What is Law:Characterised:

binding on whole community can be enforced officially recognised discoverable relate to public interest reflect rights and duties

Why are laws necessary: every society makes laws if there are no laws; anarchy

o recognition of values and ethicso establishes patterns of conducto provision of dispute settlemento adapt to change

Types of law: numerous laws relating to every aspect of a persons life common law vs statute law public law vs private law

o public law: affects everyone powers of the state over citizens administrative law; how gov’t dept works cnsnt law; different levels of gov’t, jurisdiction etc criminal law; behaviour damaging to community as a whole industrial law; relationship between employers / employees

o private law: disputes between private citizens contract law; agreements between people torts; deal with behaviour of people re: property family law; disputes between husband/wife

Laws, Values, and Ethics: values – principles or attitudes held as important ethics – ‘a set of moral beliefs governing behaviour’ ethics = choosing between values (morality) case study; medicine – society has developed technology that has the ability to prolong

life, or end it (euthanasia). Laws outlawing euthaniasa reflect the value that human life is extremely valuable

if values conflict, the law will side with the majority (generally), or dominant culture

Law and justice: justice equality + fairness values + ethics a legal system can only be as just as the system from which it stems law cannot always be just difference in values and ethics

Law, custom, and culture: custom – a type of behaviours that has evolved over time, followed by group under

mutual consent law grew out of customary behaviour, and often embodies these culture – shared knowledge of thinking and behaving e.g. beliefs, arts, values etc different cultures have different values law cannot always accommodate all these

Why do people obey the law: beliefs, values, or customs would dictate they follow the law anyway reflection of common values educated to think certain behaviour is taboo

fear of punishment fear of public shame / condemnation general desire for protection

ATSI law pre 1788: law was a part of life – lore +law intertwined. Reflected these values ethics etc laws were tribal – different variations on a local level (common factors too) ownership of land – no individual, only communal ownership, spiritual link with land oral tradition – laws passed through word of mouth, majority not written secrecy – some parts of law were secret, and only revealed to specially selected the dreaming – is the basis for law. Encompasses ATSI life (part of beliefs) kinship – complex system of blood ties, governing marriage and punishment maintenance of order – no complex institutions, disputes resolved by elders, or family

members of injured parties (mediation and conciliation) mediation and conciliation – by either tribe as a whole, the tribe elders, or family

members of injured party enforcement and sanctions – punishment enforced by relatives of injured party or

ceremonial leaders; ranged from ridicule, ostracism, spearing, death by sorcery (lol)

Comparison tableAspect of law ATSI legal system Aust. Legal systemWho knows/how? Different people know

different laws Many laws secret Laws passed orally

Everyone can know all laws There are specialists

(lawyers) Laws are written down

Who makes it? Tradition / custom Ancestors Spirits (the Dreaming) Rules of kinship

Parliaments Courts Delegated legislators

Judged? Relatives Ceremonial leaders The whole tribe

Courts / tribunals Written law Evidence revealed in

adversary wayEnforced? By different people, often a

relative of injured party Police Courts Prison system Parole

Attitude to land No concept o individual ownership

Tribe cares for land

Idea of individual ownership, thus theft, buying/selling

Recognition of ATSI law

Australian Law Reform Commission – 1986 inquiry;o Some areas of ATSI law should be recognised and enforced by the courts,

instead of ATSI people. NSW reform includes:

o Land rights – ATSI rights to land and water (statute and common law), for example, Aboriginal Land Rights Act 1983 (recognises ATSI traditional ownership, and spiritual relationship between ATSI people and land

o Child custody – laws recognising the development of culture and tradition in ATSI families, and it’s importance. E.g. Children and Young Persons (Care and Protection) Act 1988, it is compulsory to place ATSI children in the care of ATSI people, excepting exceptional circumstance

o Aboriginal marriages – treated as de facto relationshipso Criminal law – disorganised, partial recognition. E.g. punishment by tribal law,

rather than aus. legal system, if it relates to tribal / religious crimes; killing for tribal reasons may be a partial defence to murder manslaughter

Development of Aus. Legal System Two types of law in ALS (Aust. Legal system)

o Common law – made by judges per stare decisiso Statute law – made by parliaments

Statue law similarly developed - pre parliament, the divine right of kings governed king. Laws = law of god = cannot be challenged.

1215, barons angry over injustices, forced King to sign the Magna Carta, restricting the power of the king

first parliaments – irregular meetings of barons to discuss laws made by the king 1689, Declaration of Rights, no monarch could make or suspend laws without

parliamentary consent Parliament made lost of laws over the next centuries. The queens power today is fairly

ceremonial, and to assent to law.

Court systems and common law A court is an official body that resolves legal disputes, presided over by a judge /

magistrate Hierarchy of courts in each state and federal arena

Each village would hold it’s own trials if a dispute arose or law was broken

Post Norman conquest (1066)– central system of gov’t (feudal – king head of gov’t).

