2019 P LS Prelim Legal Studies Notes Natalie Russell NOTES

Legal Studies: 2019
Preliminary HSC Notes - Legal

Studies 2019
Basic legal concepts

• meaning of law
• customs, rules and law
• values and ethics
• characteristics of just laws
• nature of justice:
– equality
– fairness
– access
• procedural fairness (principles of natural justice)
• rule of law
• anarchy
• tyranny
define law: a system of rules that are created and enforced through social or governmental
institutions to regulate behavior of society
distinguish between customs, rules, laws, values and ethics:
set of rules imposed on all members of a community, which are officially recognised
Law: a
by the community.
Rules: r egulations that society should abide by, they can still be punishable if broken but not
as severe as breaking a law.
Customs: established patterns of behaviour among people in a society or group.
Relationship between rules, customs and laws practice response:
Whenever people have lived together in groups, they have developed rules to govern their
behaviour and thus maintain the smooth running of activities. These rules were based on the
traditions, customs and values of the group. These rules have penalties attached if members
of the group fail to follow them. Groups usually put someone, or a small group, in charge to
enforce these rules and the associated penalties this has then formed into laws. In modern
times, this became the government.
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Values: Important and lasting beliefs or ideals shared by the members of a culture about
what is good or bad and desirable or undesirable
oral principles that govern a person's behaviour or the conducting of an activity.
Ethics: m
Laws Rules
- Obeyed by all citizens of society - To be obeyed by specific group in

- Made by law-making body society
- Enforced through courts - Made by individual groups
- Breach results in jail time, fines etc - Enforced by leaders of group
- Consequences of breach is at the
discretion of the group leader
Is there a difference between laws and rules?
The difference between laws and rules is vast, rules are regulations set by a certain group
leader for a group of society to follow, if these rules are broken you can still be punished but
not as harshly as breaking a law. For instance a rule is something such as a school
implementing a dress code for the school. The group of society, who are students must
abide by this rule if the rule is broken students are likely to be asked to change or receive a
warning; this rule is set to ensure the school society are equal and the same. On the
contrary a law is implemented and created by a lawmaking body such as parliament or
judges (statute law and common law). These laws are regulated by authorities like the police
and are officially recognised by society, an example of a law is to not discriminate against
others in the workplace or school because of ethnicity or disabilities, this comes under the
Anti-Discrimination Act 1977 (NSW). This law is set in place to ensure no body is
discriminated against based on their appearance or cultural background, this means that a
school principal can not discriminate against a child with a disability and must let them enrol.
Students learn to: Describe the characteristics of just laws and the nature of
justice -
Just laws: just laws should be based on the notion of equality, these laws must be
enforceable i.e. the police can enforce them, the laws must be acceptable to the majority of
citizens, these laws must be discoverable meaning that members of the public need to have
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access to these laws and they must not be retrospective which means it can not take effect,
in point of time, before it was passed by higher authority.
- Must be known to society

- How it affects society
- Utilitarian (useful)
- Your background → should not dictate
- Legal aid
- Information available
- Can not bring in a law but back date it
Nature of Justice: the nature of justice refers to the access, equality and fairness of
justice.
Access:
- Laws must be known → information
- Legal aid - not matter finance. E.g. state lawyer
- Everyone is covered by the law → no one is above the law
- Understand your rights and obligation
Fairness:
- It is expected that all laws are fair to ALL citizens
- Same opportunity for everyone
Equality:
- Strives for equality
- Takes into consideration dis/advantage
- Vulnerability
- E.g. racial discrimation act
- E.g. (R v LMW) 1999 → capability of the 10 year old
The role of the legal system is to ensure that everyone has access to the law and that the
law provides equality, fairness and justice to all members of society
These concepts identify just & unjust laws.
Fairness = justice for all
Justice = relates more to the law
What is legal aid?:
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- Legal aid is the assistance in legal advice, services such as lawyers
Remedies to improve legal aid:

- More resources
- Information on your rights
- Better funding for state representative lawyers
Practice Question: Why is access to the law important?

- There are many important factors to the access of law but the main importance is so
that society can know their rights and obligations and can access legal aid even if
they don’t have the financial funds to do this. If society didn’t know their rights and
obligation then society is more likely not to receive legal aid if needed.
Students learn to: Define and investigate procedural fairness and

the rule of law
Procedural fairness: The body of principles used to ensure 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 from bias by
decision-makers and the right to a decision based on relevant evidence.
Practice Question - Why do people obey the law?

people within a society like to have rules and laws because they create order. Laws help
each person to feel a sense of security - the law is clear about what is expected of them
as citizens and what they can expect from others. As the law is based on customs, it
also helps to reinforce the values of most members of society. In principle, the law
embodies the concept that what each individual believes is important has the same
importance to the larger group . Laws also function to protect all members of society .
They tell society what actions are allowed and those that are not permitted. Laws apply
sanctions to those found guilty of a crime and may act as a deterrent to those who
might otherwise commit a crime. Laws enable people to resolve disputes, as they
empower the police force and the courts to enforce and administer the law.
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Rule of law:
- no one is above the law, including those who make the law. This means that the
groups and individuals who are involved in the legal system - such as legislators
and judges who make, administer and interpret the laws; the police who enforce
the law; and the lawyers who represent and advise people on the law - are all
answerable to the same laws as every other citizen.
- The rule of law means that everyone is subject to the same laws.
Students learn to: define anarchy and tyranny:
Anarchy: the absence of laws and government

Tyranny: rule by a single leader holding absolute power in a state
Sources of contemporary Australian law common law
British origins, including:

- development of common law
- equity, precedent
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- adversarial system of trial

