Legal Study Notes - The Legal System 1. Basic legal concepts Meaning of law A complex mechanism, evolving from hundreds of years of tradition, culture and values. Customs: Collective habits or traditions that have developed in a society over a long period of time Rules: Rules are generally made by groups and only affect people within those groups. These rules often vary between groups and are not enforceable by the state. Law: A set of rules imposed on all members of a community that are officially recognised, binding and enforced by police/courts - 1) Laws are binding on the whole community. - 2) Laws can be enforced. - 3) Laws are officially recognised. - 4) Laws are accessible (or discoverable). - 5) Laws relate to public interest. - 6) Laws reflect rights and duties. Values and Ethics: Values:Principles, standards or qualities considered worthwhile or desirable within a society. - Reflect society's judgement about important things ↳ Most people value life highly, thus protect this - Expect laws to protect values society deems important. Ethics: Living according to our ethics means that we do things that we consider to be morally right. - right/wrong behaviour ↳ Moral principles that govern people behaviour - Ethics inform the law Characteristics of just laws: The concept of justice involves the fair and impartial treatment of all persons, especially under the law. Ensuring that human rights are recognised and respected What makes a just law? Fair, impartial (unbiased, unprejudiced) and respectful of human rights Characteristics: Equality - A just law treats EVERY person the same. The law must and should be applied to everyone regardless of their position, status or wealth. Reflects community values - Reflects values and beliefs of the wider community. While it can not AND will not reflect every person, the most widely held views should be reflected. In Australia, most of the laws reflect Christian values and beliefs. Utilitarianism: (The doctrine that actions are right if they are useful or for the benefit of a majority.) This is where the law achieves the greatest amount of good for the greatest number of people. It needs to benefit the majority of society in a positive way. It does mean that some people may be disadvantaged by the law. EXAMPLE ↳ Anti-terror laws that allow the police to arrest people suspected of terrorism. Redress inequalities: This means the removal of system inequalities, and provides equal treatment of all people. The legal system should ensure that it generally does not discriminate against groups in our society. EXAMPLE ↳ Removing laws that state that women will be paid less for the same job undertaken by a man. Prompt (bring about or cause) Resolve disputes as quickly as practicable without affecting the outcome of justice. A law being broken/questioned - matter heard in a relatively speedy manner. The mechanisms of the legal system and the laws that dictate the running of such cases can cause lengthy delays. Prospective (To expect in the future) With the introduction of new laws, it must be active from a given date and not applied to offenders of the past. Known Important that a new law is known to people. The state and federal governments publicise when new laws are introduced and when they come into effect. This is sometimes known as the “law being discoverable”. Nature of justice: Equality ↳ ↳ All society is treated equally Ensures no unfair advantage (Rule of Law) Doli Incapax: children under 10 years of age cannot be held legally accountable for their actions and can not be convicted Example ↳ James Bulger Case Fairness - Must be fair to all members of society - Fairness = justice Example ↳ Sportsbet holders have certain laws regarding betting… their insider knowledge is unfair. Access - All people should have the same access to the law - Includes awareness of the laws and understanding their rights and responsibility Examples ↳ Women, financially disadvantaged, non english speaking, disability, and ATSI Procedural Fairness (principles of natural justice) Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes. - It is closely linked to the concept of natural justice ↳ Treated fairly in legal situations. There are two main principles of natural justice. - the right to be heard – the right to a fair hearing. - the right to have a decision made by an unbiased decision-maker – even an appearance of bias is enough to constitute a breach of natural justice. Rule of Law No-one is above the law, including those who make the law. - Everyone is subject to the same laws. - Applies to everyone equally and fairly - Support the ideas of human rights, and the separation of powers 2. Sources of Contemporary Australian Law British origins, including: Development of common law - Legal processes and practices used in Australia today are based on the British legal system. → developed from a number of sources (Anglo-Saxon England). - After the Normans invaded