Legal studies exam 1 prep
Unit overview
Briefing Document: Basic Legal Concepts in Australia
Source: Excerpts from "LegalStudiesS6Y11_Ch01.pdf" (Cambridge Legal Studies – Stage 6 Year 11, Chapter 1: Basic Legal Concepts)
Date: October 26, 2023
Prepared for: General Understanding
1. Introduction:
This briefing document summarizes the main themes and important ideas presented in Chapter 1 of "LegalStudiesS6Y11_Ch01.pdf," focusing on basic legal concepts relevant to the Australian legal system. The chapter introduces fundamental definitions and distinctions crucial for understanding the nature and functions of law, as outlined in Part I of the Legal Studies course. The principal focus of this part of the course is for students to develop an understanding of law-making processes and institutions, with key themes including the need for law, the rule of law, the relationship between legal institutions, the development of law as a reflection of society, and influences on the Australian legal system.
2. Key Concepts and Definitions:
Law: Defined as "a set of rules imposed on all members of a community that are officially recognised, binding and enforceable by persons or organisations such as the police and/or courts."
Rules: Described as "prescribed directions for conduct in certain situations," generally made by groups and affecting people within those groups, not usually enforceable by the state.
Customs: Defined as "established patterns of behaviour among people in a society or group," varying with culture, religion, and history. When widely followed and considered important, customs can evolve into customary law: "principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations, and are treated as obligatory." Examples influencing Australia include Aboriginal and Torres Strait Islander customary law, English customary law, and international customary law.
Values: Identified as "principles, standards or qualities considered worthwhile or desirable within a society."
Ethics: Defined as "(1) rules or standards directing the behaviour of a person or the members of a profession; (2) a major branch of philosophy that investigates the nature of values and of right and wrong conduct." Ethical behaviour is described as "doing the right thing."
Justice: Defined as "the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved." It involves fair and impartial treatment under the law.
Equality: Means "that all people in a society are treated in the same way with respect to opportunities and political, social and civil rights; and that no-one enjoys unfair advantage or suffers unfair disadvantage." The text acknowledges that society tolerates levels of inequality based on factors like age and capacity.
Fairness: Described as "freedom from bias, dishonesty or injustice; a concept commonly related to everyday activities."
Procedural Fairness (Natural Justice): Refers to "the body of principles used to ensure the fairness and justice of the decision-making procedures of courts." Key principles include "the right to be heard – this includes the right to a fair hearing" and "the right to have a decision made by an unbiased decision-maker." The principle that "justice should not only be done but should be seen to be done" is highlighted, referencing R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256.
Access: Defined as "the right or opportunity to make use of something," in this context, the legal system. The text notes that equal access is not always a reality due to factors like income, education, and language skills.
Rule of Law: "The principle that nobody is above the law, including those who make the law." Everyone is subject to the same laws, and those involved in the legal system are answerable to these laws.
Anarchy: "The absence of laws and government," leading to a state of chaos and disorder.
Tyranny: "Rule by a single leader holding absolute power in a state," often involving severe punishment for infringements.
State: "A politically independent country."
Sanction: "A penalty imposed on those who break the law, usually in the form of a fine or punishment."
Doli incapax: (Latin) “‘incapable of wrong’; the presumption that a child under 10 years of age cannot be held legally responsible for their actions and cannot be guilty of a criminal or civil offence."
Legal system: "The system of courts, prosecutors and police within a country."
3. Relationship Between Customs, Rules, and Laws:
The chapter outlines a developmental relationship: people living in groups develop rules based on their traditions, customs, and values to govern behaviour and maintain order. These rules often have penalties attached and are enforced by designated individuals or groups, which evolved into modern governments. Over time, these rules can become formalised as laws, which are more difficult to change and have more significant and consistently applied punishments compared to breaches of rules.
4. Differences Between Laws and Rules:
Table 1.1 summarizes key differences:
LawsRulesTo be obeyed by all citizens of a societyTo be obeyed by specific individuals or groupsMade by a law-making bodyMade by individuals or groupsEnforced through the courtsEnforced by the leaders of the groupBreach results in a prescribed sanction imposed by the courtsConsequences of a breach are at the discretion of the leader of the group5. Values and Ethics in Law:
Law-makers attempt to incorporate societal values and ethics into laws, although this is challenging due to diverse moral viewpoints. Laws tend to reflect the ethical values common to the majority or dominant groups. Public expression of values and ethics can influence law reform, as seen in examples like the School Strike 4 Climate and the Indigenous Voice of the Nation rallies.
6. The Nature of Justice:
Justice involves the fair and impartial treatment of all persons under the law. A just law aims to provide fair treatment and outcomes while respecting human rights. Equality, fairness, and access to the legal system are central to achieving justice.
7. Procedural Fairness and the Rule of Law:
Procedural fairness ensures fairness in dispute resolution processes and is linked to natural justice (the right to be heard and the right to an unbiased decision-maker). The rule of law dictates that everyone, including lawmakers and enforcers, is subject to and accountable under the law. This principle is essential for maintaining order and preventing arbitrary use of power.
