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1. Basic Legal Concepts Meaning of law Laws are formal rules of society which apply to everyone and enforced by people in authority. i.e. Police Judges and Courts. Customs, rules, and law Definition Customs Are habits or traditions developed overtime. How are they created? How are they enforced? Created by societies and originated from older generations. They are enforced by the people that follow their society. They are expected to be followed. Usually made by groups and only affect those within the groups. They are created by group leaders. They are created by people in authority. The law is passed through parliaments. They are enforced by those involved in the making of the rules. Classroom rules Family rules Sporting rules Example Bride wearing white at a wedding.

Rules

Are regulation or order. They are prescribed directions of conduct in certain situations. Are formal rules of the society.

Laws

They are enforced by people or bodies in authority. e.g. Judge, Police, Court and Government

Criminal Law

Values and ethics Values are what the society believe in important. e.g. Equality Ethics are considered what is right or wrong. e.g. Giving back a stolen wallet Characteristics of just laws A just law is one that allows everyone to receive fair treatment and outcomes

Ensures human rights are recognised and respected. It consults people and carries out decisions of majority. Just law is the combination of access, equality and fairness.

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Nature of justice: - equality - fairness - access Justice is a combination of equality, fairness and access.

Access - means everyone who is under the law and legal system should have equal access to the system. Equality - means that all people in society are treated the same way. Fairness - means free from bias, dishonesty or injustice.
Procedural fairness (principles of natural justice) Procedural fairness is the concept of fair treatment of the law. The principles Include: The right of a person to take part in legal proceedings that you are involved in. The right of the defendant to know what they are being accused of. The right of the defendant to have a hearing where the can present their evidence. The right to have a trial free from bias to judge on only evidence presented on court. The right to cross examine evidence. Each side is able to question the witnesses who gives evidence for the opposing side. The right of the accused (defendant) to not have previous convictions and accusations brought up in a current trial hearing.

Rule of law Eliminating arbitrary power - (arbitrary power is the use of unrestrained use of power decision making without reference to the law) No person is above the law, meaning no one can break it without facing punishment The notion of law must be notified and applied - no matter how powerful an individual's status is, there will be no exempt from the law. The law should be applied equally to everyone, treating all people with dignity and respect. Anarchy Anarchy - is when a society is left without an effective legal system. No punishment is being executed, therefore no one is obeying. Tyranny Tyranny - occurs when there is no check on the power of law makers and enforcers, therefore the power is abused.

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2. Sources of contemporary Australian Law
A. Common Law
British origins, including: - development of common law - equity, precedent - adversarial system of trial Development of Common Law The legal system operating in Australia has been a common law system, inherited from England. Common Law System means judge-made law. In the 12th century in England judges were appointed by the king to make decisions on his behalf. These decisions were usually based on accepted precedence. Equity Equity means appealing to the king. People turn to the king to have their disputes heard. They believed that justice could only be achieved through the king, as the king have the power to overrule any precedent. The king's decision is based on 2 things: - Equity (Fairness) - Conscience Other remedies equity law provides are: - Injunction - court orders you to not do something - Specific performance - court orders you to do a particular act Main principles of equity law are: - To modify a remedy in common law that is deficient, or to create a new remedy - To develop remedies for wrongs that the common law does not recognise.\ Precedent Precedent is when judges refer to previous cases to help them make a decision in a current case. Precedent is a judgment made by a court that establishes a point of law. 2 ways a precedent can be made: 1. When there isn't a precedent available or made, a judge can create a new precedent. 2. When there is uncertainty in wording or application of a legislation, the courts/judges can interpret the legislation 2 types of precedent 1. Binding precedent - lower courts are bound to follow the decision of higher courts, regardless of whether the judge believes a decision is correct. 2. Persuasive precedent - superior courts do not have to follow decisions made in lower courts. But they can use it to help make a decision. Ira.Katriel.Nunag Page 3

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When a judge gives a decision in a case, it is made of two parts:

1. 2.

Ratio Decidendi - the reason why a judge cam to a particular reason Obiter dicta - comments made by the judge regarding the conduct of the trial.