England(11th century) → system of travelling judges who applied a common set of laws to all areas of England. Judges(magistrates), dealt with petitions from people who felt that the local courts had been unjust. They used the premise that similar cases should be treated in a similar way. (Precedent) → laws they applied became the basis of the British legal system. - Brought to Australia with the First Fleet, gradually Australia developed its own legal system based on its own statute law and common law → many British legal principles have been retained in the Australian system. - Between the sixth to the eleventh century, the law in England was enforced by local administrative bodies. Both the plaintiff and the defendant had to swear an oath. If the court found the defendant’s oath believable, they were able to walk free. However, if the plaintiff had witnesses who would swear that the defendant had committed the act, the defendant might be required to participate in a trial by ordeal. - They were then given a barbaric task to complete. If the defendant completed the task without injury or death, if the wound healed within a prescribed period, or if the defendant sank, he or she was considered innocent and set free. If not, execution usually followed. Equity - Courts use their discretion to apply justice in accordance with natural law Predominantly concerned with fairness, whereas common law treats every case with the same standards. Principles ↳ To remedy a deficiency in common law or create a new remedy ↳ Develop remedies for wrongs that the court didn’t recognise. Precedent - When deciding cases under Common Law, judges follow decisions that have been made in similar cases - This is known as the doctrine of PRECEDENT (stare decisis) Latin for ‘the decision stands’ Purpose ↳ To ensure people are treated fairly ↳ To ensure the law develops in a consistent and coherent fashion ↳ Old cases retain authority and their decisions can be used as a basis for modern cases ↳ Limits a judge’s ability to be creative Rules of Precedents: Binding Precedent and Persuasive Precedent: - Lower courts, bound to follow decisions on higher courts.(Binding Precedent) - Whereas, Superior courts do not have to follow decisions made in lower courts, although they may use them to help make decisions. (Persuasive Precedent) Adversarial System of Trial - ADVERSARY = OPPONENT - Two sides try to prove their version of the facts - Both sides provide evidence and witnesses; the opposing sides test the evidence by asking questions (cross-examining). Judge and jury cannot test the evidence. - The DEFENDANT does not have to prove anything as he/she is innocent until proven guilty - Impartial Judge - Used in UK, USA , Canada, Australia Advantages Disadvantages Each party is empowered to discover the truth, acting out of self-interest to present the best case and win Unfavourable evidence may be omitted, leading to the truth not being revealed Each party is in control of their own case, which gives individuals access to the legal system High costs may discourage a person from pursuing legal action, as cases can become a contest over who can spend the most money and employ the most skilled lawyer Basic democratic right to defend oneself is upheld Democratic right to defend oneself is diminished if one cannot afford legal representation Court Hierarchy: Jurisdiction of state and federal courts Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal jurisdictions, each of which has its own court structure. Appeal: an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law Summary Offences: Minor offences such as shoplifting – these are heard in the lower courts; usually judge but no jury Indictable Offences: More serious offences such a murder and assault are dealt with in higher courts; include prelim hearing; involve judge, jury & greater penalty Appellate Jurisdiction: the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions State + Territory Courts Each court has its own jurisdiction or area over which it has authority to hear cases The court system in NSW consists of: Lower courts ↳ In New South Wales, the Local Court deals with minor criminal matters and minor civil disputes. - Jurisdiction to deal with: - minor criminal (summary) offences - Civil matters up to $100,000 - Some family matters (property settlements, residence orders for children) Examples - Local Court and Magistrates Court - Coroner’s Court - ensures that unexplained or suspicious deaths (or suspected deaths), fires and explosions are properly investigated If necessary - Children’s Court - deals with civil matters concerning the protection and care of children and young people. Land and Environmental Court - a specialist court responsible for interpreting and enforcing environmental law. Intermediate courts ↳ More serious criminal matters. These range from charges of larceny up to charges such as manslaughter, sexual assault and large-scale drug