Crime commited = crime against the king = trial in King’s courts

More standardised system of law applied, representing national customs

System of travelling judges introduced, applying same laws across country

Equity – developed by court of chancery to deal with injustices in common law

Influences common law

Mercantile law – law developed by merchants as they travelled to enable self dispute resolution

13th and 14th century

9th century

Formation of common law

English Customary Law – each village had it’s own laws based on local customs = customary law.During Norman conquest

Based on-*roman law*canon law (church/ecclesiastical law)

Equity – refers to rules developed that look at what is fair and just in individual cases

FORMATION OF CUSTOM LAW

Couts have different jurisdictions; geographical, subject determined, original (heard for first time), appellate (review or appeal from other courts)

Appeal = when a person is dissatisfied with the decision of a lower court takes the decision to a higher court to have the decision reconsidered

NSW courts – people within nsw have access to two types; nsw court system and federal court system

o Most matters dealt with by the local ct with a magistrate NSW Court hierarchy:

Coroners court*investigations on unexplained deaths + fires

NSW local courts*minor criminal matters*committal hearings*civil disputes <$40000

Children’s court*cases involving children

NSW District Ct*serious criminal cases, armed robbery, sexual assault*civil cases $40000 - $750000*appeals from lower courts

NSW supreme Ct (single judge)*very serious criminal cases, murder, treason*civil cases $750000+*civil matters such as wills, injunctions, Admiralty

NSW Court of Appeal*Part of supreme Ct, three judgesAppeals from Supreme Ct (sng Jg), supreme Ct, and NSW district Ct

High Ct (Sng Jg)*appeals from NSW CoA on criminal + civil matters

High Ct (Full Ct)*appeals from High Ct (Sng Jg) on criminal +civil matters

Land and Environment Ct*Environmental matters

Federal Court System

Court hierarchy: it is more convenient for the larger number of less serious cases to be heard by the local courts (spread throughout state, cheaper to run, quick); a system of appeals is possible; operation of the doctrine of precedent

Common law as a source of law:o Interprets statutes – parliaments laws do not cover every possible situation e.g.

crimes act a ‘person cannot conduct himself or herself in an offensive manner in a public place.’ Courts determine the meaning of offensive.

o Interpreting areas of law where there are no statues – e.g. tort law

The Doctrine of Precedent The doctrine of precedent is the basis for common law It is the process by which courts use decision in earler cases to help decide the outcome Precedent is a binding decision made in a previous court case with similar facts Developed in England Australia with colonisation Two parts:

o Ratio decendi – the principle or reason dor the decision (binding)o Obiter dicta – other remarks (non-binding

General rules: lower courts are bound to follow decisions in superior courts. This is called binding precedent; superior courts do not have to follow decisions in lower courts, though may use them. this is called persuasive precedent; decisions in other court hierarchies (e.g England etc) can also be persuasive; most courts are not bound by their own decisions

Avoiding precedent; Distinguishing – different facts to previous case Reversing – appellate jurisdiction, superior courts can reverse actions of inferior courts Overruling – similar to reversing, however involves two cases A is heard in local court, B

in district court, B rules that A’s decision is wrong, applies its own decision to case B Disapproving – decision form another court system is being considered

Parliament; A parliament is a body of elected representatives, which debates proposed legislation,

passes, amends, or rejects legislation, and delegates legislative authority to other bodies. Features:

o Elected – all citizens 18+ must voteo Parliament is bicameral – two houseso Parliaments are composed of all members of both houses

Hich Ct (Full Ct)*seven judges*constitutional matters*appeals from sng jg high ct

High Ct (Partial)*single judge, or three judges*cases brought by / against federal gov’t*cases between states or residents of different states*appeals from federal ct, family ct, state ct.

Family Ct (Full)*appeals from sng jg

Federal Court (full)*appeals from single judge

Federal Court (Sng)*industrial matters*bankruptcy cases*trade matters

Family Ct (Sng)*cases regarding marriage and divorce

STATE CT SYSTEMS

o The Government is formed by the political power / party that have majority in Lower House

o The Opposition is formed by the political party(ies) which have the remaining seats

o The Queen assents to legislation, usually through representative (the Governor-General)

o Ministers members of the Government who are responsible for certain departments

o The Cabinet is formed by some / all the ministers. Decides on policy, and what laws should be debated or considered in parliament

o The shadow ministry, members of the opposition who monitor policies / proceedings of the ministers

o Executive council is the body which enables legislation to be put into operation. Governor/ G-G, and some ministers.

Residents of NSW are governed by the NSW Parliament and the Federal ParliamentFEDERAL PARLIAMENT NSW STATE PARLIAMENTLower House = House of Representatives. Each member is elected by people in their electorate (an area of Aus, with a certain number of people). 148 members total.

Lower House = Legislative Assembly. Members elected in state electorates. 93 members.

Upper house = the senate. All citizens in one state elect twelve representatives, while territories elect two. 76 members

Upper House = Legislative council. All the citizens of the state vote for representatives on the council. 42 members.

Government Leader = Prime Minister Government Leader = PremierCabinet = composed of senior ministers Cabinet = all ministersQueen’s Rep. = The Governor-General Queen’s Rep.. = The Governor

Common Law: Advantages Statute Law: Disadvantages*Decisions must be made: judges must make a decision in a case before them, decision cannot be avoided. Judges must respond to every new challenge and situation.*Impartiality: judges must not respond to outside pressure when making a decision. The decision must be unbiased and impartial. If this is voided, an appeal can take place.*individual involvement: individuals always involved in court cases*consistency: via doctrine of precedent*scrutiny of existing law: judges can see and highlight shortcomings of existing laws, demonstrating where change is needed

*Decision can be avoided: parliaments may avoid making laws on sensitive issues*Lack of impartiality: constant influence by outside groups.*Lack of individual involvement: often have little say in what laws are passed*Changeability: parliaments may change the laws as per majority (through repealing act)*Scrutiny can be lacking: busy with current affairs :. Not willing to check old laws.

