Legal Notes PART 1 PDF

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Basic legal concepts Meaning of law • define law The law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in a society. The law provides methods for ensuring the equal treatment of people, and outlines punishments fo...

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MANWELLA HAWELL 2013 1. Basic legal concepts Meaning of law • define law The law can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in a society. The law provides methods for ensuring the equal treatment of people, and outlines punishments for those who do not follow the agreed rules of conduct. Laws: -Are binding on the whole community

-Officially recognised by courts, governments etc.

-Can be enforced -Relate to public interest

-Are discoverable -Reflect rights and duties

MANWELLA'HAWELL'2013' Sanction a penalty imposed on those who break the law, usually in the form of a fine or punishment Distinguish between customs, rules, laws, values and ethics customs: the collective habits, or traditions, that have been developed by a society over a long period of time rules: refer to prescribed directions for conduct in certain situations. Apply to certain groups eg soccer rules, house rules. Laws: set of enforceable rules of conduct. Rules are obeyed to create order, sense of security, Values: are principles or attitudes that a society holds as important. Ethics: are a set of moral beliefs governing behaviour. Neither values nor ethics are constant. Therefore the law must be adaptable to cope with these changes in society. Characteristics of just laws Just Laws must be: 1. equal: a law that treats everyone the same 2. based on widely held values: laws and ethics held by most of society 3. Utilitarianism: ensuring an action achieves the greatest good for the greatest number of people 4.It aims to redress inequalities: laws should not create inequality or injustice 5. It must minimise delay: resolves disputes as soon as possible 6. It must not be retrospective: The law must be made for the future 7. The law must be known: laws must be discoverable before they can be enforced. Nature of justice: – equality – fairness – access Equality: Justice requires laws that do not discriminate and that are applied equally to all people. The enforcement of the law must also be equal Fairness: Key factors of fairness include ensuring the law does not have a particularly harsh affect on an individual and the right to appeal a decision. Access: Individuals have to be able to access the law in order for justice to be achieved. Law should be understandable. Legal aid provide legal assistance to the poor. Define procedural fairness and the rule of law Procedural fairness is also known as “natural justice” and includes the right to be heard – this includes the right to a fair hearing the right to have a decision made by an unbiased decision-maker – even an appearance of bias is enough to constitute a breach of natural justice. Also one is innocent until proven guilty. Ratio decendi: reason for decision Obiter dicta: Statements made by judges such as their personal opinions that are classified unimportant. Rule of law: no one is above the law, including those who make the law. It doctrine of the rule of law prevents the arbitrary abuse of power Define anarchy and tyranny Anarchy: the absence of laws and government Tyranny: rule by a single leader holding absolute power in a nation-state

MANWELLA'HAWELL'2013' 2. Sources of contemporary Australian law common law British origins, including: – development of common law – equity, precedent – adversarial system of trial When the British came to Australia in 1788, they brought with them the law that applied in Britain, known as common law. Statute law: law made by parliament (AKA legislation/ acts of parliament) Common law: law made by courts; historically, law common to England Donoghue v Stevenson (1932) is a good illustration of judge-made law. In 1928, Ms. Donoghue discovered the decomposed remains of a snail in a bottle of ginger beer she had already half drunk. This test case established that a person could be liable for injuring someone through negligent actions setting a precedent for similar future cases. Laws of Equity – refers to rules developed that look at what is fair or just in individual cases à฀ Incorporated into English common law. -Adversarial system Both sides present their case trying to prove their version of facts and disapprove the other side. An impartial judge listens to the evidence and the Jury make the verdict. (active in many British colonised countries.) -The Doctrine of Precedent: stare decisis- ”the decision stands” 1. The basis for common law 2. Used by other judges in future similar cases to provide consistency in the operation of the court system. -Precedents set by a higher court are binding on judges in lower courts. -Persuasive precedent: the decisions of lower courts may influence the decision of higher courts. court hierarchy: –! jurisdiction of state and federal courts Local court (Settle disputes cheaply and quickly at local level. Minor criminal + civil matters) District court (Criminal + civil matters. More serious assaults, drugs etc. Can’t deal with murder.) Supreme court (Highest court in state hierarchy -Most serious criminal + civil matters. Court of appeal (People not satisfied with the decision made in the Supreme Court) •High court (The main role of the High Court is to deal with matters involving the Constitution) Family Court (Deals with matters of family law e.g divorce, residency of children, maintenance and the division of property.) Federal court (Its jurisdiction includes matters involving trade practices, intellectual property (copyright), taxation and immigration.) Industrial relation court (work place law matters) Federal Magistrates Court (created to minimise the work of the federal & family courts. deals with less complex family law matters, bankruptcy, trade practices law, immigration and human rights law.) Statute law -role and structure of parliament -legislative process -delegated legislation

Bicameral: there are two houses of parliament. (upper, lower) Federal: Lower house: House of Representatives Upper house: Senate Leader: Prime Minister Head: Governor-General

