legal studies

Syllabus Outcomes

Content

Basic legal concepts

·   meaning of law

·   customs, rules and law

·   values and ethics

·   characteristics of just laws

·   nature of justice:

–   equality

–   fairness

–   access

·   procedural fairness (principles of natural  justice)

·   rule of law

·   anarchy

·   tyranny

Law:

• Law is a set of rules by which a country follows to maintain order and safety.

Customs, Rules and Laws:

• Customs and rules can develop into laws.

Values and ethics:

• Values are more general and personalised such as valuing kindness and generosity, whereas ethics are more specific E.g.not having a relationship with a work client.

Characteristics of just laws:

Enforceable, Acceptable, Discoverable. 

• Are equal

• Utilitarian- (for the greatest good)

• Based on widely held values

• Aims to redress inequalities

• Minimise delay

• Not retrospective

• Must be known

Nature of justice:
Based of 3 key ideas:

• Equality- all people are treated the same way, laws do not discriminate

• Fairness- freedom from bias, dishonesty or injustice, the right to appeal

• Access- opportunity to make use of the law regardless of income, education, language and physical access.

Procedural fairness:

• The right to be heard

• The right to have a decision made by unbiased decision maker

Rule of law = No-one is above the law

Anarchy = is a state of chaos and disorder as a result of the absence of laws and government. - E.g. Hurricane Katrina in New Orleans.

Tyranny = A single leader holding absolute power in a state E.g. Hitler

2. Sources of contemporary Australian law:

common law

·   British origins, including:

–   development of common law

–   equity, precedent

–   adversarial system of trial

·   court hierarchy: jurisdiction of state and federal courts

statute law

·   role and structure of parliament

·   legislative process

·   delegated legislation

the constitution

·   division of powers

·   separation of powers

·   role of the High Court

Aboriginal and Torres Strait Islander Peoples’ customary laws

·   diverse nature of customary laws

·   spiritual basis, significance of land and water

·   family and kinship

·   ritual and oral traditions

·   mediation and sanctions

·   relevance to contemporary Australian law

international law

·   differences between domestic and international law

·   state sovereignty

·   sources, including:

–   international customary law

–   instruments (declarations and treaties)

–   legal decisions, writings

·   role of:

–   United Nations

–   courts and tribunals

–   intergovernmental organisations

–   non-government organisations

·   relevance to contemporary Australian law

COMMON LAW:

Common laws are laws created in courts as opposed to created in parliament

How was common law developed?

Based off the British legal system, in 11th Century England started sending travelling judges to share around the laws, decisions made by judges provided the precedents.

Equity = The body of law that supplements the common law and corrects cases by applying principles of fairness.

Precedent = A judgement that becomes an authority for legal principle and provides guidance for future deciding cases that have similar facts.

Adversarial system of trial:

• There are 2 opposing sides (prosecution and defendant) who have to prove their side and disprove the other side.

• If the jury use information that was not presented in court (they went out and investigated for themselves) there must be a retrial

Criminal: theft, assault, vandalism

Civil: defamation, property damage, breach of contract

Australian court hierarchy:

Jurisdictions of the courts:

STATE:

LOWER COURTS:

Local/magistrates → follows state law, civil cases under $100,000, criminal summary offences.

Coroners court → state law, investigate suspicious or unexplained deaths and explosions and fires

Land and environment court → responsible for interpreting and enforcing environmental law, deals with matters related to environmental offences, planning.

Children's court → civil matters concerning the protection and care of children, criminal cases with people U18. Closed to the media to give children privacy.

Drug court → takes referrals from local and district courts of offenders who are dependent on drugs. - if you are heavily influenced by drugs and commit a crime you can be eligible for a rehabilitation program.

INTERMEDIATE COURTS:

District court → more serious criminal matters e.g. manslaughter, sexual assault and large scale drug importation Has a judge and sometimes a jury, civil cases between $100,000 and $750,000

SUPERIOR COURTS:

Supreme court → highest court in the state, most serious criminal matters (e.g. murder and kidnapping) and has no monetary limit in civil cases. 

Criminal + civil court of appeal → appeals are heard by 3 judges.

