Themes and challenges to be incorporated throughout this topic:

• the need for law in the operation of society

• the importance for the rule of law for society

• the relationship between different legal institutions and jurisdictions

• the development of law as a reflection of society

• influences on the Australian legal system

1. Basic Legal Concepts

• meaning of law

• define law

• law: 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

  • dynamic, complex, comprised of (see below)

• customs, rules, and law

• values and ethics

• distinguish between customs, rules, laws, values, and ethics

• rules: regulations or principles governing procedure or controlling conduct

• values: principles, standards, or qualities considered worthwhile or desirable within society

• ethics: rules or standards directing the behaviour of a person or the members of a profession

• customs: collective habits or traditions that have developed in a society over a long period of time

• customary law: principles and procedures that have developed through general usage according to the customs of a people or nations, and are treated as obligatory

• characteristics of just laws

• nature of justice

  • equality

  • fairness

  • access

• describe the characteristics of just laws and the nature of justice

• fair and impartial treatment of everyone, especially under the law

• justice is the continued effort to do right by everyone

  • when making laws, it involves consulting the people, doing what the majority say, but ensuring the minority has a say

• justice: the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved

• the job of the legal system is to ensure that all citizens have access to the law and it provides equality, fairness, and justice to everyone

• legal system: the system of courts, prosecutors, and police within a country

• equality: the state or quality of being equal; that is, of having the same rights or status

  • no one enjoys unfair advantage or suffers unfair disadvantage

  • law takes into account people's capacities (e.g. maturity, mental illness, etc)

    • e.g. doli incapax, 10-14 year olds will have the court decide if they knew what they were doing was wrong

• fairness: freedom from bias, dishonesty, or injustice; a concept commonly related to everyday activities

  • ‘fairness’ applies more to everyday life, whereas ‘justice’ is more on the legal side

  • people consider different things fair (there is no way to determine for certain what is fair and what is not)

  • when rules are made, it is expected that they’re fair & when they become laws, they must be fair to all members of society

• access: the right or opportunity to make use of something

  • in democratic societies, protecting the rights of the citizens is the ultimate goal of the law

    • to meet this, everyone must have equal access

  • includes ensuring citizens know the laws that affect them and understand their rights in relation to those laws

  • in reality, it is not accessible to everyone

    • barriers include: language skills, being a woman, socioeconomic status, disabled people, ATSI, being institutionalized, and geographical location

• procedural fairness (principles of natural justice)

• rule of law

• define and investigate procedural fairness and the rule of law

• procedural fairness/natural justice: the body of principles used to ensure the fairness and justice of the decision-making procedures of courts; in Australia, it generally refers to the right to know the case against you and to present your case, the right to freedom of bias by decision-makers, and the right to a decision based on relevant evidence

  • the right to be heard (the right to have a fair hearing)

  • the right to have a decision made by an unbiased decision-maker (even one slight appearance of bias is enough to constitute a breach of natural justice)

• ‘justice should not only be done but should be seen to be done’ ~ R v Sussex Justices; Ex parte McCarthy [1924]

• rule of law: the principle that nobody is above the law; this can be seen in the requirement that governmental authority must be used in line with written, publicly disclosed laws, for which established procedural steps (due process) have been taken in the adoption and enforcement

• people obey the law to avoid sanctions (penalties imposed on those who break the law, usually in the form of a fine or punishment)

• people do not obey laws when they do not agree with them or feel they have no connection to them, some because they feel the laws do not apply to them

• anarchy

• tyranny

• define anarchy and tyranny

• anarchy: the absence of laws and government

  • comes from Greek ‘without a ruler’

  • happens in revolution, natural disaster... because authorities have no way to enforce law (e.g. Cronulla riots)

  • most people believe that absence of laws would be bad, but some people, such as philosophers, believe anarchy does not always imply chaos, rather a ruler-free society where people can live in harmony

• tyranny: rule by a single leader holding absolute power in a state

  • generally bad, has severe punishments for citizens who break the laws

  • e.g. North Korea

2. Sources of Contemporary Australian Law

Common Law

• British origins, including:

  • development of common law

  • equity, precedent

  • adversarial system of trial

• outline the origin of common law

• common law: law made by courts; historically, law common to England

  • developed in medieval times through travelling judges who dealt with cases, provided precedents, became the basis of the UK legality

  • precedent: a judgement that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar facts

  • stare decisis: (Latin) ‘the decision stands’; the doctrine that a decision must be followed by all lower courts

  • brought to Australia through colonisation (1788)

    • natural justice !!! ^

• equity: the body of law that supplements the common law and corrects injustices by judging each case on its merit and applying principles of fairness

  • developed when people came to the King claiming the common law was unjust

  • presided over by Chancellors with Christian views.