Avoiding the use of precedent (-a judge is entitled to avoid the use of precedent). Judges can avoid precedent by:

Distinguishing the case - a judge may decide that the fats of a current case are sufficiently
different to a previous case that precedent does not have to be followed.

Reversing a judgment -when a matter is appealed to a higher court, there is a possibility

that the appeal will be upheld. This mean the precedent set by the lower court, will be reversed.

Overruling a decision when a person is tried with similar offence with a higher court and
the higher court decides the ruling of the lower court was wrong, it may overturn the decision and therefore the lower court's precedent.

Disapproving a decision - The judge may refuse to consider the case because it comes from
another jurisdiction. Adversary System It includes 2 parties trying to win a case in front of an impartial, independent party (judge/magistrate) Key features of the adversary system: Impartial judge - the role of the judge is to remain impartial, independent and they must not have previous knowledge of the case. They must ensure a fair and balanced trial and ensure rules of conduct and procedure are followed. They examine the evidence brought up. Part control of proceedings - each party decide about the issue of the case and when to be brought up to trial. They control their own case and which evidence to be presented and which witness to call. Burden of proof - the person who holds the burden of proof in civil disputes is known as the Plaintiff and in criminal disputes is the prosecutor. Rules of evidence - evidence obtained illegally, business records, privileged information, prior conviction and non- professional opinion are not allowed. Equal representation - legal representation is needed to avoid disadvantage of the other party. Court hierarchy:

- jurisdiction of state and federal courts Court Hierarchy

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Their role is to interpret and settle civil and criminal disputes. 2 levels of Australian law: State and Federal. This means there are separate state and federal jurisdiction.

State and Territory Courts

LOWER COURTS Local Court

- Deals with minor criminal matters and minor civil disputes - Civil matters between $5 000 - $60 000 - A magistrate hears the case
Coroner's court

- Their role is to ensure that unexplained or suspicious deaths, fires and explosions are properly
investigated.

- Cases are handed to a higher court for trial.

Children's court - Deals with civil matters related to the care and protection of children and young people.

- Deals with criminal cases involving persons under the age of 18.
Land and environmental court - Responsible for interpreting and enforcing environmental law.

- Deals with environmental planning and offences.

INTERMEDIATE COURTS District court - Deals with more serious criminal matters from larceny (stealing) to manslaughter, sexual assault and large-scale drug importation. - Handles cases between $60 000 - $750 000 - Deals with assaults, offences relating to property (robbery) and offences involving fraud. - Cannot deal with murder, treason (government betrayal) and piracy. SUPERIOR COURTS Supreme courts - Highest court in the state - Deals with the most serious criminal and civil matters that involve larde amounts of money (no limit) - Cases are heard before a judge and jury - Has criminal jurisdiction over the most serious indictable offences. FEDERAL COURTS Federal court - Deals with civil disputes governed by federal law and summary offences - Equal to supreme court and family court - Deals with industrial matters and bankruptcy Family court - Specialises in family law - It has appellate jurisdiction Ira.Katriel.Nunag Page 5

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High Court - Highest court of Australia - Deals With cases involving the Australian constitution - Deals with appeals from the federal court, family court, state and territory supreme courts.

B. Statute Law
Role and structure of parliament Role of the Parliament The most important role of parliament is to make laws The area of law made by the parliament is called the Statute Law.

Structure of Parliament Parliaments in Australia are bicameral (2 houses) Lower House (House of Representatives) Their main role is to create and amend (change) statute laws.

Upper House (Senate) Their role is to check bills and either supports them becoming laws or rejects them and send them back to the lower house.

Legislative process In parliament the process of creating a law occurs in a structured manner. 1. Idea for law recognised- debated in cabinet 2. First reading - bill is tabled (presented) in parliament 3. Formal debate - time allocated for speeches to be made by various members outline arguments for or against the proposed law. 4. Committee stage - discussion between different parties and amendments made 5. Bill is voted on with amendments (third reading) 6. Review - same process in upper house 7. Royal assent - signed by the governor general (federal) or governor (state). This is the last stage before a Bill becomes a law. 8. Gazetting - act is published and 'proclaimed' Delegated legislation Delegated legislation is legislation made by non-parliamentary bodies. It involved less important laws that parliament does not have time to draft, consider and pass. So they delegate (passes on) the responsibility to subordinate (lower) bodies. e.g. Government departments or local councils.

