Legal Studies Notes

Basic Legal Concepts

  • Meaning of Law: Laws are guidelines for regulating behavior, applicable to all and enforceable by courts.
    • Examples: Murder, defamation, manslaughter.
    • Federal and State Laws:
      • Crimes Act 1900 (NSW)
      • Marriage Act 1961 (Cth)
  • Customs, Rules, and Laws: Understanding the distinctions.
    • Customs: Traditional behaviors, not enforced (e.g., shaking hands).
    • Rules: Guidelines for specific groups, not court-enforced (e.g., school rules).
    • 3 Distinctions:
      1. Enforcement: Laws are court-enforced, rules are not, customs not enforced at all.
      2. Scope: Laws apply to all, rules to specific groups.
      3. Variability: Customs vary between countries, laws and rules often change.

Values and Ethics

  • Values: Beliefs held important by individuals/groups.
    • Corresponding Laws:
      • Work-Life Balance: Fair Work Act 2009 (Cth)
      • Family: Marriage Act 1961 (Cth), Family Law Act 1975 (Cth)
      • Education: Education Act 1990 (NSW)
      • Environment
  • Ethics: Morally right behaviors (e.g., fair assignment marking).

Characteristics of Just Laws

  1. Equality: Laws must treat people equally.
  2. Prospective: Laws apply to future, not past (e.g., R v Loveridge).
  3. Greatest Good: Laws must benefit the most people.
  4. Remedies: Laws must provide remedies (e.g., murder penalty).
  5. Changeable: Laws must be able to be changed.
  6. Known: Laws must be known.
  7. Enforceable: Laws must be capable of being enforced.

Nature of Justice

  • What is Justice?: Equal treatment, outcome, and opportunity before courts.
  • Equality: Equal treatment by law; however, punishments/compensation may vary.
  • Fairness: Justice in everyday life (e.g., equal punishment/treatment).
  • Access: Ability to use the legal system; key issues:
    • Cost (e.g., divorce court: 10,000 - 20,000).
    • Time: "Justice delayed is justice denied".
    • Procedures
    • Knowledge

Procedural Fairness (Principles of Natural Justice)

  • Procedural Fairness: Fairness in dispute resolution; 2 rules:
    1. Hearing Rule: Right to be heard.
      • Right to be present in court.
      • Right to legal representation.
      • Right to presumption of innocence.
    2. Bias Rule: Impartial decision maker.
      • Judges are impartial.
      • Judges cannot know the accused/plaintiff/defendant.

The Rule of Law

  • The Rule of Law: Equality before the law; no one is above the law.
  • Examples:
    • R v White (2025): Police officer charged with manslaughter after using a taser on Clare Nowland.
    • Barry O'Farrell: NSW Premier resigned over ICAC investigation.
  • Exception: Defamation in the political arena.

Anarchy

  • Anarchy: Absence of law and order; lawlessness.
  • Examples:
    • Storming of the Capitol Building in the USA.
    • Cronulla Riots (2005).
    • New Orleans after Hurricane Katrina.

Tyranny

  • Tyranny: Abuse of power by government/leader; oppression.
  • Examples:
    • Putin in Russia
    • Hitler in Nazi Germany
    • Kim Jong Un in North Korea

Development of Common Law

  • Common Law: Judge-made law (precedent); developed in Britain; before equity law.
  • Pre-11th Century - Feudal System (until 1066):
    • King was supreme ruler.
    • After 1066 (William the Conqueror), feudal system dismantled; common law started.
    • Circuit judges trained in king’s law traveled, wrote rulings to form precedent.
    • Trial by ordeal: Guilt determined by painful experience (e.g. burning in oil).
  • Definitions:
    • Canon Law: Church law.
    • Curia Regis: Medieval council of advisers.
    • Customary Law: Rules accepted as legal by a community.
    • Ratio Decidendi: Reason for decision; binding on lower courts.
    • Obiter Dictum: Other comments; not binding.

