Prelim Legal Studies revision/summary

The Definition of Customs and Rules

Customs
● A traditional and widely accepted way of behaving or doing something that is
specific to a particular society, place, or time.
Rules
● One of a set of explicit or understood regulations or principles governing conduct
or procedure within a particular society, community or area of activity.

DEFINITION OF VALUES AND ETHICS

● Values are the feelings, principles and attitudes that a society or individual holds
are important.
● Ethics are the rules of conduct recognised in respect to various human behaviours
or the rules of conduct of a particular group; ethics deal with what is morally right
and wrong.

fairness
● Procedural fairness is an implied common law duty to act fairly in decision-making
by the exercise of statutory powers which may affect an individual's rights, interests
or legitimate expectations.

Procedural Fairness is based on 5 basic principles.

● Fairness
● Transparency
● Equality before the Law
● Freedom from Bias
● The right to be heard

● Fairness – decisions will be made on the basis of a set of established rules that are
known.

● Transparency – what happens if the legal system can’t be seen and understood by
the general public, that courts and tribunals are open to the public, rather than
their decisions being made behind closed doors.

● Equality before the law – each person should be treated in the same way by the
legal system no matter who they are. It means that everyone has equal access and
application before the law and the legal system.
 ● The right to be heard – a person who is affected by a decision made by the legal
system has a right to present their views and facts that support that view
(evidence) to the decision maker before the decision is made.

RULE OF LAW
● The rule of law underpins the way a society is governed. Everyone—including
citizens and the government—is bound by and entitled to the benefit of laws

Types of Law
● Common Law: law made by courts; historically (based on precedent), law common
to England.
● Statute Law: law made by parliament

Common Law
Common law (or case law) is the law developed by judges when deciding cases. Not only
are there rules about the presentation of evidence and the running of the case, but also
judges must resolve disputes on the basis of decisions made in similar cases.

Precedent
A court decision that is cited as an example or analogy to resolve similar questions of law
in later cases.

Equity
Equity is the body of law that supplements the common law and corrects injustices by
judging each case on its merits and applying principles of fairness.

Adversarial system of trial

● Australia uses the adversarial system as part of both criminal and civil court
proceedings.
● The word ‘adversary’ means ‘opponent’. In a trial, the two sides involved in the case
try to prove their version of the facts and disprove the version of the other side.

Court Hierarchy
◦ 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.
State and Territory Courts Federal Courts

• Lower courts • Federal Magistrates Court of Australia

• Intermediate courts • Federal Court of Australia
• Superior courts. • Family Court of Australia
• 12 of Australia.

Appeals
All courts have the power to hear a case for the first time. Some courts can also hear
appeals from lower courts.

Statute Law
Statute law is the law made by parliament. It is also known as ‘legislation’ or ‘Acts of
Parliament’.
Parliament is a body of elected representatives. It debates proposed legislation, passes or
rejects it, and amends legislation.

The Parliament of Australia

● The Federal Parliament is bicameral. This means that they have two houses, an upper
house and a lower house.
● In the Federal Parliament, the upper house is the Senate and the lower house is the
House of Representatives.
● The government is formed by the political party that wins the majority of seats in
the lower house (the House of Representatives).

Delegated Legislation
Delegated legislation: laws made by authorities other than parliament, which are
delegated the power to do this by an Act of Parliament.

Referendum
A referendum is a direct vote in which an entire electorate is invited to vote on a particular
proposal. This may result in the adoption of a new law.

Division of Powers
 ● The federal government has broad national powers. Among other things, it
administers (puts into action) laws in relation to defence, immigration, foreign
affairs, trade, postal services and taxation.
● State/territory governments have the power to look after laws not covered by the
federal government; for instance, hospitals, schools, police and housing services.
● The powers of local councils are defined by Acts of Parliament passed by state
parliaments and include responsibility for building regulations, rubbish collection,
local roads and pet control.

