LB

the legal system

Basic Legal Concepts

  • Law: A set of enforceable rules made by a sovereign power to regulate society.

  • Customs: Traditional practices passed down through generations; not legally enforceable unless adopted into law.\

  • Rules: Guidelines for conduct within specific groups (e.g. school rules); not enforceable by the state.

  • Values and Ethics: Beliefs about what is right and wrong; influence the creation of laws.

  • Just Laws: Laws that are fair, apply equally, and uphold human rights.

  • Nature of Justice: Involves fairness, equality, and access to legal processes.

  • Procedural Fairness: The right to a fair trial, including impartiality, transparency, and the right to be heard.

  • Rule of Law: Everyone is subject to the law, including lawmakers and government officials.

  • Anarchy: Absence of laws or government, leading to disorder.

  • Tyranny: Rule by a single authority with absolute power, often oppressive.

📚 Sources of Contemporary Australian Law

  • Common Law: Judge-made law developed through court decisions and precedent.

  • Statute Law: Laws made by parliament; overrides common law when both apply.

  • Constitution: The foundational legal document that outlines the structure and powers of government.

  • Delegated Legislation: Laws made by non-parliamentary bodies under authority given by parliament.

  • International Law: Treaties, conventions, and agreements that influence domestic law (e.g. human rights law).

  • Aboriginal and Torres Strait Islander Customary Law: Traditional laws based on kinship, land, and spirituality; increasingly recognised in certain legal contexts.

🧩 Classification of Law

  • Public Law: Governs relationships between individuals and the state.

    • Criminal Law: Deals with offences against society (e.g. theft, assault).

    • Administrative Law: Reviews decisions made by government agencies.

    • Constitutional Law: Concerns the powers and structure of government.

  • Private Law (Civil Law): Governs relationships between individuals.

    • Contract Law: Agreements between parties.

    • Tort Law: Civil wrongs (e.g. negligence).

    • Property Law: Ownership and use of property.

  • Criminal vs Civil Law:

  • Criminal: Prosecution by the state, penalties include imprisonment.

  • Civil: Disputes between individuals, remedies include compensation.

🔧 Law Reform

Law reform is the process of updating laws to reflect changes in society.

Conditions that give rise to law reform:

  • Changing social values (e.g. marriage equality)

  • New concepts of justice (e.g. restorative justice)

  • New technology (e.g. cybercrime, AI regulation)

  • Global influences (e.g. climate agreements)

Agencies of reform:

  • Law Reform Commissions: Independent bodies that research and recommend changes.

  • Parliamentary Committees: Investigate issues and propose reforms.

  • The Media: Raises public awareness and pressure for change.

  • NGOs: Advocate for specific legal changes (e.g. environmental laws).

Mechanisms of reform:

  • Courts: Develop common law and interpret statutes.

  • Parliament: Passes new laws and amends existing ones.

  • United Nations & International Bodies: Influence domestic law through treaties and conventions.

🧠 Law Reform in Action: Native Title

  • Terra Nullius: The false legal doctrine that Australia was "land belonging to no one" before British settlement.

  • Mabo Case (1992): Overturned terra nullius; recognised the land rights of Aboriginal and Torres Strait Islander peoples.

  • Native Title Act 1993: Created a legal framework for Indigenous Australians to claim land rights.

  • This reform reflects changing social values, recognition of historical injustice, and the influence of Indigenous advocacy.