Sources of contemporary Australian law common law

Adversary

two parties fighting to win a case in front of an impartial judge, each party acts as an adversary of one another

Countries that use the adversary system

* USA
* UK
* NZ
* Australia
* South Africa
* Canada
* commonwealth countries

The adversarial systems development

* medieval system for settling land disputes - coming from jousting tournaments → winner takes land → connected to British Empire

Keys features of adversary system

* Party Control of Proceedings
* Burden of Proof
* Equal Representation

Party control of proceedings

client retains power of authority - lawyer is an advocate of the client

* parties have active role in when trial takes place, if it heard before a jury/if they have legal representation

Burden of Proof

* rests on the prosecution requires proof beyond reasonable doubt of each element of the offence and disproof beyond reasonable doubt of any defence

Party that brings case before court - civil matter

Plaintiff

Role of Judge - adversary system

to be impartial, independent third party and make a decision as to which side has proved their case + disproved the other case

* dependent on evidence presented by parties
* cannot do own research

Who hold the burden of proof

***Criminal:*** State

***Civil:*** Plaintiff

Standard of proof - criminal case

beyond reasonable doubt

standard of proof - civil case

basis of probabilities

countries that inquisitorial system

* Europe
* Japan

Role of judge - inquisitorial system

* takes active role in case
* empowered to decide which witnesses will be called


* admit evidence into case
* call for outside testimony that had not been

requested by either side

Common Law Authority

made by judges in courts of law

* authority derived from doctrine of precedent

Equity

* developed as body of law to supplement the common law + correct injustices by judging each case + applying principles of fairness

Statute Law

overrides authority of common law - does not repeal common law

* common law can lay dormant + when a statute is repealing the common law that covered that area is law again

Parliament

body of elected representatives which debate proposed legislation, passes, amends/ rejects legislation + delegates legislative authority to other bodies

Parliaments are…

* bicameral (two houses of parliament)
* elected

Lower Houses

***Federal:*** House of Representatives

***State (NSW):*** Legislative Assembly

Upper Houses

***Federal:*** Senate

***State (NSW):*** Legislative Council

Executive Council

body that enables legislation to be put into operation

Comprised of:

* Governor General
* PM/Premier


* some ministers

\

King

* head of state
* gives royal assent to make a bill a law
* done through GG

Ministers

members of government responsible for particular government departments/portfolios

Cabinet

senior ministers at a federal level - (all ministers are state level)

Statute Authority

body/individual entrusted by statute with functions to be performed in the public interest/for public purposes

Delegated Authority

handed down powers, duties + authorities to another to act on one’s behalf

* must be within the power of the delegating statute
* they exist + make laws because the State government has given them the power + authority to do so

Section 51

* details what the Parliament can do

What parliament has exclusive powers on

* laws for peace, order and good government of the government
* taxation
* bounties on the production of goods
* navy and military defences
* currency
* coinage and legal tender
* marriage laws and divorce and matrimonial causes

Role of high court

* Apex Australian Court
* Final Court of appeal
* original jurisdiction
* decides on constitutional issues
* exercises judicial review

original jurisdiction

when cases have been brought before the court for the first time

appellate jurisdiction

where a case has been heard in another court is appealed to the high court

judicial review

unlimited jurisdiction to review to review governmental decisions or actions of officials

Doctrine of the separation of powers

division of power among ***legislative (parliament)***, ***executive (cabinet)*** + ***judiciary (courts)***

* people who make the laws (parliament) should be at arms length from those who have to enforce the law (executive) should be separate from those who interpret the laws

Discretionary powers

the authority, which provides an administrative agency or official with some degree of latitude in regard to choosing the most reasonable decision among several decisions in compliance with public and private interests.

legislative

parliament - make laws

executive

cabinet - administers laws

need for courts

establish rules + laws to follow/oversee maintenance of established rules

judiciary

courts - interprets the law

Local Court

* minor criminal matters
* committal hearings
* civil disputes up to $100 000

Children’s court

* cases involving children

Coroner’s court

* investigations about unexplained deaths/fires

District court

* serious criminal cases e.g. armed robbery/sexual assault
* civil cases up to $750 000
* appellate jurisdiction

supreme court

* very serious criminal cases e.g. murder/treason)
* civil cases over $750 000
* other civil matters (wills, injunctions, admiralty)
* appellate jurisdiction

land + environmental court

* environmental cases

Court of appeal

* appeals from civil cases from lower courts
* appellate jurisdiction

court of criminal appeal

* deal with appeals from criminal cases
* appellate jurisdiction

Steps in the legislative process

* bill is proposed
* first reading
* second reading
* consideration in detail/discussion
* third reading + vote
* signed by governor general

The dreaming

* allows ATSI people understand their place in traditional society and nature, connects their spiritual world of the past, present and future

how the dreaming stories are passed on through generations

* stories told through artistic expression
* oral retelling
* dance
* song
* painting

domestic law

law that operates within the boundaries of a country or nation-state

International law

system of law which regulates the behaviour of nation states towards each other

treaty

international agreement concluded between nation states in written form

declarations

* international instruments - do not differ from treats as they do not impose legally binding provisions that must be followed

How an international law get put into Australian law

* only come into effect in through statute/common

Sources of International Law

* declarations
* treaties
* international custom
* icj decisions
* resolutions of the UN
* legal writing

International Court of Nations

* judicial body that deals with disputes between nation states.
* when reaches a decision, nation states are obliged to abide by this ruling as source of international law
* can only hear disputes if nation states involves accept jurisdiction of court