• between common law and equity, equity rules

• in the 1870s, the British parliament passed legislation merging the common law and courts of equity, allowing judges to apply either one of them (or both) to a case

• adversarial system: a system resolving legal conflicts – used in common law countries such as England and Australia – that relies on the skill of representatives for each side (e.g. defense and prosecution lawyers) who present their cases to an impartial decision-maker

  • impartial judge/magistrate and sometimes a jury

• ratio decidendi: (Latin) the legal reason for a judge’s decision

• obiter dicta: (Latin) comments from a judge in a case that are not directly related to the case and, therefore, not legally binding

• court hierarchy:

  • jurisdiction of state and federal courts

• examine the hierarchy and jurisdiction of state and federal courts

• jurisdiction: refers to the power or authority of a court to hear and decide a case – can be based on geographical area, e.g. NSW, Australia, or the nature of the matter/case, e.g. family, criminal, civil, etc)

  • different courts have different jurisdiction; if a court does not have jurisdiction it cannot hear the case

• original jurisdiction: the court has the power to hear and finalise its case on its first instance

• appellate jurisdiction: the power of a court to hear a case on appeal from another (usually lower) court

• civil jurisdiction: refers to a court’s power to hear criminal cases, i.e. cases involving a person being prosecuted by the state

• local court

  • lowest court in the hierarchy (essentially has no appellate jurisdiction)

  • magistrate presides over it

  • has both civil and criminal jurisdiction

    • criminal:

      • committal hearings/committal proceedings for indictable offences

        • prima facie case

      • summary offences (usually punishable by up to two years in prison)

    • civil jurisdiction:

      • matters involving claims up to $100,000

        • small claims division (up to $10,000)

        • general division (over $10,000 and up to $100,000)

  • the majority of criminal and civil cases are decided here (over 90%)

  • there are 150 local courts in NSW

• district court

  • intermediate court

  • has original and appellate jurisdiction

  • cases are heard by a judge, sometimes with a jury

  • has civil and criminal jurisdiction

    • criminal:

      • indictable offences (everything except murder, treason, and piracy)

      • appeals from the local court and the children’s court

    • civil:

      • matters involving ip to $750,000 e.g. a breach of contract, negligence claims

      • all motor accident cases (regardless of amount)

      • appeals from the local court (small claims division) and the children’s court (care proceedings)

  • judges wear wigs and gowns

• supreme court

  • a superior court

  • highest court in the state hierarchy

  • both original (trial) jurisdiction and appellate jurisdiction

  • cases are heard by a judge, sometimes with a jury

  • when a jury is present, the judge decides the questions of law and the jury determines liability or guilt

  • both civil and criminal jurisdiction

  • criminal trial jurisdiction:

    • most serious criminal offences

    • cases in which there has been a serious breach of commonwealth criminal law, e.g. importing prohibited drugs

  • civil trial jurisdiction:

    • matters involving unlimited amounts (over $750,000)

  • judges wear wigs and gowns

  • has a common law division and equity division

  • the NSW Court of Appeal and the NSW Court of Criminal Appeal are the appellate courts of the supreme court and are the final courts of appeal in NSW

    • judges sit in panels of 3-5 in this court

    • NSW Court of Criminal Appeal

      • highest nsw court for criminal matters

      • hears appeals from the district court, land and environment court, and from a single judge of the supreme court

      • sentence can increase upon appeal, e.g. Kieran Loveridge

    • NSW Court of Appeal

      • highest NSW court for civil matters

      • hears appeals from single judges of the supreme court and from a range of other NSW courts and tribunals

    • these courts are able to grant leave to appeal to the court

    • there is no jury

    • witnesses do not give evidence in these courts

• coroner’s court

  • specialist court presided over by a Coroner

  • investigates circumstances surrounding sudden, unexpected (violent or suspicious), or suspected death as well as fires and explosions where there is damage to property but no deaths

  • deaths:

    • the role of the coroner is to determine the identity of the deceased as well as when, where, how, and why they died

    • an investigation into such death is a court hearing called an inquest

  • fires and explosions:

    • investigates the cause and origin of the fire or explosion

    • this investigation is an inquiry

  • uses an inquisitorial approach rather than adversarial

  • the outcome of the inquest (death) or inquiry (fire) is called a finding

  • there are specialist coroners but a local court magistrate can also sit as a coroner

  • investigates approx. 6,000 deaths per year

  • can make recommendations

    • to the DPP regarding criminal prosecutions

    • to relevant authorities to prevent recurrence

• children’s court

  • specialist court presided over by a magistrate

  • hears cases involving minors

    • civil jurisdiction:

      • concerned with the care and protection of children

      • hears cases where a child is alleged to be in need of care as a result of abuse or neglect

      • family and community services may apply to the court for an order which will provide the appropriate care for the child

    • criminal jurisdiction:

      • most cases involving offences committed by minors

        • exceptions include:

          • very serious offences (murder, sa)

          • traffic offences (heard in the appropriate adult court)

• drug court

  • unique specialist court

  • began operation in 1999

  • began as an alternative to mainstream courts for drug dependant offenders as a means of addressing the cause of offending and reducing recidivism

  • criminal jurisdiction:

    • the same as local and district court jurisdiction

    • hears cases where the offender is over 18, dependent on prohibited drugs, pleads guilty to an offence that does not involve violence/sa but would most likely result in imprisonment, and consents to the program

    • court works with other service providers e.g. housing and health departments to stop drug dependence and develop life skills which enable the offender to live without resorting to crime

  • this court has no civil or appellate jurisdiction

  • the program is individually tailored to the

Statute Law

• role and structure of parliament

• legislative process

• outline the role and structure of parliament and the legislative process

• parliament: a body of elected representatives that debates proposed legislation, passes or rejects it, and amends legislation

• apart from QLD and the territories, all state parliaments are bicameral

  • bicameral: containing two chambers of Houses of Parliament (e.g. NSW lower house is known as the Legislative Assembly and the upper house is the Legislative Council, AU lower house is the House of Representatives and upper house is the Senate)

• the political party that wins the majority of seats in the lower house forms the government

• ministers are members of government who have special duties e.g. minister for education

  • the prime minister offers their position to them and they form the Cabinet or ‘front bench’ which makes decisions on policy and laws to be drafted and then considered by parliament

  • non-ministerial members of parliament are known as the ‘back bench’

• the executive council is made up of the Governor/Governor General and selected ministers

  • this is the body that enables legislation to be put into operation

• legislative process... a proposed law is known as a Bill

• Bill: a drafted law that has not yet been passed by parliament

• ^ process is time consuming and open to public scrutiny, ∴ well-organised pressure can influence parliament’s opinion

  • if a parliament passes something unpopular, they may get voted out, and so try to act in the public’s best interest for their own interest

• act of parliament: statute law, resulting from a Bill successfully passing through parliament and gaining royal assent

• process of passing a Bill through parliament:

  1. need for a new law is identified

  2. draft Bill (cabinet approves)

  3. first reading

  4. second reading

  5. committee stage (examination, amendments may be made)

  6. third reading

  7. upper house

  8. royal assent

     • this process is generally the same in NSW but it is whack in the ACT (only one house)

• delegated legislation

• describe the function of delegated legislation

• delegated legislation: laws made by authorities other then parliament, which are delegated the power to do this by an Act of parliament

  • involves ‘less important’ laws that parliament does not have time to draft, consider, and pass

• types of delegated legislation include:

  • regulations: laws made by the Governor-General, state governors, or members of the executive council

  • ordinances: laws made for government departments, usually by the department involved

  • rules: legislation made for government departments, usually by the department involved

  • by-laws: laws made by local councils, which are restricted to the area governed by that council

• Advantages: made by experts in field, frees up time for more serious issues, easier to amend this legislation, ∴ more flexible

The Constitution

• division of powers

• separation of powers

• explain the differences between division and separation of powers

• division of powers (see below)

• s51 specifies the legislative powers of the federal parliament (enumerated powers)

• legislative powers: the legal power or capacity to make laws

• concurrent powers: powers held by both state and federal parliaments

• s52 outlines exclusive powers of parliament, which mean that only the Commonwealth (federal) Parliament can legislate on:

  • the seat of government of the commonwealth, and all places acquired by the commonwealth for public purposes

  • matters relating to any department of the public service (controlled by the commonwealth according to the constitution)