FEDERAL:

LOWER COURTS:

Federal Circuit court → established to relieve caseload from federal and family courts, does not deal with criminal matters, shares  jurisdiction with Family and Federal court.

Jurisdiction over family law, child support, human rights, migration etc…

SPECIALIST COURTS:

Federal court → deals with civil disputes governed by federal law, as well as summary criminal offences. Assumed some of the jurisdiction previously managed by the high court. 

Family court → most complex family law matters and has appellate jurisdiction. Divorce, division of property, parenting orders.

SUPERIOR FEDERAL COURT:

High court of Australia → established in 1901, highest court in Australia, hears appeals from federal court, family court, and state/territory supreme courts. Deals with cases related to the constitution (changing it via a referendum)

Statute law = refers to laws made by parliament (also known as legislation). Any parliament has the power to create statute law (state, territory or federal). E.g. speeding laws are statute laws

Structure and role of each parliament (senate vs house of reps.):

Both parliaments have the government, opposition, and independents and minor parties. The role of all of these people is to debate on bills as part of the legislative process.

Legislative process:

The House of Representatives (lower house) is the first house that a bill will pass through and be debated on. If the House of Reps passes the bill, it will be passed on to the Senate (upper house) who will also debate it. If it is also passed by the senate, it will go to the governor general who must sign it to become a law.

Delegated legislation = legislation made by non-parliamentary bodies (government departments or local councils). These legislations are usually less important responsibilities e.g. waverley council deciding on bill rules)

Difference between division of powers and separation of powers:

Division of powers = federal, state and local powers

Seperation of powers  = Three arms of government in Australia:

The role of the high court:

• Has appellate jurisdiction (hears appeals from lower courts)

• Hears ‘constitutional challenges’ → when the actions of the commonwealth are being challenged as unconstitutional

• Ensure that other courts are acting within their constitutional power.

Exclusive powers = commonwealth/federal powers

Residual powers = powers given to lower courts (think residue/ leftover powers)

ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES CUSTOMARY LAWS:

What is Aboriginal and Torres Strait customary law?

These are laws based on tradition, ritual and socially acceptable conduct.

How is aboriginal customary law different from British legal tradition?

The main difference can be seen in the area of land ownership. Aboriginal law says land is not owned, rather people are custodians of the land, looking after it for future generations. British law says that everyone has the right to property and intangible ownership.

Circle sentencing = when mediators, elders, victims and offenders will sit in a circle and discuss the offence and punishments. Elders typically have a stronger influence on the offenders. Only for summary offences.

Kinship = the close relationship between family members and close family ties. Different members of kinship groups are responsible for passing down laws. → oral legal system based on dreamtime stories.

INTERNATIONAL LAW:

Difference between domestic and international law:

State sovereignty = the rulers power to make decisions on behalf of the nation

• Problematic for international law because it allows states to ignore the law

• E.g. Japan rejecting international laws about whaling despite having a case brought against them specifically. 

Sources:

Customary law:

• Based on long established traditions

• Basically just ‘the vibe’

• Not necessarily a law but something that the community widely follows as if it were a law

• Customs turn into laws most laws prohibiting crimes against humanity begun as customary law

Declarations:

• Don’t impose legally binding provisions (even if you sign them to agree, whether or not you follow them isn’t really enforced

• Universal Declaration of Human Rights (1948)

Treaties:

• Basically the actually enforced version of a declaration

• You actually have to ratify (show that you are changing your laws and enforcing it) the treaty for it to be binding.

Legal decisions = the ICJ (International court of Justice) settles disputes between states. Rulings are typically binding but sometimes the enforcement can be difficult.

E.g. South Africa brought a case against Israel claiming they were committing Genocide. Israel rejected the claims.

Legal writings =  changing international landscape since the development of international law means that international lawyers may draw upon scholarly articles to help guide the case. 