Common Law: Disadvantages Statute Law: Advantages

*Need a case: judges need a case to make a decision*Large Individual cost: higher courts = higher cost*Decision applies to those involved only: not binding on wider community*Not democratically elected: non-representative, difficult to remove from office*Slow to change: judges must follow precedent, must have a case, only isolated areas of law change*No outside help: cannot seek outside opinions/expertise.

*No case needed: laws can be made/changed at any time by parliament*Individuals encounter little personal cost: vast areas may be changed easily*Decision applies to everyone*Democratically elected: representative gov’t = represents common views, values etc*Can adapt to change: can quickly change in response to values/attitudes (easily)*Expertise available: may consult others (e.g research, advice) in formation

How Parliaments make statute law Statute law overrides common law Aka legislation, statute laws, Acts of Parliament

Process of:o Initiation – begins with an idea. Pressure on gov’t to legislate; either by opposition

or other lobby groups. May be submitted to Cabinet.o Cabinet consideration – examines proposition. If assent, send to draftsmen, who

phrase the law appropriately. Now termed a Bill.o The first reading – minister responsible introduces it into parliament (lower

house). It is simply the minister reading the bills title. Distributed to members.o Second reading – house debates broad concepts of Bill. Vote is taken. Most bills

pass this stage.o Committee stage – House looks at Bill closely, debates each clause. It may be

sent to specialists with interest / experience. Often amended in this stage.o Third reading – pass committee stage, re-voted by parliament, goes to Upper

Houseo The Upper House – entire process repeats itself, up to this stage (1st, 2nd, 3rd

readings)o Assent – passed by upper house, assented by G-G / G. The bill is now law.

Types of legislations:o Original Acts; areas of law where there are no previous lawso Amending Acts; change sections of existing legislation

o Consolidating Acts; Combine all statues over years into one act. No change to law itself.

o Codifying Acts; combine all existing laws (common and statute) into one Acto Repealing Acts; remove statute laws (partial or total)

Politics and Legislation A Bill must undergo a lengthy process to become law, however this does not take as long

as it would seem Parliament (f. or S.) is dominated by two political parties – labor or liberal Party in power will propose most laws. They also hold majority:. Pass most laws (lower

House). Upper house is often where bills are rejected. Minorities count, as does the opposition.

Therefore, the minorities need to be consulted. They hold the balance of power.

Delegated legislation Delegate = give someone else a task, while holding overall responsibility Delegated legislation is law made by subordinate authorities who are given this power by

parliaments (through Enabling Acts) E.g’s include:

o Executive council; pass regulations (e.g administrative details) to laws every passed to ensure their operation.

o Gov’t departments, local gov’t, statutory autorities Parliamentary control over delegated authorities; many of the rules/regulations must be

tabled in parliament; members of parliament may ask questions about any delegated legislation; ministerial responsibility; some d/l must be approved by the Executive Council; courts can disallow d/l if it was for improper purpose (inconsistency between act and d/l, act will prevail); ombudsmen (state /fed.) and tribunals; regulatory impact statements in NSW

Advantages of Delegated Legislation Disadvantages of Delegated Legislation Efficency – easily and effectively

updated Flexibility – respond to community

needs best Expertise – more time for expert

opinion / advice Frees parliament – more important

matters Local governments – best know the

needs of local areas, and thus can cater to them

Undemocratic – not representative, Lack of consultation Lack of parliamentary control Lack of publicity – hard to find Confusion – many authorities covering many

aspects of laws. Conflict or overlap.

The Nature of International Law: Int’l law is the system of law which governs relationships between sovereign states

(countries) Domestic law is law that operates within one country Requirements for a state: a permanent population; defined territory over which it

exercises recognised authority, an effective government, capability of entering into int’l agreements

Sovereignty = authority Aus = representative gov’t = sovereignty rests in the people Private int’l law = the rights of individual which cross national borders e.g. citizenship. Public int’l law = relationships between SS (sovereign states)

Sources of International Law: Treaty = international agreement, concluded between states in written form, governed by

international law

o Bilateral treaty = formal agreement between two stateso Multilateral treaty = formal agreement between 3+ states

Convention is a treaty which is agreed to and proclaimed by a large number of nations Declaration is similar to a convention, though usually a resolution of the UN Customary int’l law = law making based on the constant and uniform procedure of states.

Accepted as fair and right by community Jus codgens = principle of int’l law that may not be contradicted by any nation, any treaty

which goes against it is invalid Legal decisions of the UN or ICJ (+ others ) are also sources of law Legal writings – well respected writings int’l lawyers, judges etc. Hard vs soft law;

o Had int’l law = written in treaties, established by customs, existence cannot be disputed

o Soft law = ‘pre law’, arises from difficult nature of deciding int’l law, not yet fully established as int’l law

International Organisations: Chief organisation is the UN Established in 1945, grown in significance since then 51 member nations in 1945 185 member nations in 1995 established to oversee world affairs Role has changed over time. Policy of non-involvement, merely

mediation, has transformed to both these functions.o General Assembly; pass resolutions, create organisations, discuss customary

int’l lawo Security Council; executive, most powerful. Right of veto. Five permanent, ten

non-permanent members. It has ultimate control over peacekeeping forceso Secretariat; administrative and co-ordination organ of UN00o Economic and Social Council; intergovernmental body. Examines int’l economic,

social, health and educational issues and other areas of concern, which are direct to the GA

o Trusteeship council; helps independent nations (PNG – 1999)o International Court of justice – judicial organ, int’l judicial body. It may only hear

cases between nations, 15 justices, dependent on cooperation (cannot enforce it’s decisions

International government organisations – subsidiary organs of UN, meet and decide on specific issues within int’l law e.g refugees, tariffs.

