Basic Legal Concepts

Basic Legal Concepts

• Law is a set of officially recognized, binding, and enforceable rules for all community members, made by a sovereign power like parliament.
• The Crimes Act 1900 (NSW) is an example of law.
• Laws must be binding, enforceable, officially recognized, accessible, and in the public interest.
• Customs are long-term collective habits or traditions, like secret Santa, which are not legally enforceable.
• Rules are regulations or principles that control conduct, such as school uniforms and apply only in certain situations, not legally enforceable.
• Values are principles, standards, or qualities deemed worthwhile in a society, such as honesty.
• Ethics includes rules or standards that guide behavior and a branch of philosophy that studies values and right versus wrong conduct.
• Ethics tell people how to behave appropriately, like not dating coworkers.

Characteristics of Just Laws

• Just laws treat everyone equally, based on widely held values, utilitarian principles, address inequalities, minimize delays, are not retrospective, and are made known.
• Example: Equal treatment occurs when two girls receive equal fines, even if one earns more.
• Utilitarianism describes achieving the greatest good for the greatest number.

The Nature of Justice

• Justice is composed of Equality, Fairness, and Access.
• Equality is the state of having the same rights or status, where equal treatment ensures no one suffers an unfair disadvantage.
• Fairness involves freedom from bias, dishonesty, or injustice, aiming for equal outcomes and ensuring fairness for all members of society.
• Access refers to the right or opportunity to use something, including legal information, representation, justice in a reasonable time, and physical access to the legal system.

Procedural Fairness

• Procedural fairness, also known as natural justice, involves principles ensuring fairness and justice in court decision-making, with two main principles: the right to be heard and the right to an unbiased decision-maker.
• An example of a lack of procedural fairness in Stalin's show trials included no legal representation, no self-defense allowed, and a biased judge, leading to a new judge being appointed.

Rule of Law

• The rule of law is the principle that everyone is subject to the law, requiring that governmental authority must use written, publicly disclosed laws with due process.
• Key components: the people (including the government) should be ruled by and obey the law, and the law should be clear and guide people's behavior.
• SOP (Separation of Powers) must be enforced.
• Important because all persons and organizations, including the government, are accountable to the law, which must be clear, and all persons are presumed innocent until proven guilty in court.

Rule of Law - Case Example

• Marcus Einfeld, a former Australian Federal Court judge, was convicted in 2009 for perjury and perverting justice by falsely claiming a deceased friend was driving his car to avoid a $77 speeding fine.
• Einfeld's dishonesty led to a three-year prison sentence (minimum of two years served), disbarment, and revocation of honors.

Anarchy and Tyranny

• Anarchy is the absence of laws and government, lacking justice and recognized authority.
• Tyranny is rule by a single leader with absolute power, who typically ignores the rule of law.

Sources of Contemporary Australian Law

• There are five sources which include common law, statute law, the constitution, ATSI customary law, and international law.

Common Law - Ways of Having a Trial

• The adversarial system is used in common law countries like England and Australia.
• It involves representatives for each side presenting their cases to an impartial decision-maker, aiming to find a winner.
• The inquisitorial system is a legal system where the court actively conducts the trial and determines questions unlike Australia
• Its objective is to find the truth.

Development of Common Law

• Common law is law made by courts, originating historically from the law common to England.

Development of Equity

• Equity supplements common law, correcting injustices by judging each case on its merits and fairness principles.
• Courts created the court of Chancery to decide difficult cases by assessing if applying the precedent would be fair.
• Courts apply special rules known as the rules of equity today.
• Injunctions are equitable solutions to legal disputes, allowing for remedies beyond monetary damages.

The Doctrine of Precedent

• A precedent is a judgment that is authority for a legal principle, providing guidance for similar cases, ensuring fair treatment and consistent legal development.
• Latin version Stare decisis.

Creation of Precedent

• A precedent is created either when there is no previous decision to guide a case, or when there is a dispute about the meaning or application of a law.
• When a judge gives a decision, it includes the ratio decidendi (the legal reason) and obiter dicta (comments not legally binding).

When a Precedent Does Not Have to Be Followed

• A precedent does not have to be followed if the facts are significantly different or if a lower court's decision is overruled.

Rules of Precedent

• Binding precedent must be followed, such as the Supreme Court following High Court precedents.
• Persuasive precedent may be followed, such as the High Court considering House of Lords precedents.

Order of the Courts

• Courts from highest to lowest: HIGH, SUPREME, DISTRICT, LOCAL.