United Nations:

• 1945

• 193 members

• Develops international law

• PERMANENT 5 (P5) UK, UK, Russia, France and China all have veto power to block decisions made by the UN → they are the post powerful

• General assembly = makes recommendations, meets once a year, representatives from all member states take place in a discussion

Security council = P5 + 10 non-permanent members who serve for 2 years each and then rotate

Job of security council = issue economic sanctions (‘we will stop sourcing our coal from you if you keep killing innocent people’)

Courts and tribunals:

ICJ → International Court of Justice

• Judicial body of UN

May rule 2 different types of cases:

1. Legal disputes e.g. Aus Vs Japan (whaling) → provides binding rulings

2. Advisory proceedings → courts opinion on any legal question e.g. obligations of states in regards to climate change

ICC → International Criminal Court

• Created by a treaty called the Rome Statute

• Cases against individuals accused of:

War crimes (torture or bombing innocent civilians in a hospital)

E.g. ICC put out an arrest warrant for Putin for the unlawful deportation of Children

Inter-governmental Organisations (IGO’s) = organisations that represent the governments of member nations E.g. United Nations

Non-Governmental Organisations (NGO’s) = based on common interests and aims - no connection to government but influence gov.

E.g. World Vision and Amnesty International

Relevance of International law to Aus Contemporary law:

• Aus was a founding member

• Aus is active in Un peacekeeping activities → sent forces to Cyprus, East Timor, Cambodia and Somalia

• Treaties we sign with international law are debated on in Aus government and they then work toward ratifying those treaties.

• Treaties influence the development of Australian law E.g. United National Conventions on the Rights Of The Child (CROC)

3. Classification of law

·   public law

–   criminal law

–   administrative law

–   constitutional law

·   private law (civil law)

–   contract law

–   tort law

–   property law

·   criminal and civil court procedures including legal personnel

·   common and civil law systems

Public Law:

→ relationships between individuals and the state, and the operation of government.

Criminal law:

• maintain public safety

• Criminal offence is considered to be an offence against the whole community

• Responsibility of states and territories

• Cases are written as ‘R vs Milat’ - R represents the Crown

Administrative Law:

• Government powers and the decisions of government organisations

• An individual must be aware of which government body was responsible for the action before they can challenge it.

Constitutional Law:

• Focuses on the rules governing the executive, legislative, and judicial functions of government (separation of powers)

• If a law violates the rules in the Australian constitution, the case must go to the high court of Australia.

Private/Civil Law:

→ regulates the relationships between people, companies and organisations

Contract Law:

• Legally binding agreement between 2 or more parties

• Many civil law matters deal with contracts where one party believes that the other party has failed to fulfil the requirements of the contract

• Plaintiff must seek one of the following remedies if a contract is breached:

1. An Injunction → an order directing a party not to do something

2. Specific performance → the court specifies a way in which a specific party is to perform the contract

Tort Law:

• ‘Civil wrongs’ 

• Someone (or an organisation) breaches or fails to fulfil a duty that he or she owes someone

• Different types of torts include:

• Negligence

• Nuisance

• Trespass

• False imprisonment

• defamation

Property Law:

• Governs relations involving things and interests that can be owned and that have a commercial value. 

• From physical objects to things such as shares in a company

• Intellectual property (text, images, designs, inventions etc…)

• Real property = actual land and things attached to that land

• Property rights are legal rights to possess, use or benefit from property.

4. Law reform

·   conditions that give rise to law reform including: changing social values, new   concepts of justice, new technology

·   agencies of reform including law reform commissions, parliamentary committees, the media, non-government organisations

·   mechanisms of reform including courts, parliaments, United Nations intergovernmental organisations

CONDITIONS OF LAW REFORM:

1. Changing social values e.g. same sex marriage

2. New concepts of justice e.g. capital punishment abolished in Australia

3. New technology e.g. rapidly developing AI 

Law needs to keep up with all of these factors in order to stay relevant to society.

• There are issues with keeping up with technology as tech development moves fast while law reform moves slow

AGENCIES OF REFORM:

• Law Reform Commissions (LRC) → review specific cases and laws to influence the gov.

• Parliamentary committees → established by both houses to scrutinise the gov.

• The Media → apply pressure to government to address injustice

• NGO’s → independent to the government but may work with them/influence them e.g. Amnesty International

• Lobby Groups → organised groups of people who try to influence the government.

MECHANISMS OF LAW REFORM:

• Courts → courts make law through precedent, comes about in an ad hoc manner (they do not go into the case intending to change the law)

• Parliaments → law reform realised through the passage of bills

• UN → uses treaties, human rights mechanisms, just a massive platform to influence law reform.

