Year 11 Legal Studies

Basic Legal Notions

Judicial discretion is a term used in reference to the set maximum sentence that a person may receive but which may not be upheld upon an individual judges decision and circumstances of the case. For example in the case of v Sonia !c!ahon. !rs !c!ahon was charged and found guilty of drin" driving though this was not placed on her record and she received a penalty of #1$$$ and a 1% month good behaviour bond &n cases of murder you must prove both !ens ea 'motivation( and )ctus eus 'act( *here are several things that are considered in sentencing including the circumstances of the case and aggravating or mitigating circumstances of the offender Law is described as the principles and regulations coming from a government and applicable to people in society. *hey can be in the form of legislation or of policies recognised and enforced by judicial decisions. Anarchy+ a state of lawlessness Customs: unwritten but generally accepted rules or practices of a society which 'in western countries( are not enforceable by law. Rules+ regulations or re,uirements- usually written- that apply only in particular situations and may not be enforceable under the law Fairness+ where someone is treated reasonably given all of the circumstances of the situation Equality and Justice+ a situation where everyone is treated the same as everyone else Values+ a personal belief system Ethics+ a code of conduct. moral principles

Characteristics of Law
&t is enforceable/+ &f there are no conse,uences for breeches of the law then the law is unwor"able as it is fear of punishment that "eeps people within the confines of the law &t is binding on the community/+ &f laws exempt some people then no0one could feel safe and the law becomes unwor"able &t is in the publics interest+ members of society must feel the law is there to serve and protect them &t is discoverable+ people can only obey a law if they "now- or can find out about- that law &t is accepted by the community+ 1eople will not obey laws they cannot agree with or they find morally abhorrent &t reflects community morality+ if it does not reflect communal beliefs and attitudes then the law will not be upheld

1eople may not have the same regard for the law due to+ Self interest 2ecause of moral- religious or political beliefs e.g. moralists and church groups would be opposed to pro0abortion laws 0 2ecause of factors such as age- socio0economic status and respect for the law 1eople will also have different views regarding the way laws are made+ 0 )narchists will oppose the ma"ing of any law 0 3ommunists and fascists would oppose laws made by democratically elected representatives 0 4xtreme democrats would want all laws made by the whole of the adult population 0 0

What is the relationship between rules and laws?

Laws 0 Legal rules 0 )pply to whole community 0 4nforceable at law 0 4g. )cts of parliament- judicial rulings- local government by0laws Formal Rules 0 ules that are written down 0 )pply to organisations and their members 0 5nly enforceable within organisation concerned 0 6isputes can be dealt with in civil court 0 4g. ules of club membership- 7 L game rules- 7 !) charter Informal Rules 0 7ot necessarily written 0 )pply to given situations and people affected by them 0 3annot be enforced at law 0 4g. 1arental rules and customs.

What is the relationship between customs and laws?

3ustoms are traditional rules or behaviours practiced within8accepted by society 7ot legally enforceable in western civilisations 3an be turned into law by acts of federal of state parliament which are then legally enforceable. For example- concession tic"et holders must surrender their seats to adults 0 &n these cases laws embodying customs can conflict with customs of minority groups for example- arranged marriages &n indigenous societies 'traditional aboriginal or )frican society( they are regarded as law

Whats the relationship between laws, rules and customs?

*hey are all types of rules *hey can all be made into laws *hey all regulate human behaviour

