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LEGAL STUDIES PRELIM EXAM

NOTES
The Legal System
THE LEGAL SYSTEM

PART1: BASIC LEGAL NOTI ONS


Terms:
Anarchy The situation that exists in a society that does not have laws or state rule – the state
where there are no laws

Tyranny Where a state has a single ruler who holds all power

Custom The collective habits, or traditions that have been developed by a society over a
long period of time

Rules The authoritative regulation of behavior

Fairness The legitimate and proper conduct in the performance of an act or duty

Equality Suggests that everyone is treated the same. Formal equality occurs when the law
provides that, in certain define circumstances, everyone is treated equally
regardless of their background, social and economic status

Justice May refer to the philosophical notion of a ‘just’ decision – i.e. that it is good and fair

Values and Ethics People or group opinion of what they believe to be morally right

Relationship Between Rules, Laws and Customs:

Difference between laws, rules & customs: Neither rules nor customs have the force of legal sanction
(punishment). The courts will uphold the law but not rules or customs, but all 3 are accepted by the
community.

Laws:
- Formal sets of rules that govern the behavior of a group of people
- Laws are legally put in place by the government and must be followed
- Imposed on all of society
Rules:
- When rules are used for long periods of time, those rules may then become a custom
- Imposed on a smaller group of individuals
Customs:
- Widely accepted expectations of behavior that are particular to specific place, time, or society
- Customs tend to grow naturally over time

Laws in Society:
Functions of Law:
- Providing a way for people to resolve disputes with each other
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- A way of regulating the behaviors of the community
- A way of making explicit the standards of a community
- A way of keeping society functioning smoothly

Why Are Laws Necessary?


Positive:
- Are generally universal in their applications to society
- Are enforceable
- Regulate behavior to remove socially undesirable behavior
- Are written and available to all of society
- May be modified to coincide with changes in the attitudes of society
Negative:
- Restrict individual freedom
- Are imposed by a sovereign body – a supreme authority such as parliament (which may not always
be just)
- May be avoided if not properly policed
- May be discriminatory
- May not reflect the true view of society

Conditions That Must Exist to Make a Law Effective:


- Citizens must have knowledge of the law
- The law must be;
- Clear and concise
- Consistent
- Subject to change
- Capable of being enforced
- The law must provide stability

Why Do We Obey Laws?


- Sanctions: People are afraid of sanctions (punishment) that would occur
- Protection: Laws give us protection
- Moral Rights: People feel its morally right to do so

Characteristics of Just Laws:


Characteristics of Law:
JUSTICE:
- Equal outcomes
- Impartial treatment
- Majority and minority
- Human rights are recognized
EQUALITY:
- Everyone is treated in the same way
- We also tolerate inequality
- E.g. Doli Incapax – children are incapable of wrong
FAIRNESS:
- People have different opinions about what is fair
- Everyone should have the same opportunities

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ACCESS:
- Financially disadvantaged individuals should have access
- Ability to make use of the law

Laws Should Be;


- Enforced through the court system, police and government bodies
- Accepted by the community
- A re-binding on the community
- Discoverable
- Made in the public interest
- Reflect morality

Laws should attempt to be just.

Sources of Contemporary Australian Law:


Common Law:
- Judge made law based on Doctrine of Precedent
- The system of Law used in Britain and its colonies
Statute Law:
- Made by Parliament – any law that has been passed by the government
- Also known as legislation, or Acts of Parliament
- Most powerful law in the land (more powerful than Common Law)
- The creation of Statute Law is closely linked to the Political Party in Government – the party with the
power over the executive and the parliament
Constitution:
- Describes how the country should be run
- Outlines the rights it gives its citizens
- Includes;
- Division of power
- Separation of power
- Involves the High-court
Customary Law:
- Aboriginal and Torres Strait Islander People’s Law
International Law:
- State sovereignty
- International Customary Law
- Declarations and Treaties
- Legal Decisions

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OUTLINE OF THE COURT SYSTEM:
The NSW Court System:

High Court
(Federal)
Leave must be granted
(permission given) to appeal from
the Court of Appeal to the High
Court of Australia

Court of Criminal Appeal Land and Environment Court


Highest court in NSW Specialist environmental and
planning court
Usually 3 judges

