LEGAL SYSTEM

MEANING OF LAW

• a set of rules for a community which are officially recognised and is binding and enforceable.

WHAT IS A CUSTOM

• a custom is a collective habit or traditions that has developed in a society over a period of time.

WHAT IS A CUSTOMARY LAW

• the established patterns of behaviour that are accepted within a [particular social or commercial setting that can be enforced.

3 TYPES OF CUSTOMARY LAWS THAT INFLUENCE AUS

• ATSI CUSTOMARY LAW

• ENGLISH COMMON LAW

• INTERNATIONAL CUSTOMARY LAW

RULES

• regulations or principles governing procedure or controlling conduct specific to a community

VALUES

• principles, standards or qualities considered worthwhile or desirable within society

ETHICS

• rules or standards governing the conduct of a person or the members of a profession (right or wrong)

• based on individual preference

CHARACTERISTICS OF JUST LAWS

• ensuring that equal outcomes are achieved for those involved

• decisions of the majority are carried out, while ensuring the minority has the opportunity to put their point of view

CHARACTERISTICS OF JUST LAWS (EXAMPLE)

• Marriage Amendment (Definition and Religious Freedom) Act 2017 (Cth)

→ this is a just law because it is fair to the majority that agree to the same sex marriage. However, it is also fair to the minority as it allows religious freedom to not take part in the same sex marriage ceremonies.

NATURE OF JUSTICE

ensures that all citizens have equal access to the law and the law provides equity and fairness to all.

EQUALITY

• state or quality of being equal, especially in status, rights or opportunities

FAIRNESS

• impartial and just treatment or behaviour without favouritism or discrimination

ACCESS

• right or opportunity to make use of something and everyone is able to use resources, procedures and institutions available throughout the legal system.

WHAT IS PROCEDURAL FAIRNESS

• the idea that there must be fairness in the processes that resolve disputes

2 MAIN PRINCIPLES OF NATURAL JUSTICE

1. the right to be heard (fair hearing)

2. The right to have a decision made by an unbiased decision maker even an appearance of bias is enough to constitute a breach of natural justice.

WHY IS PROCEDURAL FAIRNESS IMPORTANT?

• Because it ensures that everyone is treated fairly in the court without suspicions of bias behaviour

CASE STUDY ON PROCEDURAL FAIRNESS → R v Sussex Justice; ex parte McCarthy (1924) (UK)

• McCarthy was convicted of dangerous driving.

• The magistrates’ clerk was also a solicitor for the civil case against McCarthy.

• The clerk gave no advice, but his involvement raised concerns of bias.

• Conviction was overturned due to appearance of unfairness.

• Principle: “Justice should not only be done, but should be seen to be done.”

DEFINITION OF RULE OF LAW

• The principle that nobody is above the law, including those who make the law

WHY IS THE RULE OF LAW IMPORTANT?

because the government must act according to publicly known laws and fair procedures

CASE STUDY ON RULE OF LAW → ADAM MARSHALL

“Nsw Northern Tablehands MP Adam Marshall loses license for drink driving (ABC News, 2014)”

• nsw mp (member of parliament)pulled over for drink driving (BAC 0.112, legal limit 0.05)

• received 9 month license suspension + 2000 fine

ANARCHY

the absence of laws and government resulting in a state of chaos and disorder usually during a revolution or natural disorder.

TYRANNY

• rules by a single leader holding absolute power in a state