importation. Example: - The District Court of New South Wales - The only charges the District Court cannot deal with are murder, treason and piracy. Superior courts - Highest court in the state or territory hierarchy. D - Deals with the most serious criminal matters and civil cases involving large sums of money - Appeals from the lower courts in that state or territory. - In civil matters, there is no upper limit to monetary damages that can be awarded. - Hears matters on claims for damages for personal injury, professional negligence, breach of contract, defamation and possession of land. - A judge alone deals with most civil matters, but a jury is used in some limited circumstances. Example: - Supreme Court of New South Wales - has criminal jurisdiction over the most serious indictable offences such as manslaughter and murder, attempted murder, kidnapping, major conspiracy and drug-related charges. - It also deals with Commonwealth prosecutions for major breaches of the corporation's law. Federal Courts The federal court system has a hierarchy in much the same way as the state court system does. Federal Circuit Court of Australia - Relieves some of the caseload of the Federal and Family Courts and reduces the cost and time required to deal with more minor federal matters. Federal Court of Australia - It assumed some of the jurisdiction previously - managed by the HCA and the entire jurisdiction of two courts that had dealt with industrial matters and bankruptcy Family Court of Australia - Deals with the most complex family law matters; divorce, parenting orders, spousal maintenance. High Court of Australia - Deals with appeals from the FCA, the Family Court, and the state and territory Supreme Courts. It also deals with cases concerning the interpretation of the Australian Constitution Statute law - Statute law is the law made by parliament. It is also known as ‘legislation’ or ‘Acts of Parliament’. In Australia, any parliament has the power to make statute law. State, territory, federal governments all have the right to make laws. The Australian Constitution sets out the powers of the state and federal parliaments with respect to making law. Role and Structure of parliament - A parliament is a body of elected representatives. It debates proposed legislation, passes or rejects it, and amends legislation. Apart from Queensland and the territories, all state parliaments and the federal parliament are bicameral.(containing two chambers or Houses of Parliament) Two houses: - Upper house - Senate - Lower house - House of Representatives Ministers - are those members of the government who have a special responsibility for particular departments. Example, Minister for Education, Minister for the Environment. T The prime minister - offers their positions (or portfolio) to them and these ministers usually form the Cabinet, or the ‘front bench’ as they sit at the front in parliament sittings. Cabinet - makes decisions on policy and laws to be drafted for consideration by parliament. Non-ministerial - members of parliament are known as the ‘back bench’. When changes are made to the front bench positions, this is known as ‘reshuffling the Cabinet’. The opposition party - appoints shadow ministers who are responsible for forming and promoting the opposition’s position on such areas as defence, health and education. The Executive Council - is made up of the Governor or Governor-General and selected ministers. Body that enables legislation to be put into operation. The British monarchy - still plays a role in parliament in Australia. The King must assent to laws. At the federal level, he is represented by the Governor-General and at the state level by a governor in each state. ↳ Example - Prime Minister Scott Morrison on 18 September 2019. The Coalition government announced an inquiry into the family law system. Morrison announced that the new joint parliamentary committee would conduct a wide-ranging review of the family law system, with Victorian MP Kevin Andrews to chair the inquiry. Legislative Process It debates proposed legislation, passes or rejects it, and amends legislation. Bill: a drafted law that has not yet been passed by parliament Act of Parliament: statute law, resulting from a Bill successfully passing through parliament and gaining royal assent Passing legislation - Most important function of parliament is the passing of laws. - The party that holds government introduces most laws. - A proposed new law is known as a Bill. - Any Member of Parliament can introduce a Bill; however, if a member introduces a Bill who is not a minister (backbencher), the Bill is known as a private member’s Bill. Before a Bill passes and becomes federal law, it requires the approval of both Houses of Parliament and the Governor-General. It then becomes an Act of Parliament Need for new law is identified ⬇ Influences on governments to make laws come from many and varied sources. These include: • community