Precedent

  • Precedent: Judge’s decision in a novel case; binding on lower courts with similar facts.
    • Zecevic v R (1987): Defence of self-defence.
  • Binding Precedent: Must be followed by lower courts.
  • Persuasive Precedent: May be followed but not required.
  • Stare Decisis: “Let the decision stand”.
  • Reversing: Superior court changes lower court precedent on appeal.
  • Overruling: Judge rejects lower court precedent, applies different one.
  • Distinguishing: Judge provides reasons for a case being different from precedent.
  • Disapproving: Judge rejects an action, decision, or appointment.
  • Examples:
    1. Mabo & Others v State Of Qld (No 2) (1992):
      • Overturned Terra Nullius.
      • Australia not Terra Nullius in 1788.
      • ATSI may have native title.
      • Terra Nullius - customary international law that enabled new territory to be claimed by a power if the territory had no inhabitants.
        • Inhabitants were nomadic
        • No legal system or government
        • Inhabitants didn’t farm the land
    2. Donoghue vs Stevenson (1932):
      • British precedent; ‘Duty of Care’.
      • ‘Duty of Care’: Duty not to harm neighbours.
    3. Zecevic v R (1987):
      • High Court precedent; self-defence.
    4. Hackett v Secretary of the Department of Communities and Justice NSW (2020):
      • Overturned Aboriginal Child Placement Policy.
      • ATSI child can be adopted by non-ATSI mother if in ‘best interest of the child’.

Equity Law

  • Equity Law: Developed in English Court of Chancery.
  • Purpose: Remedy when law is inflexible.
  • Supplementary to common law for greater justice.
  • Remedies:
    1. Injunction: Order to stop something.
    2. Order for Specific Performance: Order to compel something.

Adversarial System of Trial

  • The Adversary System:
    • Used in common law countries.
    • Two opposing sides.
      • Prosecution v Accused (Criminal).
      • Plaintiff v Defendant (Civil).
    • Local Court (summary): Police Prosecutor v Accused/Defence.
    • District Court (indictable): DPP v Accused/Defence.
    • Supreme Court (indictable): Crown/King/Rex v Accused/Defence.
    • Each side prepares own case.
    • Prosecution bears burden of proof.
    • Standard of proof: Beyond reasonable doubt.
    • Civil trial standard of proof: Balance of probabilities.
    • Strict rules of evidence.
    • Presumption of innocence.
    • Impartial judge/decision maker.
    • Oral examination of witnesses.
    • Trial by jury.
  • Effectiveness:
    • Trial by peers.
    • Public courts.
    • Guilty plea avoids trial.
    • Jury minimises bias.
    • Presumption of innocence.
    • Accused doesn't have to prove anything.
    • High standard of proof protects accused.
  • Ineffectiveness:
    • Jury may not understand legal terminology.
    • Jury may be swayed by arguments, not facts.
    • Expert testimony may be beyond jury's intellect.
    • Juries acquit out of empathy (e.g. R v Morgan (1996)).
    • Victims may feel injustice if accused is acquitted.

Court Hierarchy

  • The Court Structure:
    • Federal and state courts.
  • Jurisdiction: Court’s specific power.
    • General jurisdiction: Wide variety of cases (e.g., NSW Local Court).
    • Specific jurisdiction: Specific cases (e.g., Children’s Court).
    • Original jurisdiction: Hears cases for first time.
    • Appellate jurisdiction: Hears appeals.
  • Hierarchy: Arranged from lowest to highest.
  • State Courts:
    • Local Court:
      • Summary offences (minor crimes, e.g., shoplifting).
      • Civil cases under 100,000.
      • Mandatory Case Conferences (indictable offences).
    • District Court:
      • Most indictable offences (e.g., armed robbery but not murder).
      • Civil cases from 100,000 to 1,250,000.
      • Civil and Criminal appeals (Local/Children’s Court).
    • Supreme Court:
      • Most serious indictable offences (e.g., murder).
      • Civil cases over 1,250,000.
    • Court of Appeal: Hears civil appeals (Supreme/District Court).
    • Court of Criminal Appeal: Hears criminal appeals (Supreme/District Court).
  • Federal Courts:
    • Federal Circuit and Family Court (FCFCA):
      • Federal laws (consumer, IP, family, divorce, child support, privacy, migration).
      • Complex separation matters.
    • Federal Court:
      • Bankruptcy, corporations, workplace, human rights, migration.
      • Appeals from FCFCA.
    • High Court:
      • Constitution, disputes between federal and state governments.
      • Final court of appeal.
  • Courts not in Hierarchy:
    • Children’s Court:
      • Crimes by children (10-18 years) except murder, sexual assault and driving offences.
    • Coroner’s Court:
      • Investigates unexplained deaths and fires.