Defamation Case Example

• Defamation is making statements that damage someone's reputation.
• Dow Jones & Co V Gutnick (2002) set a precedent for internet defamation and jurisdiction.
• The High Court ruled that defamation occurs where content is read and harms reputation, allowing Gutnick to sue in Victoria, establishing global legal risks for online publishers.

Court Hierarchy

• There are two main hierarchies which include state and federal.
• State includes Lower, Intermediate, and Superior courts.

Criminal and Civil Cases

• Criminal cases deal with crimes and offenses, while civil cases deal with money.
• Summary offenses can be dealt with by a single judge without a jury or preliminary hearing.
• Indictable offenses require an indictment and preliminary hearing, tried before a judge and jury, and have greater penalties.

Jurisdiction of Courts

• Jurisdiction of courts is the power to hear cases.
• Original jurisdiction is the power of a court to hear a case for the first time.
• Appellate jurisdiction is the ability to hear appeals from lower courts and modify decisions.

Lower Courts

• Local Court and Magistrates' Court handle minor criminal and civil matters, summary offenses, and committal hearings, with original jurisdiction and can deal with matters less than $100,000.
• Committal hearings determine if there is enough evidence to warrant a higher court trial.
• Coroner's Court investigates unexplained deaths and coronial inquests, with original jurisdiction.
• Children's Court handles civil matters related to child protection and criminal cases involving individuals under 18, with original jurisdiction.
• Land and Environment Court deals with environmental planning, offenses, and appeals against local council rulings.

Intermediate Courts

• District Court handles indictable offenses, such as larceny, robbery, manslaughter, sexual assault, and large-scale drug importation.
• District Courts do NOT deal with murder cases and have a civil jurisdiction between $100,000-750,000.

Superior Courts

• The Supreme Court of NSW deals with serious criminal matters such as manslaughter, murder, and drug-related charges.
• It also handles civil cases involving large sums of money or original jurisdiction and breaches of corporation law and hears appeals from lower courts.

The High Court

• The High Court is the final court of appeal with 7 judges.
• The High Court hears appeals (1-3 judges) from NSW courts of Appeal on criminal and civil matters.

Federal Courts

• Federal Circuit Court of Australia has jurisdiction over family law, human rights, copyright, bankruptcy, migration, consumer protection, trade practices, privacy, administrative law, and industrial law, but does not deal with criminal matters.
• Federal Court of Australia deals with civil disputes governed by federal law (except family law) and some summary criminal offenses.
• Family Court of Australia deals with complex family law matters like divorce, parenting orders, division of property, and spousal maintenance.
• The High Court of Australia is the highest court in the Australian judicial system, handling appeals from the Federal Court, Family Court, and state/territory Supreme Courts.

Statute Law

• Statute law is made by parliament.
• Any parliament has the power to make a statute law.
• State and Federal parliaments are bicameral, with two houses (upper and lower).
• The Senate is the upper house.
• The House of Representatives is the lower house.

The Legislative Process

• The legislative process Includes the passing of legislation.
• Passing legislation requires parliament to pass laws, often initiated by the governing party, in the form of a Bill.
• Bills require approval from both Houses of Parliament and the Governor-General to become an Act of Parliament.
• The process of passing a Bill requires identifying a need for a new law, drafting the Bill, review in the House, reading and debate, a vote (then moves to senate), and Royal Assent

House of Representatives and Senate

• The House of Representatives is made up of winners from each electorate, with NSW having the most electorates.
• The Senate represents the 'States house,' with each state represented equally (12 senators from NSW and TAS, 2 from territories, totaling 76).

Legislative Law

• The Attorney-General is the government's head legal officer and source of legal opinion, advising Government Ministers and overseeing legal policies.

Delegated Legislation

• Delegated legislation involves laws made by authorities other than parliament, which are given the power to do so by an Act of parliament.
• It is made by government agencies/ministers/councils and the Governor-General.
• The types include Regulations, Ordinances, Rules, and By-laws.
• Advantages include expertise in the field, freeing up parliamentary time, and easier amendment.
• Disadvantages include lack of parliamentary oversight.

Division of Power and Referendum

• The division of power involves many bodies involved in making delegated legislation, there can be inconsistencies, and little publicity for the public.
• Exclusive powers are the sole domain of the Commonwealth government. Examples = customs, military forces, currency.
• Concurrent powers are shared by both state and federal governments. (insurance, banking).
• Residual powers are matters the state can legislate on (transport, education, local government).
• Referendum is the referral of a particular issue to the electorate for a vote.

