Legal Studies

Front 1

Define law.

Back 1

Law is derived from legislation decided upon by parliament or previous court decisions. It regulates for an ordered and peaceful society and is based upon fairness, equality and justice.

Front 2

Distinguish between customs, rules, values, laws and ethics.

Back 2

A custom is a traditional and accepted practice. Rules are guidelines for a code of conduct with some consequences. Values are personal beliefs and morals. Ethics are society's views about what is right and wrong. The law is legislation which is based upon each of the aforementioned facets.

Front 3

Describe the characteristics of just laws and the nature of justice.

Back 3

Just law and justice relates to fairness and equality, impartiality and the doing of what is 'right'.

Front 4

Define and investigate procedural fairness and the rule of law.

Back 4

The rule of law states the law must apply equally to everyone and be based on widely held beliefs. The best outcome must be achieved for the most people, inequalities are avoided, it is timely and results in the quick resolution of a problem. The law is not retrospective and is known and understood. Procedural fairness means that each person has the right to be heard in court by an unbiased judge.

Front 5

Define anarchy.

Back 5

Anarchy is when a society is left without an effective legal system. It leads to widespread looting and other crimes.

Front 6

Define tyranny.

Back 6

Occurs when there is no check on the power of lawmakers and enforcers. Power is taken from the people.

Front 7

Outline the origin of common law.

Back 7

The Common Law system in Australia is modelled closely off the British system of common law. It is made by decisions of courts applying past precedents to new cases where applicable.

Front 8

Examine the hierarchy and jurisdiction of state and federal courts.

Back 8

The Australian Constitution grants certain legal powers to the Commonwealth (federal) government and the state governments. State courts have jurisdiction over matters such as traffic offenses and most crime, whereas federal courts have jurisdiction over income tax, immigration etc. Federal courts such as the High Court of Australia is at the top of the hierarchy whereas state courts such as the Supreme, District and Local courts are lower and have lesser authority. Cases which have been heard by a lower court may be appealed and heard by a higher court.

Front 9

Outline the role and the structure of parliament and the legislative process.

Back 9

Parliament debates proposed legislation, passes or rejects it, and amends legislation. The key role of the parliament is to pass laws in the name of the people, and any such law is know as a statute law. The legislative process: as a need for a new law is identified, these may be brought to the attention of the government by lobby groups, national or international events or proposals from an election. In a first reading, the Bill is introduced to parliament and in a second reading, the minister speaks about the Bill and a debate over it takes place. In a committee stage, the Bill is examined and debated and amendments are made if necessary. In a third reading a vote is taken on the Bill and if it passes it is introduced to the Senate where the process is repeated. It is either passed and presented to the Governor-General for approval hence becoming law, or it may be rejected or returned to the lower house for amendments.

Front 10

Describe the function of delegated legislation.

Back 10

Delegated legislation made by bodies subordinate to the parliament like government departments and local councils. An Enabling Act is given to define which laws may be made and how far their authority extends. Once legislation is developed, either house has the power to disallow it, otherwise it becomes law. This means that laws can be made to address a specific issue within a council shire and also frees up parliament time by delegating less important matters.

Front 11

What is division of power?

Back 11

The division of powers dictates who has the right to make which legislation. It is the part of the constitution which sets out which level of government can make laws about which matters. Exclusive powers means that only the Commonwealth can make laws for these matters e.g. defence, currency, marriage. Residual powers are things that are not covered by the commonwealth and are picked up the states e.g. police, transport and crime. Concurrent powers are matters for both state and commonwealth e.g. education, health.

Front 12

What is separation of power?

Back 12

Separation of power are three parts of government:

1) The Legislature (Members of parliament who make statue law)

2) The Executive (Members of parliament who are ministers in charge of a government department)

3) The Judiciary (Judges and magistrates who administer the law in court). Separation of powers means that none of these interfere with the other two.

Front 13

Examine the role of the high court in interpretation of the constitution.

Back 13

1) To protect the constitution by ensuring that the government acts within their constitutional powers.

