Legal Studies Notes 1) Basic legal concepts

Meaning of 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 the police and/or courts. (has to be binding for all members of a community). Customs: Customs are traditions that people in society take for granted that are embedded in or culture. Individual customs are traditions, they are not enforced and are not laws. Established patterns of behaviour among people in a societies/groups Collective habits or traditions that have developed in society over time Customs may vary depending on the culture religion and history of a group of people, society or country Rules: Rules are regulations or principles governing procedure or controlling conduct. Generally rules refer to prescribed directions for conduct in certain situations Rules are generally made by groups and only affect people in those groups Values and ethics: Ethics are rules or standards governing the conduct of a person or the members of a profession. Ethics is a branch of philosophy which investigates the nature of values and of right and wrong conduct. It is expected by society that laws will reflect traditional and current ethics and values. Examples include: abortion, euthanasia and stem cell research. Characteristics of just laws: Just laws must be: Enforceable: For laws to be effective they must be able to be obeyed Acceptable: To be successful, laws must be reasonable to the majority of the community and members of the society Discoverable: Laws must be accessible for all members of a given society and cannot be retrospective. Nature of Justice: Equality: Equal treatment of all, the outcomes remain the same regardless of who is involved. People equally bound and protected by laws of society under the idea of 'rule of law'. Fairness: Commonly related to everyday activities and the concept of treating people equally and acting honestly and with integrity. To be free from bias, dishonesty or injustice. It implies the outcome is just and right. Access: To have access is to have the capacity to seek equal access and obtain justice from the legal system

Procedural fairness (principles of natural justice): Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes. Also referred to as principles of natural justice. The principle arises from the rule of law and is used to ensure fairness and justice of the decision making procedures of courts. Rule of law: The notion that all people in the nation state are equal before the law regardless of position, power title or office. Anarchy: The absence of laws and Government. This term is used to describe a state of chaos and disorder resulting from the absence of laws and rules. Tyranny: Rule by a single leader holding absolute power in a nation state.

2) Sources of contemporary Australian law

Common Law:
British origins: Common law can be best described as a collection of legal principles and rules that are derived from the decisions of judges in higher courts. Common law first developed after the Norman invasion of England in the eleventh century. In order to consolidate his hold on the throne of the newly conquered lands, William the conqueror sent judges around the country. They were given 3 main tasks. 1) To administer a uniform set of laws throughout the country 2) To report to the king any threats to the throne 3) To assess the wealth of the country in order to determine what taxes could be levied These royal justices ensured that their rulings were similar (developing the concept of precedent), resulting in a set of relatively uniform laws developed throughout the country. Equity: Equity developed when many people turned to the King to solve their disputes and the King had to make equitable and fair decisions. Precedent: A precedent is defined as 'a judgement made by a court that establishes a point of law'. Until the development of statutory law, precedent was the primary source of law relied on by judges. Binding precedent: When a precedent is binding, the court must follow it, whether the judge believes the decision is correct or nor. In NSW, a precedent is binding when it has been set by a higher court. Precedent only applies if the case is sufficiently similar to the one that has been set by precedent. Persuasive precedent: Persuasive precedent may influence a judge's decision, but the court is not bound to follow it. Examples of this type of precedent

include judicial statement made by a judge, or decisions made by courts in other jurisdictions. The persuasiveness of a precedent depends on two main factors: - The judge: a court is more likely to take into account a precedent set by an eminent and influential judge . - The court: The higher the court the more persuasive the precedent will be. Judges can avoid precedent by: Distinguishing the case: A judge may decide that the facts of a current case are sufficiently different to a precious case. Reversing a judgement: When a matter is appealed to a higher court there is a possibility that the appeal will be upheld.

Over-ruling a decisions: This is similar to reversing a decision, but involves two separate cases. For example a person is found guilty in a lower court, but a similar case is found innocent in a higher court, then the decision may overrule that court's decision. Disapproving a decisions: A case from another court system may be referred to a judge for consideration. Adversarial System of Trial: The adversarial system related to the way evidence is presented in court. During a court case each party presents evidence in support of their own case and has the opportunity to test the evidence of the opposing side by questioning witnesses. This is known as cross-examination. In a typical case, the adversarial system gives the impression of two top debaters trying to score points against each other through the power of the argument and ability to convince a judge or jury. A judge will listen to the arguments raised by both sides, and then make a determination based on legal principles. If a jury is involved, they will decide issues of fact, and the judge will decide matters of law. This means that in each case the two opposing sides argue their case before a court, which is presided over by a neutral third party (the presider). The presider is usually done by judges and magistrates. Court hierarchy: In Australia there are two levels of law. These are the Federal and State. Each has its own jurisdiction (power to hear cases and enforce law) and a court structure. The courts are ranked : Low, Intermediate and Superior. State courts: Lower Local courts: Sometimes referred to as the Magistrates Court, this court is the lowers in the hierarchy. The aim of this court is to settle disputes cheaply and quickly at a local level. The local court has no appellate jurisdiction meaning that it cannot hear appeals. There are two areas of criminal law over which the Local Court has jurisdiction.