*hey all carry conse,uences when they are breeched

Sources of Law
Sources of modern )ustralian law are+ 0 2ritish law+ common law- use of precedent- statute law and delegated legislation 0 )ustralian law+ the constitution 0 )boriginal law+ some recognition of traditional beliefs and practices 0 &nternational law+ treaties- 97 resolutions- and conventions. *hese may then become domestic if legislated by )ustralian parliament ) comparison of aboriginal and contemporary )ustralian law regarding+ 0 Land ownership+ For aboriginals land ownership is collective and in trust for future generations. For contemporary )ustralians individual ownership of land is allowed 0 Significance of land+ For aboriginals the land had spiritual significance as a part of the religious and cultural world. For contemporary )ustralians land is non0spiritual- a resource to be used 0 3ustomary laws+ for aboriginal:s laws are very spiritual based on religious beliefs. For contemporary )ustralians customary laws are more secular 0 ecording of law+ For aboriginals is orally. For contemporary )ustralians of written 0 Law reform+ For aboriginals laws are easy to change unless fundamental and are flexible. For contemporary )ustralians laws are inflexible and difficult to change. 0 ole of property+ For aboriginal:s property is privately owned but collective use is expected- no valuable property. For contemporary )ustralians there is individual ownership and much litigation- theft of valuable property is a problem 0 Scale of society+ For aboriginals- small bands and tribes so laws easy to change. For contemporary )ustralians large- complex and interdependent communities so laws difficult to change. 0 ole of the family+ For aboriginals extended family and "inship ties are important. For contemporary )ustralians there are smaller nuclear units 0 ole of ritual+ For aboriginals are ,uite important and story telling is a means of reinforcing and understanding customs. For contemporary )ustralians also important in that judges still wear wigs and formal court procedure is followed. 0 ole of mediation and conciliation+ For aboriginal:s elders were often involved in mediating between conflicting parties. For contemporary )ustralians this is less important and there is an emphasis on litigation. 0 4nforcement and sanction+ For aboriginals based of retributiondeterrence and rehabilitation 'reintegration(. For contemporary )ustralians is similar in that it is based on deterrence- revenge and to a lesser extent rehabilitation. &n other areas of )ustralian law aboriginality may be ta"en into account including+

0 0 0 0 0 0 0

Bail Act 1 !" allowing judges to consider an aboriginals attachment to tribal customs8family Interro#ation 3ourts can reject confessions $efences aboriginal heritage may become relevant if considering a defence such as provocation Custody matters relatives or legal representatives should be contacted if having trouble in custody due to culture clashes %ational &ar's and (ildlife Act 1 !) 3an hunt protected species of animals Anti*discrimination Act +%,( 1 !!-. Racial $iscrimination Act +1 !/- aborigines may be compensated if discriminated against on racial grounds Children0s and 1oun# 2ersons Care and &rotection Act +1 !aboriginal children being adopted should be adopted to aboriginal8 *orres strait islander families unless said family is unfit.

Advantages and disadvantages of integration of aboriginal law into contemporar Australian law!
)dvantages+ reduces recidivism amongst aboriginals- encourages aboriginal social cohesion- reduces deaths in custody- reduces alienation of aboriginalsaboriginals punished by own community. 0 5ne means of achieving this is through circle sentencing whereby elder aboriginals in a community in conjunction with judges of courts may determine a fitting punishment. ;as been employed in 7owra- 6ubbo and 2rewarrina and reduced repeat offences by more than <$=. &n 6ubbo only > of ?$ offenders have been bac" in court 6isadvantages+ sends mixed messages- discriminatory as there is favoured treatment of one ethnic group- flood gate effect- traditional punishments can breech contemporary law e.g. spearing 0 3an be seen as trivialising the crime in regard to the victim. For example in the case of one man in the 7orthern *erritory in %$$? who raped a young girl but then declared that it was customary under aboriginal law- the chief justice gave a suspended sentence of one month in jail when- had the man been 4uropean- he would have received a much more severe and arguably more fitting punishment &n the case of v @al"er '7*- 1<<A( @ilson @al"er committed murder and was supposed to receive a spearing in the leg under the system of paybac" in traditional aboriginal law- under )ustralian law wal"er only received a suspended sentence- neither punishment was executed as the family wanted him punished under white law- chief justice did not inform family- had been left too long- and chief justice did not follow through to see that sentence was carried out.