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The Act that authorises a body to make a delegated legislation is called an 'enabling act'. Enabling act is also known as Principal Act. The Enabling or Principal Act determines what the lower bodies can make laws about and how much the authority goes (jurisdiction) Delegated legislations are presented to parliament and the parliament (upper or lower) have 15 days to allow or disallow it. After the timeframe, the court will check to make sure that the delegated legislation does not 'ultra vires' (goes beyond power).

C. The Constitution
What is the constitution? Constitution is a set of fundamental rules that establish how a country is governed and how laws are made. What is the role of the Constitution? The main role of the Australian Constitution is to determine what powers can be exercised by the Federal government and what powers remain with the state governments. Division of powers The division of power divides law making power between the state and commonwealth. Constitutional division of power Specific Powers Exclusive Powers All the powers of the federal government are listed under section 51 of the Constitution. Exclusive powers cover certain areas that the states can never make laws about. They are mainly associated with certain types of taxes, declare war, and where federal parliament is suited. Specific power tend to be concurrent meaning that the state can make laws upon these subject matters with one proviso (exception) - This rule is stated under section 109 and requires that the inconsistent part of the state law will be invalid and made inoperable. Distinguishes the general law-making power of the states.

Concurrent Powers

Residual

Separation of powers The separation of powers is a doctrine which separates the institutions of government into three branches: Legislature, Executive and Judiciary.

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Legislature Has the authority to make laws. Parliament (House of Representatives and Senate) Governor General and Prime Minister High Court Executive The branch of government that carries out, applies and enforced the laws. The sole adjudicator of constitutional disputes.

Judiciary

Role of the High Court Role of the High Court The High Court acts as both the highest court of appeal and the sole adjudicator of constitutional disputes (i.e. disputes between the federal and state parliaments regarding law making power.)

High court was created by the constitution and it outlines two major roles: Original Jurisdiction - the capacity to hear matters concerning the constitution. Constitutional interpretation - interpreting sections of the constitution when disputes arise regarding their meaning. Judicial Review - resolves disputes between the Federal government and State/Territory governments regarding law-making power.

Appellate Jurisdiction - the capacity to hear all legal matters on appeal. The high court has the right to hear all cases from the lower court.

D. Aboriginal and Torres Strait Islander Peoples customary laws:

Diverse nature of customary laws Customary law is Aboriginal and Torres Strait Islander law that is based on tradition, ritual and socially acceptable conduct. Aboriginal and Torres Strait Islander law is tribal and different tribe have their own variation of customary law. Similarities: Disputes are not restricted to the individuals Everyone in the communities can be involved in the resolution (negotiations or mediation) of the dispute Page 8

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Common offences between tribes: Insulting an elder Singing sacred songs in public

Spiritual basis, significance of land and water Aboriginal people dont believe in land ownership, they believe in looking after the land. Each group has distinct responsibilities governing the way that they look after their land and bodies of water. These responsibilities are tied into their traditional laws and the stories and rituals that pass on these laws and responsibilities. Failure to follow the traditional laws can be seen as a failure to show respect for that land and traditional values. Family and Kinship Kinship is a reference to family relationships and extended family ties. This feature of such societies is significant when making laws and enforcing them. The inclusion of family and social relationships into an understanding and application of the law helps non-Indigenous Australians to understand the importance of communities to Aboriginal and Torres Strait Islander peoples. Ritual and oral traditions Customary laws have been passed from generation to generation by word of mouth and through ritual. Stories, songs and dances are used to help people remember the laws of their group. Different people in the tribe know different laws. Mediation and sanctions Discussions or meetings, rather than formal judicial processes, would be held during ceremonial times. Elders and influential members of the tribe might meet with the people in conflict and use discussion and dialogue in an attempt to settle the dispute. As a result, mediation has an important role in dispute resolution. Relevance to contemporary Australian law In the past twenty years there has been greater legal recognition of Aboriginal and Torres Strait Islanders rights as the traditional landholders of Australia. Many aspects of customary law can be seen in Australian law today. Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law. Customary laws are also sometimes taken into account when an Aboriginal or Torres Strait Islander is charged with a crime.

