1.

Basic legal concepts

Define law
Laws are rules with legal authority made by sovereign power, that must apply to everyone in the geographic area (jurisdiction). Law comes with appropriate sanctions if they are enforceable. Sanctions refer to punishment that society impose on those who break the law. Rule of law states that: noone is above the law including those with sovereign power.

Distinguish between customs, rules and ethics

Customs are traditional ways of behaving that have become widely accepted in a community. They are enforced through social cohesion and provide a degree of certainty Rules guide the way people behave usually in a given area. They are usually made clear to the public through written means or symbols e.g. no smokingsign. Sanctions are used to ensure rules are obeyed e.g. fines Ethics define what society beleives is the right and wrong way to behave. Ethics must not be confused with morals, as morals refer to the good and bad way to behave. Something that is ethical, may not be morally correct, e.g. a lawyer defending a guilty person in court

Characteristics of just laws

Allows for individual freedom: a just legal system must allow as much individual freedom as possible to a certain extent Merciful: A legal system should be merciful; it should look at the circumstances surrounding each case and make allowances if appropriate Consistent: Laws must be applied consistently. Similar cases must be applied in the same way. Sentencing Act 1989 (NSW) was introduced to increase consistency in sentencing Public: Both laws and the manner in which they are applied should be public. Open court hearings, parliamentary system and media coverage, allow for public scrutiny and debate about laws and the legal system Quick and efficient: Justice delayed is justice denied This means that a legal system can only operate justly if it deals with matters quickly and efficiently. This is especially the case in serious criminal cases, where the accused is held in remand. Delayed court hearings could mean that the offenders freedom is denied. This is very serious if the offender is found not guilty

Not retrospective: Laws must be made for the future. Retrospective laws are backward looking and change the legal status of something in the pass.

1.Basic legal concepts

Nature of Justice: equality, access, fairness
Equality: The central concept of justice is the equal treatment of all people. Today the concept of equality is in all areas of life, e.g. anti-discrimination laws and social security. The law is meant to be equal, but in reality this is not always the case. Different people will have different types of access to the legal system. The wealthy is likely to have better legal representations that are more likely to convince juries and judges to find in their favour. Well educated people will also tend to have a better knowledge of the legal system and are more aware of their legal rights. Hence the legal system is not always equal Access: Access to the legal system is an important part of achieving justice. A persons access is dependent on: - Knowledge of the law and ability to get relevant information - Accessibility of legal representation or through legal aid - Delays in court proceedings Legal aid is not available to all and a person must pass a means, merit and jurisdiction test in order to receive legal aid - Dietrich vs. The Queen 1992 (ruled that while it is in the best interests on the accused to have legal representation, the individual has no right to legal representation paid for by the community) Fairness: The legal system attempts to achieve justice, this means that the law must be unbiased and must treat everyone the same. Justice will be achieved but not necessarily fairness, e.g. A person of a high socio economic class could be fined 100$ for speeding, whereas A person of a low socio economic class would be fined the same. In comparison, this is just but may not always be fair.

Define procedural fairness (natural justice)

Natural justice describes whether or not someone has been treated fairly by the legal system.

Principles of procedural fairness (natural justice)

Right of a defendant to a hearing and to present evident. A criminal charge must be stated clearly and the prosecution must disclose its evidence to the defence Freedom from bias from the judge. Judges are required to be impartial and judge a case purely based on evidence Previous criminal convictions are not to be raised during proceedings. A person is presumed innocent and any previous record should not be used to imply guilty Previous convictions may be used in sentencing Each party has the right of cross examination Dimes vs. Grand Junction Canal (1852) The Judge held a small parcel of shares in the company which was therefore open to bias

Rule of law
Rule of law states that no one is above the law and no one may violate it without punishment. This protects individuals of society from abuse of power (arbitrary power) from the state

Anarchy
Anarchy is the state of lawlessness which can result in a state of chaos and disorder. It often occurs after a natural disaster when there is no enforcement of the law e.g. aftermath of Hurricane Katrina

Tyranny
Tyranny is also known as dictatorship; a form of government in which the ruler is an absolute dictator (not restricted by a constitution or laws, or opposition)

2.Sources of contemporary Australian law common law

Origin of common law
Common law originated from England in the 11th century, and is a collection of legal principles and rules derived from the decisions of judges in higher courts. It is known as judge made law and is different to statute law. However, when no relevant statute law exists, a judge will turn to common law principles to arrive at a decision. In times of conflict, statute law prevails