  • other matters declared by the constitution to be within the power of parliament

• exclusive powers: powers that can be exercised only by the federal parliament

  • of federal: trade and commerce with other countries, foreign relations (external affairs) and national defense (s114 prohibits states from raising armies)

• residual powers: those matters on which the states can legislate, as they are not referred to in the constitution

• separation of powers (see below)

  • legislature: the law-makers (parliament – House of Representatives and the Senate)

  • the executive: the ministers and government departments who administer the laws made by parliament (e.g. Governor General, prime minister, and Cabinet)

  • judiciary: the courts which interpret and apply the law

• puts checks on balances, and ensures that no branch has absolute power and that civil liberties are protected

• civil liberties: basic rights of individuals that are protected by law, e.g. freedom of religion, freedom of speech

• role of the High Court

• examine the role of the High Court in the interpretation of the constitution

• s73 established the High Court to be above other courts and deal with constitutional matters

• changes in the constitution must be done via referendum

• original jurisdiction outlined in s75-76

  • relating to the constitution & treason and sedition

• appellate jurisdiction, all must be granted special leave

  • special leave: where the High Court grants approval for the case to come before it in its appellate jurisdiction

  • generally, appeals relate to questions of law

    • question of law: a disputed legal contention that is left for the judge to decide, e.g. whether certain evidence is admissible

Aboriginal and Torres Strait Islander Peoples’ Customary Laws

• diverse nature of customary laws

• spiritual basis, significance of land and water

• family and kinship

• examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary laws

• there are many different ATSI groups which means there are many different variations of customary law

  • e.g. generally, disputes between people will involve the whole community in negotiation, mediation, and conciliation

• the Dreaming is the basis for almost all of Aboriginal peoples’ law; it explains how everything came to be and so has rules to follow

• it can be hard to exactly define laws to due their oral nature (lack of written record)

• law and religion are very closely related, as in Western law (10 Commandments, Jesus, etc)

• since 1788, they have had to live under two systems: common law derived from UK and their customary laws

• more than ⅔ of ATSI live in remote areas, and so are more likely to use customary law to settle disputes (coming under nature of justice and access?)

• land ownership is completely different to UK ideas

  • the land belongs to the group and losing said land means a loss of history

• ^ similarly, ATSI also have link with the sea, lakes, rivers, and all bodies of water

  • no one owns them, but everyone cares for them

  • each group has distinct responsibilities that are tied to their laws

    • there are rituals and stories that exist to pass on these laws/responsibilities

• failure to follow traditional customary laws can be seen as disrespectful to land and values

• kinship: family relationships, including all extended family relationships; an important part of ATSI cultures and values, which dictate how all people in the group behave towards each other

• ritual and oral traditions

• mediation and sanctions

• relevance to contemporary Australian Law

• outline the extent to which Aboriginal Peoples’ customary laws have been integrated into Australian law

• stories passed through generations via songs, dances, art, and voice

  • these pass on laws

  • explain creation, why events happen, tribal boundaries, family relationships, cultural practices, and forbidden acts

• ceremonies are sacred and outsiders can’t participate/sometimes even view

• dispute resolution

  • the family and community are involved and they’re discussions/meetings

  • elders and influential people would be present

• relationship maintenance is very important

  • ∴ mediation: a form of alternative dispute resolution designed to help two (or more) parties, in the presence of neutral third party, to reach an agreement

• elders will impose sanctions on law breakers

  • e.g. ridicule, shaming, exile, death... sometimes to ‘restore balance’

• recently, more ATSI rights have been respected and aspects of customary law are in Australian law

  • e.g. sustainable development (basis for some environmental laws), Native Title (Mabo), conciliation and mediation

  • also sometimes used when ATSI are charged with a crime, e.g. done because customary law requires it, there may be mitigation

    • mitigation: making the severity of an offence or sentence milder or less severe

• circle sentencing: in some areas where there is a lot of ATSI crime, a magistrate will work with the community’s elders to determine an appropriate sentence

  • this means ATSI are less likely to get prison sentences, although this isn’t to say the punishments are easy, it also reduces recidivism

• recidivism: reoffending

International Law

• differences between domestic and international law

• state sovereignty

• distinguish between domestic and international law and examine the impact of state sovereignty

• domestic laws: laws within one country

  • they only apply to people within that country and can’t be enforced anywhere else

• international laws: laws between two or more countries

  • they can only be enforced when there are things such as treaties etc

• state sovereignty

  • a sovereign state is the state with the highest power over a territory. they have:

    • a permanent population

    • defined territory

    • a government not under another

    • the capacity to interact with other states

  • ss is the legal authority and responsibility of an independent state to govern and regulate its political affairs without foreign interference

https://legal.un.org/avl/pdf/ls/greenwood_outline.pdf

• sources of international law

  • international customary law: body of unwritten rules of public international law, which govern conduct during armed conflict, e.g. a state violates customary international law if it permits or engages in slavery, torture, genocide, war of aggression, or crimes against humanity.