Separation of Powers
● The legislature – the law-makers (in Australia this is the parliament: the House of
Representatives and the Senate)
● The executive – the ministers and government departments who administer the laws
made by parliament (in Australia the Governor-General, the prime minister and
Cabinet are members of the executive)
● The judiciary – the courts which interpret and apply the law.

The diverse nature of customary laws

● Customary laws: principles and procedures that have developed through general
usage according to the customs of a people or nation, or groups of nations, and are
treated as obligatory.

● Aboriginal and Torres Strait Islander law is tribal and different groups have their
own variations of customary law. Australia is a large land mass and, as a result,
different languages and modes of conduct developed.
Domestic Law:
● the law of a state
● A country can make these laws because it is an autonomous (independent) state
that has sovereignty (meaning the authority to rule itself).

International Law:
● governs the relationship between countries (known as states or ‘nation-states’)
● It regulates trade and commerce between countries and provides laws to maintain
peace and security.

Differences between domestic and international law

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.

State Sovereignty
● State Sovereignty is the notion that all countries (States) have the right to order
their own internal affairs and make their own decisions.

Legal Decisions, Writings

 ● The writings of respected international lawyers, judges and academics have an
important part to play in guiding decision-making and treaty formation.
● Decisions and scholarly writings may be used for the interpretation of international
law.

The United Nations:

● was established in 1945 following the end of the Second World War
● had as its founding treaty the Charter of the United Nations
● is the chief organisation involved in international law
● currently has 192 members

The International Court of Justice (ICJ)

● The Court’s role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions.
● The Court is composed of 15 judges, who are elected for terms of office of nine
years by the United Nations General Assembly and the Security Council.

Intergovernmental Organisations
● Intergovernmental organisations (IGOs) are organised groups of states,
established to pursue mutual interests in a wide variety of areas.
● Many IGOs are subsidiary agencies of the UN; others have been formed to make
collective decisions about international issues such as refugees, tariffs or wealth.

Non-Government Organisations
● Non-government organisations (NGOs) are associations based on common
interests and aims, and which have no connection with any government.
● They make contributions in a wide range of areas, from world peace, disaster relief
and environmental protection to promoting education and alleviating poverty.

Relevance of International Law to Contemporary Australian Law

● Unlike other countries, in Australia signing and ratifying a treaty does not
automatically make it part of domestic law.
● For international law to become Australian law, new legislation is usually required.
● International treaties have had a profound influence on the development of modern
Australian law.

Public law
Public law is the law that deals with the powers and obligations of governments and
citizens.
 ● There are three main types of public law:
○ criminal law
○ administrative law
○ constitutional law.

Private law
Private law is the law that aims to regulate the relationships between individuals,
companies and organisations.
● There are three main areas of private law:
○ contract law
○ tort law
○ property law.

Criminal court procedures

● In a criminal case there is a prosecutor and a defendant (also known as the
accused).
● The state (through the prosecutor) brings the case to court.
● The standard of proof in a criminal case is ‘beyond reasonable doubt’.

Civil court procedures

● Civil cases are court actions involving disputes between individuals.
● They involve a plaintiff and a defendant.
● An individual or organisation can bring the case to court.
● The onus is on the plaintiff to prove the case.
● The standard of proof is ‘on the balance of probabilities’.

Legal professionals
There are many legal professionals who play an important role in court proceedings. These
include:
● judge
● magistrate
● judge’s associate
● tipstaff
● barrister
● prosecutor
● solicitor
● witness
● court officer
● court reporter.
Law Reform
Law reform is the process of changing and updating laws, so that they reflect the current
values and needs of modern society.

Agencies of reform
Law reform issues are usually investigated or reported on by one of the following
organisations or groups:
● parliamentary committees
● the media
● government law reform commissions, such as the NSW Law Reform Commission and
Australian Law Reform Commission
● NGOs
● lobby groups.

Mechanisms of law reform

Mechanisms of law reform are the machinery that bring about changes in the law. Examples
of mechanisms include:
● courts
● parliaments
● the United Nations
● intergovernmental
● organisations
● other agencies.