Equity
In England, the King had discretionary power to overrule any decision by the courts and hence could overrule any cases based on the concept of equity (judging cases on its own merit). By the 14th century, the court of chancery had been established and these courts now administer the law of equity. Over time, two types of judge-made law developed: common law and equity. For several hundred years, England had the two systems and they were often in conflict. In 1620, King James I attempted to overcome this problem by announcing that where a conflict arose, the decision in equity would prevail. Two legal systems were eventually combined by the Judicature act 1873 where courts were instructed to take into account the principles of equity. Hence, principles of equity are embedded into the common law system.

Precedent
Precedent is judgement made by a court that establishes a point of law. Judges in common law system must follow precedent; such a process is called stare decisis (to stand by a decision) Precedent ensures that all people are treated equally and fairly and limits the power of judges to make new rulings when a similar case has been decided - Can be created when a judge arrives at a decision in a case where there is no existing common law or statute law for guidance - Precedents can be created when a judge interprets legislation Binding precent: court must follow such a decision Persuasive precedent: rationale of the decision (which forms the precedent) Ratio decidendi: Other statements by judges (does not result in precedent)

Jurisdiction of state and federal courts

Local court Criminal jurisdiction: - All summary offences. Less serious crimes, e.g. drink driving and shoplifting. Magistrate deals with these matters, determines guilt and issues punishment - Committal proceedings. Committal hearings for indictable offences. Aim of the committal is for police to demonstrate they have a prima facie (on the face of it) case that there is sufficient evidence that a jury would likely convict this person. If there is sufficient evidence, then the case will be moved to a higher court Civil jurisdiction - Hears minor civil matters such as debit claims. $3,000-$100,000

Coroners court Role is to investigate unexplained deaths and fires. Can commit a defendant to trial in a higher court if there is a prima facie Childrens court - Any summary or indictable matter involving persons under the age of 18 at the time of the offence, or less than 21 when charged with a crime they committed when less than 18 Land and environment court - Deals with matters involving environmental planning and compensation - Deals with appeals in relation to local council decisions District court Criminal jurisdiction - Majority of indictable offences e.g. robbery and assault. Heard before a judge whose role is to decide on questions of law, along with jury in which nearly all cases consists of 12 whose role is to determine the guilty of the accused. If guilty, judge then imposes a sentence Civil jurisdiction - Hears matters involving between $100,000-$750,000 and any matter involving compensation for motor vehicle accidents In most cases, judge determines case alone Supreme court Criminal jurisdiction - Hears most serious indictable offences e.g. murder, serious sexual assault and kidnapping. All cases are heard before a judge and jury. Civil jurisdiction - $750,000+ - Usually dealt by judge along, although juries of four, six or ten may be used in some cases Family court of Australia - Special court that deals with family matters, in particular divorce, custody of children, maintenance and division of property - Most matters dealt with by single judge Federal court of Australia

Hears matters such as trade practices, industrial relations, intellectual property (copyright), taxation and immigration High court of Australia - Hears matters involving constitution

Role of parliament
Role of parliament is to pass laws. Any law passed by parliament is called statute law

Structure of parliament
All parliaments except Queensland are bicameral (parliament with two houses), where they only have a lower house. At federal level, two houses are the senate (Upper house) and the House of Representatives (Lower house). Above both houses is the position of the governor general. House of Representatives - Role of house of reps is to make laws and amend existing ones. When a new piece of legislation is first introduced into the house, it is known as a bill. If it is passed that is enacted into law, then it becomes an act of parliament. - Most new legislation is introduced in the house of representatives The senate - Role is to represent each of the six states and two territories. - Plays a very important role in reviewing legislation that is proposed by the House of Representatives. - Is not allowed to introduce or amend money bills(laws that introduce new tax or deal with the normal expenditure of government) the senate can, however, request that the house of representatives make changes to these bills before passing them Governor General (Quentin Bryce) - Representative of queen in Australia - role is to ensure that the federal executive council always acts lawfully; that is, within the powers set out in the constitution. In this sense, the governor general is the protector of the constitution - all legislation that is passed by the house of representatives and the senate must then go to the governor general for approval. This is known as the royal assent. Once assent has been given and the bill is published, it becomes law.