Summary offences: These are minor crimes such as drink driving or shoplifting. The magistrate deals with these matters, determining guilt and imposing punishment. Committal proceedings: These are preliminary hearings for more serious offences, known as indictable offences. The aim of the committal hearing is for the police to demonstrate that they have 'prima facie' (on the face of it) case. This means they must present sufficient evidence to show that there is a case to answer. If the magistrate determines there is sufficient evidence, then the case will be scheduled for a trial in a higher court. Civil Jurisdiction: The local court hears only relatively minor civil matters, such as debt claims. Matter of more than $3000 but less than $40,000 will be heard in the court. The small claims tribunal deals with matters of less than $3000. Coroner's Court: The role of the Coroner's court is to investigate unexplained deaths and fires. Like the Local Court, the Coroner's Court can commit a defendant to trial in a higher court if there is a prima facie case. Children's Court: This court deals with any summary or indictable matter involving persons under the age of eighteen at the time of offence, or less than twenty-one when charged with a crime they committed while under the age of eighteen. Murder is the only exception and the trial is held in the Supreme Court. Land and Environment Court: This court deals with matters involving environmental planning, land compensation and appeals in relation to local council decisions. It is principally involved in hearing matters where individuals or businesses have been charged with environmental offences such as illegal pollution. Intermediate: District Court: District Courts deal with more serious matters and are presided over by a judge who is referred to as 'Your Honour'. Criminal Jurisdiction: This court deals with the majority of indictable offences, such as robbery or assault. Cases are heard before a judge, whose roles is to decide on questions of law, and a jury of twelve, whose role is to determine innocence or guilt based on the facts presented to them. Civil Jurisdiction: The District Court hears civil matters involving between $40,000 and $750,000 and any matter involving compensation for motor vehicles and accidents. Appellate jurisdiction: The District Court can hear appeals from the inferior courts. The reasons for appeal could be that the penalty was too severe, that there was an error in law made by the Magistrate, and that there is new evidence that has come to light.

Superior: The Supreme Court: The Supreme Court is the highest court in the state hierarchy. The Supreme Court of each state Is a Court of Record, meaning that its decisions create precedent. Civil Jurisdiction: There is no upper limit on civil matters in the Supreme Court although the lower limit is $750,000. Jurors may be used but are not required. Appellate jurisdiction: In N.S.W. a special division of the Supreme Court, known as the Court of Appeal, hears appeals.

Statute Law:
Legislative Process: In the beginning, the law states out as a bill. A bills is a document stating a proposal for a new law or a change in existing law. The idea for a bill most commonly comes from government departments or from party policy, but can also come from an MP or community group. Any MP can propose a bill. If it is proposed by a Minister acting behalf of the Government it is called a 'Government Bill' and if the proposer is acting as an individual then it is called a 'Private Members Bill'. A bill becomes a Law only after it has been passed by both Houses of Parliament and approved by the Governor General. 1) First reading: The bill is first introduced to the house. 2) Second reading: This stage involves the reasons the bill was introduced and the intentions of the bill. 3) Committee stage: Detailed parliamentary debate is made and amends to the bill are mad if necessary. 4) Third reading: Formal reeding of the Bill with amendments to the bill. The bill is then voted on. 5) Other house: All these stages are then repeated in the Upper House, and if at any stage the bill is not accepted, it returns to the lower house to amend further. 6) Royal Assent: If passed by both houses of parliament the bill is then sent to the Governor General for assent. Delegated Legislation: Delegated legislation is made by bodies subordinate to the Parliament. such bodies can include government departments and local councils. these bodies are authorised to make legislation by an Act of Parliament, which is referred to as an 'enabling act'. These acts define what the bodies can make laws about ans how far their authority extends. Advantages: People making the legislation tend to be experts in the area to which the legislation applies; for example, pollution experts from the Environmental Protection Authority may draft pollution legislation. Delegating some of the 'less important' legislation frees up parliament time. Delegated legislation is far easier to amend and is therefore more flexible.

Disadvantages: There is often insufficient time and expertise amongst members of Parliament to properly check the delegated legislation. there is usually very little publicity about delegated legislation, making it hard for people to voice their views about it before it becomes law. With many different bodies making delegated legislation it can be hard to ensure consistency. Delegating law-making duties to non-elected bodies may be considered undemocratic. The four main types of delegated legislation are: 1) Regulations: - Delegated legislation made by the Governor General, State Governors or members of the Executive Council. 2) Ordinances: - Laws made for territories of Australia such as the Australian Antarctic Territory, usually by the body of the governing the territory. 3) Rules: - Delegated legislation made for government departments, usually by the departments. 4) By-laws: - Laws made in accordance with the Local Government Act 1993 (NSW). This Act allows local councils to make laws that apply within the boundaries or local government area.