• court hierarchy:
- jurisdiction of state and federal courts
statute law
● role and structure of parliament
● legislative process
● delegated legislation
The Constitution
● division of powers
● separation of powers
● role of the High Court
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
International law
● differences between domestic and
● international law
● state sovereignty
● sources, including:
– international customary law
– instruments (declarations and treaties)
– legal decisions, writings
● role of:
– United Nations
– courts and tribunals
– intergovernmental organisations
– non-government organisations
● relevance to contemporary Australian law
3. Classification of law
● public law
– criminal law
– administrative law
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– 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
4. Law reform
● • 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 and
intergovernmental organizations
5. Law reform in action
Native Title
- Terra nullius
- the roles of the High Court and federal parliament
- major native title decisions
- legislation
• outline the origin of common law

- Legal processes and practices used in Australia today are based on the model
developed in England. When the British came to Australia in 1788, they brought
with them the law that applied in Britain, known as common law . Contemporary
Australian law has evolved from both common law and statute law. Common law
refers to laws created in court; that is, decisions made by judges.
● examine the hierarchy and jurisdiction of state and federal courts
Local → District → Supreme → Appeal → Federal → High
Local Court:
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- Deals with minor criminal matters e.g. paying fines, disputes with neighbours. Minor civil
disputes ($5000-60,000).
District Court:
- Deals with serious criminal charges e.g. larceny, manslaughter, types of assault and
drug importation.
- Deals with civil cases up to $750,000 and has appellate jurisdiction.
Supreme Court:
- Has criminal jurisdiction of issues such as murder, attempted murder, kidnapping and
conspiracy charges. -
- Deals with appeals from lower courts and Cth prosecutions for breaches of corporation’s
law. Civil matters, no monetary jurisdiction, with hearing matters such as defamation
and professional negligence.
Federal Court:
- Jurisdiction includes bankruptcy and industrial matters, summary criminal offences.

deals with civil disputes dictated by federal law, excluding family matters.
High Court:
- The highest court in the judicial system in Australia that was established under section
71 of the constitution.
- - It deals with appeals from federal, supreme and family court and interpretation of
constitutional laws.
● outline the role and structure of parliament and the legislative process
Parliament is a body of elected representatives.
- It debates proposed legislation, passes or rejects it and amends legislation.
All states except for Queensland have a bicameral parliament which means they have
two houses.
- The Senate is the upper house and the House of Reps. is the lower house.
- Ministers are those who have special responsibilities in each department and are
elected by the prime minister who is the leader of the government.
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Cabinet: Made up of ministers who make decisions on policies and laws to be drafted for
consideration by parliament.
Executive Council: Governor/Governor-general, as well as selected ministers, make up

this body. They enable legislation to be put into operation.
Legislative Process
1) Bill is introduced into parliament - by minister or via a private members bill)

2) First reading (read aloud in parliament)
3) Second reading (read again -- more detail
4) Committee stage: parliament can debate bill
5) Third reading + vote
- If voted no: amendments or bill is thrown out
- If voted yes: goes to senate → steps 1-5 repeated
- If bill is passed it needs the Governor-General's assent → bill is made public
Describe the function of delegated legislation
Delegated Legislation: It is legislation made by non-parliamentary bodies that deal with laws
considered to be of lesser importance.
Function: is it allows the Government to amend a law without having to wait for a new Act of
Parliament to be passed. Further, delegated legislation can be used to make technical changes
to the law, such as altering sanctions under a given statute.
Students learn to: Explain the difference between division and separation of
powers
Division of Powers:
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The split of powers into federal and state governments
- Section 51 of the constitution outlines the legislative powers of the federal

government including things such as marriage, military matters and external
affairs.
- Section 52, however, sets out the exclusive powers of the federal government.
Residual powers: anything that is left over/ not explicitly stated in the constitution - such
as education and transports are the powers of the state. Any powers shared by the
federal and state governments such as banking and insurance are known as concurrent
powers.
Concurrent: powers of a federal system of government shared by both the federal government
and state
Separation of Powers:
Divvying up law-making power between the three pillars of government
Legislature →
- parliament: people who make the law i.e. legislation

- Made up of elected representatives
Judiciary →
- Federal courts: primarily high court

- Interpret the law and ensure all laws made are in line with constitution
- Keep a check on the power of legislature - and strike down laws
Executive →
- Top of parliament - made up of cabinet (MPs + Ministers) + public departments