E. International Law
Differences between domestic and international law A legal state is a jurisdiction or area that is controlled by one supreme political authority e.g. Federal Parliament in Australia. International law on the other hand is that body of law that governs the relationship between nations.

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APPLICATION Domestic - Federal and State Constitutions make laws universal - i.e. binding on all citizens. International - Binds only those nations that agree to be subject to the law. There is no binding constitution upon nations consensus based approach. CREATION Domestic - Statute through Parliaments. - Common law ratio decedendi of judges in cases that establish a precedent. - Delegated legislation is legislation made by non-parliamentary bodies. - Constitution is a set of fundamental rules that establish how a country is governed and how laws are made. - Customary law is a rule that has been established because a long-standing tradition and has been followed by many nations. International - Made in various forms and through various sources mainly through negotiation between nation states e.g. treaties, UN resolutions. ENFORCEMENT BASIS Domestic - Basis of law is that it must be obeyed and enforced. Law must be abided by or otherwise punishments (sanctions) will be imposed. International - Obedience to international nation states is based on the idea of reciprocity, which means nations obey the law because they want other nations to do the same, and legal responsibility, which means nations want to be seen as law-abiding by other nations. ENFORCEMENT PROCEDURE Domestic - Enforcement is through the police, public prosecutors and the courts. Punishments include fines and gaol and they are enforceable. International - Enforcement is through the UN, International Courts. Punishments include the use of economic and diplomatic sanctions, and the loss of legal rights and privileges. Peacekeeping forces can also be sent into areas of conflict (normally this is undertaken with hosts permission) ORGANISATION Domestic - Federal and State Parliaments, local Government (councils and the court hierarchy. International - The United Nations, Regional Organisations such as the European Union, International Courts. DISPUTE RESOLUTION Domestic - Civil and Criminal court procedures, ADR alternative dispute resolutions e.g. negotiation, mediation, arbitration. International Ira.Katriel.Nunag Page 10

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- ICJ International Court of Justice, diplomatic negotiation between countries ambassadors, mediation/conciliation when a treaty is broken.

State sovereignty State Sovereignty means nations can refuse to be bound by international law. Concept of state sovereignty All nations are fundamentally equal Each nations rulers have the right to make decisions on behalf of the nation.

3 major things that state sovereignty allows nation states to avoid: To participate in hearings of international courts and tribunals To disregard the interests of the global community without fear of consequence To participate in international law Sources, including: - international customary law - instruments (declarations and treaties) - legal decisions, writings Treaties - is an agreement between nation states that is entered into voluntarily. It is also referred to as conventions, protocols and covenants. - Each nation state agrees to be bound by the agreements conditions. They become parties to the agreement. Also each nation state is guaranteed that other parties will also abide by the conditions. - Two types: 1. Bi-lateral treaties between two nations 2. Multilateral treaties between two or more nations. Origin: United Nations and direct negotiation between states. Examples: Geneva Convention outlines the acceptable treatment of POWs. Bilateral e.g. UK and Ireland Continental bounding agreement 1988 Multilateral e.g. Antarctic Theory 1959 Effectiveness: Only works if they agree Once they have signed the treaty, they need to ratify it. Nations can withdraw from treaties or parts of it (reservation) Declaration - A non-binding agreement between nations Origin: United Nations (between participating nations) Ira.Katriel.Nunag Page 11

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Examples: UN Declaration of Human Rights Effectiveness: Fewer obligations to follow the agreement. Parties to a declaration are not intended to be bound by its conditions.