The Constitution:
Division of power refers to how the constitution has a role in dividing power between the States and the Commonwealth parliaments. The constitutions of each state provide State Parliaments with the power to make laws on any matter that affects the State. Division of power and responsibilities are divided between the Federal and State governments. Power are either Exclusive, Residual or Concurrent. The constitution also ensures that no one group within the government can dominate. This is known as 'separation of powers'. The constitution divides Commonwealth powers between three separate bodies. The Parliament. The Commonwealth Executive also known as the 'Federal Executive Council'. The judicature, or courts.

Legislature: The parliament, which is responsible for passing Acts of Parliament (Laws). Executive: Responsible for putting laws into effect, which consists of varying Government departments and Executive council. Judiciary: Responsible for applying the laws. Another term for the court systems.

Aboriginal and Torres Strait Islander Peoples':

Diverse nature of customary laws: Aboriginal and Torres Strait Islander law is tribal and different tribes have their own variations of customary law. Australia is a large land

mass, and as a result different languages and modes of conduct developed. However, the similarities in customary law outweigh the differences. For example, under traditional law, the majority of Indigenous communities will generally see that disputes are not restricted to individuals. The resolution of the dispute, involving negotiation mediation and conciliation, will involve everyone in the community. There are also offences that are not recognised by non-customary law but are punishable under tradition law. examples include insulting an elder and the singing of sacred songs in public. Spiritual basis, significance of land and water: The Dreaming is the basis of much Aboriginal and Torres Strait islander law. The Dreaming, also known as the Dreamtime, is the history of Aboriginal and Torres Strait Islander peoples. it explains how the land, animals, plants and sky were created and has a very strong religious sentiment. Due to the secrecy that covers many of the traditional laws and the cultural role played by oral history, in contrast to written documentation, it is hard to describe these laws and their links to the Dreamtime. In addition laws will differ from community to community. However, it can be agreed that law and religion are very closely related, and that many laws have evolved from the Dreamtime and are concerned with the treatment of the land and those who live on it. The idea of individual land ownership is alien to Aboriginal and Torres Strait Islander thought. being a member of a tribe 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 tribe's culture and history. In the same way, Aboriginal and Torres Strait Islander people have links with the sea, lakes, rivers and all bodies of water. These are not owned by individuals, but are cared for by the group under customary law. Family and kinship +Ritual and oral traditions: Aboriginal and Torres Strait Islander law is part of everyday life. the law is an integral part of the values, customs and ethics of Indigenous peoples and has developed over many thousand of years, 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. Stories sounds and dances are used to help people remember the laws of their group. Different people in the tribe know different laws: For example, women have knowledge of some laws that they pass on to girls at a certain age. During ceremonial meetings at communal gathering places, laws are passed on by and to appropriate people and reinforced often through dance and storytelling. Many of these ceremonies are sacred and people from outside the community are not permitted to participate or watch. The stories have been handed down for thousands if years and explain things such as the creation of all things, why things happen, tribal boundaries, family relationships, cultural practices and forbidden acts. Mediation and sanctions: It is expected that everyone in the community will follow and reinforce the traditional laws. In traditional societies, order is maintained through selfregulation and consensus among family heads. Elders play an important role in guiding decisions related to enforcing the law, intervening as necessary. Relevance to contemporary law: In the past twenty years there has been greater legal recognition of Aboriginal and Torres Strait Islander's rights as the traditional landholders of Australia. Many aspects of customary law can be seen embodied in Australian law today. The practice of sustainable development, for example, is the basis

for current environmental laws. Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law.

International Law:
Difference between domestic and international law: Each country has laws for its own people, known as domestic law. A country can do this because it is an autonomous (independent) state which has sovereignty. A state, in the legal sense, is an independent entity that is recognised by other states on an international basis. In order to be a state, a place must have: A defined territory A permanent population An effective government The capacity to enter into international negotiations

International law governs the relationships between nation-states. International law enables nations to participate in t trade and commerce and provides mechanisms for the maintenance of peace and security and the reduction of conflict. International law also covers fundamental human rights, making it illegal to o such things as torture political prisoners or commit genocide. One of the main criticisms of international law is that it lacks enforcement. There are many examples around the world of nation-states breaching international law as a result of state sovereignty, especially in the area of human rights. International law could not prevent genocide in Rwanda in the 1990's and has not prevented crimes against humanity committed in the Darfur region of Sudan since 2003. In this sense, international law is different from domestic law. Nation-states are powerful entities and to force a nation-state to take a particular course of action can have far-reaching implications for the international community. As a result international law relies on countries consenting to cooperate in the enforcement of these laws. A further point of difference is that law is adhered to not simply because it can be enforced m but because it is generally accepted by the whole community. Sovereignty means that the state has the authority to make rules for its population and the power to enforce these rules. The term 'state' can refer to a political division within a federation, such as New South Wales or Tasmania, or (in an international context) to an autonomous nation-state.