Legislative process
First reading: Minister or private member responsible for the bill will introduce it to the parliament in the house which they sit for Second reading: Parliament debates the bill, with members given an opportunity to express their opinions about it Committee stage: During the committee stage, each individual clause of the bill is debated. Although in most cases, members only wish to speak about certain controversial clauses. It is at this stage that members can propose amendments to the bill Third reading: House is asked to vote on the bill. If vote is successful, then the bill will be passed onto the upper house for its approval. Upperhouse: Entire process is repeated, with one exception: if the bill was introduced in the senate then the first reading is not repeated. If upperhouse does not pass the bill, it is returned to the lower house for an amendment, or it may simply be rejected outright Assent: If upper house passes the bill, then it is sent to the governor-general (in the case of the commonwealth parliament) or the governor (in the case of state parliaments) for approval. This is referred to as royal assent and once given, the bill will become law. It is now referred to an act of parliament.

Function of delegated legislation

delegated legislation is legislation made by non-parliamentrary bodies such as councils - function: simplify process and lets those who are specialised in the area make laws four main types of delegated legislation are: 1. regulations: delegated legislation made by governor general, governors or executive council (governor general and ministers) 2. ordinances: (laws made for territories of Australia) 3. rules: Delegated legislation made for government departments e.g. department of immigration 4. by-laws : laws made by local government which apply within the local government area (local government act 1993) -

Difference between division and separation of powers

Division of powers: Divides power between states and commonwealth parliaments (exclusive, concurrent, residual)

Seperation of powers: Ensures that no one group within the government can dominate. (legislative, executive, judiciary)

Role of the high court

1. Protect the constitution by ensuring that the governments act within the constitutional powers 2. To exercise the courts original jurisdiction (where cases are first heard) 3. To act as the final court of appeal in the court hierarchy

Interpretation of the constitution by the high court

Important role of the high court is interpreting the constitution. The court ensures that parliament, the court and government departments do not exceed their constitutional authority.

International law Difference between international and domestic law

Application Enforcement Creation International law Applies only to those nations that agree to be bound by the law Complex legal tribunals exist but countries are permitted to exempt themselves from cases Made through negotiations between nations Australian domestic law Is universal, which means that it applies to everyone all the time Law enforcement agencies exist, such as police to enforce the law Made by parliament or the rulings of judges

Domestic law - Regulates citizens within a nation - Jurisdiction limits within the nations - Protects citizens and properties - Provide a revenue for dispute resolution - Enforceable through sanctions

International law - Regulate behaviour and relationships between nations - Jurisdiction not limited within nation - Deals with global issues

Impact of state sovereignty

State sovereignty is the right of nations to govern themselves and determine their own future. Other nations or organisations have no right to interfere in the internal affairs of another nation

All nations are fundamentally equal and that each notions rulers have the right to make decisions on behalf of the nation State sovereignty presents a major problem for international law as it allows nations the righto refuse to participate in it. Hence the scope and effectiveness of international law is greatly reduced

Sources of international law

Treaties: include conventions, protocols, covenants or declarations (non-binding). A treaty is an agreement entered voluntarily between nations. Treaties can be: Bilateral (between two nations) Multilateral (Between more than two nations) By signing a treaty, a nation becomes a party to the agreement and is bound by the conditions and rules embedded in the treaty. At this stage, the treaty has no effect on any nation. It must be ratified by the signatory nation. In Australia, ratification involves the executive council agreeing to the conditions of the treaty. Finally, domestic law must be amended or enacted to comply with the treaty e.g. CROC results in a number of reforms in laws regarding children Customs: International law has an element of customary law, in that it is derived from traditional practices and relationships between nations. However, nowadays, the focus on international law relies on treaties Legal writings: Throughout history, writings of philosopher and legal academics have been influential on the direction of law making e.g. natural law (law from god thus stands above the authority of the state) and positive law (laws generated by sovereign)

Role of various organisations involved in International law

United nations 192 member nations Aim: to promote peace between nations in order to protect the rights of individuals International court of justice Countries may refuse to recognise the right of the ICJ to decide on a legal matter IGO (international government organisations) - Organisations that represent the governments of member nations NGO (non government organisations)

Play a significant role in applying political pressure to nations to abide by international laws