  • declarations: not legally binding but carry considerable moral force and serve as a clear indication of the commitments of the international community. Declarations often originate from resolutions adopted by the General Assembly. Some declarations later become conventions.

  • treaties: a formal, legally binding written contract between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal persons.

    • bilateral treaty: between two countries

    • multilateral treaty: between more than two countries

  • legal decisions: judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

  • writings: a persuasive guide to the content of international law but they are not themselves creative of law and there is a danger in taking an isolated passage from a book or article and assuming without more that it accurately reflects the content of international law.

• role of:

  • United Nations

  • courts and tribunals

  • intergovernmental organisations

  • non-government organisations

• describe the role of the various organisations involved in international law

• role of the United Nations

  • established in 1945 after WWII atrocities

  • maintain global peace and security

  • influence is wide reaching

  • integral role in facilitating international cooperation, treaty development, dispute resolution, and development of key areas of law

• To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

• To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

• To be a center for harmonizing the actions of nations in the attainment of these common ends

• role of courts and tribunals

  • international court of justice: primary judicial body for the UN and is responsible for settling disputes submitted by states. can hear:

    • disputes between states where the ruling is binding e.g. Japan/Australia Whaling Decision 2014

    • advisory matters where the security council or the general assembly is asking the court’s opinion on a legal issue

• role of intergovernmental organisations

  • organised groups of nation-states that come together to

    • pursue similar interests e.g. trade, security, world peace

    • make collective decisions about international issues e.g. tariffs (taxes imposed on the exports of goods), refugees, environment

  • e.g. European Union, Asia-Pacific Economic Cooperation, Commonwealth of Nations

• role of non-government organisations (NGOs)

  • not aligned with any one government – independent

  • can sometimes be more effective in achieving change (ethical views of society) than legal mechanisms e.g. through raising the profile of issues, naming and shaming nation states abusing rights, etc e.g. Amnesty International

• relevance to contemporary Australian law

• examine how international law impacts on and is incorporated into Australian law

• when a treaty is signed, it doesn’t automatically become part of domestic law

• dualist system requires new legislation to be passed by parliament inline w s51 (dictates the powers on the laws gov can create)

• however, impact of international treaties is very influential

  • creates precedents

  • interprets domestic legislation

  • judicial review of decisions

3. Classification of Laws

• public law

  • criminal law

  • administrative law

  • constitutional law

• private law (civil law)

  • contract law

  • tort law

  • property law

• outline different types of law

• compare the purpose of different types of law

• public law governs relations and affairs between legal persons and a government, between different institutions within a state, between different branches of governments, as well as relationships between persons that are of direct concern to society.

  • criminal law: the body of law that relates to crime. It prescribes conduct perceived as threatening, harmful, or otherwise endangering to the property, health, safety, and welfare of people inclusive of one's self.

  • administrative law: a division of law governing the activities of executive branch agencies of government. Administrative law includes executive branch rule making, adjudication, and the enforcement of laws.

  • constitutional law: a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries, the relationship between the central government and state, provincial, or territorial governments.

• private law is part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts and torts, and the law of obligations.

  • contract law: helps its clients negotiate, draft, review, and manage contracts. They specialize in mediating conflicts or setting up agreements between the parties, whether those parties are individuals or businesses.

  • tort law: A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state.

