmanian Dam Case also demonstrate the separation of powers? In Commonwealth v Tasmania the separation of powers is demonstrated through the High Court’s interpretation and final decisions regarding whether commonwealth law prevails over state law. It’s seen through this case that it is within the judiciary system’s role to interpret and apply legislation to real life cases. ACTIVITY 16: THE DIVISION AND SEPARATION OF POWERS Multiple Choice Practice 1. The High Court decides that a Commonwealth Act is unconstitutional. What does this demonstrate? A. Tyranny B. Division of powers C. Separation of powers D. Parliamentary sovereignty 2. NSW Parliament enacts a law that falls within its residual powers. What principle does this demonstrate? A. Natural justice B. Procedural fairness C. Division of powers D. Separation of powers 3. Both the federal Parliament and the NSW Parliament validly enact laws prohibiting discrimination. This is an example of: A. Exclusive powers B. Residual powers 20 C. Concurrent powers D. Judicial powers 4. The Prime Minister is a part of which branch of government? A. The judiciary B. The legislature C. The executive D. The parliament 5. The Minister of Immigration criticises a decision of the High Court. This is enabled by the: A. Separation of powers B. Division of powers C. Judicial authority D. Delegated legislation 6. Which branch of the state is responsible for amending legislation? A. The High Court B. The judiciary C. The legislature D. The executive 7. Which of the following is true of the separation of powers? A. State governments have residual powers B. The judiciary can overrule legislation C. The separation of powers is established by statute (constitution) D. The executive have the power to enact legislation 8. Which of the following is true of the division of powers? A. It refers to the division of power between the courts, parliament and the executive B. It refers to the division of power between the state and local governments C. It refers to the division of power between the state and federal governments D. It refers to the division of power between the judiciary, executive and legislature 9. Which constitutional principle divides legislative power between the federal government and state governments? A. State sovereignty B. Administrative review C. The division of powers D. The separation of powers 10. The Australian Minister for Immigration makes an order to deport an ex-prisoner to New Zealand. The ex-prisoner appeals this decision to the Federal Court of Australia. Which of the following statements is true? A. The division of powers allows the Federal Court to overrule the decision of the Minister for Immigration B. The separation of powers allows the Minister for Immigration to overrule the decision of the Federal Court 21 C. The Minister for Immigration made the deportation order as part of the executive branch of government D. The Federal Court’s review of the deportation order is made as part of the legislative branch of government Short Answer Practice Use the marks as a guide to the expected length of your response. Pay attention to the directive verbs. 1. Define the division of powers (1 mark) 2. Describe the three branches of government as set out in the separation of powers (2 marks) 3. Explain how the separation of powers helps to uphold the rule of law (3 marks) Talk about concept, cause and effect, show meaning of separation of powers, show meaning of rule of law The separation of powers is the separation of the three major functions of government between the legislature, executive and judiciary. This helps to uphold the rule of law because it prevents the concentration of too much power in any one group, ensuring that the rule of law is upheld since each branch of government Is held accountable. 1. Which is the main source of law in Australia? Statute law 2. Which source of law contains the separation of powers? Constitutional 3. Which type of law is the Education Act 1990 (NSW)? Statute 4. Which type of law is Mabo v Queensland (No 2) (1992)? Common 5. Which source of law divides law making power between the commonwealth and state governments? Constitutional 6. Which type of law is the Sex Discrimination Act 1984 (Cth)? Statute 7. Which prevails in the event of conflict: statute or common law? Statute 22 SOURCE OF LAW: ATSI CUSTOMARY LAWS - - A body of rules, values and traditions which set standards to be upheld in Indigenous societies. ATSICL are diverse because there are many different ATSI groups with their own variations of customary law. Features of ATSI customary laws include: o Spiritual nature o Significance of land and water bodies o Ritual (tradition) and oral traditions o Kinship (relationship) o Use of mediation (intervention in a dispute in order to solve it) and sanctions (penalty for disobeying a law) Enhances experience of the legal system, represents all ACTIVITY 17: FEATURES OF ATSI CUSTOMARY LAWS Read textbook pages 47-49 to write key points on each feature of ATSI customary laws: 1. Spiritual nature The Dreaming is the basis for much of ATSI law, it’s a history of Indigenous peoples: their creations and teaching stories. Due to secrecy that covers many of the traditional laws and the cultural role played by oral history in contrast to written documentation, its difficult to describe these laws and their links to The Dreaming. 2. Significance of land and water bodies land ownership The idea of individual land ownership is alien to Aboriginal and Torres Strait Islander thought. Being a member of a group means that a person is able to live on and use the resources of certain lands. Thus, the land belongs to the group and loss of this land means losing the group’s culture and history. Custodian: responsibility to protect 3. Ritual and oral traditions Most laws relate to marriage, child-rearing, religion, family and kinship. Customary laws have been passed from generation to generation by word of mouth and through ritual. 