8. Why People Obey the Law:
People generally obey laws because they create order, provide a sense of security, reinforce societal values, protect all members of society by outlining permissible and prohibited actions, impose sanctions for wrongdoing (acting as a deterrent), and enable dispute resolution through legal institutions. However, obedience can be influenced by agreement with the law, perceived relevance, and the perceived adequacy of penalties.
9. Anarchy and Tyranny:
The chapter contrasts anarchy (absence of law leading to chaos) with tyranny (rule by an absolute leader with severe punishments). Both are presented as undesirable extremes. The Hong Kong demonstrations are used as a case study illustrating the interplay between perceived tyranny (government control) and a descent into near-anarchical situations (lack of order).
10. Legal Oddities and Relevant Law/Cases:
The chapter includes examples of lesser-known Australian laws (e.g., singing obscene songs in Victoria, unlawfully ringing doorbells in South Australia, locking unattended cars in NSW). It also lists "IMPORTANT LEGISLATION" like the Abortion Law Reform Act 2019 (NSW) and the Smoke-Free Environment Act 2000 (NSW), and a "SIGNIFICANT CASE," R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, relevant to procedural fairness.
11. Media Analysis: Vaping Laws:
The chapter includes a news article from The Sydney Morning Herald (March 19, 2023) highlighting the lack of public awareness regarding the extension of NSW smoke-free legislation to include vaping. Concerns are raised about the lack of enforcement and clear communication, despite fines in place. The article discusses potential solutions like updated signage and ongoing debates about the health impacts of vaping. This media item serves as a practical example of the challenges in ensuring laws are known, understood, and followed by the community.
12. Conclusion:
Chapter 1 provides a foundational understanding of essential legal concepts that underpin the Australian legal system. It emphasizes the evolution of law from societal norms, the distinctions between rules and laws, the importance of values and ethics in shaping legal frameworks, and the crucial principles of justice, equality, fairness, procedural fairness, and the rule of law. The discussion of anarchy and tyranny underscores the necessity of a structured legal system. The inclusion of contemporary legal issues, such as abortion law reform and vaping regulations, illustrates the dynamic and evolving nature of law in response to societal changes and values.
Chapter Two
Here are study revision notes for your law exam tomorrow, based on Chapter 2 of your textbook:
Sources of Contemporary Australian Law
Australia’s Legal Heritage: Australian law is primarily based on the English legal system. This includes common law (law made by courts) and statute law (law made by parliament). The adversarial system of trial, where two opposing sides present their cases to an impartial decision-maker, was also inherited from England.
Common Law:
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Origins: Developed in England, historically the law common to the whole country. Royal justices were sent around the country to hear disputes and make common rulings.
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Equity: Developed to address injustices in common law, based on fairness and Christian principles. Rules of equity prevail over common law in case of conflict. Equitable remedies are often non-financial. Courts of common law and equity were eventually merged.
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Doctrine of Precedent (Stare Decisis): Lower courts must follow decisions of higher courts in similar cases. This ensures consistency and predictability in the law.
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Binding Precedent: Decisions of superior courts that lower courts must follow (only the ratio decidendi is binding).
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Ratio Decidendi: The essential legal reason for a judge's decision, which sets a binding precedent.
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Obiter Dicta: Other remarks made by the judge that are not part of the decision and do not set a precedent.
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Distinguishing Precedent: A case may not have to follow an earlier precedent if the facts or relevant points of law are significantly different.
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Overruling Precedent: A higher court can refuse to follow a decision of a lower or equal court.
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Dow Jones & Co Inc v Gutnick HCA 56: Established a precedent for defamation claims being brought across jurisdictional boundaries on the internet, as publication occurs when an article is downloaded.
Court Hierarchy:
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State and Territory Courts: Typically a three-tiered system (Lower, Intermediate, Superior). The ACT has a two-tiered system. Each court has its own jurisdiction (area over which it has authority). Examples include the Local Court (minor criminal and civil matters), District Court (more serious criminal and civil matters), and Supreme Court (serious criminal and civil matters, and appeals). Coroners Courts investigate unexplained deaths, fires, and explosions. Children's Courts deal with matters involving children and young people.
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Federal Courts: Include the Federal Circuit and Family Court of Australia, the Federal Court of Australia, and the High Court of Australia.
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High Court of Australia: The highest court in the Australian judicial system. It has original jurisdiction (hearing cases for the first time) in matters such as constitutional interpretation. It also has appellate jurisdiction (hearing appeals from lower courts). Special leave is usually required for a case to be heard on appeal by the High Court.
Statute Law:
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Parliament: A body of elected representatives that makes statute law (also known as legislation or Acts of Parliament). Most Australian parliaments are bicameral (two houses: upper and lower), except for Queensland and the territories (unicameral). The political party with the majority in the lower house forms government.