Native Title
● Native title is a legal right of Indigenous Australian communities to live on and use
traditional land with which they have an ongoing association.
● It can belong to a group or community as a collective right, based on the traditions
and customary law of that group.

● Native title can include rights to:

○ live on the land
○ access the land for traditional purposes, such as camping or ceremonies
○ visit and protect important places and sites
○ hunt, fish and gather food or traditional resources such as water or wood
○ teach traditional law and custom.

The doctrine of terra nullius in Australia

 ● Terra nullius is a Latin term meaning ‘land belonging to no one’, or uninhabited
land.
● It was a doctrine of international law used by the British to claim ‘uninhabited’
Australia as their own and import British law into Australia.

Roles of the High Court and Federal Parliament

● The Federal Court of Australia determines if native title exists.
● The High Court only hears final appeals.
● The High Court acts as a last resort if a decision can not be made regarding a native
title claim.

Native title legislation

● Both state and federal legislation has since been enacted to ensure native title is
recognised and protected, and to set out the institutions and processes for
lodging a native title claim.
● The main statute is the Native Title Act 1993 (Cth).
● There has been ongoing progress in reforming the law in relation to native title.

Effectiveness of law reform

● Both the judiciary and the legislature have played crucial roles in law reform and
native title.
● The biggest legal step forward was the overturning of the concept of terra nullius
and recognition of continuing native title rights.
● There is still sometimes difficulty in reconciling the rights of landowners whose
interests conflict with native title claims.

Rights and Responsibilities

● Rights are legal or moral entitlements
● Responsibilities are legal or moral obligations.

A bill of rights
● A bill of rights is a statement of basic human rights or privileges.
● Australia is the only Western democracy that does not have one.
● The Australian Constitution does set out a number of express rights, including the
right to religious freedom and the right to a fair trial.

NSW Police powers

● In NSW, police powers are mainly found in the Law Enforcement (Powers and
Responsibilities) Act 2002 (NSW).
 ● The main police powers include:
○ question and detain suspects
○ search and seizure
○ use reasonable force if necessary
○ use particular technologies
○ arrest and interrogate suspects
○ recommend whether bail should be granted.

Australian Federal Police (AFP) Powers

● Mainly long term investigations
● AFP have both State and Federal Powers (meaning they can give you a speeding fine
but the probably won't, they mainly deals with Federal crimes)

Other law enforcement agencies

● Other law enforcement agencies include:
○ Australian Customs and Border Security
○ Australian Criminal Intelligence Commission
○ Australian High Tech Crime Centre
○ Australian Security and Intelligence Organisation (ASIO)
○ other government departments.

Alternative dispute resolution

● Alternative dispute resolution (ADR) methods are less formal than courts and can
offer advantages of time, cost and expertise.
● Types of alternative dispute resolution include:
○ negotiation
○ mediation
○ conciliation
○ arbitration

Dispute resolution strategies

● Negotiation – complaint is resolved by discussion between two or more parties
with the aim of reaching a mutually beneficial outcome (parties make their own
decision).
● Mediation – issue is discussed in the presence of a neutral third party (parties make
their own decision).
● Conciliation – The issue is discussed in the presence of an external third party
known as a conciliator who takes an active role in advising the parties and
suggesting solutions (parties make their own decision).
 ● Arbitration – the disputing parties present their cases before an arbitrator, who
makes a decision that is binding on the parties (parties do not make their own
decision).

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.

Tribunals
● 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.

DISPUTES WITH THE STATE

● Disputes with the state can occur when a person or group finds it necessary to
challenge some exercise of state power or a decision made by a government
agency.
● The methods that are available can be informal and non-legal.

Non-legal methods of challenging state power

● Common non-legal avenues include:
○ the media
○ members of parliament
○ trade unions
○ interest groups
○ non-government organisations (NGOs).

