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