Legislative and External Affair Power

• Legislative power is the legal power to make laws.
• Ultra vires (latin) is acting beyond legal power.
• External affair power enables the Commonwealth to legislate on international matters

Tasmanian Dam Case

• The Franklin Dam controversy raised environmental issues in the late 1970s-early 1980s.
• Tasmania planned a hydroelectric dam on the Franklin River, which sparked opposition from environmentalists.
• The federal government passed the World Heritage Properties Conservation Act to protect the river, but the High Court ruled in favor of the federal government.
• This decision set a precedent for environmental protection.

The Constitution

• The Constitution limits and defines government powers.
• Chapter || creates the House of Reps, Senate, and defines their powers.
• Chapter V defines the power of the states.
• Chapter VI allows the creation of new states.
• Section 51 specifies the legislative powers of the federal parliament (enumerated powers).
• Section 52 outlines the exclusive powers of the federal government.
• Section 109 provides conflict resolution between state and federal laws, prioritizing Commonwealth law.
• Section 128 outlines referendum.
• Key features of the Australian Constitution Act 1900 (UK) include a bicameral federal government, establishment of the High Court, outlines division of power, and the ability to alter the Constitution by referendum.

Separation of Powers

• Legislature = law-makers (the Parliament: the House of Representatives and the Senate)
• Executive = ministers and government departments who administer laws, which includes the Governor-General, the prime minister, and Cabinet members.
• Judiciary = the courts which interpret and apply the law.

Summarized SOP and DIVISION of Power

• SOP is legislative, executive, judiciary, and DOP is exclusive, concurrent, residual.

Difference Between Division of Power (DOP) and Separation of Powers (SOP)

• DOP shows how power is divided between the state and Commonwealth.
• SOP shows how legal institutions are separated to prevent absolute power.

Role of the High Court

• The High Court is the highest court of Australia, created by the constitution.
• It hears appeals and constitutional cases (original jurisdiction).
• Appeals require special leave and usually relate to questions of law.
• Judicial Review is renewed by the court to check whether they are valid or not.
• The Court will review that the -Law is constitutional, govt official / dept has acted ultra vire (beyond its power) as well as followed the rules of justice

Special Leave and Question of Law

• Special leave is where the High Court grants approval for a case to be heard in its appellate jurisdiction.
• Question of law is a disputed legal contention that is left for the judge to decide.

Aboriginal and Torres Strait Islander Peoples' Customary Laws

• Customary law includes principles and procedures developed through general usage according to the customs of a people or nation, or groups of nations and are treated as obligatory.
• Since 1788, ATSI lived under two legal systems include common law and Aboriginal and Torres Strait Islander Customary law.
• The different laws that developed in different groups but there were some common features, every group's customary law system was diverse
• Common features are insulting an elder, singing a sacred song in public, spiritual basis (The dreaming), the significance of land and water, Aboriginal customary law, they believe in group custodianship and protection of the land their group lives on as well as how to act on certain parts of the land (sacred sites)-Family and Kinship

Spiritual Basis

• They had laws about how to treat people from other groups who came onto their land lived off of, as well as how to act on certain parts of the land (sacred sites)-Family and Kinship
• Terra nullius: Land belonging to no one.

Ritual, Oral Traditions, Mediation and Sanctions

• Rituals are processes that need to have to be in a specific way (in a clear order, with certain people, at certain places and times, using the same words, same same and dances).
• Oral is verbal.
• ATSI passed down laws through songs & stories-
• Rituals include Mourning Rituals and grieving rituals.
• Mediation is Talking through issues.
• A sanction is a punishment.
• Some punishments can vary from a fine, death, insults or banning

Relevance to Contemporary Australian Law

• All peoples have the right of self-determination
• International covenant on economic, social, and cultural rights
• Circle sentencing= Deciding only on the PUNISHMENT
• Not an "easy option" (punishments are often harder)
• Customary law may be raised in mitigation.

Relation Terms

• Kinship: family relationships.
• Mediation: a form of alternative dispute resolution.
• Sanction: A penalty imposed on those who break the law.
• Mitigation: Making the severity of an offence or a sentence milder or less severe.

International and Domestic Law

• Domestic law: The law of a state
• Sovereignty: The state has authority to make rules for its population and power to enforce these rules.
• In order to be a state, a place must have: defined territory, a permanent population, an effective government, the capacity to enter into international negotiations.