4.Classifications of law
Public law
Criminal law - Established by statute - When a person breaks a criminal law, they are said to be harming all members of the public. Hence, the case is brought in by police and prosecution on behalf of society - Crimes against person: involve the injury or threat of injury to another person e.g. homicide (intentional killing of another person) and assault (causing or threatening to cause harm to another person) - Crimes against property: involve the theft of or damage to another persons property. E.g. larceny (removing another persons property without consent) or robbery (use or threatened use of violence in order to take another persons property) - Crimes against state or sovereign: Sedition (encouraging a hatred of the country) Treason (bringing or attempting to bring the collapse of the country, or assisting enemies of the country) - Public order offences: crimes disrupting the activities of society. Minor offences e.g. swearing in public, being drunk in a public place - Traffic offences: most common offences committed by society e.g. speeding. More serious traffic offences e.g. drink driving require a court hearing Administrative law - Relate to the operation of the government and its various departments. Constitutional law - Constitutional is a legal document outlining the powers and operation of government - Deals with mostly division of power between parliament, high court and commonwealth

Private or civil law

Contract law - Contract is a legally binding agreement between two or more parties - Invitation: - Offer: - Consideration: both parties must benfit from it. - Acceptance: when it is signed - Parties entering contracts must do so in good faith. E.g. parties cannot deceieve another to sign it Property law - governs the trade in anything that can be bought or sold Tort law - torts are civil wrongs - involve the actions of one who causes inconvenience to another person, or breaching their rights FOUR KEY AREAS OF TORTS: 1.) NEGLIGENCE 2.) NUISANCE 3.) TRESPASS 4.) DEFAMATION Negligence - Very common and revolves around concept of duty of care - duty of care states that every person and responsibility has to ensure their actions do not cause harm to others or their property Nuisance - Involves one person interfering another persons rights Defamation - Involves damage toward another persons reputation - If the information about the person is accurate, it is not defamation Trespass - When a person interferes with the property of another person

Civil and criminal court proceedings

Judges and magistrates - Preside over court - Magistrate sits in the inferior courts and their case is to determine case and reach verdict, they must also issue rulings and sentences

Judges sit in intermediate and superior courts. Their role is to issue sentences and rulings if they jury finds them guilty (criminal) and in civil, they determine the case and usually wont have a jury Barristers - To provide legal advice, based on the legal facts presented to them. - Present the clients case in court (if barrister has been briefed by a solicitor) Solicitors - Usually first person that someone who is seeking legal advice will approach - Appears in court, however in most cases the majority of their work is nonlitigious (involves no court appearance) - Main role is to prepare for wills, family law issues, conveyancing (handling the sale and purchase of real estate, drawing up legal documents e.g. contracts - Main role of solicitor in a legal case is to prepare the case (brief) for a barrister

Court procedures Criminal

Prosecution/crown vs. Someone Defendant/accused Jury of 12 which must determine whether there is sufficient evidence to convict the accused. They must also be convinced beyond reasonable doubt Judges role is to advise jury with any questions of law, and if jury finds accused beyond reasonable doubt, then judge will impose a sentence Jury must only deal with evidence presented to them in relation to the case and should not be influenced by other factors Standard of proof is beyond reasonable doubt Burden of proof lies with the prosecution, and hence the defence can say nothing and still be found not guilty if the prosecutions evidence is unconvincing

Civil
Individual/organisation vs. Individual/organisation Plaintiff/defendant Standard of proof is determined on balance of probabilities Based on evidence, who is more likely to be telling the truth? Proceedings begin when plaintiff issues a statement of claim. (legal document that identifies the parties to the dispute and outlines the circumstances of dispute) Defendant then replies by issuing a statement of defence If the matter is still not resolved, then it will go to court At trial, each side has right to introduce evidence and call witnesses in accordance with the rules of evidence. Cross examination by opposition Conclusion: presentation of evidence, the judge (or sometimes

jury) is required to making ruling based on evidence that has been presented by both sides. If decisions in favour of plaintiff, judge will indicate what compensation will be made to plaintiff

Common law system

ability of judges to make laws The right is limited to where a gap is found in statute law Where common law and statute law exists, statute law must always be used Australias legal system is often referred to as common law system Judges can make law Seek evidence but rather makes their decision based on evidence presented to them by both parties

Civil law system

Legal matter between two or more parties Developed in ancient Rome Almost entirely derived from statute law No room for the development of judge-made law Judges are required to carry out investigations