Legal methods of challenging state power

● Formal methods of challenging government decisions include:
○ internal review by the agency that made the decision
○ external review by an external agency or tribunal, such as the NSW Civil and
Administrative Tribunal
○ judicial review by the courts, where government bodies review their own
decisions.

STATUTORY BODIES
 ● Statutory bodies are authorities created by an Act of Parliament to administer some
public duty or purpose.
● Statutory bodies established to investigate complaints against the state include:
○ NSW Civil and Administrative Tribunal
○ Anti-Discrimination Board of NSW
○ Independent Commission Against Corruption
○ Australian Human Rights Commission.

United Nations
● International bodies established by treaties can also be a means of resolving
disputes. For example:
● The UN Human Rights Committee hears complaints relating to the International
Covenant on Civil and Political Rights.

Children, young people and the law

● The UN Convention on the Rights of the Child defines a child as anyone under the
age of 18 years.
● The Children and Young Persons (Care and Protection) Act 1998 (NSW) defines a
‘young person’ as anyone aged between 16 and 18.
● These definitions ensure the law can treat children and young people differently
from adults.

Status and recognition of children

● Historically, children had few or no rights until they reached adulthood.
● Children who committed a crime were treated the same way as adults – no age limit
excused offenders from their actions.
● From the 19th century, governments began to see a need for laws to protect
children:
○ protection from exploitation at work
○ a right to free and universal education.

Recognition of children’s rights

● The UN Convention on the Rights of the Child is an international agreement on a set
of minimum rights for children.
● The convention, which was opened for signature in 1989, is now the most widely
ratified human rights treaty.

Recognition of children’s rights

 ● It contains a set of basic rights for all children, including:
○ civil and political rights
○ economic and social rights
○ cultural rights.

Civil law in relation to children and young people

● The civil law differs in many ways for children and adults; for example, in:
○ registration and citizenship
○ work
○ medical treatment
○ discrimination
○ contracts and torts
○ leaving home.

Age of criminal responsibility for children

● Under 10 years:
○ cannot be guilty of an offence
○ considered too young to understand own actions
○ Children (Criminal Proceedings) Act 1987 (NSW), section 5.

Age of criminal responsibility for children

● 10 to 14 years:
○ common law presumption of Doli incapax assumes children are incapable of
committing a crime
○ This presumption can be rebutted by the prosecution if they can show the
child was mature enough to understand.

Age of criminal responsibility for children

● Aged 14 to 17 years:
○ no presumption of doli incapax
○ criminally responsible for own actions
○ case is heard in the Children’s Court,
○ where different processes and sanctions apply
○ than in ordinary adult courts, and the best
○ interests of the youth are taken into account
○ if detention is necessary, it occurs in a juvenile
○ justice centre and not an adult prison.
Age of criminal responsibility for children
● Aged 18 and over
○ fully responsible for own actions
○ tried in adult courts with adult sanctions.

Young Offenders Act 1997 (NSW)

● The Act allows for alternatives to court for young offenders.
● It has a three-tiered system:
○ warnings
○ cautions
○ youth justice conferences.

The role of the United Nations

● The UN Convention on the Rights of the Child:
○ is almost universally ratified
○ encourages changes to domestic laws.

● UN Committee on the Rights of the

● Child:
○ examines country reports
○ monitors compliance with obligations
○ has no coercive power, but can expose violations by states and ‘shame’
governments into compliance.

The role of parliament and courts

● Federal and state parliaments have passed many Acts that specifically protect the
rights of children and young people.
● The courts play an important role in enforcing and shaping those rights, especially
the Children’s Court.

The role of parliament and courts

● Legal institutions in NSW that have been set up to protect children and young
people include:
○ NSW Commission for Children and Young People
○ Children’s Courts
○ Department of Community Services
○ Legal Aid
○ NSW Ombudsman
 ○ NSW Civil and Administrative Tribunal
○ COAG National Framework.

Non-legal responses
● Trade unions assist young workers.
● Kids Helpline offers crisis support for children.
● Stop Child Abuse provides community education and support services.