Statute Law

  • Statute Law: Law made by parliament.
  • Federal and State parliaments can pass statute law.
  • Statute Law overrides common law/precedent.

Role and Structure of Parliament

  • Role of Federal Parliament:
    1. Making/changing federal laws.
    2. Representing the people of Australia.
    3. Providing a place where government is formed.
    4. Keeping a check on the work of the government.
  • Responsible for laws relating to all of Australia (e.g., currency, income tax, defence).
  • Structure of Federal Parliament:
    • Bicameral system: 2 houses.
      • Lower House: House of Representatives.
      • Upper House: Senate.
  • House of Representatives:
    • 151 seats.
    • Each seat occupied by an elected representative.
    • Australia divided into electorates (~80,000 to 120,000 voters each).
    • NSW has more electorates; Western Australia has the least.
    • Party with majority forms government.
    • Leader becomes Prime Minister.
    • Currently Anthony Albanese (Labor party).
    • Minimum 76 seats needed for majority.
    • Coalition government: Parties join (e.g., Liberal and National).
    • Other parties: Greens, Independents.
    • Prime Minister and Treasurer must be in the House of Reps.
    • Main house that proposes bills.
    • Election every 3 years.
  • Senate:
    • House of Review.
    • All bills must pass Senate.
    • Senators examine wording/purpose of bills.
    • Amendments for clarity and state needs.
    • 76 Senators: 12 from each state, 2 from each territory (NT and ACT).
    • Federal elections every 3 years; half the senators stand for election each election or every 6 years. We are due for a federal election by September 2025.
    • Government may need to convince minor parties/independents in the Senate.
    • Political parties do not need a majority in the Senate to form government.

State Parliament in NSW

  • Bicameral system.
    • Lower House: Legislative Assembly.
    • Upper House: Legislative Council.
  • Legislative Assembly:
    • Premier leads the party with the majority of seats (Chris Minns).
    • 93 seats representing 93 electorates.
    • State elections every 4 years, next one March 2027.
  • Legislative Council:
    • 42 seats.
    • State elections every 4 years, next one March 2027.

Legislative Process

  • The Legislative Process: How a bill becomes a statute.
  • Similar for Federal and NSW State laws.
  • Bill: Proposal for new law.
  • Ideas come from:
    • Government policy.
    • Major events (e.g., Port Arthur Massacre).
    • Cabinet.
  • The Legislative Process:
    1. Cabinet discusses need for new law.
    2. Bill drafted by Parliamentary drafters.
    3. First Reading: Copies distributed, title read.
    4. Second Reading: Minister's speech, debate.
    5. Committee Stage: Investigation, amendments.
    6. Third Reading: Vote in the House of Reps, amendments added.
    7. Senate First Reading
    8. Senate Second Reading: Debate in the Senate, amendments added.
    9. Senate Committee Stage: Investigation, amendments.
    10. Senate Third Reading: Vote in the Senate, amendments added.
    11. Royal Assent. Governor-General signs; becomes statute.
  • If Senate Rejects the Bill:
    • Government may modify and reintroduce after 3 months.
    • If fails, Prime Minister can request Double Dissolution.
    • Double Dissolution example: 1975 Constitutional Crisis.
  • NSW Parliament Legislative Process: Similar to Federal Parliament.