International Court for Crime

* created to prosecute individuals for serious crimes concerning the worldwide community e.g. war crimes
* represents most significant courts whose judgments contribute to development of international law

International customary law

* law which has evolved from the practice + customs of states
* foundation of international law

The UN

* chief organisation involved in the promotion of the international law

Main objectives of the UN

* maintain global peace + security
* develop friendly relations between nations
* promote cooperation in solving international problems

Bodies of the UN

* general assembly
* security council
* economic + social council
* international criminal court
* international court of justice
* security general

Intergovernmental Organisations

* organised group of nation states established to pursue mutual political, economic/environmental interests

Non-government organisations

* associations based upon common interests + aims with no connection with the government
* make international contributions to areas such as world peace, disaster relief + environmental protection by informing + education the public/lobbying the government

Effectiveness of international law/State sovereignty

* depends on goodwill of nations involved
* nations have sovereign right to choose not to do so
* voluntary to join international law

Limitations of International Law

* inability to quickly provide for sanctions against those breaching it

occurs due to:

* complex nature of international law
* law parts of international law are customary
* inability of legal institutions to enforce findings

Steps in civil law claim

1. court decisions
2. issuing statement of claim produced by plaintiff + served to defendant
3. determined how defendant reacts - if no defend → default judgement, if defend → file notice of defence
4. where plaintiff + defendant can defend themselves
5. final stage where magistrate/judge decide issues

Criminal Law

* deals with acts/omissions committed against the whole community - punishments are prescribed by the state

constitutional law

* deals with rules governing the executive, legislative + judicial functions of the government - commonwealth/federal constitution

administrative law

* deals with rules which govern the operation of the government, it various departments+ decisions that implement their statutory authority

Public Law

body of law that deals with relationships between individuals + state/ with the powers + obligations of government/citizens

* criminal
* constitutional
* administrative

contract law

* deals with recognition of agreement of a contract + actions to enforce it

tort law

* deals with situations in which someone has done something to interfere with the rights of someone else
* occurs when someone breaches/fails to fulfil duty that he/she owes to someone

property law

* governs relations involving things + interests that can be owned + that can have commercial value
* can include tangible/intangible objects

Private law

* refers to body of law dealing with relationships between private individuals/private individuals + private institutions

Criminal Law procedures

1. arrest
2. bail/custody
3. remand
4. committal hearing
5. hearing
6. sentencing
7. appeal

Reasons why law changes

* society changes
* change of government
* changing beliefs + values
* new concepts of justice

Formal Law reform bodies

* independent statutory bodies
* state + federal levels
* AUS/NSW law reform committees

Role of law reform body

* set up to advise the government on potential changes to the law independent from the government
* make inquiries to the legal system
* improve access to justice - remove obsolete laws

Methods of consultation a royal commission uses

* major government inquiry into matters that are usually of great public concern - look into causes, if anyone has done anything wrong, deliver report to the government, consult widely, research + make recommendations

Who heads a royal commission

* judge

Pressure group

* when a group of people campaign together to change the law
* groups of people who have an interest in a certain topic + get together to advance the certain interest

Tools used by informal bodies to pressure for change

* public protests
* letters to editors of newspapers
* see government officials

Groups who are responsible for legal change

* elected parliament
* courts

Test Case

* rights that aren’t being upheld that are taken to court to ask the judge to change their interpretation of the law

How courts change the law

* judges comment on the law + convince parliament to change it

How parliament changes a law

* change laws to keep up with international standards + agreements
* private member’s bill

Factors that delay legal change

* costly
* time consuming
* tend to only legislate on popular matters
* opposing opinions
* only works if a substantial part of public agrees
* needs to be carefully considered
* governments limited in their power to change law

terra nullius

* land belonging to no one
* the english did not consider that the Aboriginal + Torres Strait Islanders had a culture/sophisticated society due to them not
* farm the land
* have a recognisable legal system
* have permanent habitations

conquered territories

* area overtaken by Britain that was considered to have contained a recognised indigenous culture + society

settled territory

* area overtaken by Britain that was considered to be uninhabited + not considered to have a recognisable indigenous culture/society

Native Title

* term used by high court to describe common law rights + interest of ATSI of land in regards to their traditional land, law + customs

Major events in the history of the land rights movement

* the gove land rights case (1971)
* tent embassy (1972)
* woodward royal commission (1973)
* Aboriginal land rights act (1976) (NT)
* Uluru (1985)
* Mabo decision (1992)
* Native Title Act (1993)
* Wik Decision (1996)
* John Howard’s ten point plan (1996)

types of rights

* human rights
* social + economic rights
* civil + political rights

civil + political rights

* rights needed to be able to participate in society as free + active citizens
* freedom of movement + assembly
* freedom of speech
* right to protest

social + economic rights

* rights we need in order to live with dignity


* housing
* healthcare
* sanitation

human rights

* basic rights + freedoms that belong to every person in the world, from birth until death - can never be taken away
* life
* food
* work
* liberty

state police

* responsible for upholding the law
* preventing + investigating crime
* providing community protection
* manage emergency incidents
* enforce road + traffic rules
* deal with missing persons

AFP

* responsible for enforcing federal law + criminal law where crimes cross state boundaries
* prevention + detection of crimes within Australia against Commonwealth law
* may also deal with Australians overseas

Australian Border Force

* works by facilitating the lawful passage of people + goods, investigations, compliance + enforce in relation to illicit goods + immigration malpractice, onshore detention, removals + support to regional processing arrangements