Legal Studies - The Legal System Summary Notes Unit 1: Basic Legal Concepts Syllabus: Students learn about: Students learn to: 1. Basic legal concepts ● ● ● ● ● – – – ● ● ● ● 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 ● 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 Glossary Law a set of rules officially recognised by the government to govern the behaviour of a society Customs collective habits or traditions that develop in a society over a long period of time. Rules regulations or principles governing procedure or controlling conduct. Values principles, standards or qualities considered worthwhile or desirable within a society Ethics rules or standards directing the behaviour of a person or the members of a profession Nature of justice refers to the access, equality and fairness of justice. 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. Rule of law Everyone is subject to the law, including the government. Tyranny The state where the people in power do not have to follow the laws that other people have to follow (does not follow the rule of law). Anarchy A state of disorder arising from the absence of government and/or laws. ● distinguish between customs, rules, laws, values and ethics Laws ➢ ➢ ➢ ➢ Obeyed by all citizens of society Made by law-making body Enforced through courts Breach results in jail time, fines etc Rules ➢ To be obeyed by specific group in society ➢ Made by individual groups ➢ Enforced by leaders of group ➢ Consequences of breach is at the ➢ discretion of the group leader Laws: government enforced, govern behaviour of a state, apply to everyone. Customs: collective habits or traditions that develop in a society over a long period of time. Rules: regulations or principles governing procedure or controlling conduct, apply to a specific group. Values: principles, standards or qualities considered worthwhile or desirable within a society Ethics: rules or standards directing the behaviour of a person or the members of a profession, important/good to the majority of society. ● describe the characteristics of just laws and the nature of justice Features of a just law: ➢ Apply equally ➢ Non-discriminatory ➢ Reflects the morals and ethics of the society ➢ Access to the law, access to justice ➢ Discoverable: you can easily find out about the law ➢ Not retrospective: when governments make new laws to make what you did BEFORE it was made illegal- doing something that was legal the day before then the government making a new law the next day so that they can charge you would be retrospective ➢ Timely minimal delay- justice delayed is justice denied Nature of Justice: the nature of justice refers to the access, equality and fairness of justice. ○ ○ ○ ● Access: ■ Laws must be known → information available to the public ■ Legal aid - not matter finance eg State Lawyer given ■ Everyone is covered by the law → rule of law (no one is above the law) ■ Understanding your rights and obligations → providing education Fairness: ■ It is expected that all laws are fair to ALL citizens ■ Same opportunity for everyone Equality: ■ Strives for equality ■ Takes into consideration dis/advantage ■ Vulnerability ■ Example; racial discrimination act & (R v LMW) 1999 → capability of the 10-year-old define and investigate procedural fairness and the rule of law Procedural fairness: The body of principle used to ensure the fairness and justice of the decision-making procedures. The right to know the case against you and to present your case, the right to freedom from bias by decision-makers and the right to a decision based on relevant evidence. Rule of Law: no one is above the law, including those who make the law. This means that the groups and individuals who are involved in the legal system - such as legislators and judges who make, administer and interpret the laws; the police who enforce the law; and the lawyers who represent and advise people on the law - are all answerable to the same laws as every other citizen. ● define anarchy and tyranny Anarchy: A state of disorder arising from the absence of government or enforced laws. e.g. Freetown Christiania, (drugs are freely sold etc.) 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). e.g. Kim Jong Un (North Korea) Unit 2: Sources Of Contemporary Australian Law Syllabus: 2. Sources of contemporary Australian law Students learn to: 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 The constitution ● ● ● division of powers separation of powers role of the High Court 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 ● 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 ● ● ● explain the difference between division and separation of powers examine the role of the High Court in the interpretation of the constitution ● 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 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 – ● – – – – ● ● 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 ● Common Law ● outline the origin of common law - Based on the model developed in England British came to Australia in 1788, they brought with them the law that applied in Britain, known as common law Refers to laws made by courts (by judges) that establish precedent. Doctrine of precedent: legal principles established by a court should be followed in similar cases by lower courts. CASE STUDY: DIETRICH v THE QUEEN (1992) The High Court held that the right to a fair trial requires legal representation for serious offences. Constitutional requirement that legal aid be provided to defendants in serious criminal trials. Adversarial system: - resolving conflicts where parties present their arguments to an impartial