  • property law: the area of law that governs the various forms of ownership in real property and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual property.

criminal court proceedings

• prosecutor

• defendant

• state (through prosecutor) brings the case to court

• onus is on the prosecutor to prove the case

• standard of proof is beyond reasonable doubt

• either summary or indictable

• can plead guilty or not guilty

• jury of 12 will reach a verdict of guilty or not guilty

• judge will impose a sentence, often based on precedent

• summary offences are heard by magistrates in local court w/o a jury

• indictable offences are heard by judges at district or supreme court w a jury

• in proving a criminal offence:

  • mens rea (guilty mind)

  • actus rea (guilty act)

  • causations (link between an action and the crime)

civil court proceedings

• disputes between individuals

• plaintiff and defendant

• individual or organisation brings the case to court

• onus is on the plaintiff to prove the case

• standard of proof is on the balance of probabilities

• plaintiff and defendant exchange documents called pleadings that set out issues to be decided in court

• parties get information by process of discovery

• parties can settle matter w/o trial if they agree

• if plaintiff is successful, the judge can award a remedy (injunction or damages)

• court depends on monetary amount or subject matter

  • up to $100,000 – local

  • over and up to $750,000 – district

  • over $750,000 – supreme

• juries can be present, but are normally smaller (e.g. 6 jurors)

legal personnel

• judge

  • intermediate and superior courts

  • decide on points of law

  • issue instructions to jury

  • issue sentences and rulings

  • in civil matters, they sometimes sit w/o a jury and determine the case themselves

• magistrate

  • inferior courts

  • issue rulings, e.g. about evidence

  • determine case

    • reach a verdict and determine sentence

  • ensure justice is administered fairly and impartially

both judges and magistrates preside over the court and are legally qualified professionals (usually barristers) with considerable experience

• judge’s associate

• prosecutor

• barrister

  • barristers almost always receive their work through a solicitor

  • represent the client in the court

  • most specialise in one area e.g. tax, criminal, family

  • advise

  • present client’s case to court

• solicitor

• witness

• court officer

• court reporter

• common and civil law systems

• compare and contrast common and civil law systems

• civil: developed in western europe

  • derived from roman law

  • if there is no statute, then the court lacks jurisdiction on the matter

• common: developed in england

  • absence of statute does not preclude the court from dealing w a matter, the court will develop a precedent, hence common law

• civil systems:

  • inquisitorial system, judge investigates etc

  • focus is on arriving at the truth by way of investigating the facts

  • role of the judge is to find the facts, e.g. questions the witness themselves

  • evidence rules are more fluid and less strict, e.g. allows hearsay

  • judge acts as an inquisitor rather than an impartial decision maker

  • sources of law are statute and international

  • used in france, germany, and italy

4. Law Reform

Conditions that give rise to law reform (e.g. changing social values, new concepts of justice, new technology)

Agencies of reform including law reform commissions, parliamentary committees, the media, NGOs

Mechanisms of reform including courts, parliaments, United Nations, intergovernmental organisations

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

• examine the conditions that give rise to law reform

• in order for laws to reflect societies' current attitudes, values, and morals, they need to be able to respond to change

• conditions that give rise to law reform

  • changing social values, e.g. gay marriage was seen as immoral but now it isn’t

  • new concepts of justice, e.g. the death penalty used to be seen as a moral and kust way to punish someone but now it isn’t, same as like medieval punishments (drowning/burning witches etc)

  • new technology, e.g. AI, social media laws, etc etc

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

• describe the role of agencies involved in law reform

• agencies of law reform

  • law reform commissions: exist at both state and federal levels

    • independent from the government which establishes them

    • report on particular issues which they investigate and make recommendations on where the law can be modernised, simplified, or improved

  • Australian Law Reform Commission (ALRC) (federal law reform commission)

    • established in 1975

    • operates as an independent statutory body

    • role is to:

      • simplify and modernise law

      • harmonise and complement state and territory laws

      • systematically develop and reform law

      • improve justice

      • remove unnecessary laws

      • eliminate defects and anachronisms in the law

anachronism: a thing belonging or appropriate to a period other than that in which it exists, especially a thing that is conspicuously old-fashioned.

• consolidate, put into legislation, and revise the common law

• mechanisms of reform including courts, parliaments, United Nations intergovernmental organizations

• examine the operation of the different mechanisms of reform

• courts

  • develop and reform the law by adapting to changing circumstances

    • precedent

    • appeals

  • can only be done in a piecemeal way bc their primary function is to judge, not change

• parliaments

  • make new laws

  • amend existing laws

  • commonwealth and state parliaments can both do this

    • if there’s a clash, fed law prevails (s.109)

  • stat law overrides common law

  • parliaments respond to community concerns

• united nations

  • est 1945

  • most prominent intergovernmental organisation

  • sometimes is a lack of genuine commitment and consensus, but generally influential

  • when sovereign states sign treaties, they tend to implement them into their domestic law