"he Common Law S stem

System of law used in countries with 2ritish heritage+ 3anada- 9S)- 7B 9nder this system laws made by courts 'common law( and by parliament 'statute law( Judge0made law has the same force as statute law but can be overridden by statute law or rulings of higher courts

9nder this system judges have discretion in interpreting statutes or ma"ing laws that are not covered by statutes System of justice used is the adversarial system where a judge8jury are independent arbitrators who ma"e a ruling after listening to arguments put to them by opposing parties

Common law, as a t pe of law under the Common Law S stem

!ade by courts 3an interpret existing statutes or ma"e laws where no statute exists !ay ma"e this type of law when+ ruling on admissibility of evidenceobjections raised by parties during examination or cross examination of witnesses- giving directions to a jury- sentencing convicted persons ulings are divided into two parts+ 0 atio decidendi+ reasoning for decision and is binding on similar cases in the same or lower jurisdiction 0 5biter 6icta+ non0binding comment ulings have the same force as statute unless overruled by parliament of the decision of a higher court 2ased on the principle of precedent ules of precedent+ 0 6ecisions made by higher courts are binding on lower courts 0 6ecisions made in lower courts are persuasive in higher courts 0 6ecisions made on same level of court is binding 0 6ecisions made in other states or countries are persuasive only Judges can avoid being bound by precedent by distinguishing between facts that is showing dissimilarity- by reinterpreting the precedent judgement- by overruling a precedent decision by declaring it wrong at law. *his could however be overturned by a higher court on appeal.

Statute law as a t pe of law under the Common Law S stem

!ade by 1arliament. 2ill 'proposed act( must be passed by both houses of state or federal parliament in same form. 5nce passed must receive royal assent from governor0 general 'federal parliament( or general 'state parliament( *he government proposes most statute law. Some by bac"benchers and some by opposition. !ost 2ills are voted on along party lines however in controversial moral issues !1s may be given a conscience vote e.g. the Family Law )ct and anti0 euthanasia legislation 2ills go through four stages in 1arliament+ 0 First reading+ introduced 0 Second reading+ general principles of bill debated 0 3ommittee of the whole+ specifics of bill debated and amendments can be moved 0 *hird reading+ final reading before it goes to the other house of parliament 3ouses of &arliament: 0 #ouse of representatives!

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

C;ouse of DovernmentE Dovernments formed by the party8coalition with a majority here Life of three years from first sitting !embers ta"en from electorates with approx e,ual number of voters 1! sits in this house- as does treasurer 3haired by spea"er who only votes if tied vote 3an originate any legislation &73L96&7D appropriation bills 3an amend8reject8fail to pass legislation eceives petitions from voters Dovernments re,uired to resign if they loose a no0confidence vote 'e.g.1<>1( or important legislation is not passed 'e.g.1<%<( Senate! CStates ;ouseE established to protect the interests of smaller staters 5nly F of senate stands for election every A years unless a double dissolution is called States vote as one electorate and are represented e,ually Senators can be government ministers 3haired by 1resident of Senate who votes on all matters 3an originate any legislation 4G341* appropriation bills C;ouse of reviewE can amend8pass8reject legislation that originates in house of reps. eceives petitions from voters Dovernment not bound by outcomes of senate motions including no0 confidence motions $overnor $eneral! ;ead of state- signs into laws passed by both parliaments 7ormally '728 1<H?( acts on advice of 1!

What is the relationship between government and parliament?

Follows the 2ritish system of government- that is the @estminster or 1arliamentary 6emocracy system 9nder this system government is formed by parliament and is dependant on the lower house of parliament for its right to govern )ll government ministers must be of become within A months- members of parliament *o form government a party of coalition must have the majority in the lower house Dovernments are accountable for their actions through+ 0 Iuestion time+ !1s ,uiJ ministers on performance 0 9rgency debates+ matters of national concern brought to attention of government 0 1arliamentary committees+ review proposed government legislation and interview ministers8heads of government departments on performance 0 !inisters are expected to resign if they "nowingly mislead parliament 0 Kotes of no confidence in the lower house

%elegated Legislation!