2) To exercise its original jurisdiction, including 'constitutional challenges' that is, where the actions of the commonwealth are being challenged as unconstitutional.

3) It interprets the constitution if there is a dispute e.g. between the federal and state governments about a division of powers issue.

4) The High Court is the final court of appeal from the lower courts for both criminal and civil matters.

Front 14

Examine the characteristics of Aboriginal and Torres Strait Islander Peoples' customary law.

Back 14

System based on oral traditions and the notion ofkinship. There is no single Aboriginal nation: there are approximately 500known ATSI groups. Law involves family and kinship, rituals, mediations andsanctions and the spiritual basis of the law – significance of land and water. Ignoring of laws that had changed to becomeunjust, songs, dance and stories were used to help recall laws and customs. Mediationwas an attempt to resolve issues through discussion, and family and clanmembers had a role in this. Trial by ordeal was used, for example the accusedwould have spears thrown at them by the victim and his relatives. If thus perpetratorwas speared in the thigh they were forgiven, if not further ordeal wasrequired.

Front 15

Outline the extent to which Aboriginal and Torres Strait Islander Peoples' customary laws have been integrated into Australian Law.

Back 15

ATSI laws have been incorporated into Australian law,for example, circle sentencing, based off the Aboriginal method of mediation inresolving disputes is used. This involves community leaders and a magistratetogether deciding on a punishment for the offender, with the offender andsometimes the victim present.

Front 16

Distinguish between domestic and international law and examine the impact of state sovereignty.

Back 16

International applies only to those nations which agreeto be bound by the law. Complex legal tribunals exist for enforcement purposesbut countries are permitted to exempt themselves from cases. Ad hoc tribunalsmay be set up temporarily for a specific purpose, for example to deal with warcrimes. Laws are made through negotiations between nations. Domestic(Australian) law is universal, meaning the law in Australia applies to everyAustralian person. Law enforcement agencies, such as police are in place toenforce the law, and law is created by parliament or the rulings of judges. Statesovereignty is a nation’s right to make and enforce its own laws; anothernation cannot force it to comply. This means there is often difficulty inensuring nations adhere to international laws.

Front 17

Examine the sources of international law.

Back 17

International law may come in the form of a treaty, avoluntarily entered into binding agreement between nations. A declaration is non-binding.An international custom is a rule that has been established because it has along tradition and has been followed by many nations.

Front 18

Describe the role of various organisations involved in international law.

Back 18

A key organisation involved in international law isthe United Nations. The General Assembly has representatives from almost allcountries and organises resolutions to conflicts, provides humanitarian aid andprovides a nations to discuss international affairs. The Security Council haspermanent members (USA, Britain, Russia, France) and 10 non-permanent members.Its main role is to maintain international peace and security and preventconflict and war. Any of the permanent nations can veto a decision. Decisions made by the UN plays a role increating international laws. Also, NGOs (non-Government Organisations) work fordevelopment projects and lobby groups supporting human rights. These NGOs playa significant role in applying political pressure to nations to abide by internationallaws. In addition, inter-governmental organisations include European Union.

Front 19

Examine how international law impacts on and is incorporated into Australian law.

Back 19

Australia agrees to ratify UN treaties/conventions. Theseare enacted into law by the Federal parliament. For example, the InternationalConvention on the Rights of the Child translates into the domestic law Children(Care and Protection) Act.

Front 20

Outline different types of law.

Back 20

There are two main types of law: Criminal and Civil. Criminal Law deals with crimes againstthe state and is cited as R vs Smith (2011) R=Regina and stands for king or queenas head of the state representing all of the public. Within criminal law thereare also two types of crimes 1. Statutory offences e.g. not paying taxes and 2.Common law offenses - offenses against law made by decision of courts e.g.murder. Such crimes can be: crimes against the person (assault), crimes againstproperty (theft/damage), white collar crime (fraud, embezzlement etc.), trafficoffenses, crimes against the sovereign/state (treason, sedition), public orderoffences (public drunkenness, swearing etc.). Civil law is in three parts 1. Contracts (legally bindingagreements) 2. Property law (covers anything that is bought and sold, mainlythe conduct of sellers/buyers and quality of goods/services), 3. Tort law(actions that are not criminal but result in someone being wronged: negligence – acting in a reckless orcareless way that results in injury, nuisance – interference in anotherperson’s rights, trespass - uninvitedaccess to another person’s house or property, defamation – words or actionsthat damage another person’s reputation.