Regional organisations – APEC (Asia – Pacific Economic Co-operation), European Union (EU), these cover regional agreements in int’l law

Non-governmental organisations – separate from governments + UN, but have their support. Work on basis of consensus and cooperation. E.g. the Red Cross.

How International Law is made.It is formed by the mutual consent of nations, given either by international practice or by treaty agreement. Such practices and agreements may involve two nations (bilateral agreements) or they may extend to many nations (multilateral agreements).

The International Court of Justice (ICJ) is located in The Hague, Netherlands, in a building referred to as the Peace Palace. All UN members (192) are part of the ICJ, and affected by it’s rulings. Matters that states (nb only states may bring cases before the icj, aside from the icj prosecution) bring forth are judged using int’l customs, conventions, and the “general principle of law established by civilized nations.” The icj is vested with the power to apply its own laws, and is not bound to stare decisis. No appeal is possible through the ICJ. Some cases that have come before the ICJ include:

* Pulp Mills on the River Uruguay (Argentina v. Uruguay) - Order - Request for the Indication of Provisional Measures - 23 January 2007* Legality of the Threat or Use of Nuclear Weapons - Advisory Opinion - General List No. 95 (8 July 1996) * Legality of the Use by a State of Nuclear Weapons in Armed Conflict - Advisory Opinion - General List No. 93 (8 July 1996)

The International Criminal Courtis a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. It started on 1 July 2002. The official seat of the court is in the Hague, Netherlands but its proceedings can take place anywhere.

Enforcement of international law is usually completed by a combination of involvement, both by state government, and a higher power, such as the UN or ICJ. These set down statutes, conventions, or declarations which are then enforced through state laws. These are limited by the overseeing organisations limited jurisdiction, as they cannot impose their will on nations not part of it. Punishment is also limited, as responsibility of apprehending the criminal is often tasked to the government [of the country] in which they reside in.

OrganisationsIGO’s- Inter-governmental organisations. is an organization comprised primarily of sovereign states (referred to as member states), or of other intergovernmental organization.-Asian and pacific coconut community (APCC)Asia-pacific economic cooperation (APEC)Association of Southeast Asian nations (ASEAN)Ngo’s- non governmental organisations-is a term that has become widely accepted for referring to a legally constituted, non-business organization created by natural or legal persons with no participation or representation of any government.Australian Red CrossCARE AustraliaOxfam Australia (OAus)Regional GO’s- Regional governmental organisations.Central Coast Regional Organisation of Councils (CCROC)Central NSW Councils (CENTROC)New England Local Government Group

The United Nations, founded in 1945, was the successor to the League of Nations. The UN was seen as a widespread failure as it did not prevent WWII. It began in San Francisco. It officially came into force on October 24th, 1945 => France, the Republic of China, the Soviet Union, the United Kingdom and the United States. It is located in International territory in Manhattan, New York City.Main aims: facilitate cooperation in international law, international security, economic development, social progress, human rights and achieving world peace.

The UN is made up of:Functions: The General

AssemblyThe Security Council:

Economic and Social Council

the Secretariat

International Court of Justice

Consists of: All member nations.

15 members, 5 permanent

54 members – elect by GA

Int’l civil servants

n/a

Tasks: Votes on important decisions

Peace/security between countries

promoting int’l economic/social coop and devel.

Provides studies/info etc for GA and SC.

Judgement between nations

Examples: Disarmament commission

UN Resolutions

UNESCO, World Bank

N/A See above

(6 other commissions)

(binding): Group

Application of British law in Australia Aust colonised 1788 English laws valid, through process of the doctrine of terra nullius

(Aust uninhabited pre colonisation). If no law was suitable for the conditions, British Parliament/Governor of colony made laws for colony

1853 – Responsible government +self government. Elected body (manhood suffrage – property owners voted)

1901 – Federal Government established – gained legislative abilities through the Australian Constitution.

19th + 20th centuries – power to legislate transferred gradually from British parliament to Australian parliament

o Australian Courts Act (1828) – no new law passed by British parliament would apply to Australia unless specifically stated

o Colonial Law Validity Act (1865) – stated colonial governments could amend, repeal, or make laws repugnant to English laws, excepting those statutes with exclusive statements

o Statute of Westminster (1931) – gave the federal government the power to amend or repeal any English laws

o Australia Acts (1986) – gave state parliaments independence; also abolished appeals to the Privy Council

The Constitution and separation of powers Separation of Powers – power distributed between three arms of gov’t Legislature – responsible for passing Acts of Parliament. (representative) Executive – responsible for putting Acts passed into effect. Consists of various gov’t

departments, responsible for delegated legislation. Judiciary – responsible for applying law in individual cases, settles disputes.