4. Kinship Having familial relationships with people you may not be related to, customary laws being passed from generation to generation. Family relationships, including all extended family relationships; an important part of Indigenous cultures and values, which dictate how all people in the group behave towards each other 5. Use of mediation and sanctions Elders and influential members of the community might meet with those in conflict and use discussion and dialogue in an attempt to settle the dispute. 23 ACTIVITY 18: CIRCLE SENTENCING VIDEO https://www.creativespirits.info/aboriginalculture/law/circle-sentencing - - Circle sentencing is a feature of ATSI customary law that has been formally integrates into Australian domestic law. It is a method of sentencing that can be used for Indigenous offenders who plead guilty. A magistrate, Elder, the offender and the victim sit in a circle to determine an appropriate penalty. Circle sentencing in NSW established in Nowra in 2002, designed for more serious offences or multiple offenders No courthouse, 4 community elders, magistrate, offender, offender support, victim, victim support Observers are rare, they have to sit outside the circle Understand, accept responsibility for action Sentencing may be more flexible but still must meet the minimum penalty for the crime Circle convenes fortnightly Intended outcome is an outcome that promotes healing/rehabilitation No complex, legal specific language accessible to everyone If a circle is resolved with a sanction and then the offender repeats, they will generally not be allowed to return to a circle opening Also about victim healing, they can have a say in penalty, understand why the crime happened Watch video shown in class ‘Circle Sentencing’ (Parts 2 and 3) by the Judicial Commission of NSW and answer the following questions: 1. Describe the process of circle sentencing Circle sentencing is a feature of ATSI customary law that can be used for Indigenous offenders who plead guilty. A magistrate, elder, the offender and the victim sit in a circle, discuss the case and penalty. 2. Suggest two ways in which circle sentencing can help to achieve justice. The circle is less intimidating to both the victim and offender, and involving elders in the sentencing process allows them to see the situation through a cultural lens. The community of the offender is given respect. It’s also less intimidating to everyone involved as it does not involve legal jargon and is easily understandable, everyone is on the same level as opposed to the courtroom patriarchy. The victim is present, can gain closure, their views are heard. 3. Suggest one way in which circle sentencing may be limited in achieving justice. The elders in the groups may be biased/impartial to the offender and may give an unjust penalty because of this. 4. Is it fair to allow circle sentencing for Indigenous offenders only? Justify your response. I think circle sentencing being exclusive to ATSI offenders is fair as it takes their cultural and community background and utilises it to come up with an appropriate penalty. ATSI peoples have a strong connection to land and community, and as was established in the example video, being shamed by the elders of your community, many of whom the offender would greatly respect and admire, is effective in ensuring they do not re-offend. Indigenous people are also very overrepresented within the legal system, meaning something about the criminal justice system isn’t working specifically for them. 24 ACTIVITY 19: EVALUATION OF CIRCLE SENTENCING Read the following information on circle sentencing then answer the question at the end. Circle sentencing Circle sentencing is based on ATSI customary law and is used for adult Indigenous offenders who plead guilty to relatively minor offences. Strictly indictable offences and sex offences are ineligible. Community members (victim, victim’s family, community Elders, lawyers) and a magistrate sit in a circle to discuss the crime and all participants have a voice in determining the most appropriate sentence. This may be in the form of an apology, the returning of stolen goods or performing community work. It is declared to be a form of sentencing under the Criminal Procedure Regulation 2010 (NSW). Circle sentencing originated in Canada and was first adopted in NSW in 2002 after the success of the Canadian model. The overrepresentation of Indigenous Australians in the prison population and arrest rates has long been recognised. Circle sentencing aims to improve the sentencing process for Indigenous Australians by including them in the sentencing process. It also aims to promote confidence in the legal system, provide more culturally appropriate sentencing options and reduce recidivism. Circle sentencing is effective in achieving justice because it involves the Aboriginal community in sentencing, improving their confidence in the sentencing process. It also provides more culturally appropriate sentencing options and establishes support for Aboriginal victims of crime because they are included in the circle. Research has also found that circle sentencing is associated with lower rates of incarceration and recidivism (repeat offending). More specifically, the 2020 Report by the Bureau of Crime Statistics and Research (BOCSAR) ‘Circle Sentencing, incarceration and recidivism’ found that offenders undergoing circle sentencing: ● Are 9.3% less likely to receive a prison sentence ● Are 3.9% less likely to reoffend within 12 months However, the scope of these benefits is limited as circle sentencing is only used for a narrow range of offenders who have committed minor crimes and who plead guilty, reducing its accessibility to a broad range of offenders. Circle sentencing is also only offered in a limited number of locations in NSW – it is currently available in 12 Local Courts across NSW, mostly in regional areas, leading to calls to expand the program to more locations to increase its accessibility. Homework: QUESTION: Evaluate the effectiveness of circle sentencing in achieving justice for Indigenous offenders (6 marks) Before answering this question, remember the ‘evaluation’ structure used in Legal Studies: o o o o Define or describe the relevant law/legal concept State ‘arguments for’ (ie how it achieves justice for Indigenous offenders) State ‘arguments against’ (ie how it is limited in achieving justice for Indigenous offenders) Overall judgment (eg ‘Accordingly, circle sentencing is significantly/moderately/somewhat effective in achieving justice for Indigenous offenders because … <brief reason>’) 25 You should also start integrating examples into your responses. ‘Examples’ in Legal Studies refers to statutes, cases, media reports, other reports by relevant organisations and international instruments. For circle sentencing, the examples that you should integrate into your response are in red in the text above. Statutes (or the regulation in this case) are usually included after you describe the law/legal concept. Other examples such as the BOCSAR report should be used after you have made the relevant argument for or against. For instance, “Circle sentencing is highly effective in achieving justice for Indigenous offenders because it has been found to reduce the rate of reoffending, as demonstrated by the 2020 Report by the Bureau of Crime Statistics and Research (BOCSAR) ‘Circle Sentencing, incarceration and recidivism’ which found that offenders who are sentenced through circle sentencing are 3.9% less likely to reoffend within 12 months…” Circle sentencing is a feature of ATSI customary law used for Indigenous offenders who plead guilty to minor offences. It involves the victim, a magistrate, the offender, and elders from the local community sitting in a circle to discuss the crime and possible penalties. They don’t involve complex/legal specific language, making it easier for the offender, elder (and sometimes victim) to properly understand the process. Circle sentencing also applies a cultural lens to the sentencing process, and involving the elders who are greatly respected and admired by their community shames the victim and encourages reform. Indigenous Australians are extremely over-represented within the criminal justice system, making up 2.8% of the country’s population and 27.6% of the incarcerated population (BOSCAR 2020). These statistics clearly reflect that the traditional legal system is not providing justice to Indigenous offenders, and circle sentencing offers an alternative method that includes the offender’s community in the decision-making process. Circle sentencing also allows for a sentencing process and a penalty that rehabilitates the offender and discourages recidivism, reflected in BOSCAR’s ‘Circle Sentencing, incarceration and recidivism’ which found that offenders sentenced via circle sentencing are 3.9% less likely to reoffend within a year. Despite the benefits, circle sentencing is limited in achieving fair and just outcomes for Indigenous offenders, with only 12 courts across NSW operating the alternative method (BOSCAR), with most being located regional areas. Circle sentencing is also only available for a small number of Indigenous offenders, as it must be a minor crime and they must have pled guilty, reducing its accessibility to a larger group of offenders. Therefore, circle sentencing is somewhat effective in achieving justice for Indigenous offenders, as although it does pay respects to their customs, involves their significant connection to their community and discourages recidivism, circle sentencing is not available to wide range of offenders due to its small number of locations as well as the specific elements of the crime required to be eligible for it. SOURCE OF LAW: INTERNATIONAL LAW ACTIVITY 20: DIFFERENCES BETWEEN DOMESTIC AND INTERNATIONAL LAW Fill in the blanks. Some has been completed for you. INTERNATIONAL LAW APPLICATION ENFORCEMENT DOMESTIC LAW Applies to everyone within the jurisdiction No centralised enforcement mechanisms 26 CREATION ACTIVITY 21: ICC CASE The Prosecutor v. Germain Katanga (2014) Read the ICC press release on The Prosecutor v. Germain Katanga (2014) at https://www.icccpi.int/Pages/item.aspx?name=pr1008&ln=en and answer the following questions 1. Identify the crimes for which Katanga was convicted. 2. Outline the sentence handed down by the ICC. 3. State some of the factors that were considered by the court in determining the sentence. 4. In which country were his crimes committed? Suggest reasons why Katanga was prosecuted by the ICC and not by domestic Congolese authorities. ACTIVITY 22: EVALUATING THE ICC Question: Assess the effectiveness of the International Criminal Court in responding to crime (6 marks) Tips: ● ‘Assess’ means the same as ‘evaluate’ in Legal Studies ● Follow the same ‘evaluation’ structure outlined in previous questions ● Integrate the following examples into your response: o The Prosecutor v. Germain Katanga (2014) o The USA’s refusal to recognise ICC jurisdiction, as demonstrated by President Trump’s speech to the United Nations in 2018 (shown in a previous lesson) ACTIVITY 23: THE UNITED NATIONS 27 Read textbook pages 53-55 on the United Nations and the International Court of Justice then answer the following questions. 