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Topic 1 – Basic Legal Notions Anarchy: A state of society without government or law Custom: Traditional ways of behaving that are enforced by social pressure Rules: Principles or regulations that govern conduct or procedure and may or may not be legally enforced Law: The regulations that come from the government and apply to people in the state/country which may be legislation, custom or policy Fairness: A practice free from bias, dishonesty or injustice Equality and justice: Equality involves the equal treatment of people whilst justice involves being righteous and equitable Values and ethics: What society considers important and the moral principles governing them. Laws are introduced to reflect the values and ethics of society and may sometimes be used to change society’s views. It is better for both individual and societal goods if laws are consistent with current views. Relationship between custom, rules and law: A custom is a practise that has a long tradition and is generally accepted by the community as being right, and is not necessarily written down. Rules have more force than custom as punishments may be imposed on the people who break them. Unlike law, neither rules nor custom have the force of legal sanction. Why the law is necessary: Creates order in society, Gives people responsibility in the way they act, Installs Justice. Factors affecting perceptions of the law: Age, Past Experience of the law, Cultural Factors, Education, Gender, Nationality, Media, Financial (Socio – Economic Status) Topic 2 – Sources of Law |Aboriginal Customary Law |Contemporary Australian Law |International Law | |Spiritual nature of AC law |Common law |Origins and sources; treaties, customs, | | | |legal decisions, legal writings | |Diversity of AC law |The system of precedent | | |Ritual and oral traditions |Statute law and delegated legislation | | |Conciliation and mediation | |Principal international organisations; UN | | | |and ICJ | |Enforcement and sanction |The constitution | | |Significance of land/water |Criminal and civil law | | Aboriginal Customary Law: The spiritual nature of Aboriginal customary law: For Indigenous Australians, customary law is a religion – a way of life governed by a system of beliefs (The Dreaming). Indigenous Australian customary law is very diverse and involves more culture, traditions and beliefs whereas the wider Australian community bases customary law more on punishment. Diversity of Aboriginal laws and Torres Strait Islander laws: At the time of European settlement there were approximately 500 different communities of varying sizes and different languages and therefore there would have been variations between customary law recognised by various communities. Ritual and oral traditions within Aboriginal and Torres Strait Islander societies: Language played an important role as laws were not written down, songs were used to pass on information and status was determined by the amount of songs known, rites (religious or solemn ceremony) were observed and sacred objects maintained, elders played important roles as custodians of the law and people who had particular knowledge may only be able to speak to particular people of particular gender. Conciliation and mediation within Aboriginal and Torres Strait Islander societies: The indigenous system has an oral tradition, with disputes being brought before the smaller community of the extended family. The families of the parties will participate and there is emphasis on communal decision making so that the decision will affect the wider community. The process is informal and time matters little. Enforcement and sanction within Aboriginal and Torres Strait Islander communities: Customary law was enforced through physical sanctions (wounding or killing), exile (banishing from the community for a period of time) and restitution (offering goods, a ritual object or money). Significance of land and bodies of water to Aboriginal and Torres Strait Islander societies: Aboriginals identify spiritually with their country and their relations to it. Aboriginals are nomadic and cyclical movements ensure access to food, water and ritual sites. Movements are governed by rights. Certain areas, objects and animals have certain spiritual significance. The relationship to land is determined by birthright as opposed to property sale. The relevance of Aboriginal and Torres Strait Islander law in the contemporary Australian legal system: Courts can allow the traditional background of the defendant to be considered in a criminal trial, meaning evidence about traditional beliefs can also be taken into account. The ALRC or Australian Law Reform Commission has come to the aforementioned reform and since then many cases have come before courts and the sentences include shaming, public ridicule, re-education, exclusion and/or physical punishment. Problems may arise if the more extreme cases of traditional sanctions are recognised by the courts, yet it is accepted that common law could not overlook them. Contemporary Australian Law: In the legal system in Australia, the law applied by the courts can be found principally in one of three sources; common law, statute law and delegated legislation. Common