Legal Writings - Philosophers and theologians who used natural law to come up with decisions that affected nation states and their relationships. This type of law was to come from God and considered more important than decisions of the courts or practices of the nations. - Overtime these writings became less important as the role of the nation states become more significant in the creation of international law. Origin: Writings of philosophers and theologians between the 16th and 18th centuries. Examples: Some of the leading legal writers were: Vattel, Gentilis and Bynkershoek Effectiveness: Became less important and its significance declines and the growth of positive laws (laws generated by parliament and courts). Despite this they are still seen valuable in 3 ways: 1. Stimulate discussion 2. Debates on nature of international law 3. References to legal writings Customary Law - It is a rule that has been established because a long-standing tradition and has been followed by many nations. Origin: originated from long-standing traditions Examples: The law of the sea and air law are largely based on this. Effectiveness: Although there are a number of customs that remain influential in the formation of treaties, there are two major criticisms of their effectiveness: 1. Too slow to effectively work 2. Hard to find common practices that all nations are aware of Legal Decision - Disputes resolved by the international court of justice. The decision made by the judge can be used in later cases (precedent). Origin: Two main courts: 1. International Court of Justice 2. International Criminal Court Examples: Foca Rape Camps 2000 Effectiveness: The decisions of this court are growing in significance and some cases have been influential in the formation of treaties, and in the way future cases

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determine cases in this court are determined. Major criticism: - Cannot properly enforce laws as the nations can refuse to afford hearings and trials. Role of: - united Nations - Courts and tribunals - Intergovernmental organisations - non-governmental organisations United Nations - Chief organisation involved in international law Function (s) Established in 1945 and now has 192 member states (as of 2009) 3 main objectives: a. Maintain global peace and security b. Support nation states right to govern its own social, economic and political development c. Promote cooperation in resolving international problems Evaluation Despite the problems associated with enforceability, this organisation is very important in resolving disputes before they escalate into serious international incidents or wars. Even when a nation voluntarily accepts its authority, there is little it can do to enforce its rulings. Only a nation can bring a matter before this body no organisation, individual nor corporation can do this.

International Court of Justice - The principal judicial organ of the UN Function (s) To settle disputes submitted by states and to give advisory opinions on legal questions submitted by the General Assembly, Security Council or other permitted bodies. Evaluation Overtime has recognised the need to get involved in civil wars Critics argue that restructuring for it to remain relevant Has no power to ratify agreements or resolutions, relies on the political will on individual nation states This organisation has been central in protecting human rights and has developed framework to address terrorism, drug trafficking and protection of the environment Ira.Katriel.Nunag Page 13

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International Criminal Court - Principal body that deals with cases of serious international crimes committed by individuals Function (s) A permanent court that deals with cases against individuals who have been accused of the most serious of international crimes. Evaluation No one is free from prosecution by this body. This organisation determines the guilt or innocence of an individual raising international awareness of the illegality of certain behaviour and putting substantial pressure upon offenders Cannot compel individuals to face charges, and convictions will often go unenforced. War Crimes Tribunal - Specialist international courts established ad hoc (when needed) Function (s) Put on trial individuals accused of war crimes and crimes against humanity. E.g. International Criminal Tribunal for Rwanda. Intergovernmental Organisations - Organised groups of nations Function (s) Organised to pursue mutual interest in a wide variety of areas e.g. the UN and the European Union (EU) Evaluation They have their own international laws and regulations some even have their own tribunals and use sanctions for those who abide by these laws. Judgement from ones peers/neighbours are more effective. Non-governmental Organisations - Associations based on common interest that no direct connections to governments Function (s) Lobby government to take action on a wide range of important issue. Evaluation Successful and influential example is Amnesty (2.2 million members), it is politically and financially independent and has raised awareness on a number of issues e.g. violence against women These organisations are not recognised under international law and therefore have no direct legal role. Relevance to contemporary Australian law For some treaties, new legislation may be required to implement it in Australian law. For others, existing federal or state legislation is sufficient. To pass new legislation implementing a treaty, the federal government may rely on the external affairs power in s 51(xxix) of the Constitution. It may Ira.Katriel.Nunag Page 14

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also rely on other powers, for example the trade and commerce power in s 51(i) if the subject matter involves shipping. International law does not dictate the way in which Australia implements the obligations is by incorporating the actual text of the treaty provisions into domestic legislation. For example, the Space Activities Act 1998 (Cth) contains provisions from several UN treaties regulating the exploration and use of outer space. Treaties also influence Australian law in judicial review of decisions, and in the judicial interpretation of statutes.