- Responsible for delegated legislation
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Explain the difference between division and separation of powers
- The division of powers is the split of powers into federal and state governments; section
51 and 52 of the constitutions outline the powers in which the federal government can
deal with whilst anything left over and not explicitly stated are called residual powers are
given to state/territory governments. These powers deal with powers such as transport
and education whilst the separation of powers are the power divided into three
governmental pillars; legislature, judiciary and executive. Legislature) is made up of the
Queen (represented by the Governor-General), the Senate and the House of
Representatives makes and amends the law. Judiciary is made up of the High Court and
other federal courts and makes judgements about the law and lastly the Executive, The
Executive is made up of the Queen (represented by the Governor-General), Prime
Minister and ministers they put the law into action.
Students learn to:examine the role of the High Court in the interpretation of the
constitution
The interpretations of the constitution dictate what areas the Commonwealth can
legislate on and what areas belong to the states. In addition, the high court outlines how
each section of the government can exercise its powers and places limits on such
powers. Initially the High Court would put forth decisions that would favour the states.
But over time a broader approach has led to a shift in the legislative balance between
the states and the Commonwealth.
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Aboriginal and Torres Strait Islander Peoples’ customary laws
• examine the characteristics of Aboriginal and Torres Strait Islander Peoples’ customary
laws
Spiritual basis for the law → significance of land and water
· Mediation and Sanctions
· Family and Kinship
· Rituals and Oral Traditions of the Law
- Aboriginal and Torres Strait Islander customary law is quite difficult to define due to its
diverse and exclusive nature.
- Each nation has their own set of laws that are in relation to their specific way of life.
There are common aspects but aren’t necessarily the same.
- Cambridge describes it as ‘Principles and procedures that have developed through
general usage according to the customs of a people or nation or groups of nations.’
Common consequences for breaches include:
· Sanctions and punishments: applied for murder and religious violation
· Conciliation: elders of a tribes meet with those involved in conflict and create a suitable
resolution through discussion
· Mediation: for minor offences where all members of the conflict discuss and negotiate
• outline the extent to which Aboriginal and Torres Strait Islander Peoples’ customary
laws have been integrated into Australian law
Aboriginal and Torres Strait Islander law has been integrated into Australian law through the
acknowledgement of native title acts.
Native title acts often sit above other laws so that it is always valid.
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international law
- distinguish between domestic and international law and examine the impact of state
sovereignty
Domestic International
- Laws within a country that applies to - Applies to nations and

those residing in country ‘transnational jurisdictions’
- Laws made by government or - Laws include treaties and formal
sovereign agreements
- Laws include statutes and common - International customary law
law relates to accepted norms
Differences
International Law Domestic Law (Australia)
Application Treaties apply only to those nations Applies to all within Australia’s
who agree to be bound by them, but jurisdiction (territorial waters
international customary law applies to and Australia’s territories)
all nations
Enforcement International courts and tribunals exist, Law enforcement agencies and
but they are complex and their institutions exist such as the
jurisdiction can be limited by police and the courts to enforce
nation-states the law
Creation Treaties are made through Made by parliaments (statute

negotiations between nations. law) or the rulings of judges
Customary international laws develop (common law)
over time
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State sovereignty -
A state, in the legal sense, is an independent entity that is recognised by other

states on an international basis. In order to be a state, a place must have:
● a defined territory
● a permanent population
● an effective government
● the capacity to enter into international negotiations
- the state has the authority to make rules for its population and the power to
enforce these rules.
- International law governs the relationships between states .
- International law enables states to participate in trade and commerce and
provides mechanisms for the maintenance of peace and security and the
reduction of conflict. International law also covers fundamental human rights,
making it illegal to do such things as torture political prisoners or commit
genocide .
- One of the main criticisms of international law is that it lacks the power to
enforce the constraints contained in this law. There are many examp les
around the world of states breaching international law, especially in the
area of human rights . International law could not prevent genocide in
Rwanda in the 1990s and has not prevented crimes against humanity
committed in the Darfur region of Sudan since 2003 or those of the Syrian
civil war (continuing at the time of writing) .
- international law is different from domestic law.
- States are powerful entities and to force another state to take a particular
course of action can have implications for the international community. As a
result, international law relies on countries consenting to cooperate in the
enforcement of these laws.
- law is adhered to not simply because it can be enforced, but because it is
generally accepted by the whole community.
- As the world is made up of diverse cultures with different values, not all
countries will agree with all international laws and may ignore a law if they
feel that it is not in their national interest to do so.
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examine the sources of international law
- customs → based on long-established traditions or common practices

followed by many states to the point that they are accepted as being fair and
right by the international community. For example, customary international
law regulating war had been in existence for a long time before The Hague
(1989) and the Geneva Conventions (1864, 1906, 1929, 1949) explicitly
outlined rules governing the conduct of states in conflict such as the
manner in which prisoners of war and civilians were to be treated.
- declarations → Declarations are international instruments that state and

clarify the parties' positions on particular issues, but do not impose legally
binding provisions that must be followed. A famous example is the
Universal Declaration of Human Rights (1948)
- Treaties → a treaty is 'an international agreement concluded between

states in written form and governed by international law'
→ Treaties can be either : bilateral - between two nations; for
example, the Agreement between the Republic of Indonesia and Australia on
the Framework for Security Cooperation (the Lombok Treaty, 2006'),
concerning their common security and respective national security; or
multilateral - between many states; for example, the Charter of the United
Nations (1945), which established the United Nations and its organs and
agencies.
- Each country that is a signatory to this treaty has a seat in the
General Assembly and participates in UN processes. The more states
that signed a treaty , the more powerful that treaty will be. Treaties
are used to make specific laws and to control conduct and
cooperation between and within states
- legal decisions and legal writings → the Statute of the ICJ as a means of
determining the rules of international law. Scholarly legal writings may be
drawn upon for the purpose of interpreting treaties or determining their
application in international disputes
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• describe the role of the various organisations involved in international law
United Nations:
- The UN is the primary organisation involved in international law, with its main
objective being to maintain global peace and security.
- The UN’s International Law Commission is the main body that is in charge of
creating international law. The general assembly discusses and makes
recommendations on international law.
- The Security Council is in charge of maintaining peace and security.
Courts + Tribunals:
The International Court of Justice (ICJ):
- Deals with legal disputes between nation-states and advisory proceedings

often attended by the Security Council or the General Assembly.
- The ICJ can only address issues if nation-states involved accept the
jurisdiction of the court.
The International Criminal Court (ICC):
- The International Criminal Court (ICC) investigates and, where warranted,

tries individuals charged with crimes of concern to the international community
- Such as genocide, war crimes, crimes against humanity and the crime of
aggression.
Intergovernmental Organisations:
- organised groups that represent nation-states that pursue a mutual interest.
They are created with the purpose to resolve conflicts and deal with difficult
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issues within states. In addition, some make collective decisions on