The Constitution and the division of powers Aust. Cnstn = to establish a federal system of gov’t Federal – one central gov’t, as well as state gov’t; as opposed to, Unitary – one central gov’t only Division of power – legislative , executive, judicial power divided between state and

federal gov’ts S.51 of the Aus Cnstn gives power to the Federal Gov’t, listing areas over which it can

make laws. State Cnstn’s describe a states law making power:o Specific – Powers belonging to Fed. Gov’t. S.51, e.g. immigrationo Residual – Powers states retained. E.g. crime, law enforcement.o Concurrent – both Fed and state gov’ts can make laws.

S.109 states that if both Fed and State gov’ts make laws on the same subject, but they are inconsistent, the Fed law will prevail

o Exclusive – powers of which fed has exclusive power. SPECIFIC vs EXCLUSIVE – some exclusive powers are specific powers, but not all. If it

is not an exclusive power, then both state and fed gov’ts can make laws on it, making it concurrent UNLESS it is mentioned in a separate clause that state gov’ts cannot.

Amending the Constitution S.128: both the following must occur:

a. A bill stating the question to be put in the referendum must pass both houses of parliament

b. The change is approved by referendum by the majority of people in the majority of states.

The High Court and the Constitution Judicial review: the HC is empowered to review Cth legislation. However, it must be

brought before the HC by an individual, organization, or gov’t

Constitutional interpretation: resolving constitutional disputes Transfer of power to Fed. parliament: Franklin Dam Case

a. Commonwealth v Tasmania (1983) – dispute between federal and state governments over the construction of a dam. Tasmanian gov’t claimed it as a state matter, however, the fed. gov’t said it could not build the dam as it went against an int’l agreement about world heritage areas

b. S.51 of the Cnstn grants the fed gov’t the power to make treaties etc: external affairs power. The federal gov’t argued that it had made a treaty to protect this area.

c. HC agreed with fed gov’t and the dam was not built (under s. 109). State and federal agreements: state/federal agreements on many issues so that standard

laws apply on a national level.

The Constitution: checks and balances Checks = restraint on law making bodies, balances = various arms of gov’t The executive and the separation of powers: principles of responsible gov’t require the

executive arm of gov’t to be chosen from the legislature. However, checks and balances through the separation of powers occurs in others ways:

o Ministers/PM – responsible to parliament committee system ministerial responsibility

o Supply Acts – informed consent on the spending of gov’t moneyo Judiciary – review the actions of ministers (judicial review)

The judiciary and the separation of powers: separate from lg/exe, exemplified in the HC The legislature and the separation of powers: independent judiciary, inalienable + limited

expressed rights through Cnstn, dismissal of gov’t acting beyond power Division of powers: balance law making powers of federal and state gov’ts through S.51 Representative government: elected by the people, thus representing their wishes Protection of state’s rights: division of power, the provision of the Senate (traditionally the

State’s house), S.99 “Cth may not make laws which discriminate between states. Power of the Senate: reviewing legislation passed from the HoR, cannot initiate Supply

Bills, balance of power held by minorities ( consultation req’d to pass legislation) Ability to Change: through referendum by general population Protection of individual rights: Cnstn directly and indirectly protects individual rights, eg

“The right to vote” (s.40), “The right to freedom of religion” (s.116) Power of the head of state: The Governor-General + standard/reserve powers (Cnstn’ial

monarchy)o Standard: eg appoint people to gov’t bodies, assent to legislation etco Reserve: eg appoint/dismiss PM, refuse to dissolve parliament

The Aus. Constitution in the 21st Century Powers of the head of state – reforming the reserve powers, post Whitlam Government

dismissal. The reserve powers are not explicitly defined within the Cnstn. Power of the Senate – legislation can often be caught up in a ‘hostile Senate’. Changes

to the powers of the Senate, and reducing the chance of minority party dominance. Division of powers – overlap in power, areas were both sections of power are

unwilling/reluctant to act Protection of individuals rights – very few individual rights protected by Cnstn, introduce a

Bill of Rights

Court Procedures the system of laws being practised, post-effect laws applied mainly through the court system most courts have jurisdiction over both civil and criminal cases

Criminal case Civil CaseThe case – prosecution The case – suit or litigationThe party who takes the case to court – Crown (State/Crown)

The party who takes the case to court – the plaintiff

Against – defendant Against – defendantSentencing – sanctions against defendant Remedy – damages, injunction etcStandard of proof – beyond reasonable doubt Standard of proof – balance of probabilitiesBurden of proof – prosecution prove guilt Burden of proof – plaintiff prove their version

of factsStandard of proof – weight or value given to evidence, ‘how much proof is needed’Burden of proof – the party who must prove the case

The Adversary System both criminal/civil use an adversarial system of trial Adversary – two sides of the case present and prove their version of the facts and

disprove the other side. Impartial judge, sometimes also a jury, listens to the sides, and makes a decision

inquisitorial – magistrate/judge collects evidence for both sides in cooperation with prosecution, after inquiries have been made

developed from English customary law rules of evidence – justice/equality when in court

o Hearsay evidence – evidence given by one person about what he/she heard another person day. Not admissible (acceptable)

o Opinion evidence – a person cannot give his/her opinion about another persons words/actions, unless that person is an expert in that field

o Relevance – only evidence that relates to the matter in dispute can be heard by the court

Types of Court Hearings Criminal hearings – two broad categories

Summary offences – those head and decided by a magistrate/judge. Offences relatively minor eg motor traffic offences