Delegated Legislation

  • Delegated Legislation: Laws made by subordinate bodies.

  • Not made by Parliament.

    1. By-Laws:
      • Laws made by local councils.
      • Power granted the Local Government Act 1993 (NSW).
      • Parking, ball games, alcohol in public places.
    2. Rules:
      • Legislation made for government departments/authorities.
      • Rules for questions asked in tests to get your “L”s by Services NSW.
    3. Regulations:
      • Laws made by the governor general, state governors or members of the executive council.
      • High income threshold for using the Fair Work Commission (FWC); currently 175,000.
    4. Ordinances:
      • Laws made for Australian territories.

  • E.g. Norfolk Island and the Australian Antarctic Territory.

  • Effectiveness:

    • Law made by experts.
    • Laws changed swiftly.
    • Frees up time for federal and state parliament to deal with more important matters/issues.

  • Ineffectiveness:

    • Not made by elected representatives.
    • Lack of scrutiny.
    • Lack of knowledge; uninformed public.
    • Inconsistencies with numerous bodies making laws.

The Constitution

  • The Constitution: Sets out structure/role of parliament, powers of federal government, role of High Court.
  • Full name: Commonwealth of Australia Constitution Act 1900 (Imp).
  • 128 sections.

Division of Powers

  • Division of Powers: Law making power divided between federal and state governments.

    1. Exclusive (Specific) Power:
      • Only federal government can legislate (e.g., immigration, defence).
      • Set out in sections 51/52 of the Constitution
    2. Concurrent Power:
      • Both federal and state governments can legislate (e.g., health, education).
      • Section 109 - Inconsistency Provision: If federal and state law conflict, federal law applies (e.g., Tasmanian Dams Case (1983)
    • Cth v ACT (2013): ACT passed Marriage Equality Act 2012 (overridden due to inconsistency)., and overrided in the High Court due to the Marriage Act 1961 (Cth)
    1. Residual Power:
      • Left to the states to legislate (e.g., criminal laws).
      • Residual powers are not stated in the Constitution.

Separation of Powers

  • Separation of Powers: 3 branches:

    • Legislature: Parliament (makes laws).
    • Executive: Cabinet and government ministers and government departments (administers/carries out laws).
    • Judiciary: Judges and courts (interprets laws).

  • Why Separate Powers?: To prevent bias/corruption.

  • In practice: Overlap exists- legislature is comprised of members of parliament from the the House of Representatives and the Senate - , Executive comprised of, the Governor General, Prime Minister and cabinet members from the legislature and judges (judiciary) appointed by parliament. Still judiciary remains independent.

Role of the High Court

  • Role of the High Court:

    • Highest court in Australia.
    • Cases involving interpretation of the Constitution (e.g., Tasmanian Dams Case (1983)).
    • Disputes between Commonwealth and state governments (e.g., Cth V ACT (2013)).
    • Final court of appeal from State Supreme Courts, the Federal court, and original cases heard in the High Court

  • Examples: Zecevic v R (1987), e.g. a) Zecevic v R (1987), b) Cth of Australia v AJL20 (2021).

  • Judges must retire at 70.

  • Sections of the Constitution to know:

    • S.80 - Trial by jury - for Cth indictable offences.
    • S.51 - Powers of federal parliament
      • S.51 (XXIX)-External affairs power
      • S.51 (XXXI) - The acquisition of property on just terms from any state or person.
    • S.71-S.74 - High Court
    • S.109 - Inconsistency provision
    • S.128 - Referendum.

  • Changing the Constitution:

    • S. 128: Requires a referendum.
    • Both Houses must pass a Bill.
    • Majority of voters in a majority of states must vote YES.
    • Only 8 successful changes to date.
    • 1967 referendum enabled federal government to legislate for Aborigines/Torres Strait Islanders.
    • Most recent was in 1999 for Australia to become a republic
    • In 2023 the Voice Referendum was held but this also failed with 60% of the voting population voting NO.