1. What are the main objectives of the United Nations? 2. How does the UN’s International Law Commission contribute to the development of international law? 3. Why does the effectiveness of the UN depend on the political will of states? 4. Outline the role of the UN General Assembly 5. State the main aim of the UN Security Council 6. List some of the powers held by the UN Security Council 7. Describe the two types of legal cases that are heard by the International Court of Justice ACTIVITY 24: AUSTRALIA’S ASYLUM-SEEKER LAWS BREACHING INTERNATIONAL LAW Read the article ‘UN finds Australia’s treatment of asylum seekers violates the Convention Against Torture’ by the Human Rights Law Centre at https://www.hrlc.org.au/news/un-finds-australias-treatmentof-asylum-seekers-violates-the-convention-against-torture and answer the following questions. 1. State why Australia’s asylum-seeker laws may be in breach of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 2. Based on the article, how has the international community attempted to enforce Australia’s obligations under this Convention? 3. How did the Australian government respond to the criticism of its asylum-seeker policies? What principle allows the Australian government to do this? SECTION 3: 28 CLASSIFICATION OF LAW ACTIVITY 25: CLASSIFICATION OF LAW Fill out the blanks Purpose Remedies for breaches PUBLIC LAW Criminal: PRIVATE LAW (CIVIL LAW) Contract: Administrative: Tort: Constitutional: Property: ● Unlawful decisions will be reversed or amended ● Penalties may be imposed for criminal offences ● Compensation may be paid from one party to another ● The court may order specific performance 29 ACTIVITY 26: CLASSIFICATION OF LAW EXAMPLES Classify the following examples as criminal, constitutional, administrative, contract, tort or property. Example 1: Article II. Tearful embrace after manslaughter verdict over samurai sword killing December 22, 2020 SYDNEY MORNING HERALD A Sydney man and his girlfriend have left the NSW Supreme Court in tears after a judge foreshadowed he would be jailed for manslaughter over the samurai sword killing of a home intruder. Blake Davis, 31, stood trial for the murder of home invader Jett McKee on August 10, 2018, following a botched robbery attempt by Mr McKee. Davis had told the court he was acting to save his girlfriend, Hannah Quinn. A distraught Blake Davis and Hannah Quinn outside the Darlinghurst Supreme Court after the jury delivered its verdicts. CREDIT: SAM MOOY An 11-person jury found Davis not guilty of murder but guilty of manslaughter on Tuesday afternoon, after deliberations spanning just over a day. Quinn, 26, was found guilty as an accessory after the fact to manslaughter. Mr McKee's family declined to comment outside court. The tearful couple left court holding hands and kissed in front of assembled media before departing in a car with family members… The rest of the article can be found at https://www.smh.com.au/national/nsw/blake-davis-found-guilty-ofmanslaughter-over-samurai-sword-killing-20201221-p56p5s.html Example 2: CASE: Commercial Bank of Australia v Amadio (1983) (HC) Mr and Mrs Amadio’s son convinced them to become guarantors for a business loan he was seeking from the Commercial Bank of Australia. A guarantor is someone who agrees to pay the debts owed by another 30 person if they fail to pay. The bank agreed that Mr and Mrs Amadio could become guarantors and issued the loan. Mr and Mrs Amadio were elderly and had a very poor comprehension of English and the bank failed to properly explain the consequences of becoming a guarantor for their son’s loan. The bank did not advise them to seek legal advice, nor did it inform them that their son was in a very weak financial situation. When the business failed the bank demanded Mr and Mrs Amadio pay for their son’s loan. On appeal to the High Court, it was found that the Commercial Bank had acted unconscionably by not providing full and accurate information and by taking advantage of the couple’s poor English. Consequently, the contract was found to be void and Mr and Mrs Amadio were released from paying the debt. Source: Pearson textbook p 92 Example 3: CASE: Commonwealth v Tasmania (1983) (‘The Tasmanian Dam Case’) The Tasmanian Dam Case is the most famous and influential environmental law case in Australian history. In it, the Commonwealth Government succeeded in stopping a large hydro-electric dam proposed to be constructed in South-West Tasmania. The seven judges of the High Court split 4:3 in deciding, amongst other matters, that the Commonwealth had power under section 51(xxix) of the Australian Constitution to stop the dam based on Australia’s international obligations under the World Heritage Convention. Source: Environmental Law Australia http://envlaw.com.au/tasmanian-dam-case/ Example 4: Article III. Woman fails in bid to sue Coles over grape slip and fall June 25, 2017 SYDNEY MORNING HERALD A woman who stepped on a grape in the Coles fresh produce section has slipped once and fallen twice – first to her knees and elbows and again later in her attempt to sue the supermarket giant. Fatma Abdul Razzak's lawsuit failed on Thursday when the District Court ruled Coles had exercised reasonable care in cleaning its floors and had not breached its duty of care. Judge David Russell found in favour of Coles and ordered Ms Razzak to pay to cover the supermarket's legal bill after her action failed. Ms Razzak was shopping in the fruit and vegetable aisle at Coles