MANWELLA'HAWELL'2013' State: Lower House: Legislative Assembly Upper House: Legislative Council Leader: Premier Head: Governor Parliament: a body of elected representatives who debate, pass/reject or amend legislation. -A proposed new law is known as a bill. When it is accepted by both houses of the government it becomes an Act of Parliament. Delegated legislation: legislation made by non-parliamentary bodies. Types of delegated legislation include – regulations –ordinances(laws made for Australian territories) -rules – by-laws (rules made by local councils-apply only to an area) 1. Need for new law is identified à฀ Draft bill. 2. The first reading Bill is introduced to parliament 3. Second reading The parliament debates the bill. 4. Committee stage Detailed parliamentary debate; amendments to bill if necessary. 5. Third reading. Bill voted on. If passed it goes to the upper house. 6. The Upper house The process is repeated. Bill is voted on; may be returned to lower house for amendments or may be rejected. 7. Royal assent If passed, Bill is sent to Governor-General for assent. Becomes act of parliament thus it is a law. The Constitution -division of powers -separation of powers -role of the High Court Constitution: a set of fundamental rules that establish how a country is governed and how laws are made. Legislative power is divided between federal and state governments. This is known as the 'division of powers'. Section 52 of the Constitution defines which areas belong exclusively to the federal government e.g. taxation & defence (exclusive powers). Concurrent powers are shared by both federal and state e.g. health, education & transport. Seperation of powers ensures no one group within the government can dominate. The Constitution of Australia also defines the three branches of government and how they relate to one another. These are

Court of resolving constitutional dispute -High Court of Australia. E.g. Mabo v Queensland 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

There is no set definition of aboriginal customary law because of the diverse nature however justice Blackburn in the case Milirrpum v Nabaclo defined it as a system of rules of conduct which is felt as obligatory upon them by the members of a definable group of people.

The land forms the basis of their religious beliefs and their law, and is considered sacred. Under customary law it is their duty to care for the land and water.

MANWELLA'HAWELL'2013' Kinship is the relationship between individuals and their extended family or clan. It describes the bonds of loyalty that tie the group together. Oral law is a legal system where laws are not written down, but passed by word of mouth Different tribes have their own variation of customary law. Rituals such as stories, dance and songs are used so that a tribe remembers their laws. Mediation: two parties are brought together to discuss & resolve conflict. Sanctions include: talk with the elders, shaming, spearing or death. Customary law are taken into account when dealing with ATSI cases International law differences- domestic/international law -state sovereignty –sources -customary law -declarations & treaties -legal decisions/writings role of: United Nations, courts and tribunals, intergovernmental organisations –NGO’s relevance to contemporary Australian law

International law is the body of law that governs the relationships between nations. It covers fundamental human rights e.g. ban genocide. But it lacks enforcement eg genocide-Rowanda 10990’s. Ratify: formally conform that a country intends to be bound by the treaty. Domestic law is the law of a nation. State sovereignty: state has authority to make rules for its population and the power to enforce these rules. Customary international law: long established traditions/common practices followed by many nations to the point that they are accepted as being fair/right by the international community. Treaty: an agreement between nations that is entered into voluntarily. Governed by guideline of international law. Treaties can be (i) Bilateral treaties are formal agreements between two states (ii) Multilateral treaties are formal agreements between three or more states. Declaration: a non-binding agreement between nations eg universal declaration of human rights. The International Court of Justice (ICJ) settles disputes that arise. International criminal court (ICC) & the European court of human rights are other international courts. Natural law: laws said to have been derived from God. They were considered more important than laws made by monarchs or courts. Jus cogen means a principle of international law that may not be contradicted by any nation. The United Nations is the principal international organisation. It has 192 member nations and its main role is the establishment and maintenance of world peace and order. General Assembly is made up of representatives from all member nations. Security council: arm of the united nations –responsible for maintaining world peace and security. ICJ: court consists of 15 judges each representing a different geographical region. It has two main functions 1. to decide on disputes brought before it by member nations 2. to offer legal advice on matters of international law when requested by a member nation. • Intergovernmental organisations are organisations that represent the governments of member nations. These organisations have their own international laws and regulations. Ngo’s have no connection with governments but aim for world peace, assist in disaster relief & eviro protection e.g. red cross, Amnesty International and world vision. • International law may influence or be reflected through domestic law. When Australia ratifies a treaty it does not automatically become domestic law, instead legislation is required. Treaties influence Australian law in the development of common law, judicial review of decisions and the judicial interpretation of statues.