Indictable offences – serious criminal offences, heard by a judge and a jury eg murder

o Trial by jury – a jury is a group of ordinary citizens brought to court to hear evidence and decide on issues of fact, on the basis of that evidence

Selected from electoral rolls, examined by lawyers from both sides During trial by jury:

Examination-in-chief – prosecution for prosecution witnesses, and the defence for defence witnesses. This is when the witness tells the court their evidence

Cross-examination – undertaken by the opposing side. This is to test the witness on accuracy and objectivity off their evidence

Re-examination – take place by the same side as the examination-in-chief. Clarifies issues arising out of cross-examination

Trial by jury is used in <1% of criminal cases Juries much reach a unanimous verdict (all agree on the outcome of the

case)o Summary hearings – the case is heard by a magistrate alone

o Committal hearings – preliminary proceedings for trial by jury. The prosecutor must convince the judge there is a prima facie case (that there is sufficiently strong evidence against the accused for the matter to go before a jury.

o Children’s Court hearings – charges against people <18 years. Similar to a summary hearing, except:

Closed court (no public viewing) Media may attend, but not publish identity of the offender The magistrate specialises in children’s cases A conviction is not recorded if the child is <16 years

o Coronial inquiries – unnatural death or unexplained fire, a coroner will hold an inquest into the circumstances. Proceedings more inquisitorial, normal rules of evidence not followed

Civil hearings – similar to criminal in procedure. Negotiation between parties pre- and during trial, may result in out of court

settlement Usually decided by a judge/magistrate sitting alone, occasional jury of up to

six people Decide damages + award costs to the other party (usually loser, must pay

other sides court fees, legal expenses etc)

Roles of Participants in Court Process Jury – decides guilt or innocence of accused in serious criminal case Judge –

o Civil – conduct case and deciding in favour of plaintiff/defenceo Criminal – dependant on whether a summary or indictable offence is being held:

always, ensure the trial is conducted legally and fairly; decide questions which arise about the law; impose a punishment if the verdict is guilty. In summary hearings, they judge also decides the guilt or innocence of the accused. In trial by jury, the judge also explains the law to the jury, and outlines the questions which must be answered so it can reach a verdict.

Lawyers – to represent the view of their clients in court, in the best possible way. Under the Legal Profession Reform Act 1993 (NSW), there are few differences between barristers and solicitors.

o Solicitors: qualified, legal practitioners who give general assistance to clients in legal matters

o Barristers; qualified legal practitioners, specialising in representing clients in court Other court personnel:

o Clerk of Court: responsible for administrative work in a local courto Registrar: responsible for administrative work in a higher courto Tipstaff: maintains order, administers oath to witnesses

Enforcement Agencies There are several agencies that enforce the law:

o Police: State/Federal ensure criminal law is enforced by investigating crimes/arresting alleged offenders

o Gov’t departments/agencies: enforce specific laws, such as taxation, etco Other gov’t agencies: eg the National Crime Authority, Independent Commission

Against Corruption (NSW ICAC)o Local gov’t: specific areas of law, eg building standards + restrictions

Access to the Legal System Ordinary people have access in two ways: involvement in political processes (eg electoral

voting) and involvement in the court system, or other dispute-settling procedureso Political processes: law reflects concerns of individual citizens input into laws

being made:

Voting – compulsory voting for >18 (thus, representative gov’t) Freedom of speech – citizens are free to express their views about matters

pertaining to them (eg writing to a parliamentary representative) Lobby groups – collection of people with specific aims they wish to achieve.

Exerts pressure on Gov’t to change lawo Dispute settlement – ADR (alternative dispute resolution) or court system, (the former

arising out of a need for adaptable solutions to the shortcomings of the court system), are accessible by members of the community.

Limitations to access – people with greater power (economic, social etc) often have greater access to increased legal services:

Cost – the cost of legal representation is often very high. Developments to assist those include legal aid, and ADR schemes

Delays – insufficient courts/judges prevent fast (thus effective) justice. This results in poorer or lost evidence, denial of compensation etc

Discrimination – race, marital status etc can affect outcome/processes of legal system

Unfamiliarity – frightened/intimidated witnesses/defendant

Alternative Dispute Resolution Arose from restrictions in access to the court system (high cost/delays):

o Specialist tribunals – aka tribunals/commissions, adjudicate disputes in specific areas. Set up by Acts of Parliament:

Differ from court system: Jurisdiction is limited to one particular area/subject Tribunals are less formal than courts, not following strict rules of

evidence Legal representation not required Often quicker and less expensive

Eg, Fair Trading Tribunal (NSW): deals with disputes about rights of consumersAdministrative Appeals Tribunal (Cth): deals with complaints about gov’t actions

o Other ADR mechanisms: Negotiation: discussion between parties, with a view to solving the dispute.

Works best in small-scale disputes. Mediation: the process whereby a third party (mediator) listens to the dispute,

and helps minimise differences to reach agreement. (=conciliation in formal context).Community Justice Centres have been set up in NSW to mediate small disputes. Mediation is often cheaper and more satisfying to parties. Mediation has become a part of the court system. Courts have established procedures for mediation and neutral evaluation (a trained assessor evaluating each side’s strengths and weaknesses and presenting likely findings to the court). This allows for a quicker and more effective dispute resolution process.