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Legislative Process: A proposed law is called a Bill. It goes through several stages in parliament: first reading, second reading (debate on aims), committee stage (detailed examination and amendments), third reading (vote), and then to the upper house for the same process. Finally, it requires royal assent by the Governor-General (federal) or Governor (state) to become an Act of Parliament.
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Influences on Law-Making: Include community interest groups, electoral mandate, need to update laws, party policy, national/international events, and election promises.
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Delegated Legislation: Laws made by subordinate authorities (e.g., government departments) under the authority of an Act of Parliament. This allows for more detailed rules and regulations but can raise concerns about scrutiny.
The Australian Constitution:
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Federation: The process of uniting the six colonies into one nation in 1901. The Commonwealth of Australia Constitution Act 1900 (UK) established the framework of governance.
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Division of Powers: The Constitution divides law-making powers between the Commonwealth (federal) and the states.
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Exclusive Powers: Powers that only the federal parliament can legislate on (e.g., trade with other countries, defence).
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Concurrent Powers: Powers that both federal and state parliaments can legislate on (e.g., taxation). Section 109 states that federal law prevails over state law when inconsistent.
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Residual Powers: Powers that belong solely to the states (e.g., crime, education, health).
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Commonwealth v Tasmania HCA 21 (Tasmanian Dam case): The High Court upheld the federal government's use of the external affairs power (s 51(xxix)) to stop the building of a dam, as it related to an international treaty (World Heritage Convention), expanding the scope of this power.
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Love v Commonwealth of Australia HCA 3: The High Court held that First Nations people cannot be considered ‘aliens’ under section 51(xix) of the Constitution, even if born overseas and not citizens.
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Murphyores Inc Pty Ltd v Commonwealth HCA 20 (Fraser Island case): The High Court upheld the Commonwealth's use of its trade and commerce power (s 51(i)) to prohibit the export of minerals for environmental reasons, even though environmental concerns were traditionally a state matter.
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R v Brislan HCA 78: The High Court interpreted the ‘postal, telegraphic, telephonic and other like services’ power (s 51(v)) to include radio broadcasting, allowing the Commonwealth to legislate on new communication technologies.
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Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon HCA 45 (Citizenship Seven case): The High Court strictly interpreted section 44 of the Constitution regarding dual citizenship, leading to the disqualification of several parliamentarians.
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Separation of Powers: Divides governmental power into three arms to prevent abuse of power:
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Legislature (Parliament): Makes the laws.
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Executive (Governor-General, Prime Minister, Cabinet): Administers the laws.
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Judiciary (Courts): Interprets and applies the laws.
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Role of the High Court: Interprets the Constitution, hears appeals, and exercises judicial review over the validity of laws.
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Amending the Constitution (Referendum): Requires a double majority: a majority of voters Australia-wide and a majority in a majority of states (four out of six). The proposed change must also pass both houses of Parliament.
Aboriginal and Torres Strait Islander Peoples’ Customary Laws:
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Based on tradition, ritual, and socially acceptable conduct. Closely linked to The Dreaming, which explains the creation of the land, animals, and people.
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Significance of land and bodies of water is communal and deeply spiritual, not based on individual ownership.
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Diversity: There is no single system of customary law; it varies between different communities.
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Oral traditions and rituals are key to passing on laws. Elders often play a significant role in interpreting and enforcing customary law.
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Relevance to Australian Law: Customary law is considered in some contexts, such as sentencing (mitigation) and in dispute resolution in some communities. Elements have been incorporated into mediation and circle sentencing.
International Law:
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Governs relationships between nation states. Differs from domestic law (law within a state). Relies on the consent of states for enforcement.
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Sovereignty: The authority of a state to govern itself.
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Sources of International Law:
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Treaties (Conventions, Covenants): Formal agreements between states, binding on those who ratify them. Can be bilateral (two states) or multilateral (many states). Ratification is the formal confirmation of a state's intention to be bound by a treaty.
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Customary International Law: Develops over time through consistent and uniform practice of states that they believe is legally binding (opinio juris sive necessitatis).
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Declarations: Formal statements of a party's position on an issue, but not legally binding (e.g., Universal Declaration of Human Rights).
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Legal Decisions: Decisions of international courts (e.g., International Court of Justice). Stare decisis does not strictly apply in the ICJ.
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Legal Writings: Writings of respected international lawyers, judges, and academics can guide decision-making.
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United Nations (UN): An international organisation for world peace and cooperation. Key bodies include the General Assembly (main deliberative body) and the Security Council (responsible for maintaining peace and security).
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International Court of Justice (ICJ): The judicial body of the UN that resolves disputes between states and gives advisory opinions.
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International Criminal Court (ICC): A permanent court to try individuals for serious international crimes (genocide, war crimes, crimes against humanity).
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Relevance to Australian Law: Australia is a signatory to many international treaties. Implementing treaties into Australian law often requires new legislation, relying on the external affairs power of the Constitution. Sometimes, existing domestic law is sufficient.
Good luck with your exam! Remember to review any specific cases or legislation highlighted by your teacher.