Hurstville on a Saturday morning in April 2015 when she passed a staff member unstacking grapes onto a table. Suddenly her feet lost grip, her right foot went backwards and she plunged forward onto her knees and elbows. Rising to her feet, she detected squashed grapes on the floor. Ms Razzak sued Coles for compensation in the NSW District Court, alleging injuries to her neck and lower back, claiming negligence and seeking damages of at least $35,000… The rest of the article can be found at https://www.smh.com.au/national/nsw/woman-gets-7000-but-fails-inbid-to-sue-coles-over-grape-slip-and-fall-20170624-gwxp1n.html 31 Example 5: Article IV. court Redfern neighbours take fight over 'dunny lane' to appeal August 23, 2020 SYDNEY MORNING HERALD The neighbours at the centre of a legal tussle over the ownership of a strip of "dunny lane" nestled between two terraces in Redfern are gearing up for a court appeal. In a rare case about squatter's rights, Redfern resident Christopher Luke Hardy took his neighbours in an adjacent street to court over what NSW Supreme Court Justice Francois Kunc called a "3.35 square metre remnant of a 'dunny lane' in Redfern". Christopher's Hardy's house, third from left, runs alongside an old right of way formerly used as a "dunny lane".CREDIT: RHETT WYMAN Mr Hardy won the case this month, after Justice Kunc found he could rely on the little-used law of adverse possession, known colloquially as squatter's rights, to stake his claim to the land. The court heard on Thursday that Mr Hardy's neighbours will lodge an appeal. Associate Professor Cathy Sherry, a property law expert in the University of NSW's law faculty, said adverse possession required at least 12 years' occupation of another person's property "without force, without secrecy and without permission"… The rest of the article can be found at https://www.smh.com.au/national/redfern-neighbours-take-fight-overdunny-lane-to-appeal-court-20200820-p55nql.html Example 6: CASE: Lohse v Arthur (No. 3) (2009) (FCA) An employee of the Therapeutic Goods Authority (TGA) (the Australian Government’s regulatory authority for therapeutic goods) made a complaint about an executive manager, alleging inappropriate behaviour, which, if proven, would constitute a breach of the TGA’s Code of Conduct. After an investigation, he was found to have breached their Code of Conduct and was demoted. He then applied to the Federal Court of Australia to have the findings overturned. The Federal Court found that he had been denied procedural fairness during the investigation because he was not adequately notified of the details of the suspected breach and was not given the opportunity to make an oral statement following his written statement. The 32 Court found the decision-making process of the TGA to be flawed and ordered that the findings against the employee and his reduction in classification be overturned. Source: Excel Legal Studies p 8 ACTIVITY 27: DIFFERENCES BETWEEN CRIMINAL & CIVIL COURT PROCEDURE Fill out the blanks CRIMINAL CIVIL PARTIES WHO BRINGS THE CASE TO COURT? BURDEN OF PROOF STANDARD OF PROOF ACTIVITY 28: LEGAL PERSONNEL Read textbook pages 73-75 to answer the following questions 1. Outline the role of each of the following within the legal system: a) b) c) d) e) f) Judges and magistrates Barristers Solicitors Witness Jury Media 2. Suggest why it is important for the media and the public to be allowed into the court room. 3. Internet research: find out the education and qualification requirements to practise as each of the following in NSW: a) Judge b) Barrister c) Solicitor Which job would you prefer and why? 33 ACTIVITY 29: COMMON LAW AND CIVIL LAW SYSTEMS Read the following blog article to answer the questions at the end What is the Difference Between Common Law Systems and Civil Law Systems? January 28, 2014 by Piyali Syam Washington University in St Louis https://onlinelaw.wustl.edu/blog/common-law-vs-civil-law/ As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law — in the form of published judicial opinions — is of primary importance, whereas in civil law systems, codified statutes predominate. But these divisions are not as clear-cut as they might seem. In fact, many countries use a mix of features from common and civil law systems. Understanding the differences between these systems first requires an understanding of their historical underpinnings. The Historical Origins of Common and Civil Law Systems The original source of the common law system can be traced back to the English monarchy, which used to issue formal orders called “writs” when justice needed to be done. Because writs were not sufficient to cover all situations, courts of equity were ultimately established to hear complaints and devise appropriate remedies based on equitable principles taken from many sources of authority (such as Roman law and “natural” law). As these decisions were collected and published, it became possible for courts to look up precedential opinions and apply them to current cases. And thus the common law developed. Civil law in other European nations, on the other hand, is generally traced back to the code of laws compiled by the Roman Emperor Justinian around 600 C.E. Authoritative legal codes with roots in these laws (or others) then developed over many centuries in various countries, leading to similar legal systems, each with their own sets of laws. Roles of a Lawyer and Judge in Each System In civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes. Lawyers still represent the interests of their clients in civil proceedings, but have a less central role. As in common law systems, however, their tasks commonly include advising clients on points