Law: is based on previous cases decided by the courts and can have three different meanings; 1) The law made by courts, using precedent, as opposed to those made by parliament (statute law) 2) the part of the law that developed in Britain which used common law as courts opposed to the system of equity 3) the system of law used in Britain and its former colonies as opposed to the ‘civil law’ system used in countries the adopted the Roman legal system. The difference between common law and statute law: Common law is the system of law originating in England, based on custom or court decision, whereas statute law is enacted by legislation that is made by parliament. Where there is a conflict between statute and common law, statute law takes precedent. This is called “parliamentary sovereignty” meaning our parliaments are our senior law makers. The system of precedent: involves a legal decision serving as an authoritative rule or pattern in similar cases that follow. Precedent is used when a similar issue was resolved the same way in the past and until the development of statute law, precedent was the primary source of law that judges relied on. The language of precedent includes; 1) Determination of fact: the courts role to discover the truth 2) Case at first instance: a case in which no precedent is set 3) Ratio decidendi (why a judge has done something): the legal reasoning upon which a judgement is based 4) Obiter dicta (extra reasoning): a judge’s statement made during a judgement, but not a ratio decidendi Statute law: The law created by parliament and enacted through legislation. Legislation is a collective name for statutes or “acts” of parliament. Our parliaments are our senior law makers and therefore “parliamentary sovereignty” exists. Delegated legislation: Parliament does not have the time or knowledge to make laws on all issues, and so it delegates certain areas of control to other groups, such as: the local government, EPA (Environmental Protection Agency) and Work Cover, allowing parliament to deal with its major issues. Also, some areas of law are changing frequently or require specialist knowledge. In NSW, “Statutory Rule” or “Statutory Authority” means delegates legislation. There are concerns that parliaments are losing control as more and more decisions are being given to delegates, subcommittees or authorities, with minimal requirements to report back. The relationship between government and parliament: Governments make law while parliaments and politicians discuss law. The constitution: Initiated under the ‘Commonwealth of Australia Constitution Act 1900’. The constitution sets out to define the powers of the Commonwealth of Australia. The commonwealth powers are distributed among the states, which we call ‘specific powers’. Powers given to commonwealth that are not concurrent are called ‘exclusive powers’, such as taxes and making laws for the seat of Government (Canberra). Residual powers are left to the states alone, to deal with issues such as defacto relationships. Each state constitution contains a clause allowing the state to legislate on all subjects, except those specifically denied it by the commonwealth constitution. Criminal law and civil law: Criminal law is concerned with crimes against the state which are punishable by the law and most of the time in cases the prosecution (the Crown) has the burden of proof and must show the ‘actus reus’ and ‘mens rea’ of the defendant. It is a trial by jury. Civil law is concerned mainly with individuals and often involves negligence or damage to property. In civil law, the accused is the ‘defendant’ and the accuser is the ‘plaintiff’ and the onus of proof is on the plaintiff to prove ‘on the balance of probabilities’. International Law: Origins and sources of international law: 1) Treaties: Treaties can either be Bilateral or Multilateral 2) Customs: Customs are derived from the practice of countries and accepted by them as law. ‘Customary International Law’ involves the idea that treaties are only binding on countries that are party to them. 3) Legal decisions: These are the decisions of the international tribunals such as the ICJ. Precedents are not binding authorities in international law. 4) Legal writings: Books and speeches by experts in international law. Writers are important because there is no world parliament to pass international laws. Principal international organisations: 1) United Nations (UN): The world’s main international organisation established in 1945 to maintain peace between nations. It has six main areas: |Structure of the United Nations | |General Assembly |Main debating forum | |International Court of Justice |Handles inter legal disputes | |Security Council |Handles threats to international peace | |Economic and Social Council |Deals with refugees/WHO (World Health Organisation/FAO (Food and Agricultural | | |Organisation | |Secretariat |Day to day administration | |Trusteeship Council |Concerning territories that are not fully self-governed | 2) International Court of Justice (ICJ): The world’s main judicial body established to settle the legal disputes submitted to it by countries (in accordance with international law) and to give advisory opinions on legal questions referred to it by other parts of the