6elegated legislation is that made by bodies created by and subordinate to parliament !ade in the form of regulations- ordinances- rules and by0laws+ Re#ulations: 0 1ower given to ministers under )ct of parliament to determine starting dates for legislation 0 )voids need for trivial legislation to go before parliament 0 !ust be tabled in parliament and can be debated but not amended unless law itself changed in parliament 4rdinances: 0 Laws made for governance of overseas territories Rules: 0 Laws regulating how government departments and agencies are run 0 7ormally responsibility of head of department8agency By*laws: 0 !ade by local councils under local government )ct and other legislation 0 egulates local matters such as garbage collection 6elegated legislation is made as parliament does not have time to ma"e such a large amount of laws Localised bodies have expertise that 1arliament may not therefore are best people to legislate affecting their institution 1arliament has to pass an 4nabling )ct before a particular body is authorises to ma"e law on behalf of 1arliament. For example+ 7S@ Local Dovernment )ct authorises councils to ma"e laws regarding local streets- par"s- garbage collection etc and the !ac,uarie 9niversity )ct 1<LH '7S@( authorises the university senate to ma"e by0laws concerning the operation of the university. 3hec"s in place on delegated legislation+ 0 !ust be tabled in parliament within 1? days of being passed 0 3an be disallowed within 1? days of being tabled 0 3ourts can rule delegated legislation ultra vires i.e. beyond the power of that body to ma"e legislation 0 )dministrative appeals tribunals at state and federal levels can overturn council and government department decisions 0 5mbudsman can ma"e recommendations when dealing with complaints concerning delegated legislation 0 Limits placed within the enabling )ct itself

Criminal law and Civil Law

Criminal Law Ci5il Law

$efinition

4utcomes

Initiator of &roceedin#s Burden of &roof ,tandard of &roof

45erla22in#

)ct or omission against the entire community punishable by sanctions against the offender 1unishment instituted by state- offender is charged and may receive jail term or fine 1olice 1rosecution C2eyond reasonable doubtE a <?= surety as a rule though cannot be ,uantified 3an be charged under both criminal and civil law for some crimes e.g. can be

2ody of law relating to private individuals and8or institutions as opposed to criminal law 3ompensation received and monetary of e,uivalent payment awarded to plaintiff 1laintiff M individual wronged 1laintiff C2alance of 1robabilitiesE if more li"ely that breached law than not then convicted 3harged for criminal offence assault and civil offence battery for same crime

&nternational Law!
Doverns relationships between countries. )lso called sovereign states as have control over own affairs $omestic law operates within one country *o be recognised as a Nstate: must have+ permanent population- defined territory- effective government- ability to enter international negotiations Section ?1 sub0section %< M the external affairs power M outlines the responsibility of the federal government regarding relations with other countries ,ources of international law: 0 *reaties 'international agreement between states in written form( e.g. the multilateral treaty )7B9S treaty 0 3an cover declarations and be used to establish international agreements and organisations 0 3onventions and declarations are forms of treaty 0 3onventions are agreed to and proclaimed by many nationsO 0 6eclarations are a resolution of the 97 e.g. Stoc"holm 6eclaration Customary international law: principles and procedures developed through consistent practice by states &nternational treaties must be J9S 35D47S i.e. conform with principles of international law that cannot be contradicted by any nation Legal decisions of the 97 and international court of justice become part of international customary law Legal writings can influence international law ma"ing e.g. human rights

&nternational 'rganisations!
6nited %ations formed to oversee world affairs and since the 1<<$s has become involved in nations domestic affairs if a threat to international peace e.g. wanda 1<<> 9nited 7ations made up of+ 0 4xecutive arm+ Security council that ma"es decisions between assembly meetings- can overturn decisions CvetoE of general assembly. Secretariat is administrative and responsible for the day0to0day administrations of the 97

Legislature+ general assembly that votes on resolutions and ma"es declarations and conventions 0 Judiciary+ &nternational court of justice 'disputes between countries(&nternational criminal court 'war crimes(. 2oth are located in 2elgium as it is a neutral nation. International court of 7ustice: judicial organ. ;as 1? judges elected by general assembly and security council that serve a nine year term. 6eals with cases between nations. &n practice are not enforceable though are supposed to be enforceable on signatories to the &3J International 8o5ernment 4r#anisations: 9sually subsidiaries of the 97. 0 974S35 '97 4ducational- Social and 3ultural 5rganisation( 3ontribute to international peace and security through technical support to states- exchange of specialised "nowledge etc Re#ional 4r#anisations: For example- 7)*5 '7orth )tlantic *reaty 5rganisation( which is a defensive and security alliance including most 4uropean nations and the 9S) to promote democratic forms of government and functioning as a mutual defence pact. %on*#o5ernment 4r#anisations: )re private international organisations. 0 )mnesty international concerned solely with the impartial protection of human rights campaigning in regard to children:s welfare- women:s rights- lesbian and gay rights etc 0 ed 3ross concerned with providing health and care and promoting humanitarianism. )cts in providing assistance to refugees and victims of natural disasters- assistance for victims of war and 15@s.