3. Classification of law
Public law - Criminal law - Administrative law - Constitutional law Public law is the body of law dealing with relationships between individuals and the states, and with the structure and operation of the government. Criminal law is considered public law because when a person breaks a criminal law they are said to be harming all members of society. The case is brought by the police and prosecution on behalf of society. Criminal Law Crime against persons Description These crimes involved injury of threat to another person i.e. homicide and assault. Crimes against property These crimes involve theft or damage to another persons property i.e. Larceny and robbery Crimes against the state They involved crimes that damage the country and its people. There are two main types: 1. Sedition promoting hatred of a country 2. Treason bringing down the sovereign power Public order offences These crimes disrupt the activities of a society i.e. being drunk or swearing in public. Traffic offences These are the most common offences committed in society. Most offences, such as speeding, are dealt with by on-the-spot-fines. White-collar crimes This covers a wide variety of crimes that are usually committed by professional people i.e. tax evasion, fraud and computer hacking Drug offences These offences include importation, manufacture, possession, trafficking, supply and use of prohibited narcotics. Administrative law are those that relate to the operation of the government and its various departments. Administrative law exists to ensure the accountability (responsibility) of the administrative actions and decisions made by the government and its department. In Australia, administrative law is complicated by the different levels of government. An individual must be aware of which government body was responsible for the action before he or she can challenge it.

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Constitutional law is a legal document that outlines the powers and operation of the government. The Australian constitution mainly deals with the division or power and the separation of power. The High Court of Australia mainly deals with all matters relating to constitutional law in Australia. Private law (civil law) - contract law - tort law - property law Private law is the body of law governing relationships between individuals that is, individual citizens but also organisations and companies. Private law is also referred to as civil law. Contract law is a legally binding agreement between two or more parties. For a contract to be valid and enforceable there must be: 1. 2. 3. 4. An invitation An offer Consideration Acceptance

Both parties require to act fairly and not to try to deceive the other party. If both parties fail to act fairly it is called unconscionable conduct. Tort law are civil wrongs. A tort occurs when someone breaches or fails to fulfil a duty that he or she owes to someone. Different types of torts: Negligence Nuisance Trespass to land False imprisonment Defamation

Property law Anything that can be bought or sold is considered property, this includes intellectual property. There are numerous laws governing the way that property transactions are to take place and that ensure that the selling of property is done appropriately.

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Criminal and civil court procedures including legal personnel Court Procedures Nature of Procedures Criminal court procedures Two parties: Prosecutor and Defendant At the beginning of a trial, an indictment is read to the accused who may plead guilty or not guilty. Two types of hearing: Summary hearings hear cases involving summary offences and are heard and decided by a judge or magistrate. Trial by jury hears cases involving indictable offences and maybe heard and decided by a judge and a jury.

Civil court procedures Two parties: Plaintiff and Defendant Proceedings begin when the plaintiff issues a Statement of Claim. Once it has been issued, the defendant will reply issuing a Statement of Defence. If the disputes are not resolved through this process, the matter will go to trial. Role of Legal Personnel Criminal court procedures Office of the Director of Public Prosecutions (ODPP) conducts the prosecution. Prosecution is known as the Police Prosecutor when the case is heard in the Local Court. The role of the jury (12 members) is to decide if there is enough evidence to convict the defendant.

Civil court procedures The role of the judge (or jury which has 6 members) will make a ruling based on the evidence. If the decision is in favour of the plaintiff, the judge may sanction specific performances or injunctions upon the defendant.

Burden of Proof (The Responsibility of a party to prove a case in a court) Criminal court procedures Responsibility of the prosecution is to convince the jury that the crime was committed by the defendant.

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Responsibility of the defence is to disprove the prosecutions case and show innocence of their client. Civil court procedures Responsibility of the plaintiff is to prove their allegations against the defendant.

Standard of proof (refers to the level of proof required) Criminal court procedures The standard is beyond reasonable doubt no jury member can have any doubt

Civil court procedures The standard is on the balance of probabilities the plaintiff must prove that it was probable that they suffered injury or loss because of the defendant.