Aboriginal and Torres Strait Islander (ATSI) Peoples’ Customary Laws

  • Diverse nature of customary laws
    • Aborigines are from the mainland of Australia, while Torres Strait Islanders are from the Torres Strait Islands off the coast of Northern Australia (Queensland).
    • Aborigines:
      Are semi-nomadic
      Have many nations / tribes / peoples
      Have land / water ways
      Have stories and beliefs behind the creation of life called ‘The Dreaming’
      Didn’t have a structured legal system like the British legal system - oral instead of written laws
    • Torres Strait Islanders:
      Worshiped a god called ‘Malo’
      Didn’t have a structured legal system like the British legal system - oral instead of written laws
    • Aboriginal people are thought to have arrived in Australia somewhere between 60,000 to 80,000 years ago. Over the thousands of years that they have occupied the continent, a complex customary legal system developed. This system was once based on oral traditions and was strongly linked to the notion of kinship.
    • Prior to the invasion of Australia by Europeans in 1788, Aboriginal people lived in a traditional hunter-gatherer existence, in which tribal groups moved around their territories in search of food and water.
    • It is important to note that there is no single Aboriginal Nation. There are approximately 500 known Aboriginal and Torres Strait Islander nations. Within each of these nations there existed a number of clans. Each of these clans had its own territory, traditions and rituals and developed its own laws.
    • There is no single type of customary law. Instead, the 500 or so separate Indigenous Australians that can be identified each developed their own unique laws. However, all of these laws do share common aspects. Most importantly, all have a spiritual base and are inescapably linked to the land.

The Spiritual Basis, Significance of Land and Water

  • Aboriginal and Torres Strait Islander peoples did not develop the type of industrial society that existed In Europe. European societies measured the value of nature and the land by the resources they provided or that could be exploited. Their beliefs and traditions view the land and nature as having great spiritual importance and this is reflected in customary law. The key features of Aboriginal and Torres Strait Islander customary law are summarised below:
    • One of the key differences between Aboriginal and Torres Strait Islander customary law and the European legal tradition lies in the area of land ownership. One of the main principles of European law is the right to possess and own property, in particular, land.
    • In Aboriginal and Torres Strait Islander peoples' customary law, land is sacred and is collectively owned. All members of the group live together, with no concept of individually owned plots of land. Instead, people saw their role as custodians of the land for past, present and future members of the group.
    • The land is central to all Aboriginal and Torres Strait Islander cultures and forms the basis of their religious beliefs and their law. The land itself was and continues to be considered sacred by them. Bodies of water were also thought to hold special significance.
    • ATSI peoples considered the land and waterways as very important. They regard them as their mother. A mother provides food, clothing and shelter and so too does the land and water for ATSI. ATSI had no concept of personal ownership of the land. Rather, they regarded the tribe or group as having responsibility for their tribal lands and waters. They were custodians of this for past, present and future generations.

Family and Kinship

  • Importance of Family and Kinship
    For indigenous communities keeping Indigenous families strong and healthy both physically and culturally. Importance of a group rather than individuals.
  • Kinship:
    In Aboriginal societies, the family structures and the sets of rights and obligations underlying them are extended to the whole society compared to in Western societies where structures of social interaction and roles and obligations change as individuals move out from the immediate family circle to the wider society.
  • Kinship Definition:
    Kinship refers to a complex and dynamic system that defines where a person fits into their extended community, including their rights and obligations.

Ritual and Oral Traditions

  • Oral Law: Rules for behaviour / living.

    • Group gatherings
    • Corroboree
    • Camp fires
    • Ceremonies
    • Stories of Dreaming
    • Dance, painting, songs.
    • ATSI customary law was not written down like our laws. It was oral and passed down via their Dreaming.
    • This was a complex system of stories that gave the rules for living, the importance of family and kinship obligations and the spiritual nature of the land and water.
    • E.g. the story of the Tortoise and the Echidna.

  • Ritual: The way they express their kinship and law.