UN system. Disputes may only be bought to the ICJ by governments and it does not give advisory opinions to governments. The court consists of 15 judges, each representing a different geographical region. Jurisdiction of the ICJ involves the following steps before the ICJ will make a case. ▪ A special agreement: this refers to a specific dispute ▪ A clause in a treaty ▪ A unilateral declaration The different roles of international and domestic law: There are no agreed standards between international law and domestic law. There is no reference to international law in the Australian constitution yet in Section 51 it refers to parliament having power to make laws with respect to ‘external affairs’. International law was recognised in Australia in the Franklin Dam Case in 1983. When a treaty is accepted, a government representative will usually ratify it, meaning the country’s laws have been bought into line with the terms of the treaty, hence bringing it into accordance with domestic law. Topic 3 – The Constitutional System in Australia Constitutional division of power between the Commonwealth, the States and the Territories: The constitution established that power shall be shared between the three arms of government: 1) Legislative power: This power is held in a Federal Parliament, consisting of Queen, a senate and a house of representatives and it is the power to make laws (Sections 51 & 52 of Const). Legislative power is separated thrice: ▪ Exclusive powers meaning only the fed parliament can make laws in those areas, such as customs, defence, trade and foreign relations. ▪ Concurrent powers, meaning both federal and state can make laws, such as trade, commerce, insurance and banking. Fed overrides state. ▪ Residual powers is the state’s power to make laws and no the Federal Commonwealth. Leftover laws. State has power to legislate. 2) Executive power (exercised by executive government): Vested in the Queen and exercised by the Governor-General (Section 61 of Constitution) 3) Judicial power: This power is vested in a Federal Supreme Court, called the High Court of Australia, whose power is in Section 71 of the Const. The division of power between the Commonwealth, the States and the Territories under the Australian constitution is relevant to the 21st century as many argue that the constitution should not merely be altered to confirm Australia as a republic this century, but that there should be a total re-examination of the constitution on reflect life now. The role of the High Court in constitutional interpretation, the system of judicial review and separation of powers: While the constitution was to be the supreme law, it is the High Court that determines how far and between what boundaries it is supreme. The jurisdiction of the High Court includes interpreting and establishing the meaning of words within the constitution. The High Court has both appellate jurisdiction and original jurisdiction, is the highest court of appeal and can hear cases such as: ▪ A Tasmanian versus a Victorian ▪ NSW government versus a SA government ▪ States versus the legality of a Commonwealth law Power is separated between the parliament, the executive and the court. This ensures no abuse of Constitutional power by any one group The gradual transfer of legislative power from the imperial government to the colonies, States and the Commonwealth: From the beginning of European settlement in 1788 to now, there has been a dramatic transfer of legislative power, caused by Acts including; the Australian Courts Act 1828 (Imp), the Australian Constitutions Act 1942 (Imp) and the New South Wales Constitution Act 1953 (NSW). The Statute of Westminster 1931: Legislation enacted by Britain and accepted by Australia in 1942 (backdated to 3 September 1939) that gave Commonwealth the power to enact laws, despite inconsistent British laws. Yet Australia would need to request and consent to laws enacted by Britain that affected Australia. It is from this statute that we usually date the independence of Australia from Britain. Privy Council (Limitation of Appeals) Act 1968: Abolition of appeals to the Privy Council to make the High Court of Australia the highest court of the land in all matters pertaining to Australia and to the legal rights and obligations of Australian citizens. The Australia Acts 1986: The acts removed the last legal ties between Britain and Australia. Also, the federal and state parliaments gained complete control over their powers and no restrictions on those powers were imposed from outside the nation. Checks and balances of the Australian constitution: A system whereby the different branches of government balance each other so that one branch does not gain too much power. The checks and balances in the Australian Constitution are important as it ensures no abuse of constitutional power by any one group. Express prohibitions prohibit the Commonwealth from enacting particular types of laws and implied prohibitions are recognised by the High Court that there are some doctrines so basic and fundamental to the system of government established by the constitution that any attempt to interfere with them will be unconstitutional. Topic 4 – The Operation of the Legal System Operation of the Legal System: Structure of