Prelim Notes Year 11 Legal PDF

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Legal Studies Notes

! Part I : The Legal System! !

• Define Law: Law is a complex mechanism, evolving from hundreds of years of tradition, culture and values - it can be defined as a set of enforceable rules of conduct which set down guidelines for relationships between people and organisations in a society. !

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• Distinguish between customs, rules, laws, values and ethics: ! Customs are established patterns of behaviour among people in a society or group, or collective habits or traditions that have developed in society over a long period of time. Whereas rules generally refer to prescribed directions for conduct in certain situations, and generally made by certain groups and affect people only within these groups. However, laws are made up of formal rules of society and have been agreed upon by the majority of those in the group, and govern their behaviour and activities. In comparison to laws, the consequences of breaking rules are comparatively minor, however inconsiderate it may be to break them. Values are what we try to live by, and living according to our ethics means that we do things that we consider to be morally right. As a result of this, law-makers try to incorporate these values and ethics into laws. !

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• Describe the characteristics of just laws and the nature of justice:! JUST LAWS - The concept of justice involves the fair and impartial treatment of all persons, especially under the law. Justice can be seen as the continued effort to do the right thing by everyone. A just law is one that allows everyone to receive fair treatment an outcomes, and ensures that human rights are recognised and respected. ! NATURE OF JUSTICE - It is the task of the legal system to ensure that all citizens have equal ACCESS to the law and that the law provides EQUALITY, FAIRNESS and justice to all member of society. ! (Example of Equality - Doli Incapax - the presumption that a child under 10 years of age cannot be held legally responsible got his or her actions and cannot be guilty of a criminal or civil offence). !

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• Define and investigate procedural fairness and the rule of law: ! Procedural fairness refers to the idea that there must be fairness in the processes that resolve disputes. Natural justice refers to the fact that everyone should be treated fairly in legal situations. There are two main principles of NATURAL JUSTICE - 1. The right to be heard (right to a fair hearing), 2. The right to have a decision made by an unbiased decision maker. ! - ‘Justice should not be only done, but should be seen to be done’ - derived from English Case ‘R v Sussex Justices’. ! - Generally refers to the right to know the case against you and to present your case, the right to freedom from bias decision makers, and the right to a decision based on relevant evidence. ! RULE OF LAW - No one is above the law, including those who make the law. !

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• Define Anarchy and Tyranny:! - ANARCHY - Term used to describe a state of chaos and disorder resulting from the absence of rules/laws/government. ! - TYRANNY - Ruled by a single leader holding absolute power in a state, oppression. Eg. Saddam Hussein. !

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Legal Studies Notes

! Outline the origin of common law: !

• Common law was made by courts; historically, law common to England. ! British legal system - developed a number of sources in Anglo-Saxon England - the system was the one brought over to Australia with the First Fleet, but gradually Australia has developed its own legal system based on its statue law and common law. ! Common Law - Court made law.! Statute Law - Law made by the parliament. ! As distinct from the Courts of Equity - historically, courts whose decisions were more discretionary and based on moral principles, and which served as an antidote to the inflexibility of the common law. ! Adversarial - A system of resolving legal conflicts, used in common law countries such as England and Australia, which relies on the skill of representatives for each side (eg. defence and prosecution lawyers) who present their cases to an impartial decision maker. The judge only determines sentencing. ! Inquisitorial - A legal system where the court or a part of the court (eg. the judge) is actively involved in conducting the trial and determining which questions to ask; used in some countries which civil legal systems as opposed to common law systems. Judge determines whether guilty or not. ! - Procedural Fairness - a judgment that is authority for a legal principle, and serves to provide guidance for deciding cases that have similar facts. ! ^ When there has been no previous decision to provide guidance for deciding a case, a court must use principles of the existing common law and statute law to make its decision. ! ^ When a judge gives a decision in a case, it is usually made up of two parts: ! Ratio Decidendi : the essential legal reason why a judge came to a particular decision, A v decidendi in a higher court will set a binding precedent on lower courts.! Obiter Dicta : Other remarks made by the judge regarding the conduct of the trial, for example the credibility of a witness. These remarks do not form part of the decision and thus do not set a precedent. ! Binding Precedent and Persuasive Precedent !

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• Examine the hierarchy and jurisdiction of state and federal courts :! Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal jurisdictions, each of which has its own court structure. All courts have the power to hear a case for the first time. Some courts can also hear appeals from lower courts. This means they can reconsider the decision of a lower court, where the losing party believes there has been an error in the lower court’s legal reasoning. ! State Courts : 1. Lower Courts 2. Intermediate Courts 3. Superior Courts ! Summary Offences : Criminal offences that can be dealt with by a single judge without a jury and do not require a preliminary hearing.! Indictable Offences : Serious criminal offences that require an indictment (a formal written charge) and a preliminary hearing; they are typically trued before a judge and jury are subject to a greater penalty. State Courts : Local Court and Magistrates’ Court, Coroners Court, Children’s Court, Land and Environment Court, The District Court of NSW, The Supreme Court.! Federal Courts : The Federal Magistrates Court of Australia, The Federal Court of Australia, The Family Court of Australia, The High Court of Australia. !

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Legal Studies Notes

! Outline the role and structure of parliament and the legislative process :!

• Bicameral - Upper and Lower House. ! Federal Parliament - House of Representatives and Senate! Passing legislation - Bill!

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• Describe the function of delegated legislation :! Delegated Legislation is legislation made by non-parliamentary bodies. It involves ‘less important’ laws that parliament does not have time to draft, consider and pass, and so delegates (passes on) the responsibility to subordinate bodies eg local councils. !

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The Constitution was established on 1 January 1901, as Australia gained a Commonwealth Constitution. Prior to this, There were six colonies and in order for the change to occur, a series of referendums in 1898, 1899, and 1900 occurred until federation was achieved. !

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The Constitution divided up the powers between the federal government and the states division of powers. !...