    • E.g. Welcome to country, smoking ceremonies, initiation ceremonies.

Mediation and Sanctions

  • Mediation:

    • Arguing parties resolve disputes through mediation with elders.

  • Sanctions (types of punishments):

    • Shaming - public humiliation in front of the group by the elders
    • Payback - revenge
    • Banishment - kicked out of the kinship group
    • Spearing in the thigh - a type of payback for serious disputes, e.g. R v Wilson Walker (1994).

Relevance to Australian Law

  • Relevance to Australian Law:

    1. Recognition of rights to the land-native title since Mabo.
    2. In sentencing - Aboriginality can be taken as a mitigating factor that may lessen the severity of a sentence due to the socio economic disadvantage of ATSI in society.
    3. Recognition of traditional marriages as de facto relationships
    4. Aboriginal Child Placement Policy - means that an Aboriginal child should be adopted by an Aboriginal family rather than a non-indigenous family in an attempt to preserve the culture and traditions of the child.

  • Recognition of ATSI Customary Law:

    • In 1986 the Australian Law Reform Commission (ALRC) conducted an investigation into the Recognition of ATSI Customary Law. It produced a report recommending that some ATSI customary law should be incorporated into Australian law. After the Mabo Decision in 1992 there has been greater recognition of ATSI customary law in our legal system.
    • Circle Sentencing - an alternative sentencing method for Aboriginal offenders, which is available in 12 NSW Local Courts. Under Circle Sentencing, the magistrate works with Aboriginal elders, victims and the offender's family to determine an appropriate sentence.

Domestic Law

  • Domestic law refers to laws made by a country/state; enforceable by courts within that country/state.
    • E.g. Crimes Act 1900 (NSW), Marriage Act 1961 (Cth).

International Law

  • International law refers to laws made by the UN relating to relationships between countries; operates via consensus (agreement) and cooperation.
  • Countries referred to as nation states: territory w/ permanent population; clearly defined border that is recognised in the international community.

State Sovereignty

  • State Sovereignty: Right to determine domestic law free from interference.

    • However, Australia passes own domestic law to meet obligations under international laws (instruments) that it has signed, such as those required by the International Covenant on Civil and Political Rights (ICCPR) , and the International Covenant on Economic, Social and Cultural Rights (ICESCR)

  • Positive Uses of State Sovereignty:

    • passing Australian Acts, having a good reputation and allies, to maintain world safety and security, and to ensure fair trade between nation states.

  • Negative Uses of State Sovereignty:

    1. North Korea abusing human rights
  1. Russia invading Ukraine: Russia has weaponized state sovereignty to justify its invasion of Ukraine, claiming self-defense while violating Ukraine’s right to territorial integrity. By selectively recognizing sovereignty, Moscow denies Ukraine’s right to independent governance while shielding itself from international accountability. Additionally, Russia exploits sovereignty to legitimise illegal annexations and puppet states, distorting the principle of self-determination for its own geopolitical gains.\

Instruments

  • Declarations: A declaration is a non-binding document that acts as a guideline (e.g. the Universal Declaration of Human Rights (UDHR).
    *Treaties: A treaty is a binding international agreement that signatory nation states are obliged to follow, e.g. NATO.

  • Covenants: Similar to treaty. Two most famous examples are:
    The ICCPR International Covenant on Civil and Political Rights 1966 and The ICESCR International Covenant on Economic, Cultural and Social Rights

  • Conventions: Similar to treaties but drafted from international conferences, CROC Convention on the Rights of the Child 1990.

  • Australia’s treatment of asylum seekers in Australia: Australia has used state sovereignty to justify strict asylum policies under the Migration Act 1958, treating asylum seekers as a threat to national security while undermining their human rights. By enforcing offshore detention and denying entry to those arriving by boat, Australia selectively applies sovereignty to control borders while evading international obligations under refugee conventions. This exploitation of sovereignty allows the government to exclude and mistreat vulnerable individuals under the guise of legal authority and national interest.

Sources of International Law

  • International Customary Law: Derives from