State and Federal courts: A court hierarchy means that courts are ranked from those of highest authority to those of lowest authority. Higher courts determine more serious cases and supervise, through the appeal system, decisions given in lower courts. [pic] Federal Court of Australia: Created by the Federal Court of Australia Act 1976 (Cwlth), Began hearing cases on 1 February 1977, The court has an ‘appellate jurisdiction’ meaning the court has the authority to review and decide appeals, It exercises Federal jurisdiction, It mainly deals with civil cases arising under federal law such as trade, native title, immigration .etc Family Court of Australia: Created under the Family Law Act 1975 (Cwlth), Began operation on 5 January 1976, It had jurisdiction over all matrimonial cases which have four main areas; dissolution of marriage, issues of parental responsibility, review of child maintenance and property settlement, Provides an in-house counselling service, Authority and jurisdiction comes from Section 51 of the constitution. Industrial Relations Court of Australia: Specialist Federal court, Established March 1994, Deals with industrial relations matters, Deals with enforcement of industrial awards, Was previously part of the Federal Court. Federal Magistrates Court: Provides a range of alternative dispute-resolution options, No automatic assumption that matters will end in a contested hearing, Matters dealt with are less than those of a Federal Court, Provides counseling, conciliation and mediation, Aims at keeping quick and speedy. Supreme Court of New South Wales: Established 1823, Highest court in the state, In civil matters it has unlimited jurisdiction, Deals with the most serious criminal matters, Appeals are made to the Court of Appeal or the Criminal Court of Appeal or the Supreme Court. District Court of NSW: Limited in its civil jurisdiction, Claims of up to $750,000 are made in this court however there is no limit in motor accident cases, Hears indictable offences, Has a jury, Hears appeals from local courts. Local Court: Deals with civil and criminal matters, Criminal matters are decided by a magistrate alone and no jury, Magistrate hears applications for AVO (Apprehended Violence Order), Deals with summary offences such as traffic infringements .Etc Hears cases of up to $40,000. ▪ Law is enforced through the courts, legislation, tribunals and law-enforcement agencies. The adversary system and the legal profession: The adversary system is that followed in the Australian common law legal system and involves two parties, one asserting a right and the other denying that right, who bring their case before a judge through their counsel/barrister. In a civil trial the adversaries are the defendant and the plaintiff whereas in a criminal trial they are the defence and the prosecution. The term ‘lawyer’ is the generic expression covering all persons who have legal training and use it in some direct way. Solicitors and barristers are those in the profession who directly assist the public in ensuring that their legal rights are protected or enforced and a solicitor will mostly work away from the court. Court procedures in civil and criminal proceedings: The five steps to be followed when going to a court for a civil claim are: 1) Determining which court to attend. The amount of damages being asked for will determine either Local (up to $40 000 claims), District (up to $750 000 claims) or the Supreme Court (no limit on the size of claim. 2) Action is commenced by the filling of a statement or ‘issuing the statement of claim’ and it is then served on the defendant (party being taken to court). 3) Depends on how defendant reacts to the statement of claim. If it is left for 28 days a default judgement will be issued whereas if they contest the defendant will file a notice of defence. 4) The matter is taken to court. The plaintiff and defendant may represent themselves or can authorise a spouse or employee to do so. A solicitor or barrister is the norm in District and Supreme cases. 5) The magistrate or judge will decide the issues. The losing party will usually be ordered to pay the other party’s legal costs. The seven steps for a criminal proceeding are: 1) Arrest. The person must know that they ‘are under arrest’, must be given a statement to why they are being arrested and are taken into custody. 2) Bail. Bail Act 1978 (NSW) 3) Remand. If there is no bail they may be kept under remand. 4) Committal hearing. Occurs in serious cases to ensure that the prosecution evidence is likely, in the opinion of a magistrate, to allow a jury to convict. The magistrate must be satisfied that there is enough prima facie (‘on the face of it’) evidence. 5) Hearing. If the accused pleads not guilty, a jury will be chosen and empanelled. Cross-examinations may occur by the counsel for the accused after each witness has given evidence. 6) Sentencing. If imprisonment is required the Sentencing Act 1989 (NSW) is relevant. There is no capital punishment in Australia. 