interest/lobby groups, electoral mandate, the need to continue or enhance existing laws, national/international events proposals put forward during election campaigns. Draft Bill ⬇ Cabinet approves the drafting of a Bill. Drafted by parliamentary clerks and timetabled for its first reading in the lower house. The Bill is presented by the minister, ready for its first reading. First Reading ⬇ The first ‘formal’ reading of the Bill takes place: - The Clerk of the Parliament reads out the title of the Bill. Each member receives a copy of the proposed Act. Second Reading ⬇ The minister then speaks about the proposed Act, elaborating on its general aims. Debate over the Bill takes place. This stage is completed by the clerk, who reads the title of the Bill for the second time. Committee Stage The Bill is examined and debated in detail and changes (amendments) are made if necessary. ⬇ Third Reading ⬇ During the third reading, a vote is taken on the Bill. If the Bill passes, it moves to the upper house. Upper house ⬇ Process is repeated. If the Bill does not pass in the upper house, it may be returned to the lower house for amendments or may be rejected. Royal Assent If the Bill is passed in the upper house, it is presented to the Governor or Governor-General for formal approval. The Bill now becomes an Act of Parliament and is law as of the date specified in the Act. Delegated Legislation - Legislation made by non-parliamentary bodies. It involves ‘less important’ laws that parliament lacks time to draft, consider, and pass, so it is delegated to subordinate bodies. Examples of delegated legislation: - Regulations - laws made by the Governor-General, state governors, and members of the Executive Council - Ordinance - laws made for Australia territories - Rules - legislation made for government departments - By-laws - laws made by local councils The Constitution A constitution is a set of rules or principles that may apply to a social club, a large-scale organisation or even a nation. A constitution provides the framework, or guidelines, which outlines how these institutions function. History of the Constitution in Australia - Became a federation on 1 January 1901 - Prior to this, a self- governing collection of six colonies under the ultimate authority of England. - At federation, the six colonies of Australia came together to form one nation. - Established a federal parliamentary system under which the powers of governing were divided up among the states and the Commonwealth - Roles of governing were separated into 3 main areas - The legislative, - The judiciary - The administrative/executive. Division of powers - The power to govern Australia has been divided among the Commonwealth Government and the various States and Territories. - The Commonwealth Government makes laws that affect the whole of Australia(enumerated powers) - State governments make laws that affect the people in that particular state(concurrent powers) Exclusive Powers Are those which only the Commonwealth Government has. These usually fall into three main areas: - Trade - Foreign relations (this allows the government to sign international treaties; international agreements take precedence over states’ powers). - Defence. Residual Powers - Are those retained by the states after federation and confer power to states to make laws regarding health, transport, education law & order. - As a consequence, there are many differences between state laws on criminal law, traffic offences and educational policy. Concurrent Powers - Shared between Commonwealth and state governments. There are many areas where both levels of government share responsibility, - Example: health, whereby states have responsibility for hospitals and ambulances, but the Commonwealth has responsibility for funding via the Medicare levy. - In cases where there is a conflict between states and the Commonwealth, the Commonwealth takes precedence. Separation of powers 3 Separate organs of government: ◈ The Legislature – the law-makers (in Australia this is the Parliament: the House of Representatives and the Senate) ◈ The Executive – the ministers and government departments who administer the laws made by parliament (in Australia the Governor-General, the prime minister and Cabinet are members of the executive) ◈ The Judiciary – the courts which interpret and apply the law. In a democracy, it is imperative that there be no overlap between the judicial and non-judicial arms of government. They must remain independent. This becomes evident when a court makes a decision that is not in accordance with government policy. Separation of powers ⦿ If one person or group controls all 3 arms of government, there is a risk of dictatorship or corruption. ⦿ If the arms are independent, each acts as a check on the other. ⦿ The Australian Constitution contains certain checks and balances: ⦿ The Senate - represents the States (who have 12 senators each) and Territories (who have 2 senators each) - ‘house of review’ ⦿ Section 128 requires a referendum to change the Constitution - majority yes in majority of states - very difficult to change ⦿ Section 51 - States have control over residual powers (health, transport, education and law & order). Role of the High Court - To protect the Constitution by ensuring that governments act within their constitutional powers. In this role, its aim is often to interpret the Constitution. - To exercise original jurisdiction in cases that involve constitutional challenges (eg Tasmanian Dam case - Commonwealth vs Tasmania 1983) - Final court of appeal - it can hear appeals from any state Supreme Court or the Federal Court Aboriginal and Torres Strait Islander Peoples’ Customary Laws - Principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations, and are treated as obligatory Diverse nature of customary laws - Different groups have their own variations, customary law. - Resolutions of the dispute, involving negotiation, mediation,conciliation, involve everyone in community. Also offences that are not recognised by non-customary law but are punishable under traditional law. - examples include insulting an elder, singing of sacred songs in public. Spiritual basis, significance of land and water - The Dreaming basis of Aboriginal law. - The Dreaming is the history: their creation and teaching stories. - Explains how the land, animals, plants and sky were created and has a very strong religious element. - Law, religion → closely related. - Evolved from The Dreaming, concerned with treatment of the land and those who live on it. - As more than two-thirds of Aboriginal and Torres Strait Islanders live in remote areas, they are more likely to use customary law to settle a dispute. Family and kinship - Kinship - family relationships, including all extended family relationships; an important part of Aboriginal and Torres Strait Islander cultures and values, which dictate how all people in the group behave towards each other ritual and oral traditions - Passed down for many thousands of years word of mouth and ritual. ↳ Relate marriage, child-rearing, religion, family, and kinship. - Reinforced through storytelling and dance - Ceremonies are sacred Explain various concepts - creation, tribal boundaries, family relationships, cultural practices, and forbidden acts. mediation and sanctions - All community members follow and reinforce - Self-regulation and consensus. - Elders are central in guiding decisions - When sacred law has been broken, elders are often directly involved in applying sanctions. - Punishments → ridicule and shaming, exile, spearing or death relevance to contemporary Australian law - Recently (20 years), there has been a greater legal recognition of customary rights. - Aspects embodied in Australian law today → practice of sustainable development, the basis for current environmental law. - Considered in relation to criminal law. - Some places, elders will be consulted by law maintenance and enforcement. International law Differences between domestic and international law DOMESTIC LAW Within a country, only applies to a country → each country has laws for its own people INTERNATIONAL LAW Governs the relationship between countries (nation states) Regulates trade and commerce between countries and provides laws to maintain peace and security. Lacks enforcement because it relies on countries’ consent to its jurisdiction State sovereignty State sovereignty: Power of a country to make own laws and govern itself without external interference Nation state Sovereign state of which most citizens are united by factors which define a nation, such as language or common descent. Permanent population Permanent residents; stable community Recognised government state Official government; ensures internal stability of state Capacity to enter international relations Can have treaties/declarations with other countries; have relations with other states Defined area Political borders defining a country; country having ownership over particular area Sources, including: ● international customary law - Not a written document; based on traditions and customs which are seen to be fair and right by the international community. - Takes a long time to develop because it must be constant and uniformly applied, but if it is found to exist, it is binding on all states ● instruments (declarations and treaties) Declarations: Written international instruments; state and clarify the parties’ position on a particular issue, but are NOT BINDING Treaties: Most common source of international law; international arguments that are written and binding on countries that sign and ratify them. ↳ Treaties can be: - BILATERAL Between TWO nations - MULTILATERAL Between many states e.g., United Nations ● legal decisions, writings Legal decisions: Decision of international court of justice ONLY binds the parties to the particular dispute Legal writings: Interprets treaties or determines their application in international disputes Role of: ● United Nations Maintains global peace and security, but its influence and institutions are wide-reaching - Established in 1945 (end of WW2) - Its founding treaty is the charter of the United Nations It is the chief organisation involved in international law Currently 192 members of the UN Central to international corporation, treaty development, dispute resolution and international development of areas of law like human rights and environmental protection ORGANS OF THE UNITED NATIONS: General assembly Representative body and discussion forum of the UN, made up of all UN member states; address matters of international concern Security council Arm of the UN that is responsible for maintaining world peace and security, with 5 permanent members International court of justice Judicial body of the UN with the primary function to settle disputes submitted by states ● courts and tribunals COURTS ICJ INTERNATIONAL COURT OF JUSTICE Primary judicial body of the United Nations - Settle disputes submitted to it by states - Give advisory opinions on legal questions submitted by organs of united nations - Hears disputes if nations involved accept jurisdiction of court RULES ON TWO TYPES OF CASES - Legal disputes between states; courts produce binding rulings - Advisory proceedings; general assembly or security council requests courts’ opinion on any legal question TRIBUNALS - - Set up ‘court case’ where the war/conflict/crime has taken place: cost and time efficient ● intergovernmental organisations Organised groups of states, established to pursue mutual interests in a wide variety of areas Nation-state influences and are made up of ‘world players’ such as the USA, Russia, China, UK and France and many other powerful nations Include united nations and NATO ● non-government organisations Associations based on common interests and aims, which have no connection with any government Charity groups, do NOT receive government funding and are lobby groups armed are pressuring governments e.g., world vision Relevance to contemporary Australian law - Unlike other countries, in Australia signing and ratifying a treaty does not automatically make it part of domestic law - For international law to become Australian law, new legislation is usually required - International treaties have had a profound influence on the development of modern Australian law - International law does not dictate the way in which Australia implements the obligations it has under treaties - Treaties also influence Australian law in development of common law, judicial review of decisions and in judicial interpretation of statutes - Human rights treaties that have some of their provisions reflected in state or territory and/or federal legislation include: ↳ International Covenant on Civil and Political Rights (1966) ↳ United Nations Convention on the Rights of the Child (1989) – for example, Family Law Act 1975 (Cth), in particular section 67ZC ↳ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) – Division 274 of the Criminal Code Act 1995 When writing assessment paragraphs refer to: Protecting individual rights Enforceability - international law Equality Rule of law Justice Accessibility Protecting individual rights Enforceability - international law Equality Rule of law Justice Accessibility = do people know the law, is it accessible, can they use it Resource efficient = time and money International law Responsiveness = how the law reacts to changes in the community = do people know the law, is it accessible, can they use it Meeting society’s needs Resource efficient = time and money International law Responsiveness = how the law reacts to changes in the community L = legislation - explanation C = cases - evaluation M = media D = documents I = international law 3. Classification of law Public law The body of law governing relationships between individuals and the state, and the structure and operation of government itself: Criminal law - The body of rules under which certain acts or omissions are punished by the state. - Function is to maintain public safety and order for the whole of society. Administrative law - Law that deals with the division of power between the federal and state governments and the separation of power between the parliament (legislature), high court (judiciary) and executive council (executive) Constitutional law - The branch of public law that focuses on the rules governing the executive, legislative and judicial functions of government. The Australian constitution is a book of laws that governs Australia and outlines who and how the country is to operate HIGH COURT → interoperates constitution → deals with constitutional challenges Private law (civil law) The body of law governing relationships between individuals Contract law - A contract is an agreement, or promise, between two or more parties that is recognised