of law and preparing legal pleadings for filing with the court. But the importance of oral argument, in-court presentations and active lawyering in court are diminished when compared to a common law system. In addition, non-litigation legal tasks, such as will preparation and contract drafting, may be left to quasi-legal 34 professionals who serve businesses and private individuals, and who may not have a post-university legal education or be licensed to practice before courts. In contrast, in a common law country, lawyers make presentations to the judge (and sometimes the jury) and examine witnesses themselves. The proceedings are then “refereed” by the judge, who has somewhat greater flexibility than in a civil law system to fashion an appropriate remedy at the conclusion of the case. In these cases, lawyers stand before the court and attempt to persuade others on points of law and fact, and maintain a very active role in legal proceedings. And unlike certain civil law jurisdictions, in common law countries such as the United States, it is prohibited for anyone other than a fully licensed lawyer to prepare legal documents of any kind for another person or entity. This is the province of lawyers alone. As these descriptions show, lawyers almost always have a significant role to play in formal dispute resolution, no matter in which country they practice. But the specific tasks assigned to them tend to vary quite a bit. And outside the courtroom, tasks typically performed by lawyers in one country may be performed by skilled laypeople in another. Each country has its own traditions and policies, so for those who wish to know more about the role of legal practitioners in a particular nation it is important to do additional research. To provide readers with a jumping-off point, here are a few examples of countries that primarily practice common law or civil law. Common Law Countries: ● ● ● ● The United States England India Canada Civil Law Countries: 1. 2. 3. 4. 5. China Japan Germany France Spain Questions 1. How many countries use each system? 2. Which system does Australia use? 3. Which system uses adversarial trials? Which system uses inquisitorial trials? How do you know? 4. If you were charged with a crime, which system would you prefer to be tried under and why? 35 SECTION 4: LAW REFORM ACTIVITY 30: MURDER OF POLICE OFFICERS LAW REFORM Read the following extract of the Second Reading speech delivered by the The. Hon Michael Gallacher to the NSW Legislative Council when the Bill was introduced. It outlines the reasons for the Bill (which was later enacted into law) and mentions agencies of reform. Answer the questions at the end of the extract. Extract of the Second Reading speech delivered by The Hon. Michael Gallacher (Leader of the Opposition) for the Crimes Amendment (Murder of Police Officers) Bill 2007 in the NSW Legislative Council: The Hon. MICHAEL GALLACHER (Leader of the Opposition) [4.30 p.m.]: I move: That this bill be now read a second time. I am honoured to introduce this bill on behalf of the Opposition, all New South Wales police officers and their families. The bill amends the Crimes Act 1900 to provide that compulsory life sentences are to be imposed by courts on persons convicted of murdering police officers. A compulsory life sentence is to be imposed if the murder was committed while the police officer was executing his or her duties or as a consequence of, or in retaliation for, actions undertaken by any police officer. This bill is one of the most important pieces of legislation that I have spoken on in my time in Parliament. In recent weeks the deaths of police officers have been receiving publicity for all of the wrong reasons. The tragic suicides of our young officers, the attempted suicide of even the more senior and the very public breakdown of another young officer are a reminder to all of us of just how tough it is to be a police officer in 2007. Last year, along with the police commissioner, the then Minister for Police and many police, former police and their families, I attended the eighteenth annual National Police Remembrance Day memorial service and laying of wreaths at the Wall of Remembrance in the Domain next to the Art Gallery. The Wall of Remembrance marks the sacrifice of all police officers in the execution of their duties, and in particular the 248 officers whose names have been added to the New 36 South Wales Police honour roll. On the night of Police Remembrance Day, as a mark of respect, Sydney Opera House was bathed in a blue light. … As honourable members would be aware, I joined the New South Wales Police Force in 1980. It is a sad fact that since then the names of 73 New South Wales police officers have been added to the New South Wales Police honour roll. The honour roll commemorates those members of the New South Wales Police who have paid the ultimate sacrifice in the execution of their duty. These officers gave their life to protect us. This bill acknowledges that police play a unique role in protecting the community. As the law currently stands, there is not a sufficient deterrent to attacking and murdering a police officer in New South Wales. Police put their lives on the line every time they walk or drive into a situation that they do not have control of and in which they seek to gain control and effect the arrest of an offender or offenders. Since 1995 at least 18 police officers have died as a result of duty-related incidents. These include five who were murdered in the course of carrying out their duty. Another four police officers are assaulted every day. It is unacceptable that people involved in some of these murders are now enjoying freedom. That