international issues such as refugees and wealth.
- An example of an IGO is the European Union which is an economic and
political partnership established on the premise of issues such as human
rights and trade.
NGOs:
- NGOs are not for profit organisations that aren’t affiliated with any sort of
government.
- They predominantly hold a charitable status and are established by everyday
individuals with a common goal.
- They are often affiliated with the UN as the UN charter states the NGOs can
have consultative status with the UN social and economic council.
- NGOs aid significantly in the international rule of law reform processes.
- Most generally provide information on specific fields and create reports on
policy recommendations. They also aid in the monitoring and management of
international agreements.
• examine how international law impacts on and is incorporated into Australian

law
- International Law is increasingly being incorporated into Australian domestic

law due to the treaties and conventions which Australia engages in.
- Such as the Commonwealth Racial Discrimination Act 1975, Convention on
the Elimination of All Forms of Racial Discriminationint and the
Commonwealth Sex Discrimination Act 198
- When a signatory signs a treaty, they are obligated to incorporate aspects of
the treaty into their relevant domestic law.
- Any domestic laws that contradict laws outlined in the treaty are overruled by
the Federal Government’s ruling.
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Classification of law
• outline different types of law
Private Public
Tort Administrative
· Nuisance Constitutional
· Negligence Criminal
· Defamation · Crimes against person/s or property
· Trespass · Drug offences
· White collar crimes
Property · Traffic offences
Contract · Public order offences
· Crimes against state/sovereign
• compare the purpose of different types of Law
- In civil matters, the dispute is between two or more parties with no relation to
the state.
- Criminal matters, however, are between the accused and the state as it is
believed the actions of the accused affects the whole state.
- Civil law relates to the rights of private individuals in legal discourse.
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- The main function of civil law is to regulate people’s private relationships with
each other, promoting fairness and addressing any violations.
- The main function of criminal law is to maintain public safety and order within
society.
- Criminal offences are deemed to be of harm to the whole of society, not just
the specific victim, therefore the state has the responsibility to act.
• distinguish between civil and criminal court procedures
Civil Criminal
· Between two or more parties, no · Prosecutor and defendant

relation to state. One party brings · State brings case to court
case to court · Onus is on prosecutor
· Features plaintiff and defendant · Beyond reasonable doubt
· Onus is on plaintiff to prove case

· Balance of probabilities
• identify the role of legal personnel involved in the court process

1. J udges and Magistrates: They preside over court cases and hand down rulings
2. Judge’s associate: Judge’s confidential secretary
3. Barristers and Solicitors: Represent parties in court
4. Witness: Gives evidence relevant to the case
5. Court Officer: Administers oaths, in charge of witnesses and organisation of
courtroom
6. Court Reporter: Record court proceedings
7. Jury, Media, Plaintiff and Defendants
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• compare and contrast common and civil law systems
Civil Law Common Law
· O riginated from Roman law · Developed through custom

· Code of law that are applied and interpreted D
erived from specific court rulings
· Used universally
Law reform
examine the conditions that give rise to law reform
Changing social values:

- The law must be reflective of society’s values and ethics.
- Due to this, the law is constantly changing in order to stay relevant and have society
comply with it.
- An example would be same-sex marriage.
New concepts of justice:
- When the law is unable to deliver just outcomes, law reform is required to establish
new forms of justice.
New technology:
- Technology is constantly evolving and the law must adapt in order for it to be
inclusive of all issues. Privacy and ‘birth technologies’ are examples.
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describe the role of agencies involved in law reform
ALRC:
- Australian Law Reform Commission reviews Commonwealth laws and advises the
government on how the law can be changed to be reflective of society’s exigencies.
- They also ensure that proposals and recommendations do not infringe on human
rights and international obligations.
- Generally, they create reports and introduce to the federal government through the
attorney general. The report doesn’t have to be taken into consideration.
NSWLRC:
- New South Wales Law Reform Commission is similar to ALRC but relevant only on a
state level.
- The NSW government will give the NSWLRC issues to investigate.
- The commission will evaluate the issue to identify whether reform is required.
- If so, the commission will conduct extensive research and consult the public on the
issue before establishing a report. The report is then given to the state government to
discuss.
Parliamentary Committees:
- These committees are often established by both houses of parliament primarily due
to the houses not possessing the time required to address a certain issue. In
addition, they scrutinise government activity.
- They are often asked to undertake an inquiry in regard to specific issues. They
investigate and identify ways in which the issues can be solved or managed.
examine the operation of the different mechanisms of reform
Courts:
- The rule precedence is generally in application in regard to law reform.
- Any laws edited by a higher court must legally be obeyed all courts that sit below it.
Parliaments:
- Law reform is done through the passing of a bill through both houses. Bills are
debated by differing parties and are usually passed if introduced by the party in
power.
- Parliament is the branch of government that creates laws so it will always play a
major role in law reform processes.
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- United Nations and NGOs are also mechanisms of law reform.
Law reform in action

