LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

1. BASIC LEGAL CONCEPTS

Vocabulary
Law: a set of rules imposed on all members of a community which are officially recognised, binding and
enforceable by persons or organisations such as courts.
Values: principles, standards, or qualities considered worthwhile or desirable within a society.
Rules: regulations or principles governing procedure or controlling conduct.
Ethics: are the principles that help people make decisions about what is right and wrong

Laws
o to be obeyed by all citizens of a society
o made by a law-making body
o enforced through the courts
o consequences of a breach results in a prescribed
sanction imposed by the courts
Rules
o to be obeyed by specific individuals or groups
o made by individuals or groups
o enforced by leaders of a group
o consequences of a breach at the discretion of the
leader of a group
Customs are established patterns of behaviour imposed by a group or society which are developed over a long
period of time.
Customary law consists of established patterns of behaviour that are accepted within a particular social
setting.
Characteristics of a just law: A just law is one that allows everyone to receive fair treatment and outcomes, and
ensures that human rights are recognised and respected.
The nature of justice:
Equality means that all laws apply equally to everybody and that all people are treated equally.
Fairness free from bias, dishonesty and injustice.
Access means ensuring that citizens are aware of the laws that affect them, and understand their rights and
responsibilities under these laws.
Characteristics of just law: Applies equally to all, the law must be known, must minimise delay
NATURAL JUSTICE/PROCEDURAL FAIRNESS
- The right to be heard this includes the right to a fair hearing
- The right to have a decision made by an unbiased decision-maker
- The right of a person accused of wrongdoing (the defendant) to know the accusation made
against them.
Rule of law: - states that no one is above the law, including those who make and enforce the law.
- eliminates arbitrary use of power where rulers do whatever they want

LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

Anarchy: absence of laws and government - can emerge when a society is left without an effective legal
system.
Tyranny: When a single leader has unlimited power over the people in a country or state. Rule of law is absent.
The constitution outlines the powers of the government and they must act within these powers.

2. SOURCES OF AUSTRALIAN LAW COMMON LAW
Origin of common law:

Common law developed after the Norman invasion of England in 1066. William the Conqueror sent
judges around the country.
They were asked to administer a uniform set of laws, report to the king any threats to the throne and
assess the wealth of the country.
By the end of the 12
th
century, the practice of sending royal justices throughout the country was well
established.
These justices ensured that their rulings were similar, thus developing the doctrine of precedent.
Role and structure of parliament:
Role: A parliament is a body of elected representatives. It debates proposed legislation, passes or
rejects it, and amends legislation.
Apart from QLD and the territories, all state parliaments and the federal parliaments are bicameral,
meaning that they contain two chambers or houses of parliament.
Legislative process:

NEED FOR LAW IS IDENTIFIED

DRAFT BILL

FIRST READING

SECOND READING

COMMITTEE STAGE

THIRD READING

UPPER HOUSE

ROYAL ASSENT
LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

COMMON LAW: law made by courts
Adversarial system: innocent until proven guilty
- Two opponents, prosecutor and defendant both trying to prove their side of the case
- The judge is an impartial referee

Inquisitorial system: guilty until proven innocent
- The court plays a major role in trial
- Judge will ask questions to resolve the case
- Defendant stands alone (no lawyer)

Rules of precedent:
Binding precedent: Lower courts are bound to follow decisions of superior courts, regardless of whether the
judge believes a decision of the higher court is correct.
Persuasive precedent: Superior courts do not have to follow decisions made in lower courts
Equity: the body of law that supplements the common law and corrects injustices by judging each case on its
merits and applying principles of fairness
Precedent: a judgement that is authority for a legal principle, and that serves to provide guidance for deciding
cases that have similar facts
Stare decisis: the doctrine that a decision must be followed by all lower courts
Ratio decendi: the legal reason for a judges decision
Obiter dicta: comments from a judge that are not directly relevant to the case, and therefore not legally
binding
Defamation: the act of making statements or suggestions that harm someones reputation in the community
Appeal: an application to have a higher court reconsider a lower courts decision, on the basis of an error of
law
Committal hearings: inquiries held in the Local or Magistrates Court to determine whether there is enough
evidence against the defendant to warrant a trial in a higher court
STATUTE LAW: law made by parliament
Delegated legislation refers to those laws made by subordinate bodies to whom parliament has delegated
law-making authority.
Advantages of delegated legislation:
- Parliaments have more time to consider more important matters
- People who have technological and other expertise make delegated legislation.
Disadvantages of delegated legislation:
- Its undemocratic as the delegated authorities have not been elected by the population
- Parliaments neither have time nor expertise to supervise all delegated legislation

THE CONSTITUTION
The constitution divided up the powers between the federal government and the states

Division of powers:
LEGI SLATIVE POWERS The federal parliament has the power to make laws with respect to all of the
matters listed in s 51.
CONCURRENT POWERS States can also make laws in many of the areas listed in s 51, specifically, those
areas over which the federal and state governments share concurrent powers.
EXCLUSIVE POWERS s 52 areas in which only the Commonwealth (federal) parliament can legislate. (Trade
and commerce with other countries, foreign relations)
LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

There needs to be a conflict resolution mechanism in place if a state and the Commonwealth make
contradictory laws. This is found in s 109
RESI DUAL POWERS powers which belong solely to the state

Separation of powers:
LEGI SLATURE the law-makers (Parliament house of reps and senate)
EXECUTIVE - the ministers and government departments who administer the laws made by parliament.
(Prime Minister, GG, Cabinet ministers)
JUDI CI ARY the courts which interpret and apply the law.