judge or jury. - different to the inquisitorial system, where judges actively conduct an inquiry to find out the truth. Advantages Disadvantages • Impartial judge → less bias • Both sides get an opportunity to present their case • Strict rules of evidence → fair trial • Inequality in resources, skill and experience of the two sides • Focuses on winning rather than the truth • Lengthy, expensive ● examine the hierarchy and jurisdiction of state and federal courts Court hierarchy: the structure of the court system into lower, intermediate and superior courts Court jurisdiction: the types of matters over which the court has the power to hear and make orders Local/magistrates’ court ➢ Minor criminal and summary offences ➢ Civil matters with a monetary value of up to $100 000 ➢ Committal hearings ➢ A limited range of family law matters such as property settlements and residence orders for children ➢ Assault District court ➢ Manslaughter, malicious wounding and dangerous driving ➢ Sexual/non-sexual assaults ➢ Offences relating to a property, including robbery, breaking and entering, larceny and embezzlement ➢ Importing, supplying or possessing prohibited drugs ➢ Offences involving fraud, including forgery, obtaining money by deception and passing valueless cheques. Supreme court ➢ Serious indictable offences such as manslaughter and murder ➢ Attempted murder ➢ Kidnapping, a major conspiracy ➢ Drug-related charges Federal Court: ➢ Jurisdiction includes bankruptcy and industrial matters, summary criminal offences ➢ Deals with Civil disputes dictated by federal law, excluding family matters High Court: ➢ The Highest court in the judicial system in Australia that was established under section 71 of the Australia constitution ➢ It deals with the appeals from federal, supreme and family court and interpretation of constitutional laws. Statute Law ● outline the role and structure of parliament and the legislative process - Body of elected representatives. It debates proposed legislation, passes or rejects it and amends legislation. The Senate is the upper house and the House of Reps. is the lower house. Ministers are those who have special responsibilities in each department and are elected by the prime minister who is the leader of the government. Cabinet: Made up of ministers who make decisions on policies and laws to be drafted for consideration by parliament. Executive Council: Governor/Governor-general, as well as selected ministers, make up this body. They enable legislation to be put into operation. ● legislative process 1. 2. 3. 4. 5. Need for new law is identified, bill drafted First reading in lower house (house of reps) Second reading - elaboration of general aims + debates Committee stage Third reading - vote is taken, if bill is passed it is sent to upper house & process is repeated 6. Royal assent - governor general approval, now ‘Act of Parliament (2***)’ ● describe the function of delegated legislation CASE STUDY - ANTI-DISCRIMINATION ACT 1977 Provides protection from discrimination in relation to most grounds on the basis of neutrality (i.e., persons of both genders, all races and all forms of marital status are to be treated equally.) 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. By-laws: Laws made by local councils Advantages/Arguments For · · · · Laws can be implemented much more quickly as they don’t have to pass through 2 houses (Senate, House of Reps) More targeted/personalised to local residents Rules can be adapted to local circumstances Frees up parliamentary time Disadvantages/Arguments Against · · · May be made by unelected officials Made privately without public debate or consultation Many different bodies make delegated legislation, so there can be inconsistencies The Constitution ● explain the difference between division and separation of powers Division of Powers: The split of powers into federal and state governments ➢ Section 51 of the constitution outlines the legislative powers of the federal government including things such as marriage, military matters and external affairs. ➢ Section 52, however, sets out the exclusive powers of the federal government. Residual powers: anything that is left over/ not explicitly stated in the constitution - such as education and transports are the powers of the state. Any powers shared by the federal and state governments such as banking and insurance are known as concurrent powers. Concurrent: powers of a federal system of government shared by both the federal government and state Separation of powers: Dividing up law-making power between the three pillars of government ➢ Legislature - parliament (people who make the law), made up of elected representatives ➢ Judiciary - federal courts (primarily high court), interpret law and ensure all laws made are in line with constitution, keep a check on the power of legislature ➢ Executive - top of parliament (made up of cabinet & public departments), responsible for delegated legislation Separation of powers refers to the distribution of jurisdiction among government organs. Division of powers refers to how the authority is distributed at the different levels of government. CASE STUDY: COMMONWEALTH V TASMANIA (1983) Summary: - Tasmanian gov. wanted to build hydroelectric dam in the Wild Rivers area - Protests from environmentalists, Tas gov. argued it was a residual power (state) - Labour party promised to end project if elected - Wild Rivers area was listed under the World Heritage Convention, meaning the area is of special significance and should be protected, external power - There was state law allowing the construction of the dam, contradicted by a