Front 21

Compare the purpose different types of law.

Back 21

Criminal - punishment for a crime

Civil - the righting of a wrong through compensation, apology etc.

Front 22

Distinguish between civil and criminal court procedure.

Back 22

Criminal:only the current charge can be dealt with and the accused’s previouscriminal record cannot be mentioned until a conviction is reached. There arerules of evidence such as illegally obtained evidence cannot be admissible e.g. evidence obtained without a warrant. If the accused is proven guilty bothsides can argue about an appropriate sentence. STANDARD OF PROOF: the jury mustbe convinced beyond all reasonable doubt.Three elements need to be proved: 1. MensRea: the accused had the mental intention to commit the crime. 2. Actus Rea: the accused was actually theperson who committed the crime. 3. Causation:the harm caused can be directly linked to the actions of the accused. CivilLaw: The Plaintiff sues the Defendant for damages ie the payment ofcompensation or a court injunction (court order, for example to make anapology). Civil matters are to settletorts. The standard of proof is on thebalance of probabilities, and the burden of proof lies with the plaintiff.

Front 23

Identify the role of legal personnel involved in the court process.

Back 23

Criminal: Personnel: judges, jury (districtand supreme court), magistrates (local courts), barristers (most seniorlawyers), solicitors (defend more minor matters in court).The accused: the defendant Person bringing charge on behalf of state:the prosecutionJury: 12 members, randomly selected, need11 in agreementJudge: advises and explains laws to jury,ensures rules or trial are upheld and just, passes sentence.

Front 24

Compare and contrast common and civil law systems.

Back 24

Common Law Systems:

- Decisions of courts make laws/precedents

- Judges act as independent umpire and do not seek to prove guilt/innocence

- Law made by using discretion and adapting to the particular circumstances of the accused

- Criminal record is not revealed until sentencing

- Called an adversarial system

Civil Law System:

- Judges do not make laws/precedents

- Judges do question witnesses/seek evidence

- Law largely based on a pre-set system of laws

- Criminal record may be used as evidence

- Called an inquisitorial system

Front 25

Examine the conditions that give rise to law reform.

Back 25

When existing law is obsolete or not being enforced e. g. vagrancy/summaryoffences Act or Toonan vs Australia 1992, homosexuality in Tasmania. If lawsare not being enforced they should be repealed (removed). When the attitudes ofsociety change --------> lawschange.

- Attitudes to marriage and de facto relationshipse.g. The Family Law Act

- Migration and Multiculturalism e.g. RacialDiscrimination Act

Front 26

Describe the role of agencies involved in law reform.

Back 26

1) The Australian Law Reform Commission

- Update the law

- Reform existing law

- Remove obsolete law

- Codify Common Law in statutes

- Improve access to the law for citizens e. g.Legal Aid

Legal Issue for reform ->

Public Scrutiny/Consultation ->

Proposal for reform published ->

Final ALRC report submitted to the Attorney General ->

Reform voted on by parliament ->

Parliament passes the reformsinto statute law

2) Parliamentary CommitteesAll Australian parliaments have committees from both sides of politics tosuggest law reform e. g. changes to the Motor Traffic Act – speed limits,restrictions to P-plates.

3) Royal CommissionsA commission set up specifically to investigate some specific (andcontroversial) aspect of the law e. g. The royal Commission into PoliceCorruption in NSW.

4) Permanent Advisory Bodies e.g. The Bureau ofCrime Statistics

5) The Media – reports on and publicises issues inneed of reform and shapes public opinion.