• IGO’s → established to meet and decide upon certain international issues (e.g. refugees, tariffs and wealth). 

NATIVE TITLE:

• ‘Native title’ refers to the ownership of and accessibility rights to land by the original inhabitants - the right of Indigenous people to their traditional land

• Hard to prove ownership because Indigenous people used oral law and tradition

• There were also different ideas of land ownership differing between Indigenous people and British people.

• Displacement and dispossession of the stolen generation makes it hard to prove land ownership

Syllabus Outcomes

Content

1. Your rights and responsibilities

·   the nature of individual rights

·   relationship between rights and responsibilities

Nature of Individual rights:

• Bill of rights - outlines specifically what individuals are entitled to expect of their government

Relationship Between Rights and Responsibilities:

Rights - entitlements that people have by legal or moral authority - refer to the way that people should be treated. E.g. students with disabilities have the right to attend a public school in an area in which they live.

Responsibilities - legal or moral obligations that a person may have to another person, group, state, society. E.g. a mother has a responsibility to look after her child

2. Resolving disputes

·   the roles of the federal and state police and other law enforcement agencies

·   resolving disputes between individuals:

–   alternative dispute resolution 

–   tribunals

–   courts

·   resolving disputes with the state:

–   non-legal methods:

- media

- members of parliament

- trade unions

- interest groups, including non-government organisations

–   legal methods:

-    internal review

-     external review: administrative, judicial, ombudsman, statutory bodies including Australian Human Rights Commission, Independent Commission against Corruption (ICAC), Royal Commissions

Law enforcement agencies = bodies that have the role of enforcing the law. They’re created by acts of parliament and include the police and some government departments.

Examples of agencies:

• State and Territory police

• AFP - Australian Federal Police

• ABF - Australian Border Force

• ACIC - Australian Criminal Intelligence Commission

• Australian High Tech Crime Centre

• Australian Security Intelligence Organisation

• Government Departments

RESOLVING DISPUTES BETWEEN INDIVIDUALS:

Courts:

• Only used as a last resort for individual disputes

• E.g. NSW Land and environment court.

Tribunals:

• Less formal and expensive method of dispute resolution to courts

• Individuals do not require legal representation

• E.g. NSW Civil and Administrative Tribunal Est.2014

Alternative dispute resolution:

ADR allows parties to save time and money as well as providing more autonomy over the proceedings.

1. Negotiation - discussion between 2 or more parties with aim of reaching a mutually beneficial outcome

2. Mediation and conciliation 

Mediation - neutral 3rd party present to help reach an agreement. Mediator does not provide advice or impose a decision, they may listen, assist in the negotiation and examine the issues to assist the parties in coming to their own solutions.

Conciliation - conciliator takes an active role in advising the parties, they are an expert in the dispute area. Conciliator does not make the final decision however they do encourage the parties to reach an agreement.

3. Community Justice Centres and Conflict Resolution Service - Utilise mediation to resolve disputes. Founded by the gov. And services are free. Goal is to resolve dispute quickly and with little adverse effects on the relationship between the parties.

4. Arbitration - formal process in which independent 3rd party is brought in to determine how the dispute is to be resolved. This decision is BINDING on the parties. Court-like procedure but more confidentiality.

RESOLVING DISPUTES WITH THE STATE:

NON LEGAL METHODS:

LEGAL METHODS:

3. Contemporary issue:

The individual and technology

·   impacts of technology on the individual

·   legal implications

·   difficulties with enforcing rights

·   future directions – the role of law reform

Examples that may be studied could include:

·   misuse of interactive technologies

·   cyber-bullying

·   genetic profiling

·   cyberspace

·   privacy issues

·   security and surveillance

·   mobile phones

·   copyright.

Syllabus Outcomes

Question

Content

Topics that may be studied include:

·   groups or individuals suffering disadvantage:

–   Aboriginal and Torres Strait Islander Peoples

–   people who have a mental illness or an intellectual or physical disability

–   migrants

–   people who are socioeconomically disadvantaged

–   members of other groups covered by human rights legislation, including anti-discrimination legislation

–   women

·   events which highlight legal issues

·   individuals or groups in conflict with the state

·   criminal or civil cases that raise issues of interest to students.