federal law that did not allow it. In the case of contradictory laws between concurrent powers, which law must be adhered to? “the latter will prevail, rendering the former invalid,” - therefore within the division of powers, the Commonwealth’s law must be followed. (High Court ruling, interpretation of Constitution, example of judiciary, separation of powers) ● - examine the role of the High Court in the interpretation of the constitution - Highest in federal hierarchy - Section 51 of Constitution - 7 Judges - Role= Interpret the Constitution dictates what areas the Commonwealth can legislate on outlines how each section of the government can exercise its powers and places limits on such powers ATSI Customary Law ● examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary laws ○ Customary laws are the laws of indigenous people ○ Diverse amongst tribes, but similar ○ Based on the Dreaming and a spiritual connection with the land ○ Laws are difficult to describe, based on sacred secret knowledge ○ Kinship dictates proper ways to interact ○ Mainly passed down orally ● Outline the extent to which Aboriginal and Torres Strait Islander Peoples’ customary laws have been integrated into Australian law ○ Mediation was preferred as conflict resolution, overseen by Elders ○ Sanctions (which differed by tribe) may have been imposed ○ Communal based conflict resolution Customary law is not legally recognised, but is integrated into the Australian legal system (circle sentencing, environmental law etc) CIRCLE SENTENCING: established 2002 - Method of sentencing used for Indigenous offender who plead guilty - Involves elder, magistrate, offender, lawyer, victim/s Advantages - - Involves Indigenous people in the process → promotes confidence in legal system Takes cultural connections in consideration No legal jargon - easily understood Establishes support for offenders 2020 report by BOSCAR: - 9.3% less likely to get a prison sentence - 3.9% less likely to re-offend Disadvantages - Limited to a specific scope of offenders (plead guilty, minor offence) Limited locations in NSW (12 locations) SHORT ANSWER STRUCTURE: 1. Define or describe the relevant law/legal concept 2. State ‘arguments for’ (ie how it achieves justice for Indigenous offenders) 3. State ‘arguments against’ (ie how it is limited in achieving justice for Indigenous offenders) 4. Overall judgement (eg ‘Accordingly, circle sentencing is significantly/moderately/somewhat effective in achieving justice for Indigenous offenders because International Law: ● distinguish between domestic and international law and examine the impact of state sovereignty DOMESTIC LAW ● ● Law of a nation state Made by parliament or courts INTERNATIONAL LAW ● ● Nation states: ● Politically independent ● Defined territories ● Effective government ● Capacity to negotiate internationally ● ● Based on worldwide system of values and customs Govern relationships between nation states Not legally enforceable in traditional sense Formed by common worldwide thinking State sovereignty: the right of a nation state to create its own laws - State sovereignty undermines international law. However, due to the independent nature of the modern world, international law is followed by most → social pressur ● examine the sources of international law Customary international law: Develops from long-standing ethics and customs which become recognised by the international community. Does not become official in a nation-state until it is accepted as necessary by said nation-state (opinio juris sive necessitatis). ➢ Treaties: formal, legally binding agreements between two or more states (ratification, ratified treaties: international treaties that have been added into domestic law) ➢ Declarations: non-binding documents setting out rights e.g. Universal Declaration on Human Rights ➢ Customs: rules established by long tradition and followed by many nations. ➢ Legal decisions: decisions of international courts, such as the International Criminal Court ● Describe the role of the various organisations involved in international law The United Nations ➢ Est. 1945 by Charter of the United Nations ➢ 193 members, headed by UN Secretary General Ban Ki Moon ➢ “To maintain global peace and security, and to develop friendly relations among nation states based on respect for equal rights.” ICC ➢ settles disputes between states in accordance with international law and gives advisory opinions on international legal issues. UN GENERAL ASSEMBLY UN SECURITY COUNCIL ● ● ● ● ● Every Nation Represented Open, multilateral forum for international issues Discusses and makes recommendations on the operation of UN and conflicts between nations Meets yearly ● ● ● ● ● ● Maintains world peace and Security 5 permanent members *remember FRUUC* France, Russia, USA, UK and China 10 non permanent members serve 2 years Imposes sanctions to curb aggression and maintain peace Decisions must be unanimous Doesn’t represent world INTERNATIONAL COURT OF JUSTICE ● ● ● Hears international, non criminal cases Only hears cases where nation states accept jurisdiction of the ICJ Hears cases between states (contentious cases) and advises the UN (advisory proceedings) Examine how international law impacts on and is incorporated into Australian law Sign → Ratify → Enforce ● ● ● Australia implements the process above to enforce treaties it has signed. Often, existing domestic laws are sufficient. Treaties also influence the development of common law ○ Convention on the Rights of a Child (CROC) → Family Law Act (1975) ○ Convention on Elimination of All Forms of Discrimination Against Women (CEDAW): Sex Discrimination Act 1984