by law. - Contract law is concerned with the recognition of this agreement and the actions taken to enforce it Tort law - torts are ‘civil wrongs’. The word ‘tort’ comes from the French word meaning ‘wrong’. - Tort cases deal with situations in which someone (or an organisation) has done something to interfere with the rights of someone else. Property law - Property law is a wide area of law that governs relations involving things and interests that can be owned and that have a commercial value. Common and civil law systems Civil law procedure: →Disputes not involving contract and property disputes →Plaintiff issues a statement of claim to the other party which lists the parties to the dispute and the circumstances of the claim → The defendant replies to the statement of claim with a statement of defence → If the matter at this point does not get resolved it goes to trial. Criminal Law procedure: → Police investigate the crime and arrest the suspected perpetrators → In the local court the police prosecutor conducts the prosecution case and there will not be a jury → In the District Court and the Supreme Court the prosecution case is conducted by the Department of Public Prosecution → Juries (12 people) selected at random determine if there is sufficient evidence to conflict the accused. STANDARD OF PROOF AND BURDEN OF PROOF: Civil matters: ● The standard of proof (i.e the level of proof required to win a case) is on the balance of probabilities (i.e. on the evidence presented who is more likely to be telling the truth) ● The burden of proof (ie who must prove the case) is on the plaintiff. Criminal matters: ● The standard of proof is beyond reasonable doubt (ie the jury must be in no doubt that the accused committed the offence) ● The burden of proof is on the prosecution. The exception to this rule is that if the defendant uses the defence of insanity he/she must prove that at the time the crime was committed on the balance of probabilities he/she was insane. 4.Law Reform Law reform is used to describe the way that the laws that govern us change over time to reflect the changing society that we live in. That is, the continual process of change. Conditions that give rise to law reform including: (changing social values, new concepts of justice, new technology) - Existing laws are no longer representative of what is just Existing laws no longer reflect values and ethics Existing laws are outdated because of changing technologies Description Changing social values ● ● ● ● Examples Same sex marriage Principles that guide people in thinking Underpinned by ethics Public morality (behaviour condoned and agreed upon by the community) Changing social values makes it hard to reform laws –not suiting everyone ● ● ● ● ● Aus. influenced by Christian values Idea of what constitutes a family has evolved to where the definition doesn’t reflect everyone. Definition of Marriage Act 1961 doesn’t suit Reformed to Same-Sex relationships (Equal Treatment) Act 2008 Removing discrimination Concepts of justice ● ● ● ● Domestic Violence: Occurs when law is unable to deliver just outcomes to individuals If the criminal law is failing victims, community or the accused, new concepts of justice may be formulated Capital punishment: sentencing a person to death by judicial processes Raises inhumane treatment doubts ● ● ● ● Victims have inadequate protection under the law Crimes (Domestic Violence) Act 1982 inserted new provisions into the Crimes Act 1900 (introducing ADVO – apprehended domestic violence order) Court must be satisfied that the ‘victim’ has reasonable grounds of fear ADVO suit the victim’s situation e.g. accused from coming close to the victim’s kids, or residence etc. Risk of killing completely innocent person New technology ● ● ● Identity theft Law has to keep up with technological advancements Development of life support in the 1960’s changed legal def of death Law defining biological rights rise of new birth technologies ● ● ● Easier due to sophisticated computers (idea of not being caught) Causes immediate financial loss Section 192E of the Crimes Act 1900 deals with provisions over this issue. Agencies of reform including law reform commissions, parliamentary committees, the media, non-government organisations The Australian Law Reform Commission (ALRC) researches and undertakes inquiries into areas of law reform → then goes and makes recommendations to the Government to change the laws where 85% of their recommendations are implemented into law Parliamentary committees → investigate issues and proposed new laws (bills) to consider their impact before being passed as law Royal commissions are the highest form of inquiry → generally reserved for the most serious areas of public concern - where both policy and legislative recommendations for changes are made e.g. The Banking Royal Commission (2019) and the Royal Commission into Institutional Responses to Child Abuse Media → researches and