Role of the High Court
Its role is to examine and interpret our laws and our Constitution, and the cases it hears cover a
whole range of areas of the law. Most of the High Court's work is to hear appeals from lower courts
when people are not satisfied with decisions made in the lower courts. The High Court is where a
final decision is made.

Original jurisdiction: refers to the ability/power of a court to hear a case in the first instance.
Appellate jurisdiction: ability/power of a court to hear appeals of the decisions of lower courts and
to reject, affirm or modify those decisions
Aboriginal and Torres Strait Islander Peoples customary laws
Terra nullius: land belonging to no one
Sanction: a penalty or punishment imposed for breaking the law
Mitigation: making the severity of an offence or a sentence milder or less severe
Mediation: two parties brought together for the purpose of resolving a conflict

Characteristics of Aboriginal and Torres Strait Islander Peoples customary laws:
Religion and law were closely related
Laws differed from community to community
The resolution of the dispute will involve everyone in the community
Indigenous people believe that all their customary laws were established during the Dreamtime by
their ancestors.
Relevance of customary law today:
- The practice of sustainable development is the basis for current environmental laws
- Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and
employment law
- Customary laws are also taken into account when an Aborigine or TS islander is charged with crime
Distinguish between domestic and international law and examine the impact of state sovereignty.
Impact of state sovereignty

International law
Role of IGOs: To pursue mutual interests in a wide variety of areas.
e.g. UN, NATO, European Union, African Union, World Trade organisation

Role of NGOs: To make contributions and raise awareness in a wide range of areas, from world peace and
environmental protection to promoting education and alleviating poverty. They do this by informing the public
and lobbying governments to take action on issues of concern.
e.g. OXFAM, Greenpeace, World Vision, Amnesty International

Signing = the intention to be bound to a treaty
Ratify = to formally confirm that the country intends to be bound by the treaty

SOURCES OF INTERNATION LAW: Customs, treaties, legal decisions and legal writings.

LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

Relevance of international law to Australian law
- For some treaties, new legislation may be required to implement it Australian law.
- The federal government may rely on the external affairs power in s 51(29) of the Constitution to ratify
treaties.

Treaties also influence Australian law in the development of the common law, in judicial review of decisions,
and in the judicial interpretation of statutes.
The UN is the world organisation dedicated to world peace and equality of all its members.
Roles of UN:
To keep peace throughout the world;
To develop friendly relations among nations;
To help nations work together to improve the lives of poor people, to conquer hunger, disease and
illiteracy, and to encourage respect for each others rights and freedoms;
To be a centre for harmonizing the actions of nations to achieve these goals.
General Assembly: the main body of the UN, made up of all the member nations
Security Council: the arm of the UN responsible for maintaining world peace and security
ICJ: principle judicial organ of the UN, world court
ICC: a permanent international tribunal to prosecute individuals for genocide, crimes against humanity, war
crimes
Criticisms for the ICJ - due to the absence of binding force, the members do not necessarily have to accept the
jurisdiction
Criticisms for the ICC not cost efficient, takes too long for a case to reach verdict, limitations exist, bias
S 128: The procedure for changing the Australian Constitution is set out in section 128.
- A bill proposing the change to be passed by the Commonwealth Parliament
- Assent to the bill by the Governor-General.
- A referendum, or popular vote, in which the proposal is approved by a majority of people who vote
throughout Australia and by State majorities in more than half the States.
S 109: Federal law overrides State law
Sovereignty authority to make and enforce laws (states which have sovereignty, also have domestic laws)
Bilateral between 2 states
Multilateral between more than 2 states

The Australian Parliament has four main roles:

Making and changing federal laws.

Representing the people of Australia.

Providing a place where government is formed.

Keeping a check on the work of the government.

LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

LEGAL STUDIES NOTES ASSESSMENT 2
CHAPTER 5
1. NATIVE TITLE
1. What is native title?
Native title refers to the right to land by the original inhabitants or the right of Indigenous people to
their traditional lands.
2. What were the conditions that lead to law reform on native title?
Recognition of ownership of land by Indigenous Australians that existed long before European
occupation and settlement.
3. What is terra nullius and what does it mean?
Land belonging to no one; the idea and legal concept that when the first Europeans came to
Australia the land was owned by no one and thus was open to settlement.
4. What did terra nullius mean for the legal status of Indigenous Australians up to 1967?
The doctrine of terra nullius meant that in the eyes of the law Indigenous Australians did not exist as
citizens up to 1967. The criminal laws did not protect Indigenous people, and throughout the first
half of the 19
th
century, government policies tended to condone violence.
5. What happened in 1967? Why was it important
A referendum was made and it did not give Indigenous Australians the right to vote nor did the
referendum grant citizenship to Aboriginal and Torres Strait Islander people: most of the federal and
state laws discriminating against them had been repealed by 1967. The right to vote in state
elections had been achieved in all states by 1965. However, the referendum became a symbol of the
public recognition of the rights of Indigenous Australians, and its success reflects this change in
attitudes and beliefs that was taking place in the 1960s.
6. When was the legal concept of terra nullius overturned through what High Court decision?
Explain why terra nullius was an obstacle to achieving native title.
The legal concept of terra nullius was overturned through the Mabo case when the High Court in
May 1992, ruled that Australia was not terra nullius and that the Meriam people clearly held native
title to their land. This was an obstacle for to achieving native title as the decision of the High Court
in the Mabo case introduced the legal doctrine of native title into Australian law.
8. How was the Yolngu peoples native title claim resolved in court?
A royal commission into Aboriginal land rights was established and the findings of the commission
led to the drafting of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). This was the first
legislation in Australia to establish a land claim process by which traditional owners could claim
various parcels of land that were listed as available for claim. In response to the Gurindji land claim,
the government negotiated with the owners of the stations to return part of the land to the
traditional owners.
9. What was the newly elected Whitlam governments response to this decision?
10. Explain the role of the High Court in recognising native title.
With respect to native title claims, the High Court of Australia has the same role as it does
with any other legal case: as a court that hears appeals about decisions made in other
courts of Australia. It cannot show sympathy or favouritism or be swayed by public opinion
when hearing these cases and the High Court acts as a court of last resort in deter-
mining whether native title exists in claims made about certain geographical places
in Australia.

LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

11. Explain the role of parliament in recognising native title issues.
Parliaments role in recognising native title is enacting legislation to protect the property rights
of Aboriginal and Torres Strait Islander peoples.
12. Explain the importance of the 1992 Mabo decision.
The Mabo case is important because it led to the introduction of native title legislation. It is also
significant because it gave recognition to the Indigenous inhabitants of Australia.
13. Explain the importance of the 1996 Wik decision.
The Wik and the Thayorre people launched a case against the Queensland government in 1996 (Wik
Peoples v Queensland [1996] HCA 40), claiming native title rights to land that was being used by
pastoralists, under pastoral leases.
14. Explain the importance of the 2002 Yorta Yorta decision.
They applied to the Native Title Tribunal for determination of native title in respect of public land
and water in February 1994. The Yorta Yorta Aboriginal community claimed that some areas of state
forests and waterways in northern Victoria and southern New South Wales were their traditional
lands.
15. What is the National Native Title Tribunal and what does it do?
The National Native Title Tribunal is a federal government agency set up under the Native Title Act
1993 (Cth). It mediates native title claims under the direction of the Federal Court of Australia. The
aim of the Native Title Tribunal is to help to resolve native title issues. The tribunal plays a variety of
roles; for example, it acts as an arbitrator in some situations where the people involved cannot reach
agreement about proposed developments. It also assists people who want to negotiate other sorts
of agreements, such as Indigenous land use agreements.
16. What is the key federal legislation relating to native title?
Native Title Amendment Act 2007 (Cth)
17. How many times has this piece of legislation been amended (according to the textbook)?
This piece of legislation has been amended twice according to the textbook.
18. What type of right is native title? Why?
Native title is a collective right as it cannot be claimed by an individual, only by a group (for example
the Wik people). All members of the group share the rights that are gained.
19. Do you think law reform has been effective in achieving just outcomes?
It is undeniable that major steps have been taken with respect to native title, by both the judicial
and legislative branches of government.


















LEGAL STUDIES NOTES FOR ASSESSMENT 1&2

2. SEXUAL ASSAULT
1. What are the conditions that prompted law reform relating to sexual assault?
Law reform relating to sexual assault has been motivated by perceptions that the criminal justice
system was failing to deliver just outcomes for victims and the community.
2. What are the agencies of law reform relating to sexual assault?
The Criminal Justice Sexual Offences Taskforce
The NSW Rape Crisis Centre
The NSW Bar Association
The media
3. Parliament is the mechanism of law reform relating to sexual assault. Describe at least three
legislative reforms to the law relating to sexual assault.
Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW)
This Act amended the Criminal Procedure Act 1986 (NSW) to allow a transcript or recording of a
complainants evidence in any retrial. If the evidence is admitted in a retrial, then the complainant
cannot be forced to give further evidence unless she or he decides to do so.

Criminal Procedure Further Amendment (Evidence) Act 2005 (NSW)
Certain provisions of this Act were designed to ensure that improper questions were not put to
complainants during cross examination. It also provided for evidence to given in camera (privately)
and for support people to be close to a complainant when giving evidence.

Crimes Amendment (Consent Sexual Assault Offences) Act 2007 (NSW)
A persons lack of consent and knowledge that the person is not consenting are elements of sexual
assault offences, such as rape. If someone is under the influence of alcohol or drugs, there may be
no capacity to give consent. In court, an accused will be examined by the prosecution on what steps
he took to ensure that there was consent.