"he Constitutional S stem in Australia

)s )ustralia is a federation consisting of federal and state parliaments a written pact was necessary to regulate relations between the two levels of government *he )ustralian constitution is an impartial system of law in that it shares power between+ 0 *he commonwealth and the states by determining division of power as to who ma"es what laws 0 *he executive- legislature and judiciary regarding the separation of power $i5ision of 2ower: 0 3ommonwealth+ 1ower derived from the 3ommonwealth of )ustralia 3onstitution )ct 1<$$ '2ritain(. 1rovides 1arliament with exclusive power e.g. sections ?% and 11>- and concurrent power e.g. section ?1 to ma"e laws 0 States+ 1ower derived from relevant state 3onstitution )ct 'e.g. 7S@ 3onstitution )ct 1<$%(. 3an ma"e laws in areas not reserved exclusively for commonwealth parliament. 3ommonwealth law prevails if there are inconsistencies 0 *erritories+ Land ac,uired and administered by commonwealth government. 4stablished by act of federal parliament. @here self0 governing e.g. 7* and )3* the federal parliament determines what

powers the territorial parliament may exercise. Federal parliament can overturn territorial laws 'e.g. 7* euthanasia laws( ,e2aration of &ower: 0 *he legislature 'parliament(+ 4stablished under section one of the constitution and empowered by chapter one of that constitution 'sections 10L$( to ma"e laws 0 *he executive 'ministers and government departments(+ empowered in chapter two 'sections L10H$( to administer laws 0 *he judiciary 'courts(+ 4mpowered under chapter three 'sections H10 P$( to interpret and apply the law 3onstitution sets out what the 3ommonwealth can and cant do within and outside )ustralia ole of interpreting the constitution given to the high courts

What is a constitution?
3onstitution is a law that sets out how a country 'or self governing part of a country( is governed. )lso regulates relations between national and sub national governments 5ur constitution+ created a national government and parliament- determined the powers of the national parliament- gave national parliament power to create high court to adjudicate on disputes between commonwealth and state 4ach state has its own state constitution ,ections of the constitution: 0 ?1+ !ost powers exercised by commonwealth e.g. immigrationexternal affairs and old age pensions 0 <%+ freedom of customs- trade- commerce and contact within )ustralia and between states 0 <L+ )llows commonwealth to give grants upon state meeting commonwealth re,uirements 0 1$<+ where commonwealth has legislative power if state or federal laws are inconsistent then that part of the law is invalid 0 11L+ allows freedom of religion 0 1%P+ constitution can be changed by referenda passed by a majority of people in a majority of states. Since 1<$1 commonwealth power has grown dramatically due to+ 0 ;igh court interpretation+ broader interpretation of constitution particularly with regard to external affairs power than was intended 0 eferenda+ Limited effect as not much referenda ,uestions are passed though notably in 1<>L when commonwealth ac,uired control over social security 0 3ommonwealth use of its existing powers e.g. section ?1 sub0section %$ the corporations power to change from conciliation and arbitration to collective bargaining 0 Section <L CtiedE grants+ used to get states to comply with !edicare though 3ommonwealth has no power in this area 0 3ommonwealth0state agreements+ result in states passing complimentary legislation so specific laws across )ustralia are uniform e.g. gun laws

*ransfer of power from state to commonwealth e.g. in the 1<A$s to give commonwealth power over civil aviation

"he Australian #igh court

4stablished under section H1 of constitution 4stablished by legislation in 1<$A 3urrently made up of H judges that retire at H$ Judges appointed by federal government as vacancies arise Role of 3i#h Court: 0 5riginal Judiciary+ full bench hears all cases involving constitutional matters. &nterprets constitution and rules according to majority decision of judges. ;ears disputes between states or between the states and the commonwealth 0 )ppellate Jurisdiction+ final court of appeal. 6eals with cases from supreme courts and federal courts. 6ecisions made by majority of judges. 0 Judicial review+ power to review all legislation passed by federal parliament in terms of parliaments right to ma"e that law and whether proper procedure was followed. 3an stri"e down invalid legislation

"he #igh Court and the e(ternal affairs power!