investigates particular areas in need of reform and then through various platforms advocate for change Non-government organisations → generally lobby the government regarding the need to change the law e.g. Australian Conservation Foundation will lobby the Environmental Minister to make changes regarding environmental policy EXAMPLE ● The death of Thomas Kelly by an intoxicated person in 2012 led to → ● Lockout Laws ● Mandatory 8 year imprisonment for one-punch deaths ● Norrie (2014) → High Court decided that a person can have non-gender identity marked in their certificate (not female or male) - reflects changing values and ethics Mechanisms of reform including courts, parliaments, United Nations intergovernmental organisations Courts Courts use precedent as a means of law reform. Precedents made in higher courts clarify what the law should be, in cases where the law is in an early stage of development or where there is an early stage of development/need to clarify meaning of words in legislation. Sometimes, matters come before a court that have not been considered by parliament. In this case, the judges deal with the matter before them and as a result, law reform in courts come about in an ad hoc way. Courts do not consciously set out to reform the law. E.g. 1992 Mabo decision declaring native title still existed within Australia, and terra nullius was a legal lie perpetuated by the British at the time of settlement Parliaments - Parliaments are the institution where most law reform is realised. The process of changing the law occurs through the passage of bills, spurred by agencies of law reform Heavily reliant on balances of power Fairness can be skewed by political agendas United Nations - Conducts law reform on an international scale Instruments: Treaties (ratification), declarations, covenants Applies pressure of international community to nation states Intergovernmental organisations - Cooperation between governments working towards improvements Enforce law reform: Treaties Work with the UN to enforce international law 5.Law Reform In Action A. Native Title Definitions Terra nullius: land belonging to no one Collective right: one that is claimed and shared by a group of people e.g. native title Customary law: principles and procedures that have developed through general usage according to the customs of a people or nation and are treated as obligatory Self-determination: the right of indigenous peoples to control the use of their traditional lands, as well as the local economy and social policy Doctrine of reception: mandated that uninhabited land colonised by Britain would be subject to English law Native title is the recognition (of what they already have) and legal rights (e.g. employment and financial) BUT doesn’t give direct benefits to all. ↳ E.g. Yorta Yorta (2002) lost their native title for failing to have a sufficiently maintained connection to the land. Terra Nullius - ‘Nobody's land’, land belonging to no one Conditions: changing values, not recognising ATSI rights and new concept of Justice Agencies: media printing issue impacting social views/support, the publication of the MABO case Mechanism: federal government and high court The Roles of The High Court and Federal Parliament High Court - Hears appeals about decisions made in other courts of Australia - Cannot show sympathy/favouritism or bias influenced by public opinion when hearing cases Federal Parliament - The role in recognising native title is to enact legislation to protect the property rights of ATSI - Public pressure and lobbying by interest parties have seen new laws regarding native introduce Major Native Title Decisions Eddie Mabo - 1879: the QLD governor proclaims that the Murray Islands were annexed to QLD and came under QLD law - 1985: QLD premier enacted the QLd coast lands declaratory Act 1985 - HC determined QLD was trying to limit rights - HC favour MAbo, they had rights - Removed Terra Nullius and claimed Native Title - Case, the Native Title Act 1993 (cth) was created WIK Case - Case concerned Native Title on land used under pastoral leases - HC decided they could co-exist, where conflict prevailed, leased would prevail - Therefore, native title amended ACt 1998. Farmers had rights Yorta Yorta Case - Pastoral leases and Native Title could “co-exist” - ALTHOUGH, pastoral interests override Native Title where there is a conflict over use of land Legislation - Native Title Act (cth) 1993: Australian government response to HC’s decision on the Mabo Case - Native Title Amendment Act 2007 (Cth): Made in response to the HC’s decision on the Wik Case - National Parks and wildlife Act 1974 (NSW): provides for the protection of places and relics which are of significance to the ATSI people - Aboriginal Land Rights Act 1983 (NSW): recognised land was traditionally owned and occupied by ATSI people, recognised that land has a spiritual, social, cultural and economic significant to ATSI people.