MANWELLA'HAWELL'2013' 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: Public laws are those laws that set the general standards of behaviour expected by a society they include criminal, administrative, and constitutional law. criminal law: Criminal law deals with the acts committed against the society. administrative law: operation of the government and its various departments. constitutional law: rules governing the executive, legislative and judicial functions of governments. private/civil law: regulate relationships between individuals, companies & organisations. Usually for compensation (monetary) contract law: agreement/ promise between 2 or more parties that is recognised by law. tort law: someone has done something which interferes with the rights of someone else. property law: Anything that can be bought/sold is considered property. Criminal

Civil

Crime committed against

Society

Individuals

Who is involved

Prosecutor (person undertaking legal Plaintiff (person who initiates the civil proceedings- the government) action) Vs defendant (person accused of crime) beyond reasonable doubt balance of probabilities

Standard of proof Heard by Punishment

heard before a jury of 12 people (they heard before a judge who decides and determine guilty or not guilty) issues out the compensation (could be heard by a jury) Sanctions such as fine/prison Court order or damages

MANWELLA'HAWELL'2013' Plaintiff: person who initiates a civil action criminal: -plaintiff issues a statement of claim to the defendant -defendant replies with a statement of defence -each side introduces evidence and witnesses in which witnesses are asked questions by their own barrister first. cross examination occurs. -Re examination occurs for final questions and then the barrister makes final submission (speech) in which the judge/ jury of 6 make a verdict. Criminal proceedings: - committal hearing takes place to decide whether there is prima facie (beyond doubt/solid) evidence. -if the accused pleads guilty a trial will not be conducted and a sentence hearing will take place. If the accused pleads ‘not guilty’ a jury will be selected/ case will go to trial. Jury determines guilt/innocence. - examination in chief – the prosecution opens the case and presents evidence to convict the accused. Cross examination occurs for the defence. -each side sums up case with the jury deciding the verdict. If guilty the judge decides the sentence. 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 organizations Failure of existing laws: laws can become unnecessary over time thus must be changed as they are not enforced. -New concepts of justice: society evolves over time and its view on justice alter. As a society becomes more multicultural it will absorb certain values from these other cultures, as time moves on values change so do laws to abide by these values. Advances in technology: when technology is in advance of the law then it passes pressure to reform law e.g. growth of chat rooms increases cyber bullying hence laws must be put to action to prevent this. Changing social values and morality: law reform is essential if the law is to remain relevant to society. -The Australian law reform commission is a federal agency that reviews Australia’s laws. NSW law reform commission act 1967 (NSW) has a similar role to ALRC but at a state level. - Parliament has committees that investigate matters of concern to it and the wider community in which these committees suggest changes that should be made to the law. -Royal commission: may be set up by the government to investigate a specific area of the law -the media: an informal means by which the need for law reform can be emphasised and promoted the media has a strong capacity to influence and shape the communities capacity on an issue. -NGO’s use the media to raise awareness about specific law reform issues and put pressure on the government e.g. through protest, petitions and informing citizens. Courts: engage in the process of developing and reforming law by adapting to the changing circumstances this is known as common law. Parliament: supreme law making body in Australia which responds to community concerns by introducing new laws these are known as statue law intergovernmental organisations: are organisations that have sovereign states as members the members have certain common goals example include united nation. They encourage cooperation between countries, provide a forum for countries to air a dispute and promote the long term benefits of co-operation. Native title terra nullius -the roles of the High Court and federal parliament –major native title decisions – legislation

MANWELLA'HAWELL'2013' Terra nullius means ‘land belonging to no one’. Under British law in the seventeenth and eighteenth centuries, any land whose inhabitants had no organised system of law or government could be declared terra nullius. The Mabo case (Mabo v. Queensland (1992)) made Australian legal history by recognising the existence of native title and removing the declaration of terra nullius from Australia. • The Wik case (The Wik People v. The State of Queensland & Ors, The Thayorre People) established the possibility that native title could exist on the same land that was held by pastoral lease. Legislation: Native Title Act 1993 (Cwlth) Passed by the Commonwealth Parliament in response to the Mabo decision, which recognised the existence of native title. It also provides a mechanism for determining native title claims. Native Title Amendment Act 1998 (Cwlth) passed in the wake of the Wik case, and attempted to create certainty for farmers on pastoral leases. Some have criticised the Act for being too supportive of pastoralists’ rights over those of native title claimants. Native title is the collection of individual or group rights and interests held by Indigenous people in relation to land and water. Parliament’s role in recognising native title is enacting legislation to protect the property rights of Aboriginal and Torres Strait Islander peoples. In Canberra (2008) Mr. Rudd said the Parliament apologised for previous laws and policies which had ‘inflicted profound grief, suffering and loss on these our fellow Australians’. Actions such as these by politicians and parliament are a way of bringing about social, if not legal, change. The Mabo case is important because it led to the introduction of native title legislation. It is also significant because it gave recognition to the Indigenous inhabitants of Australia. In this case, the High Court recognised the existence of native title for a group of Murray Islanders in the Torres Strait. Eddie Mabo argued that they could prove uninterrupted occupancy of traditional lands, and that the state legislation annexing the islands did not extinguish their pre- existing rights to it. Native Title Tribunal determines the validity of native title claims & may give compensation. There has been progress in the area of law reform relating to native title. However, this progress has been relatively slow. Due to the very nature of the law, all those involved in native title claims must be considered when proposing and enacting new legislation, and as such, the Native Title Act 1993 (Cth) and its amendments recognise not only the rights of the traditional The Mabo decision & the Native Title Act resulted in Aboriginal groups attempting to reclaim land. The Wik and the Thayorre people launched a case again...