Legal Professionals 1. Judges and magistrates - Their role is to adjudicate in cases: to make decisions about points of law and gives instructions to the jury to make sure they understand the proceedings and evidence presented. - Judge hands down rulings and sentences whereas magistrate decides whether a person is guilty or innocent and the punishment. 2. Judges associate - Is a confidential secretary to the judge 3. Tipstaff - Supports the judge in procedural and organisational matters when court is in session. 4. Witness - Gives evidence to support the case in court. They must take the witness stand and swear an oath to tell the truth. 5. Court Reporter - Responsible for recording an accurate account of what has been said. 6. Court Officer - Organises the lists and calls witnesses into the courtroom, announces when the judge arrives or departs, communicates questions between the jurors and judge, advises when the jury is ready to return verdict and is mainly responsible for the jurors. 7. Solicitors - They provide advice to people on wider range of legal issues. They usually appear on behalf of clients in court hearings and prepare a brief for barristers. 8. Barristers - They provide legal advice on the likely outcome of the case which allows the client to decide the best course of action. - Present their clients case in court. Common and civil law systems ORIGIN Ira.Katriel.Nunag Page 18

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Common Law System Developed in England Civil law System Developed in Ancient Rome. Countries that use civil law system include: o Germany o France

SOURCE(S) OF LAW Common Law System Two sources of law is: 1. Common law 2. Statute law Common law is created and used when there are holes in statute law.

Civil law System Main source of law is statute law. No room for the development of Judge-made law.

ROLE OF COURTS Common Law System Judges do not investigate but made decisions/rulings based on the evidence presented by the plaintiff and defendant Also known as the adversarial system

Civil law System Judges are required to carry out the investigation of the case. The judges gather the evidence. Also known as the inquisitorial system.

4. Law Reform
Law reform is the process that reviews our existing laws and recommends or introduces changes to them, usually with the aim of improving justice or efficiency.

Conditions that give rise to law reform including: changing social values, new concepts of justice, new technology
1. Changing social values - Social values are standards or principles that guide people in their thinking about aspects of their society and that are underpinned by beliefs about wrong and right. Ira.Katriel.Nunag Page 19

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When the majority of people within a society hold similar views about an issue, the views can be said to reflect public morality. - The law must reflect the social values of the majority of community for it to stay relevant BUT a problem for law makers is that public morality is not static (it continues to evolve and change) - The law usually lags behind changes in social values. 2. New Concepts of Justice - When the law is unable to deliver just outcomes to individuals and the community, there may be a need for law reform. - Capital punishment previously thought to be an effective punishment (a life for a life) and deterrent for murder. However, was seen as inhumane, cruel and degrading in international human right treaties. It was also seen as an unjust punishment as many murderers can be described as one-time killers that were unlikely to reoffend and there is also the risk of killing an innocent person. As a result, capital punishment was abolished in Australia. - Youth Justice Conferences established under Young Offenders Act 1997. It is an attempt to divert young first time offenders and therefore a criminal record. It is a conference that may involve the offenders family, the victim and their family and professionals. Has support from public. Positive outcome for first time offenders. 3. New Technology - Advances in technology always put the law under pressure to remain current. New technology contributes to changes that may be either radical or subtle. - The invention of petrol powered motor vehicles required the introduction of new laws for safety, ownership and licensing and, eventually, environmental protection. - The use of DNA evidence in criminal matters has also led to law reform. The Crimes (Forensic Procedures) Act 2000 (NSW) was introduced to set guidelines for the DNA testing of criminal suspects (includes who may be tested, how long a suspects DNA can be kept, the handling of DNA) -

Agencies of reform including law reform commissions, parliamentary committees, the media, non-government organisations
1. Law Reform Commissions o Established by various parliaments to report on matters referred to them (terms of reference) for an inquiry (inquiries involve research and consultation). Essential feature is that they are independent from the parliament. They make recommendations at the end of their inquiry. Effectiveness: - The government can accept all or some of the recommendations of the commissions. - They can ignore the report all together - Political climate at the time often determines whether the commissions recommendations are enacted into law. 2. Parliamentary Committees

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o o o o o o Established by both houses of parliament. Committees scrutinise government activity, including policy and administrative decisions, and oversee the expenditure of public money. Committee may have senators or members of the House of Representatives. Joint Committee have both members and senators. Standing Committee is a committee that is permanent during the life of the body it is appointed to. Select Committee small committee appointed to a particular purpose or a onceonly task. Committees head witnesses, experts, examine evidence and come up with a conclusion. All proceedings and hearings are made available to the public. At the end of an inquiry, the committee will write and table a report.