!ost politically important role is interpretation of constitution !odern times have been interpreted in broader manner- particularly regarding the external affairs power. &n 1<$$ when the constitution became law there was no international body li"e the 97 to ma"e international law. &nternational law tended to consist of bi lateral and multilateral treaties between individual states. 2y 1<H$s 97 played important role in ma"ing of international law and )ustralia has a dilemma M could the )ustralian gov. be a party to international law in areas reserved for the statesQ &f not then )ustralia may be a signatory but could not legislate an international agreement into domestic law ;igh 3ourt answered this ,uestion in 1<HL 7S@ v 3ommonwealth. 3ourt upheld the Federal Seas and Submerged Lands )ct '1<H?( and rules that external affairs was anything outside )ustralia and as 3ommonwealth had power over external affairs could legislate domestically to ma"e laws regarding this power 1<PA 3ommonwealth v *asmania CFran"lin 6am 3aseE the high court ruled unanimously that the commonwealth could legislate to uphold8 give effect to international treaties even if domestically it were an area reserved for state. &n the Fran"lin 6am 3ase the commonwealth argued that under Section ?1- %L it had the right to legislate to protect aboriginal heritage in the area. under section ?1- %< that it had the right to give effect to an international treaty it was a signatory to and finally using the implied power to ma"e laws on national concern. 3ommonwealth also passed new regulations under the 7ational 1ar"s and wildlife 3onservation )ct 1<H? and passed the @orld ;eritage 1roperties 3onservation )ct 1<PA Roowarta v 2jel"e 1etersen ';3- 1<P%( )ction challenged the validity of the acial 6iscrimination )ct 1<H? as it applied to Iueensland- the main

argument of the Iueensland government being that it was not bound by provisions as act was ultra vires the 3ommonwealths power and thus invalid. )lternatively- the commonwealth argued that the )ct was passed to implement )ustralia:s international obligations under the external affairs power 'sect ?1%<(. ) majority of the high court found in favour of the 3ommonwealth. Kictoria v 3ommonwealth ';3- 1<<L( ;igh court again reaffirmed that 3ommonwealth has the power to implement international conventions to which it is a signatory even if it involves the intrusion of 3ommonwealth law on previously state law. &n this case the 3ommonwealth was legislating in the &ndustrial elations )ct under the &nternational 3ovenant on 4conomic- Social and 3ultural ights to protect stri"ing wor"ers from being sued.

&ssue! &s the constitutional division of power between the Commonwealth and the states relevant to the )*st centur ?
Federal Dovernment originally intended to have power in relation to issues of national importance and as such the national governments hands have largely been tied in terms of extending its power as referenda has proven almost impossible to extend powers. 1owers could be extended without changes to the constitution through ;igh 3ourt interpretation 'particularly of section ?1 SxxixO(- tied grants and commonwealth0state agreements. 7ow actively involved in areas such as education- roads and health that were traditionally state concerns )lthough actively involved the power is exercised concurrently which is inefficient- costly and wasteful of resources as tax0payers money is spent on duplicating resources. 3ritics argue a unitary system where all legislative power is vested in the national government and delegated legislative power is vested in large regional governments should be adopted. 5ur constitution has not "ept pace with changes in domestic and international affairs and the only way a greater balance of power has been achieved between state and federal governments has been through ad hoc methods such as high court rulings- transfer of powers and tied grants. *hese have failed to address the real issue which is the need for constitutional change to operate with greater efficiency and until those issues are addressed the relevance of the division of power remains ,uestionable.