7) Appeal. Appeals can be restricted to ‘questions of law’ so if a mistake in law has occurred in a court, the mistake can be corrected. Appeals are also heard when the punishment does not fit the crime and may include a complete re-hearing or be limited to particular issues in the trial. Observation of civil and criminal cases in the local court: The local courts have original jurisdiction (have not been appealed to) and hear summary matters and indictable matters to determine if they should go to trial. There is no jury in local courts. In civil cases in local courts the adversarial system and traditions will be evident. In criminal law there is a two-tiered system of justice, meaning the public perception of criminal justice is opposed to the reality. Over 90% of criminal cases are heard before a magistrate. Enforcement agencies: police, government, other authorities: There are both federal and state agencies that enforce law. ▪ Federal: The Australian Federal Police principally deal with matters arising under federal law and Commonwealth interests, and make laws regarding federal offences. The National Crime Authority (NCA) is another federal agency that aims at investigating organised criminal activity with power to operate in all Australian states and territories. The Australian Securities Commission is another federal authority, responsible for corporate regulation and enforcement of corporate law. ▪ State: NSW Police and The Independent Commission Against Corruption (ICAC) are both state law-enforcement agencies. Legal aid: Legal Aid is the term used to describe the legal services available to people who otherwise could not afford them. In NSW it is provided through the Legal Aid Commission of New South Wales, the Redfern Legal Centre, and etc. The NSW Legal Aim Commission must apply three tests before granting legal aid: 1) Jurisdiction test to see what areas of law will appear in court for a client 2) Merits test to see if the case is likely to succeed 3) Means test to determine whether the person can afford to pay for private legal representation Alternatives to the court system: administrative and other tribunals: ▪ Federal: The Administrative Appeals Tribunal (AAT), The Social Security Appeals Tribunal, The Migration Review Tribunal, The Refugee Review Tribunal. ▪ State: The Administrative Decisions Tribunal, The Fair Trading Tribunal, The Victims’ Compensation Tribunal, etc Alternative dispute resolution, self-help remedies, political processes, community justice centres: In self-help remedies there are three common strategies: 1) Meditation: third party assist to solve problems 2) Conciliation: third party more actively involved 3) Facilitation: used when several parties in dispute Political processes and community justice centres are other methods of alternate dispute resolutions. Court is expensive and times consuming therefore, alternatives are in place to solve legal disputes. There is a range called ‘quasi-judicial tribunals’. They operate on the same concept of providing fairness. Operation of the Legal System in Relation to Native Title: The doctrine of terra nullius in Australia: Terra nullius means ‘uninhabited land’ and was the legal basis of European settlement. This legal fiction existed because at the time of European settlement, international law considered countries as either ‘settled’ or ‘conquered’ and the settled countries would have a treaty with Britain which Australia did not have at the time. Terra nullius was overturned in 1992 with the Mabo Case. The growth of recognition of native title in some countries: The United States, Canada and New Zealand are other countries in which Native Title has been gradually recognised. The major High Court decisions on native title, Mabo and Wik: ▪ Mabo: The Meriam people claimed that the nine kilometres of Murray Island had been continually inhabited despite European invasion and that their land rights had continued and not validly extinguished. The court found that native title was existent as it could not disregard the Racial Discrimination Act and so the major milestone for Aboriginals of overturning ‘terra nullius’ occurred and led to the Native Title Act 1993. ▪ Wik: This case was about two groups, the Wik people and Thayorre people, who had both made claims to land (including some overlapping land) that was on a pastoral lease. The Queensland Government decided that leases extinguished native title so the parties took the matter to the High Court which ruled in a three to four decision that pastoral leases did not extinguish native title. The Wik case was a reason for the Native Title Amendment Act 1997. Subsequent legal developments: common law, statutory law: Aboriginal Land Rights (Northern Territory) Act 1976 (Cwlth), Native Title Act 1993 (Cwlth), Native Title Amendment Act 1998 (Cwlth). The National Native Title Tribunal was established as a response to the Native Title Act and it is through this tribunal that native title law is dealt with. Native title as a collective right: A collective right is any right that is any right shared by a group of people. Native title can be considered a collective right because an individual cannot claim native title. All members of the group share the rights that are gained. Although it is a collective right, native title claims can be bought before the courts by an individual, such as Eddie Mabo. These individuals are acting on behalf of others and, if they be successful all members of the community they represent will benefit.