Arbitration: the process whereby a third party listens to both sides and imposes a decision on the parties in disagreement. It is used by specialist dispute resolution bodies (eg industrial relations commissions, or in int’l law).

Legal Aid The provision of cheap legal services to people on limited incomes Aims to reduce inequalities in access to the legal system Funded in NSW by the legal Aid Commission of NSW Legal aid provides legal advice (preparation and/or representation) Receiving legal aid is dependent on a three part test:

o Means test – disposable income <certain amounto Merit test – that your case will succeedo Policy guidelines – only available for certain matters (increases if a person is at a

special disadvantage. Legal aid is not free: co-contribution, or full cost payed after success of case. Limitations of legal aid:

o It does not reach all needy people: excluded by one of the three tests. Funding cuts to legal aid further reduced accessibility, and the range of cases available for legal aid.

Unrepresented cases severely reducing chances of success Policy restrictions reduced types available for representation Lack of experienced/competent personnel – reduced chances of success due

to low pay Use of ADR – although cheap and appropriate in some situations, in others it

is not

The Doctrine of Terra Nullius Native title: right to live/use land for traditional purposes ATSI people lost this right in

1788 due to the doctrine of terra nullius (DTN) Decided on settlement that Australia was a settled colony (uninhabited)

o Cultivate the soilo Have permanent habitationso Have a recognisable legal system

Terra nullius: land belonging to no one. Under DTN, all English laws automatically applied to the settle colony

Implications:o ATSI law: ATSI people bound by English law, ATSI law not recognised limited

recognition of ATSI rights/freedomso Land rights: land is integral to ATSI cultures, denied to them until 1992

Native Title around the world Indigenous: original inhabitants of a country Land rights exist where the right to land has been recognised as belonging exclusively to

indigenous peoples. Incl. land, water, subsurface. Colonisation: establishment of settlements in a new country while been tied

(legal/political) one’s original country Issues of landlessness – 700 mn indigenous people worldwide Recognitions:

o Working Group on Indigenous Populations (WGIP)

Chapter 3Power

Power is the ability to control/influence people and resources Authority is the legitimate use of power Power can be exerted by force, persuasion, or reward Power can be collective – e.g. lobby groups Sources of power: physical strength/force; knowledge/intellectual ability; control over resources;

custom/position; investiture; fear of reprisal

Types of Power Social power: informal, e.g. the relationship between adolescents and peer pressure Cultural power: dependent on society, e.g. previous treatment of ATSI people compared to white

Australians Economic power: categorically, resources. E.g. boss of company Political power: control of gov’t on society. Can be subject to checks and balances, e.g.

representative gov’t. Legal power: control over law making processes/administration of laws. Relation to political

power

Concepts of Authority Power is derived from many sources – should be derived from legitimate sources tho Legitimate use of power has limits – if people exercising power overstep these limits, it is no

longer perceived as legitimateo Customary authority: grown over time into legitimate use e.g. family structureso Statutory authority: Cwth/Cnstn e.g. statute laws for establishing law enforcemento Common law authority: judiciary doctrine of precedento Delegate authority: given power by parliament

Power, Authority, and the Individual Power is not distributed evenly – political and legal influence is not available to everyone equally

o Resolve: collective power Needs of individual and state can coincide – law-making processes are more likely to favour

people with more power Justice/rule of law: rule of law states that all people and institutions are equal before the law (not

above/below) - however, can exist only on paper, dependent on society Institutional power/individual - few individuals have same economic power as business’/gov’t Protection of individual rights/freedoms

Types of Duties A duty is something a person or organisation is obliged to do Individuals and gov’ts have duties

o Social duties – imposed by society in general, e.g. duty to pay taxeso Cultural duties – membership in a particular cultural groupo Moral duties – obligations people feel should be upheld because of beliefs they holdo Religious duties – obligations people owe because of religious beliefso Legal duties – those that people owe because the law imposes them. e.g. duty to vote,

duty to assist police, duty to care for others A duty can come under more than one type

Relationship between legal/other types of duties Law upholds some moral, religious and social duties. Relationship between moral/legal duties is strong (law + ethics), and also legal/social Law reform – changes over time

The Nature/Sources of Int’l Duties Legal duties between States: mainly the United Nations, but also treaties/conventions, customary

int’l law Evolving nature – duties to other states, AND to the individuals within their state Domestic vs int’l duties:

o domestic, individuals are obliged to perform legal duties, can face consequences for failure to do so, can be forced to

o Int’l, states responsible for failing to meet duties – reparations etc, difficult to enforce Moral/ethical int’l duties – e.g. accepting refugees into country, voluntary contributions to int’l

aid organisations

Duties of States Maintenance of friendly relations with other states – settle disputes by peaceful means, UN Refraining from use of force – except in exceptional circumstances Payment of contributions to UN – cannot be enforced Promotion of economic/social development – ECOSOC Promotion/encouragement of respect for human rights

The Nature of Rights A right is something to which you are entitled For an individual to gain a right, some other individual/organisation must perform a duty Moral/customary rights: non-enforceable, morally determinable Legal rights: a legal right is a right clearly given by the law Gov’ts owe people some rights, e.g. social security pensions Discretionary powers – gov’t grants power to take certain action, tho not obliged Human rights: entitlements that are fundamental. Every human being is entitled to them because

they are human e.g. Universal Declaration of Human Rights 1948 (Int’l)