Terra Nullius
International law recognised only three ways of claiming sovereignty, one of the being
through the establishment of terra nullius. It means land of no of one and allowed for the
British to occupy Australia. In occupying Australia, the British established their own way of
life along with their own set of laws. Native title claims were difficult to prove under these
laws. British settlers began to colonise and completely neglected the Indigenous people and
failed to acknowledge their relation to the land. Under terra nullius the Indigenous had to
prove that they were the traditional owners of the land and had an ongoing connection with
it.
High Court and Native Title
The National Native Title Tribunal investigates claims made by Aboriginal and Torres Strait
Islander in regard to native title. The federal court will determine whether native title exists
and if anyone disagrees with the federal court they then approach the high court.
Federal Parliament and Native Title
Parliament enacts legislation to protect the land rights of Aboriginal and Torres Strait
Islander people.
Native Title Decisions - Mabo
The Mabo land rights case was the catalyst for the establishment of native title legislation.
Furthermore, it gave recognition to the Indigenous inhabitants of Australia. Mabo was able to
prove uninterrupted occupancy of the island and ensure that the islands which his nation
occupied wouldn’t come under QLD law. In doing so the Native Title Act 1993 ( Cth) was
established that:
· Provided recognition and protection for native title
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· Established
a mechanism for determining native title
· Set standards for future cases dealing with native title
Wik
The WIk and Thayorre people launched a case against the QLD government, claiming native
title to land being used under pastoral leases. The Federal Court ruled that the existence of
pastoral lease (gov. owned the land) trumped native title. The case then went to the High
Court which revealed that under the law pastoral leases and native title could co-exist but if
conflict would arise, native title would become invalid. As a result, the Native Title
Amendment Act 1998 (Cth) was created. The main provisions are:
· Extinguished native title claims on land that was privately owned prior to 1994
· When native title exists alongside a pastoral lease, the pastoralist is allowed to use
the land for primary production without having to consult people who have native title
interests
· Tough tests imposed to determine native title (prove continuous occupation of land)
Effectiveness of Law Reform
· Amendments recognise rights of native titleholders as well as current landholders

· Overturning of Terra Nullius
· Respect towards native title
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Part II: The individual and the law
Your rights and responsibilities

- Identify the types of rights to which individuals are entitled
LEGAL RIGHTS
- Positivism: the view that rights can only be granted by lawful authority
- Natural law: the view that there is a higher law than that of kings and parliaments. It
may come from Gods or other basic principles.
outline the responsibilities of citizens within a society
- Australian citizens have an obligation to: obey the law; defend Australia should the
need arise; and. vote in federal and state or territory elections, and in referenda.
explain the interrelationship between rights and responsibilities
Rights and responsibilities are related in some ways. Where citizens have particular
rights, the state has a responsibility to protect those rights and ensure that they are not
violated by individuals, groups or the state itself . Where the members of a group have a
legal responsibility to do something, the group has a right to expect it. For example,
school principals have the responsibility to allow a disabled student the right to attend the
local school by making arrangements such as wheelchair access, teacher support and
training
Resolving disputes-
outline the roles of law enforcement agencies
The police State and Territory police

- Responsibility involving upholding the law, preventing and investigating crime,
and providing community protection . In addition, police services manage
emergency incidents, enforce road and traffic rules, and deal with missing
persons reports. Other aspects of state policing include assisting with mediation in
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family and neighbourhood disputes, particularly those involving domestic.

violence. The application and enforcement of apprehended violence orders
(AVOs) restricting the movements of some individuals in relation to others is
another part of the job of the state police .
Federal police
- The Australian Federal Police (AFP) is responsible for enforcing federal law and
criminal law where crimes cross state boundaries.
- A key role is the prevention and detection of crimes with in Australia against
Commonwealth law.
- police may also deal with Australians overseas. Crime legislation enforced by the
AFP includes the Crimes Act 1914 (Cth) and the Criminal Code 1995 (Cth).
Offences include drug importation and distribution, and crimes relating to
Commonwealth entities (e.g. bribery of Commonwealth public officials). The
powers of the AFP are set out in the Australian Federal Police Act 1979 (Cth)
Australian Border Force
- facilitating the lawful passage of people and goods,

- investigations, compliance and enforcement in relation to illicit goods and immigration
malpractice; and
- onshore detention, removals and support to regional processing arrangement
Australian Criminal Intelligence Commission
- It works at a national level with other federal, state and territory agencies to
combat serious and organised crime. In New South Wales, the Australian Crime
Commission (New South Wales) Act 2003 (NSW) was passed to enable the full
operation of the ACC in NSW.
- Similar legislation was passed in the other states and territories, effectively bringing
the Australian Crime Commission Act 2002 (Cth) into state or territory law.
- The ACIC has a number of important functions, involving both intelligence and
investigative roles:
- collecting and analysing criminal intelligence data
- giving advice about National Criminal Intelligence Priorities (NCIPs) to the ACC
Board
- managing criminal intelligence systems such as the Austral ian Criminal Intelligence
Database
- investigate federally relevant criminal activity and forming task forces; for example,
Strike Force Tuno 11
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Australian High Tech Crime Centre
Its role is to address serious and complex crimes involving:

- computer technology such as online fraud,
- mule recruitment ,
- offensive and prohibited internet content.
- ‘Technology-enabled crime' includes crimes committed directly against computers
and computer systems
Australian Security Intelligence Organisation
- is to gather information that will help the federal government and other law
enforcement agencies, such as the AFP, to prevent and thwart attacks on
Australia. ASIO's role is expanding; it employs approximately 1500 people. ASIO's
information is used by 75 government departments, police and senior
decision-makers.
identify and examine methods of resolving disputes between