6) Non-government organisations e. g. charities andwelfare lobbyists

Front 27

Examine the operation of the different mechanisms of reform.

Back 27

1) The Courts -

Via the use of discretion to match circumstances of the accused Judges modify thelaw and set new precedents. Reform by the courts is piecemeal and not able totarget a particular aspect of the law seen to require improvement i.e. courtcan only deal with cases before them.

2) Parliament -

Law made by parliament over-rides the decisions of courts. Law made by thefederal parliament over-rides state law.

Front 28

Explain why Terra Nullius was an obstacle to achieving native title.

Back 28

Terra nullius literally means ‘empty territory’ andwas the legal basis for Britain’s acquisition of Australia. Legal status of lawin Australia automatically became British law, and Aboriginal customary law wasnot recognised, nor was ownership/guardianship of the land. Therefore, sincethe land was deemed unowned by anyone when the British arrived in Australia,there was no legal basis for native title, or the reclaiming of the land byaboriginal people.

Front 29

Examine the roles of the high court and federal parliament in recognising native title.

Back 29

Terra Nullius was overturned by the High Court in theMabo case which established the precedent of native title. This recognises theright of Aboriginal people to reclaim territory that has been in continuoustraditional use.

Front 30

Examine major Australian native title decisions.

Back 30

1967: referendum on Aboriginal people asAustralian citizens, overwhelmingly passed.1970’s and 80’s: Commonwealth and statelaws transfer some traditional territory to traditional owners.

1988: Mabo vs Queensland – High Court findsthat QLD law limiting the land rights of Torres Strait Islanders is invalid onthe basis of racial discrimination.

1992: Mabo vs Queensland – Terra Nulliusoverturned – Existence of Native Title confirmed.1993: Native title Act – the Commonwealthlegislation response to Mabo 1992 – Allowed claims on vacant Crown land whereongoing traditional links can be proved.

Front 31

Assess the effectiveness of the law reform process in achieving just outcomes in regard to native title.

Back 31

By means of several hearings (the Mabo case) and areferendum, change has been made to the laws, allowing native title forAboriginal people to become a reality. These reforms involved the High Court ofAustralia as well as legislation made by Parliament, and a satisfactory outcomefor Aboriginal people was achieved.

Front 32

Identify and investigate a contemporary law reform issue.

Back 32

Contemporary Law Reform:Professional SportIssues involve: managing risks and a ‘duty of care’.

Managing Risks:

1) voluntaryassumption of risk (a person accepts that some activities may be likely toresult in injury).

2) Assumption of risk depends on Training, The nature of thesport, The nature of the game and The level of fitness of the players.

Duty of care: Generally aresponsibility of all people to look after the welfare of others and notdeliberately or negligently cause harm. Based on the notion of ‘responsiblecare’ or the actions of the ‘reasonable person.’ Coaches, other players,referees and administrators. Other Issues: RESTRAINT OF TRADE INSPORT – when an athlete signs a contract and then has restraints imposed uponhim as stated by his contract.

Front 33

Examine the conditions that gave rise to the need for law reform, the agencies of reform and mechanisms of reform.

Back 33

Injury to rugby player as a result of an‘illegal tackle’ meant that a civil case was brought and the plaintiff awardedcompensation.

Breach of contract – Sonny-Bill case – leftcountry, so Australian agencies had no jurisdiction.

Mechanismsof reform: Precedents have been set by the compensation claim by injuredplayer. Agencies:the media played a large role in both these cases, publicising and shaping theopinion of the public.

Front 34

Assess the effectiveness of law reform in achieving just outcomes with regard to a contemporary law reform issue.

Back 34

Law reform has been effective in achieving justoutcomes with regard to the case involving injury resulting from an illegaltackle as compensation has been awarded to the victim and a precedent has beenset for future cases, however, in the Sonny-Bill case, lack of jurisdictionmeant that a satisfactory outcome for the ‘wronged’ parties could not beachieved.