The Legal System - Topic 1 (prelim Legal)

Define Law

A set of rules that are socially accepted guidelines and are established by a difference source of law and enforced by police and the judicial system

Distinguish between customs, rules, values and ethics

Customs are practices that develop overtime within cultures and can become law. Rules are enforceable guidelines set by and enforced by an authority and followed by a group of people. Values are held by individuals and ethics are held by a group and relate to the belief system regarding what is right, moral and correct behaviour

Characteristic of just laws and natural justice (FAIRE)

Equality (no bias), fairness, responsive, impartiality, and accessibility - the right to a fair hearing

What is meant by procedural fairness

Fairness in the procedures followed when arriving at an administrative decision, it developed from the Magna Carta 1215 and holds that justice must also be seen to be done.

Rights to procedural fairness

Right to be heard

Right to a trial free of bias

Trial based on truthful and admissible evidence

Right to appeal

What is meant by rule of law

the idea that all people, including rulers and leaders, must obey the law - foundational principles which act as a check on power

Case example PF

R v Mcarthy + S v Mcarthy (motorbike accident)

Primary principles of the rule of law

No one is above the law

The law is effectively enforced

Define Anarchy

State of chaos where rule of law has broken down

Define Tyranny

When power is held by an individual, organisation or a limited amount of people

5 main sources of law (CASIC)

Constitutional Law

Common Law

Statutes and Civil Law

ASTI customary law

International law

Origins of Common Law

England with the Magna Carta - adopted the british law during colonisation 1788, all British law was adopted by 1828

Local court jurisdiction

The court which hears summary criminal matters and conducts committal hearings. civil cases from $1 to $100K

District Court Jurisdiction

indictable offences (jail time) criminal offences - drug distribution and Civil cases - $101K to $750K

Supreme Court Jurisdiction

Serious indictable offences. Criminal - murder, drug trafficking. Civil - $750K+

High Court Jurisdiction

Exercises both original and appellate jurisdiction. Most cases are heard on appeal, however the high court will take original jurisdiction in unique cases, when requiring interpretation of the constitution and cases involving lawsuits by states.

Family Court

a court of law that handles cases involving domestic issues such as divorce, child custody, etc.

Federal Court Jurisdiction

Deals with cases involving bankruptcy, treason, taxation ect.

Coroners court

An inquest into accidental or suspicious death that is presided over by a Coroner.

Role of Parliament

To make laws that represent the changing of societies values

Legislative Process

Bill is proposed and debated in the house of representatives it is then voted on. If yes the bill moves to the senate and is debated and voted on. If yes again it goes to the governor general for its royal assent. If it is no the bill will be dropped amended or sent back unchanged, if it is still no it has a double dissolution election.

Delegated legislation

When smaller rules and laws are passed down onto specific department of councils. Acts as a check on power through its seperation

Division of powers (DECR)

Exclusive - only federal, Concurrent - state and federal but federal trumps state, Residual - only state

Divides the power to legislate between different levels of government

Separation of Powers (SLEJ)

Divides power between 3 arms of government. Legislature - MPs and senators (make law), Executive - cabinet (apply law), Judiciary -courts (enforce law)

Explain the differences between division of powers and the separation of powers

The division of powers covers the power to make legislation between the different levels of government (state and federal), While the separation of powers divides power between the 3 arms of government

Discuss the role of the High court in interpreting the constitution

Applies constitution in a contemporary context. Makes statements on how each level of government can use its powers (e.g. TAS damn case ( Cwth v Tasmania (1983) HCA 21) said in obiter dicta that the cwth can only use the external affairs power when entering legitimate international treaties or conventions)

Describe the characteristics of Aboriginal and Torres Strait Islander Peoples' customary laws

Land and water - national boundaries

Family and Kinship - Responsibilities within the community

Traditions - pass down culture reinforces customs

What is Circle sentencing

Alternative sentencing for indigenous offenders in NSW and allows the individual to be sentenced through community involvement and indigenous law rather than a traditional court

To what extent have Aboriginal and Torres Strait Islander Peoples' customary laws been integrated into Australian law

Limited. Family and kinship reflect AUS contemporary family law

Constitutional law

Laws relating to the interpretation of the Constitution, relates to the powers and operation of the government and sets out SLEJ powers also governs relations with AUS and other countries allowing to enter international treaties

What are the differences between civil and criminal court procedures?

Type of evidence including disallowed evidence, type of witness questioning and standard of proof

Common law system

Discretion is wider (judges use their own ideas), Emphasis is on law, Evidence has strict rules and is based on the adversarial system.

Civil Law system

Discretion is narrower (judges only use the relevant law), Emphasis on facts, Lax rules of evidence and is based on the inquisitorial system

Law reform

When changes or amendments are made to law to coincide with changing social values, concepts of justice, technology