individuals
Alternative dispute resolution
uses a variety of methods to resolve disputes between parties without involving court
processes. ADR allows the participants not only to save time and money, but also to
have more control over proceedings.
Negotiation
- Negotiation means discussion between two or more parties with the aim of reaching
a mutually beneficial outcome.
- It involves consideration of the other party's views, and often some degree of
compromise .
Mediation and conciliation
- Both processes involve a neutral and independent third party who helps the parties
to negotiate their disagreement and to come to a decision that they both find
acceptable
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- The mediator does not provide advice on the matters or impose a decision on the
parties .
- In conciliation, the third party also helps the parties to identify the issues,
consider alternative options to solve the dispute and reach an agreement. In contrast
to a mediator, the conciliator may advise the parties, although he or she does not
make a decision for them .
- A conciliator may be a legal practitioner or professionally qualified in the subject
matter of the dispute .
Arbitration
- formal process, in which an independent third party (the arbitrator) is brought in to
determine how the dispute is to be resolved.
- useful when the subject matter of the dispute requires an expert and/or when a
court -like procedure is desired, but with a greater degree of confidentiality.
- It is used when a contract specifies arbitration for resolution of any disputes
arising, in industrial relations matters, and in tenant and landlord disputes.
Courts
- If the individuals involved in a dispute cannot resolve it by way of alternative
methods, they will need to take the matter to litigation.
- example of a court that deals with disputes between individuals is the NSW Land
and Environment Court (LEC)
Tribunals
- offer a less formal and expensive method of dispute resolution than the court system.
- Individuals do not normally need legal representation - it is often not even permitted -
and the person presiding over the tribunal may have specialist expertise rather than
specific legal training.
- compare and contrast disputes between individuals and those

between individuals and the state
Disputes with State -
No. of methods by which state power or government decisions and policies can be
challenged. Some non-legal and others involve formal and legal channels.
- These disputes are a way of challenging state power, decisions, policies & disputes
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- Disputes between individuals can be resolved using various legal (formal) and
non-legal (informal) methods.
- Disputes between individuals and the state can also be resolved using formal and
informal methods. The state does not have unlimited or arbitrary power.
assess the effectiveness of methods of resolving disputes
• distinguish between non-legal and legal methods of enforcing rights and resolving
disputes
Non-Legal Legal - individual Legal - state
- Media - ADR - judicial/internal

review
- Interest groups + - Negotiation - Royal commission

NGOs
- MP’s - Mediation - Tribunals
- Protests → strikes → - Conciliation - Ombudsmen

workplace
- Courts/ Tribunals - Statutory bodies
• assess the effectiveness of dispute resolution processes in achieving justice for and
between individuals
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Contemporary issue: The individual

and technology
explain the difficulties with enforcing rights
- In cyberspace, there are few barriers between individuals and potentially harmful
content. In addition, people who have grown up with the internet and are
comfortable using it and other forms of digital technology may be less cautious than
those who have adapted to it and adopted it at a later point in their lives.
assess the role of law reform in addressing emerging technological

issues and enforcing rights
- The Australian Law Reform Commission has recommended the development of a

statutory tort of breach of privacy, and other reforms to take account of new
technology.
- In 2008, the Australian Law Reform Commission (ALRC) produced a report called
For Your Information: Australian Privacy Law and Practice, in which it
recommended extensive changes to privacy laws and practices to take account
of new technology, as well as a way that individuals can bring a civil action for
serious breach of privacy.
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discuss the legal implications of the use of technology and its

impact on the individual.
- Advances in technology have brought many benefits but also problems. The
use of new technology creates moral and ethical problems and conflicting
attitudes in society. The complexity of the issues and the pace with which
technology changes mean that legislators have difficulty making laws that can
keep in control of these changes.
- Technology affects all areas of society, forcing changes in a range of laws.
Advances in computer technology have resulted in a new brand of cyber
crimes such as computer fraud, computer hacking, email spam, pornography
(especially when it relates to children) and stalking online. But it doesn’t just
limit itself to computer related crimes. The new wave of digital recording
devices create issues with privacy and
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Part III: Law in Practice
Women:
Outline the historical roles and attitudes towards the contemporary

issue
- For many years, the attitude that women are different from men and inferior in
significant ways has been reflected in the laws and policies of many countries,
including Western societies.
- Women's working lives involved domestic duties such as rearing children, preparing
food, sewing and various other tasks in the home. This position was strongly
influenced by biology. As most women were always bearing children (no reliable and
safe contraception was available), they were left at home, dependent on their male
partners.
Explain the events that highlight problems faced by the

contemporary issue.
Education, training and workforce participation:

- Historically, women who wanted to enter professions had many barriers to
overcome, some of which persist today.
- The formal education that most young girls received was usually short in duration
and assumed a future as a homemaker.
- In the 19th century, there seemed no pressing reason for young women to complete
their secondary education, let alone go to university.
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- Those women who were able to attend university to study subjects such as law and
medicine did so in the knowledge that even if they passed their exams, they would
not be given degrees and were effectively barred from practising in their chosen
field .
- Passage of the Women's Legal Status Act 1918 (NSW) opened the way to
recognition of women's right to enter professions . Many women who had
successfully completed their degrees were able to do so, and some were elected to
parliament in the 1920s
Promotion -
- Despite the success of women in various education institutions, women do not have
the same success in terms of gaining a promotion.
- The NGO Chief Executive Women has attempted to “facilitate greater representation
of women at senior levels of Australian business, government and non-profit sectors.”
- Since 1985, women have been graduating from university at higher rates than men
(see previous lesson), yet men are nine-times more likely of making it to senior
executive ranks than women in large corporations.
Equal Pay -
➔ The push to achieve equal pay has usually come from non-legal methods which have
then been translated into legal responses.
➔ The Commonwealth Conciliation and Arbitration Commission (now known as the Fair
Work Commission) introduced the concept in 1969 and granted equality in 1972
known as the Equal Pay Case.
➔ Only 18% of adult female employees obtained equal pay under this ruling because
women and men were usually under different award agreements.
➔ A key mechanism in the push for equal pay has been the Australian Council of Trade
Unions (ACTU).
➔ (2012) FWAFB 1000 Equal Pay Case.
Marriage:
- In the past, when a woman married she effectively lost the legal ident ty she had
as a single person . The law did not recognise the existence of the woman within
the marriage, as her legal identity became that of her husband's . They were
regarded as unito caro , which meant 'one flesh'
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- By marriage, the husband and wife are one person in law: that is, the very being or
legal existence of the woman is suspended during the marriage
The right to own property
A married woman lost all control over any personal property she owned at the time of
marriage, and also any she acquired during the marriage. If she owned any real
property, it came under her husband's control, but remained hers for the purpose of
inheritance.
- This situation continued until the Married Women's Property Act was passed in
1870 and 1872 in the UK, and later a similar act was passed in New South Wales,
the Married Persons (Property and Torts) Act 1901. These Acts gave women
greater control over their personal property.
The right to vote
- For women everywhere, the right to vote (suffrage ) has always symbolised the
fundamental right of all members of a democratic society.
- until the early 20th century, this right was not generally available to women .
- The right to vote was also an important symbol of women's struggle for equality .
- In Britain, it was Emmeline Pankhurst who was the driving force behind the
suffragette movement.
- Suffragette marches on parliament grew in size from approximately 300 in 1906
to 4000 in 1907. They chained themselves to pylons and gates and disrupted many
political meetings.
Describe the legal and non-legal responses to the contemporary

issue
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Legal Responses
International Law:
- The main treaty that addresses discrimination against women around the world
is the United Nations Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) .
- It was opened for signature in 1979 and entered into force in 1981.
- The preamble of CEDAW acknowledges that the Charter of the United Nations
and the Universal Declaration of Human Rights affirms that all human beings are
born free and are equal in dignity and rights .
- It also acknowledges that under human rights treaties, states have
responsibilities to ensure the equal rights of men and women to enjoy all economic,
social, cultural, civil and political rights'.
- The Convention contains 30 articles. Articles 1- 16 set out the main rights of
women . Articles 17- 22 outline the powers and responsibilities of the Committee
on the Elimination of Discrim inat ion against Women, the body set up to
monitor the implementation of the treaty. Articles 23--30 set out the provisions
governing the formal operation of the treaty.
Domestic law:
- Legislation protecting women from discrimination exists at both state and federa l
levels in Austra lia. Discrimination means treating someone unfairly because of
some characteristic.
- Discrimination on the basis of sex may be considered to include discrimination
because of someone's marital status or because she is pregnant or likely to
become pregnant.
- There are two types of sex discrimination:
- direct discrimination and indirect discrimination
- Direct discrimination is a more blatant form and is more easily identified; for
example, where male employees are offered first choice for extra overtime ahead of
female employees.
- Indirect discrimination is usually harder to detect. It occurs when there is a
procedure, rule or practice that , on the face of it, is the same for everyone and not
discriminatory, but when carried out actually discriminates against a particular
group of people.
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Sex Discrimination Act 1984 (Cth)

- Some but not alI provisions of the Convention on the Elimination of All Forms of
Discrimination Against Women were implemented in Australian law through the Sex
Discrimination Act 1984 (Cth).
- The Act aims to eliminate discrimination on the basis of sex, marital status or
pregnancy in a number of key areas such as employment; education; the
provision of goods, faci lities and services; accommodation and housing;
insurance; and superannuation.
- The Act explicitly included sexual harassment as a form of discrimination in
employment and education and makes this behaviour illegal.
Anti-Discrimination Act 1977 (NSW)

The broad-based Anti-Discrimination Act 1977 (NSW) makes unlawful discrimination on the
basis of sex, race, marital status, disability, responsibility as a carer, sexuality and age. It
also establishes the Anti-Discrimination Board, which is part of the NSW Attorney General's
Department.
Workplace Gender Equality Act 2012 (Cth)

- The principles of equal opportunity in the workplace reflect the right to equitable
access to jobs, career paths, training and staff development and equitable conditions
of employment.
- ensuring equal access in all areas of employment, including recruitment, transfer,
promotion, training and development, information access, management and
supervision of staff and conditions of employment, with all selection based on merit
(the best person for the job) recognition and respect for the cultural and social
backgrounds of staff and customers.
- The Act's objectives reflect the idea that in a just and fair world there should be an
equitable spread of both sexes in management and support jobs across all
industries. At present this is not the case.
Government agencies
Office for Women
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-Its primary role is to provide policy advice to the Minister for Women, and to ensure
that government and Cabinet decisions about legislation, policy and budgetary
matters are made with a view to their effect on women.
- OfW also administers programs to combat issues such as domestic violence and
sexual assault, represents the Australian Government at national and
international forums on women's issues, and has primary responsi biIity within the
government for Australia's obligations under CEDAW.
Women NSW
- It advises the state government and works with other government agenc ies and
non-government organisations to develop programs and policies with positive
consequences for women.
- The Office also has responsibility for Domestic Violence Prevention : to lead and
manage government policy relating to the prevention of domestic and family violence
Non-legal responses
Legal mechanisms have been put in place to overcome the historical and cultura l
barriers that women still face. There are also some very effective informal measures that
keep the issues of women on the political agenda.
Trade unions
- In the early part of the 20th century, unions were against women's full participation
in the workplace.
- As women were paid less than men, unions did not want a situation where
employers were able to exploit this cheap labour and force men out of jobs. Today,
unions are strong advocates for the rights of women in the workplace . The
Austral ian Council of Trade Unions (ACTU) lists the following achievements to
which the union movement has contributed:
• the principle of equal pay for equal work
• women's parental leave
• improved child care
• universal superannuation
• anti-discrimination and affirmative action (equal employment
opportunity) legislation
- A challenge still facing the ACTU is the fact that the major unions in Australia have a
much lower percentage of women at the executive level than among the general
membership. The ACTU campaigned for paid maternity leave, which it believes is a
fundamental human right and a necessary measure to address the discrimination
and disadvantage suffered by women who choose to become parents
-
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Lobby groups
- There are non-government organisations (NGOs) throughout Australia that
promote issues important to women .
- A well-known NGO is the Women's Electoral Lobby (WEL),
- WEL is dedicated to creating a society where women's participation and their
ability to fulfil their potential are unrestricted, acknowledged and respected and
where women and men share equally in society's responsibilities and rewards'.
Evaluate the effectiveness of legal and non-legal responses to the