Hears appeals

Supreme Court
Criminal cases involving murder or
treason

Civil cases with claims greater


than $750 000

District Court
Criminal cases committed from
Local or Children’s Court

Criminal matters except murder or


treason

Civil cases with claims between


$100 000 and $750 000

Coroner’s Court Local Court Children’s Court


Suspicious deaths Minor criminal and summary Criminal matters involving children
prosecutions (e.g. shoplifting)
Fires and explosions Matters related to the care and
Civil cases up to $100 000 protection of children and young
people

Children’s Court:
- Children are treated differently
- ‘Doli Incapax; - deemed incapable of forming the intent to commit a crime or tort, especially by
reason of age (under ten years old)

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PART 2: THE ROLE AND STRUCTURE OF PARLIAMENT:
Australia’s Parliament:
Democracy – elected representatives

Structure of Parliament:

Types of Parliaments include:


Bicameral – made up of both an upper and lower house
Unicameral – made up of only a lower house (QLD Parliament)

House of Representatives:
- Lower house – more powerful
- They have the ability to introduce laws – however they do not get the final say
- After 3 years, members are re-elected
- 3 main political parties – Liberal, National and Labour Party
- Makes new laws and amends existing ones
- Most new legislation is introduced in the House of Representatives

The Senate:
- Upper house
- After 6 years, members are re-elected
- States house – represents the six states and two territories in Australia
- Reviews legislation that is proposed in House of Representatives
- Senate has equal law-making powers as House of Representatives
- They can not make ‘Money Bills’ – introduce new taxes (e.g. G.S.T)

Role of Parliament:

The key role of the parliament is to pass laws.

Adversary System:
Key features:
- Two opposing sides who argue their case before a court
- The case is presided over by a neutral third party – usually a judge and jury
- Both sides present/ examine evidence
- The third party are not allowed to investigate themselves

Governor General:
- Represents the Queen
- Created by the Constitution
- Not much power – a mainly symbolic position
- 4 areas of ‘resolve powers’:
- Power to appoint Prime Minister
- Power to dismiss a Prime Minister (E.g. 1975 – Whitlam: loss of confidence, acted unlawfully)
- Power to dissolve House of Representatives
- Approves the Bills – ‘Royal Assent’ (Final Say)

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The Legislative Power is held by a Parliament.
The Judicial Power is held by Judges.
The Executive Power is held by the Prime Minister.

The Legislative Process:

Step 1 – The Idea:


The Idea can be introduced by:
- Party Policy
- Election
- Discussion
- Lobbying by interest group
- Public service department
2. House of Representatives:
Here, the bill will undergo:
1. First reading
2. Second reading
3. Committee stage – debate
4. House vote

3. Senate:
Here, the bill will undergo:
1. First reading
2. Second reading
3. Committee stage – debate
4. House vote

4. Approval:
If both houses agree on the bill, it is sent to the
Governor-General to be approved

5. Assent:
If approved by the Governor-General, the bill is
given the Royal Assent

6. Act:
The bill finally becomes an Act of Government

The First Reading:


- The Bill will be introduced to the parliament
The Second Reading:

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- During the second reading, the parliament debates the bill
- Members are given an opportunity to express their opinions about it
Committee Stage:
- During the committee stage, each individual clause of the Bill is debated
- It is at this stage that members can propose amendments to the Bill
The Third Reading:
- It is during this reading that the House is asked to vote on the Bill
- If the vote is successful, then the Bill will be passed onto the Upper House for its approval
The Upper House:
- The entire process is repeated in the Upper House
- If the Upper House does not pass the Bill, it is returned to the Lower House for amendment, or it may be
rejected outright
Assent:
- If the Upper House passes the Bill, then it is sent to the Governor-General for approval
- This is referred to as the ‘Royal Assent’
- Once the assent has been given, the Bill will become a law
- It is now referred to as an Act of Parliament
- It is effective from the date specified in the Act

The Constitution:
Division of Power:

Powers that are granted Powers that the states


only to the retained after federation
Commonwealth
Parliament
Federal Power State Power
Military (Exclusive) (Residential) Education
AFP Transport
People Smuggling Road and License
Boarder Security State Police
Trade and Tax

Constitutional Powers
(Concurrent)

Powers that are shared between


Commonwealth and the state
governments

Health (Hospitals)

Separation of Power:

The Parliament Executive Government The Judicature


(Commonwealth)

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Power to make and change the Power to put law in action Power to make judgments on the
law law

PART 3: DELEGATED LEGISLATION:

Refers to legislation that is made by non-parliamentary bodies, such as councils.