should change and this bill seeks to effect that change. There can be no clearer justification for this legislation than the fact that since 1980, 11 officers have lost their lives as a result of the actions of offenders who have attacked police executing their duty to protect the community. They are Sergeant Keith Haydon, shot by an offender on 24 November 1980; Constable Pashalis Katsivelas, shot by an escaping prisoner on 4 April 1984, from recollection at Concord Hospital; Sergeant Paul Quinn, shot by an offender following a pursuit on 30 March 1986; Constable Brett Sinclair, from injuries sustained whilst affecting an arrest on 25 October 1988; Constable Allan McQueen, shot whilst affecting an arrest of a fellow attempting to break into a motor vehicle only a few hundred metres from where we are now on 5 May 1989; on 9 July 1995, two officers, Senior Constable Peter Addison and Senior Constable Robert Spears, shot by an offender at Crescent Head as they got out of their vehicle to enter a home; Constable David Carty, stabbed during an affray in Western Sydney on 18 April 1997; Constable Peter Forsyth, stabbed whilst affecting an arrest on 28 February 1998; Senior Constable James Affleck, struck by a motor vehicle whilst deploying road spikes to stop a stolen car on 14 January 2001; and Constable Glenn McEnallay, shot by an offender at Matraville following a pursuit on 3 Apr 2002. Honourable members should be aware that in response to this bill, which was introduced into the other place by the New South Wales Liberal leader in May last year, the New South Wales Police Association issued a circular to their members throughout New South Wales, which stated: “Members are advised that, following discussions last evening with the State Opposition, your Association has determined to support the Bill which proposes mandatory life sentences for anyone convicted of murdering a police officer”. In light of the recent decisions relating to the murders of David Carty and Glen McEnallay it is apparent that there is strong community support for police and for the introduction of measures which would deter offenders from assaulting and killing members… I have no doubt that some members will argue that police should not be given special consideration. The simple fact is that police have a legislated duty to go to the assistance of community members who are in need or to confront offenders, whether they are on duty or not. Twenty-four hours a day, whether they are wearing the uniform or not, they have a legislated duty to act. Coming to the assistance of the community at any time, whether they are on or off duty, is not something that they have a choice about. This House needs to acknowledge that being a police officer brings with it a different set of dangers than any other occupations or professions. Questions After reading the above extract, answer the following questions in relation to the Crimes Amendment (Murder of Police Officers) Act 2011 (NSW) law reform which introduced mandatory life sentences for murdering an on-duty police officer in NSW: Outline the conditions that gave rise to the reform. 2. Identify an agency of law reform that is mentioned in the extract. 1. 37 State the mechanism of the reform. 4. Describe the reasons given in the extract for why this law reform would help to achieve justice. 3. ACTIVITY 31: R V MICHAEL JACOBS (2013) Read the following information on the case of R v Michael Jacobs (2013) and answer the questions below In NSW, a mandatory sentence of life imprisonment applies to anyone who murders an on-duty police officer. This change was made in 2011 by the Crimes Amendment (Murder of Police Officers) Act 2011 (NSW), which amended the Crimes Act 1900 (NSW). Prior to this amendment, judges had the discretion to apply an appropriate penalty up to a maximum of life imprisonment. This law reform means that if a person is found guilty of the offence, then a life sentence is automatically imposed without any input from the sentencing judge. The legislation was applied for the first time in the case of R v Michael Jacobs (2013) in the NSW Supreme Court. In 2012, Senior Constable David Rixon pulled over Michael Jacobs, who he recognised as a disqualified driver. The following extract is from the Sydney Morning Herald*: Senior Constable Rixon's police microphone recorded him saying ''G'day mate, how you going?'' In an increasingly distressed voice he is then heard to say: ''I'm just gonna breath test you, buddy.” Jacobs then fired a single shot from a .38 calibre pistol that went straight through Constable Rixon's left wrist and into his chest, puncturing his heart and lung. The officer returned fire, hitting Jacobs in the leg, abdomen and shoulder. He collapsed soon after. Jacobs is heard to say ''die … I'm sorry sir, sorry, sorry''. The officer's last act was to handcuff his killer. *SMH 4/10/13 ‘David Rixon Murder: Michael Jacobs gets life in jail’ The jury found Jacobs guilty of murdering an on-duty police officer, leading to the automatic imposition of a life imprisonment sentence, as required by the Crimes Amendment (Murder of Police Officers) Act 2011 (NSW). When delivering the sentence, the judge stated that ''The murder of a police officer in such circumstances is a direct assault upon our system of parliamentary democracy and the rule of law.'' Constable David Rixon Photo: Northern Daily Leader Questions 38 1. 2. 3. 4. 5. 