Sources of international law: The main sources of international law are customs, treaties, legal decisions and legal writings. International Customary Law: Customary international law is not contained within a written document. Instead it is based on long-established traditions or common practices followed by many nations to the point that they are

accepted as being fair and right by the international community. For example, customary international law regulating war has been in existence for a long time before the Hague and Geneva Conventions explicitly outlines rules governing the conduct of nations when in conflict. This form of international law develops over time, as it requites 'constant and uniform' practice of states in order to be accepted as law. It should be noted that even if there is constant and uniform practice, it is still not considered law unless the nation-states accept that the practice is binding upon them. This principle is termed opinio juris sive necessitatis (shortened to opinio juris). Customary law has become less and less effective, with the world becoming a fast changing place, and sometimes requiring a faster response time. Most laws prohibiting crimes against humanity started as customary international law e.g. the condemnation of slavery and genocide. Declarations and treaties: Treaties are the most commonly used source of international law. According to the Vienna Convention on the Law of Treaties (1969), a treaty is an international agreement concluded between states in written form and governed by the guidelines of international law. Another way of looking at it is that a treaty is an agreement between legal equals and may cover any sphere of international relations between the parties. Treaties can either be bilateral, which means it involves two nations. or they can be multilateral which means it involves more then 2 countries. The more nations that sign a treaty, the more powerful that treaty will be. Treaties are used to make specific laws and to control conduct and cooperation between and within nations. A treaty may also establish an international organisation. there is no set way of making a treaty, but most treaties are made through direct negotiations between nations. If all parties involved agree, the treaty will be signed. A document will only become a treaty if all parties have the intention of being bound by its provisions and obligations at the time of signing. The treaty only becomes binding on a nation when that nation ratifies it - that is, confirms that it intends to be bound. Declarations are also international instruments, but they differ from treaties. Declarations state and clarify the parties' position on particular issues, but do not impose legally binding provisions that must be followed. A famous example is the Universal Declaration of Human Rights. The United Nationals Commission on Human Rights was established, following the Second World War and the Holocaust, to draft the declaration - the first universal statement on the basic principles of human rights. Legal decisions: The international Court of Justice (ICJ), which is part of the UN, is the judicial body that deals with disputes between states. Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty.

Role of:

United Nations: The United Nations is the chief organisation involved in international law. It was established in 1945. Currently there are 193 members of the UN. Its main objectives are to maintain global peace and security, to develop friendly relations among nations based on respect for equal rights and each nation's right to govern its own political, economic and social development and to promote cooperation in solving international problems. The UN has been central to the protection of human rights and to developing a legal framework to address terrorism, drug trafficking, the clearing of landmines, and protection of the environment. It has also been active in concrete efforts to fight disease, reduce poverty, provide emergency relief in natural disasters, and many other humanitarian operations. The UN's International Law Commission is the body primarily responsible for codifying and developing international law. The UN General Assembly Legal Committee receives the Commission's reports and considers its recommendations. Courts and Tribunals: Intergovernmental organisations: Intergovernmental organisations (IGOs) are organised groups of nation-states, established to pursue mutual interests in a wide variety of areas. Many IGOs are subsidiary agencies of the UN; other have been formed to make collective decisions about international issues such as refugees, tariffs or wealth. The International Labour Organization is a UN agency whose aim is to ensure the safe and fair treatment of workers. Non-government organisations: Non-government organisations (NGOs) are associations based on common interests and aims which have no connection with any government. They make contributions in a wide range of areas, from world peace, disaster relief 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. Examples of international NGOs include the Red Cross, Greenpeace and World Vision.

Relevance to contemporary Australian law: In some countries ratification of a treaty automatically makes it part of that country's domestic law. This is not the case in Australia. For some treaties, new legislation may be required to implement it in Australian law. For others, existing federal or state/territory legislation is sufficient (in other words, the terms of the convention are already being satisfied by domestic law). To pass new legislation implementing a treaty, the federal government may rely on the external affair power in section 51 of the Constitution. It may also rely on other powers, for example the trade and commerce power in s51 if the subject matter involves shipping. International law does not dictate the way in which Australia implements the obligations it has under treaties. The preferred method of giving effect to most treaty obligations is by incorporating the actual text of the treat provisions into domestic legislation. Treaties also influence Australian law in the development of the common law, in judicial review of decisions, and in the judicial interpretation of statues.