International Protection of Rights UN Charter: promotion of human rights/establishment of conventions etc

o Un Universal Declaration of Human Rights (1948): lists the human rights to which everyone is entitled

P1 – civil/political rights P2 – economic, social, cultural rights

o Int’l Covenant on Civil & Political Rights: gives legal force to the first part of the UDoHR – protection of civil/political rights (1966)

o Int’l Covenant on Economic, Social and Cultural Rights : gives legal protection to the latter part of the UDoHR: protection of social, cultural, economic rights (1966)

All of above form ‘Int’l Bill of Rights’ Some human rights have become jus cogens: e.g. slavery, genocide Three part enforcement:

o Reporting procedures: self report on status to committeeo State v state complainto Individual complaints against state

NGO’s: e.g. Amnesty International. Important as they are independent Limits on the effectiveness of international law protections:

o Not all countries are parties to int’l human rights treatieso Lack of enforcement mechanismso Problems with enforcement overall: open to bias (self report), individual acts as

the highest appealo Enforcement by consensuso differing cultural perspectives on human rights

Protection of Rights in Australia Depends on country In Au, signing an int’l treaty does not create domestic law, must be implemented Protection of individuals:

o Non-interference – law does NOT pass statutes regulatingo Conference by common lawo Conference by statute lawo The Au Cnstn – s51 gives the federal gov’t power to make laws giving domestic

authority to treaties Au has signedo Common law – recognises int’l lawo Int’l enforcement mechanisms – Toonan v Aus, complainant to HRC (Human

Rights Committee) about criminalisation of homosexuality Int’l v domestic rights

o Int’l rights are more encompassing: cover many rights, more than most countries (accepted as customary?)

o Not as readily enforceable as domestic rights

Challenging gov’t decisions: informal Challenged when it interferes with individual rights and freedoms Access is determining factor

o Lobby/interest groupso Trade unionso NGOs (e.g. Greenpeace)o The mediao Members of parliament

Power exerted by nature of collective/status Informal means are often highly effective

Parliamentary control of the Executive Executive considerable influence on the daily lives of individuals Parliamentary committees: both nsw/fed parliament have formed several committee that

give the public and opportunity to participate in the legislative process. They also investigate aspects of legislative/governmental processes

o Single house committee: Upper/lowero Joint comm.: both houses acting togethero Standing comm.: permanento Statutory comm.: established by Actso Select comm.: perform a particular task, then disbando Domestic/internal comm.: procedures and administration of parliamento Legislative/investigative comm.: select/standing, investigates legislation, policy,

public administration Committees are formed by members from both the Government and Opposition Two important powers: power to conduct inquiries, summons’, evidence etc; protection of

inquiry by parliamentary privilege Effectiveness of parliamentary committees: very effective in checking the power of the

state, and giving individual voice in parliament (explain and justify actions). However, their power can be limited by the parliament itself: not obligated to follow findings

Ministerial responsibility: ministers are members of gov’t who are responsible for gov’t dept’s. responsible to parliament for administration of their dept’s. Ministers who knowingly mislead parliament or make serious mistakes are expected to resign. Adding element of personal responsibility

Challenging gov’t decisions: courts Judicial review – a court considers whether a decision made by a gov’t body has been

made correctly Under NSW law, guidelines that a court must follow (in JR) determined by common law

principles Under fed law, guidelines a court must follow (in JR) are determined by the AD(JR)T Act

1977. Locus standi – standing – having sufficiently been affected by a decision to have a court

review the decision (ie cannot call judicial review ‘on principle’) Grounds for review –

o denial of natural justice: The hearing rule The rule against bias

o Ultra vires – acting outside of jurisdictiono Error of law on the face of the record – application of law wrongfullyo Failure to perform a duty – fails to act

Plus, for federal courtso Fraud involvedo No evidence to justify the decision

NSW COURTS

o Contrary to the law in any other way Remedies available under judicial review:

o Declaration – statement by court that decision is wrongo Injunction – an order to compel somebody or something to stop doing something

(usually private body) o Mandamus – an order to compel a public body/official to perform a public duty

(public sector)o Certiorari – orders body (who has legal authority) to set aside decision. Used in

conjunction with prohibitiono Prohibition – orders a body to stop proceedings because it goes against the rule

of natural justice or at error in law Class action: several people harmed by activities of someone else take the case to court

jointly Effectiveness of JR:

o Court cannot remake the decisiono Rules of locus standio Slow/expensiveo Grounds for review limited

Challenging government decisions: internal/external administrative review Internal review; authority itself External review; separate tribunal set up for reviewing gov’t decisions Administrative review: a body set up for that purpose reviews a decision made by a gov’t

decision, in such a way that they remake the decision if it was wrongly made. (reviewing decision on its merits)

Internal review:o Manager/higher position normally reviews decision of lowero Established by ADT Act 1977 (NSW)o Often a prerequisite to external review

External review:o E.g. Administrative Decisions Tribunal (1998, review decisions of govt bodies,

can reverse substitute or order a reconsideration), Housing Appeals Committee; Land and Environment Court

o In the federal sphere: specialist tribunals (Social Security Appeals Tribunal); Administrative Appeals Tribunal (can remake decisions, provisioned under act, appeals from specialist tribunals)

Effectiveness of administrative review:o Many advantages over JR, quicker, cheaper, decision can be remade, not bound

by as many rules, legal representation not req’d.o However, not all gov’t decisions are covered by AR.