6. In which court was this case heard? State the two parties in the case. On whom did the burden of proof life? Who decided the verdict? Did the judge have the discretion to impose a lighter sentence than life imprisonment? If the answer is no, suggest possible problems that may arise from this. In your opinion, was the life imprisonment sentence fair? ACTIVITY 32: ARTICLE ANALYSIS Read the following article published in Lawyers Weekly (3 March 2012) when the Bill was re-introduced into Parliament and answer the questions below Section 4.01 judiciary Mandatory life sentences undermines By Lawyers Weekly|03 March 2012 The Law Society of NSW has criticised proposed mandatory life sentences for convicted police killers in NSW as "lacking thought". Last week the NSW Government introduced a bill into Parliament that would make life sentences mandatory for anyone convicted of murdering a police officer. The Law Society of NSW has written to a host of NSW parliamentarians, including the AttorneyGeneral and Minster for Justice, Greg Smith, to voice its concerns at the proposed legislation. In those letters, the Law Society criticised the Bill as being unnecessary and possibly leading to higher rates of acquittals - as the legislation would provide powerful disincentives for people to plead guilty. "The legislation is unnecessary, it undermines the proper role of the judiciary, it will not deter offenders and may have serious consequences from a law enforcement and prosecution perspective," wrote Law Society of NSW president Stuart Westgarth. He said that some of the unintended consequences of the Bill would be providing no incentives for an accused person to co-operate with authorities, to make it more difficult to apprehend suspects due to the prospect of those people facing life in prison if caught, and that mandatory life sentences would remove any incentive for an offender to be of good behaviour during the sentence or to rehabilitate or educate themselves. "Mandatory sentences have been considered and rejected by sentencing law reviews conducted by the Australian Law Reform Commission and the NSW Law Reform Commission," said Westgarth. "It is widely recognised that mandatory sentences do not deter offenders. The government has provided no objective research or other evidence in support of its proposal." In introducing a motion to read the Crimes Amendment (Murder of Police Officers) Bill 2011 in NSW Parliament on 26 May, police and emergency services Minister Michael Gallacher said that 39 "an attack on a police officer undertaking their duty is an assault on the very heart of our system of law enforcement and democracy". Questions Outline the reasons given in the article for why a mandatory life sentence for the murder of police officers could lead to injustice. 2. Why do mandatory life sentences undermine the judiciary, as stated in the title of the article? 3. Suggest why the Bill was enacted into legislation, despite objections from the legal community. 1. ACTIVITY 33: EVALUATION OF POLICE OFFICER LAW REFORM Question: In 2011, the law in NSW was changed to introduce a mandatory life sentence for murdering onduty police officers. How effective is this law reform in achieving just outcomes? (About 250-300 words) Tip: “How effective” is also an ‘evaluate’ question. It is the same question as “Evaluate the effectiveness of the law reform in achieving just outcomes”. When you answer this question, remember to integrate: ● The statute that introduced the law ● The R v Michael Jacobs case ● The Lawyers Weekly article SECTION 5: NATIVE TITLE LAW REFORM ACTIVITY 34: FOUR CORNERS REPORT ON NATIVE TITLE Watch the Four Corners report on native title law reform in class and answer the following questions. What was the main legal principle (the ratio decidendi) of the Mabo judgment? 2. Why do you think miners and pastoralists were concerned about the Mabo judgment? 1. 40 What reasoning did the High Court use in Mabo to overturn terra nullius? 4. Explain the importance of the enactment of the Native Title Act 1993 (Cth) 5. Outline some of the concerns regarding native title that were expressed by: a) Callers to Paul Keating on the John Laws Radio 2UE show b) Tim Fischer (former National Party leader) 3. In your opinion, were these concerns valid? ACTIVITY 35: NATIVE TITLE LAW REFORM This timeline depicts major changes to native title law over time. Your task is to complete the table below, which requires you to summarise the changes to native title law brought about by each case/statute in the timeline. For each case, there is no need to outline the background or facts of the case - just outline the High Court’s final decision. The table also requires you to state whether the case/statute made it easier or harder to successfully claim native title. Use the textbook pages identified in the table to help you complete your task. Mabo has been done for you. Case/statute How it reformed native title law Mabo (1992) The High Court recognised the existence of native title in common law and overturned terra nullius Easier or harder to claim native title Easier – Mabo was the first time the continued existence of native title was recognised by law 41 Native Title Act (1993) (Cth) Pages 109-110 textbook Wik (1996) Page 110 textbook Native Title Amendment Act (1998) (Cth) Page 110 textbook Yorta Yorta (2002) Pages 110-111 textbook Native Title Amendment Act (2007) (Cth) Page 113 textbook ACTIVITY 36: EVALUATION OF NATIVE TITLE LAW REFORM Question: To what extent does native title law reform protect the rights of Indigenous people in Australia? (7 marks) Tips: ● ‘To what extent’ means the same as ‘evaluate’ ● Remember the ‘evaluation’ structure ● Remember to integrate statutes and cases. You may not need to integrate ALL relevant statutes and cases, but you do need to include a variety and select the most important ones. ● For 7 marks, you would be expected to handwrite about 1 page of writing. 42