Once delegated legislation has been developed, either house has the power to disallow the legislation.
If no action is taken within 15 days of the legislation being presented to parliament, then the legislation
becomes law.

Four Types of Delegated Legislation:


Regulations:
- Delegated legislation made by the Governor-General, state Governors or members of the Executive
Council

Ordinances:
- Laws made for territories of Australia, such as the Australian Antarctic Territory, usually by the body
governing the territory

Rules:
- Delegated legislation made for government departments, usually by the departments

By-laws
- Laws made in accordance with the Local Government Act 1993 (NSW)
- This Act allows local councils to make laws that apply within the boundaries of the local
government area

The Advantages and Disadvantages:

Advantages Disadvantages
- It saves parliamentary time; the primary - Rules and regulations are developed by
legislation can set the boundaries for more officials that aren’t elected
precise legislations to be developed - Rules and regulations are being developed
- Precise rules and regulations are developed often without consultation of the electorate
by experts - Delegated legislation can change the intent
- Efficiency – easier to develop rules and of the primary legislation
regulation - It is more difficult to discover delegated
- Expert authorities and local government legislation
have a better understanding - Parliament do not have the time or expert
- Relevant ministers are accountable knowledge to scrutinize delegated
legislation

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PART 4: I NTERNATI ONA L LAW
Domestic vs. International Law:
Domestic Law:
- Applies to all, enforced by police/courts
- Laws made by judges/parliament

International Law:
- Applies to those who agree (countries)
- Tribunals/courts are in place
- Nations don’t have to be ratified

State Sovereignty:

All countries are equal.


Each has a right to make decisions for their own country.
Countries have the right to refuse international law.

Sources of International Law:


Declarations:
- Non-binding agreements

Treaties:
- Bilateral – two countries
- Multilateral – three countries or more

Customs and Traditions:


- Law of the sea

Legal decisions:
- ICJ – International Court of Justice
- Permanent
- (Nations)
- ICC – International Criminal Court
- Temporary – ‘ad hoc’ (made or happening only for a particular purpose or need)
- Tribunal – a body established to settle certain types of dispute

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PART 5: CLASSIFICATION OF LA W:
Private Law:

Private law applies to certain groups.

1. Contract Law
- Legally binding between two or more parties
- Civil matters – usually because a party failed to follow the conditions
a. Invitation to treat
b. Offer to buy
c. Consideration that benefits both parties
d. Acceptance by both sides
- ‘good faith’ – they are both honest and fair
2. Property Law
- Any that can be bought or sold
- E.g. Trade Practices Act 1975 and Fair Trading Act 1987
3. Tort Law – civil wrongs
a. Negligence – ‘duty of care’
b. Nuisance – interfering with rights
c. Defamation – starting/spreading something that is not true
d. Trespass – interfering with the property of another

Public Law:

Public law applies to everyone.

1. Criminal Law
- Crimes against persons
- E.g. assault, murder, manslaughter, etc.
- Crimes against property
- E.g. ‘break and enter’, trespassing, etc.
- Crimes against sovereign/state
- E.g. treasons, terrorism, etc.
- White-collar crimes
- Involving money and fraud
- Traffic offences
- Public order offences
- E.g. public nuisance, drunk in public, etc.
- Drug offences
- Including possession, supply, trafficking, usage.

2. Administrative Law
- Operation of government/departments
- E.g. Education Act 1990 (NSW) created by the B.O.S
- Administrative powers
- Administrative Decision Tribunal

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3. Constitutional Law
- Outlines the powers
- Division and separation of powers
- High courts
- E.g. Eddie Mabo (Terra Nullius)

PART 6: COURT PROCEDURES:


Judges and Magistrates:
Judges:
- Intermediate and superior courts
- Issue sentences and rulings – sometimes in conjunction with juries
Magistrates:
- Inferior courts
- Determine cases

Criminal Court Procedures:


Court Procedures in Criminal Law Proceedings:
- Office of the director of Public Prosecutions conducts the prosecution
- 12 randomly selected jurors to determine the case

Standard and Burden of Proof in Criminal Matters:


Standard of Proof:
- ‘Beyond reasonable doubt’
Burden of Proof:
- Always relies on prosecution to prove the case

Proving Guilty in a Criminal Case:


Mens Rea:
- ‘Guilty Mind’ – referring to the intention to commit the crime
Acuts Rea:
- ‘Criminal Act’ – accused having actually committed an offence (the physical act of crime)
Causation:
- The cause and effect relationship between the defendant’s actions and the harm suffered by the
alleged victim

Civil Court Procedures:


Court Procedures in Civil Proceedings:
- Plaintiff issues a ‘Statement of Claim’ outlining details and circumstances of dispute
- Defendant issues a ‘Statement of Defense’

Standard and Burden of Proof in Civil Matters:


Standard of Proof:
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- ‘Balance of Probability’ – based on evidence presented, believability
- The plaintiff (person who brings a case against another in a court of law) holds the burden of proof
(responsibility of proving the defendant is guilty)

PART 7: LAW REFORM

Commonwealth and State parliaments reform or amend existing laws in with the aim to improve justice and
efficiency.

The Reasons for Law Reform:


Failure of Existing Laws:
- Laws can become obsolete or unnecessary over time
- Obsolete or irrelevant laws can be left in place but simply not enforced

Toonen Vs. Australia 1994 (UNHRC)


In this case, a homosexual man complained about a state law that criminalized homosexual relationships.

Government’s response was that the law was not being enforced, so there was no problem.

Tasmania was the last state to decriminalize homosexual laws. It carried a 21-year goal sentence.

- Repeal – to remove a law


- Amend – to change the law
- Courts may be asked to amend poorly worded or ambiguous legislation
- E.g. a law that required domesticated animals to be held on a leash in public will require a
court to decide what animals are ‘domesticated’

Vagrancy Act 1902 (NSW)


Under the Act, persons who slept on park benches at night and who had ‘no visible means of support’
could be detained overnight in police cells.

It was repealed in 1970 – no longer locked up homeless people.


One repealed, more homeless people died from exposure to cold. Death rates went up in the winter.

International Laws and Conventions:


- Need to ratify international law
- The UN conventions on the Rights of the Child (CROC), a widely supported international agreement –
was partially adopted to the Family Law Reform Act 1995
- As the body of International law increases over time, countries such as Australia will need to consider
reforming more of their laws to meet their international obligations

New Concepts of Justice:


- Changing values in society
- Changing ideas about justice

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- Increasing multiculturalism means that law will have to evolve to keep up with social change – legal
acknowledgment of different religions
- Increased emphasis on social justice and human rights saw abolition of death penalty and physical
punishment for children looked down upon

Changing Social Values and Morality:


- Society has become conscious of the need to prevent discrimination against minority groups
- Legislation that disadvantaged certain groups has largely been removed, and anti-discrimination laws
have been introduced
- More tolerant with people caught with very small quantities of recreational drugs, reflected in
legislative changes

Agencies of Reform:
Australian Law Reform Commission:
- Established in 1975 – permanent full-time body assigned to provide advice of law reform
- Australian Law Reform Commission Act 1996 (Cth) governs the ALRC
- To modernize, develop, improve access and eliminate defects in law
- Considerable community input in acknowledging areas of reform

PART 8: NATI VE TI TLE

Terra Nullius
Legal term meaning ‘Land of no-one’ – applied by the British whenever new land was discovered.

Role of the High Court and Parliament:


Overturning the Doctrine of Terra Nullius:
- 1967 Referendum saw more than 90 percent of Australian voters chose to count Indigenous people in
the census
- Aboriginals thought they could pursuit more reforms, including land rights
- Aboriginal Land Rights (Northern Territory) Act 1976 (Clth)
- Granted traditional Aboriginal land in the NT
- Aboriginal Land Act 1991 (QLD) and Torres Strait Islander Act 1991(QLD)
- Land in Queensland that was occupied by Indigenous Australians was transferred to them

Major Native Title Decisions:


- Native Title Act 1993 (Cth) – following Mabo v. Queensland (No. 2), Commonwealth Government
passed to recognize rights and interests in regions where traditional links can be proven
- Native Title Amendment Act 1998 (Cth) – Howard aimed to diminish the scope of the act and ensure
security for Australians that would lose entitlement to land under new legislation

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