contemporary issue.
Effectiveness of responses
- The law is constant ly evolving through legislation and the courts to reflect the
changi ng values of the society it is meant to regulate.
- Over the past 30 years, women in Australia have seen landmark legislation passed
addressing the issues they face, especially in the workplace. In spite of the many
improvements that women have fought for and achieved, there are still many
areas that require constant vigilance and persistence in order for change to
occur .
- The UN Convention on the Elimination of All Forms of Discrimination Against
Women (CE DAW) was a significant step forward in highlighting the issues and getti
ng states to commit to ending discrimination against women. States can choose to
comply with or ignore their international obligations and usually act out of
economic or political self-interest in determining their course of action.
- CEDAW is one of the treaties most ignored by states.
- Those states that have signed the treaty have included many reservations , which
allow them to refuse to comply with certain parts of the treaty.
- Hence, CEDAW is not able to declare a state to be in violation of the treaty where it
has entered certain reservations.
- The committee can only continue to encourage states to review their current
reservations .
- The Treatment of Women in the Australian Defence Force review, released in
August 2012, revealed that one in four women in the defence forces had experienced
some form of sexual harassment and this cont inues to be an ongoing cultural
challenge today. It may be some time before such entrenched cultural attitudes
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towards women are overcome. Due in large part to states' reservations, there are still
many areas where women experience discrimination and violations.
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Legal Studies: 2019

Preliminary HSC Notes - Legal

Basic legal concepts

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

Relationship between rules, customs and laws practice response:

- Obeyed by all citizens of society - To be obeyed by specific group in

Is there a difference between laws and rules?

- Must be known to society

What is legal aid?:

- Legal aid is the assistance in legal advice, services such as lawyers

Remedies to improve legal aid:

Practice Question: Why is access to the law important?

Students learn to: Define and investigate procedural fairness and

Practice Question - Why do people obey the law?

Students learn to: define anarchy and tyranny:

Anarchy: t​he absence of laws and government

​Sources of contemporary Australian law common law

British origins, including:

- adversarial system of trial

Aboriginal and Torres Strait Islander Peoples’

5. Law reform in action

• outline the origin of common law

Local → District → Supreme → Appeal → Federal → High

- Jurisdiction includes bankruptcy and industrial matters, summary criminal offences.

Parliament is a body of elected representatives.

- It debates proposed legislation, passes or rejects it and amends legislation.

Executive Council: Governor/Governor-general, as well as selected ministers, make up

1) Bill is introduced into parliament - by minister or via a private members bill)

- If bill is passed it needs the Governor-General's assent → bill is made public

Describe the function of delegated legislation

The split of powers into federal and state governments

- Section 51 of the constitution outlines the legislative powers of the federal

Divvying up law-making power between the three pillars of government

- parliament: people who make the law i.e. legislation

- Federal courts: primarily high court

- Top of parliament - made up of cabinet (MPs + Ministers) + public departments

Explain the difference between division and separation of powers

Aboriginal and Torres Strait Islander Peoples’ customary laws

Spiritual basis for the law → significance of land and water

· Mediation and Sanctions

· Family and Kinship

· Rituals and Oral Traditions of the Law

Common consequences for breaches include:

· Sanctions and punishments: applied for murder and religious violation

- Laws within a country that applies to - ​Applies to nations and

Creation Treaties are made through Made by parliaments (statute

A state, in the legal sense, is an independent entity that is recognised by other

examine the sources of international law

- customs → ​based on long-established traditions or common practices

- declarations → ​Declarations are international instruments that state and

- Treaties → ​a treaty is 'an international agreement concluded between

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

The International Court of Justice (ICJ):

- Deals with legal disputes between nation-states and advisory proceedings

The International Criminal Court (ICC):

- The International Criminal Court (ICC) investigates and, where warranted,

issues within states. In addition, some make collective decisions on

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

- International Law is increasingly being incorporated into Australian domestic

• outline different types of law

• compare the purpose of different types of Law

- Civil law relates to the rights of private individuals in legal discourse.

• distinguish between civil and criminal court procedures

·​ ​Between two or more parties, no ·​ ​Prosecutor and defendant

Anarchy: the absence of laws and government

Sources of contemporary Australian law common law

- Laws within a country that applies to - Applies to nations and

- customs → based on long-established traditions or common practices

- declarations → Declarations are international instruments that state and

- Treaties → a treaty is 'an international agreement concluded between

· Between two or more parties, no · Prosecutor and defendant

case to court · Onus is on prosecutor

· Features plaintiff and defendant · Beyond reasonable doubt

· Onus is on plaintiff to prove case

· O riginated from Roman law · Developed through custom

· Provided recognition and protection for native title

· Amendments recognise rights of native titleholders as well as current landholders

· Respect towards native title