Effectiveness: - Main role is to inquire and gather relevant information to formulate a conclusion. - Parliament can use the reports to help them decide on law reform but not necessarily use the recommendations. 3. The Media o It is in an informal means by which the need for law reform can be emphasised and promoted. It often has a strong capacity to influence the public and shape a communitys understanding about particular issues. Effectiveness: - It is a powerful way for holding governments accountable for their actions (corruptions, injustices). - Can promote law reform by reporting stories of individuals who may suffer from discrimination, persecution or financial loss due to poorly framed law. - Effectiveness will depend on how much pressure it puts on the government to change a law. 4. Non-Government Organisations o These organisations use the media to raise awareness about specific law reform issues. When social attitudes and values change, these organisations can lobby for change by focusing on specific issues, particularly those affecting monirity groups. Effectiveness: - Effectiveness varies. Some NGOs (Amnesty International and Greenpeace) have had significant impacts on law reform due to their reputation. - However, due to the independent nature of NGOs , they can often be ignored by governments.

Mechanisms of reform including courts, parliaments, United Nations, intergovernmental organisations

Mechanisms of law reform are the machinery that actually brings about changes. 1. Courts Ira.Katriel.Nunag Page 21

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The manner in which courts make law through precedent can be considered a means of law reform. Precedents made in higher courts clarify what the law should be, in cases where the law is in early stage of development or where there is a need to clarify the meaning of words contained in legislation. - The role of judges is to deal with the matter before them, and as such law reform is the courts comes about in ad hoc way. 2. Parliaments - The process of changing the law occurs through the passage of all bills. 3. United Nations 4. Intergovernmental Organisations

5. Law reform in Action

A. Native Title
Native title is the collection of individual or group rights held by indigenous people in relation to land and water. - Terra Nullius Terra Nullius is a legal tem meaning land belonging to no-one. This concept first appeared in English law in the 18th century and was based on the notion that English law was applied whenever new land was discovered. When land was declared terra nullius, this meant the British law would exist in the land. This process was termed the doctrine of reception. - The roles of the High Court and federal parliament High Courts role is to hear appeals about decisions made in other courts of Australia. It played a significant role in preparing the way for native title. A number of its decisions are considered landmarks and have been utilised and adapted by the Federal parliament in its legislative responses to recognition of native title. The parliaments role in recognising native title is enacting legislation to protect the property rights of Aboriginal and Torres Strait Islander people. - Major native title decisions and legislation Decision: Mabo vs Qld (1992) this case was important because it led to the introduction of native title legislation and gave recognition to the indigenous inhabitants of Australia. The High Court also overruled the doctrine of terra nullius, finding that Australia was indeed occupied and owned at the time of white settlement. Legislation: As a result of the Mabo decision, the federal government enacted the Native Title Act 1993 (Cth). The act: Provided recognition and protection of native title Page 22

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Established ways in which future dealings that affect native title may proceed and set standards for these dealings. Establish a mechanism for determining native title claims (Native Title Tribunal) and help parties resolve native title disputes.

Decision: The Wik peoples vs The state of Queensland (1996) was a complex case that dealt with whether pastoral (countryside) lands could be subject to native title claim. This matter was resolved by High Courts decision that pastoral leases and native title could coexist, but that if it was impossible for the rights of both parties to coexist, then the rights of the pastoralist would prevail. Legislation: In response, the federal government introduced the Native Title Amendment Act 1988 (Cth), the amendments include: It removed native title over any land that was considered privately owned before 1 January 1994. When rights coexists, the pastoralist is allowed to use land for primary production (i.e. mining and farming) without having to consult people who have native title interests. Tough tests were implemented to determine right to native title at least one of the claimants must prove a continuous link with the traditional lands.

B. A contemporary law reform issue

- Young drivers and the law Skyes Law Articles covered: The Daily Telegraph, Skye: Little princess chase crash victim mourned, January 01,2010 MACARTHUR Chronicle, NSW Parliament passes Skyes law, March 16, 2010 The Sydney Morning Herald, Teenager to be charged under Skyes law, March 25, 2010

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