Differences between international and domestic law:

• Sources of international law includes customary international law, treaties, declarations, legal decisions, legal writings, UN, courts, tribunals, IGOs, NGOs
• People follow laws because they have the OPTION and want to look like good international citizens.
• Sources of domestic law includes Statute law, Common law, the Constitution, ATSI Peoples Customary Law
• People follows laws because here is a law enforcement

International Law Explained

• International law governs relationships between nation-states, enabling trade, commerce, peace, security, and conflict reduction, covering fundamental human rights, but lacks enforcement mechanisms.

Making International Law Enforceable

• Solutions include passing a domestic STATUTE LAW that reflects international law and judges apply it in domestic COMMON LAW

State Sovereignty

• Sovereignty Includes the power to make your own choices/decisions.
• The power covers that countries can't be forced to sign decisions
• Nations have a CHOICE. International law is (mostly) VOLUNTARY
• Exceptions are genocide or if countries are not willing to protect their own people.
• Customary international law is based on long practices accepted as fair by the international community, as well as standards that are above all other national and international law

International Instruments

• Instruments are Documents that have authority (treaties and declarations).
• Declarations are international instruments that state and clarify positions but do not impose legally binding provisions.

Treaties Defined and Examples

• Vienna convention (1969) defines treaties as 'an international agreement concluded between states in written form and governed by international law'.
• Treaties are agreements between countries; they can be Bilateral or Multilateral
• Legal decisions from international courts do not have precedent and are not binding on future cases.
• Legal writings can consult writings of esteemed legal scholars as supplementary tools to interpret and determine legal rules-

Organizations involved in international law:

• The United Nations is the chief organization, established in 1945.
• General Assembly is the main body of UN, consisting of all member states (193 members).
• Security Council maintains world peace and security, consisting of 15 members, in which 5 permanent members have the power of veto
• Tribunals of the UN include
• INTERNATIONAL COURT OF JUSTICE (ICJ), consisting of 15 judges from different countries. This can be asked for advisory opinion
• Intergovernmental organisations (IGOS) -Organised groups of states, established to pursue mutual interests
• Nongovernmental organisations (NGOS) operate outside the government -Associations based in common interests and aims

Relevance to Contemporary Australian Law:

• International law is not PART of Australian law.
• Australian courts can refer to international law if there's no statute
• Supposed to interpret what is consistent with obligations under international law
• statue laws that implements parts of international treaties signed by AUS include:, Migration Act 1958, Racial discrimination Act 1975.

Private and Public Law:

• Private law (Contract, tort, property).
• Public law (Criminal, administrative, constitutional).
• PUBLIC LAW Deals with the legal relationship between the GOVERNMENT and an INDIVIDUAL (or business).
• criminal: Acts or omissions that are punished by the state.
• to protect society and punish people who commit violent and non-violent crimes against members of society.
• Main legislation for crime in NSW: Crimes Act (1900) NSW.

Types of Crime:

• Offences against the person, Economic offences, Drug Offences, Driving Offences, Public Order Offences, Preliminary Offences are when you attempt or plan to commit any of the above crimes.

Acts and Summary Offences

• A crime can be a commission of an act, but a crime can also be an omission. A crime can also be an omission.
• A crime is defined as NOT paying taxes, NOT voting.

Administrative and Constitutional Law

• Administrative law deals with interaction with givernment bodies and their powers and decisions.
• The purpose it is: to limit the power of the Executive Branch/Arm of the government to receive procedural fairness when the government department makes a decision in order to decide whether the department went beyond its power when making that decision.
• That the right decision was made
• You can get an internal review, external review or Judical review
• Constitutional law is the branch of public law that focuses on the rules governing the executive, legislative and judicial functions of government. The purpose is to limit the power of parliaments and courts in two ways-
• Examples are: Constitutional, Trial by jury and freedom of religion.

Examples of Private Law

• Contract law: Example: What I paid for and What I want
• Tort law: Example: Your hurt me somehow and I want money (or you to stop)
• Property law: Example: I rented this house from you and everything's broken! / You stole my property.
• Makes contract legally binding.
• Consideration- Ok, here's your $5
• Damages: monetary compensation for harm or loss suffered.

Remedies and Tort Law Explained

• The plaintiff may also seek one of the following remedies: An injunction and Specific performance
• Torts are 'civil wrongs' where there was no relationship prior to the wrong.
• give people an OBLIGATION to not do anything that they could reasonably foresee COULD hurt ANYONE else
• Types include Negligence Nuisance, trespass, false imprisonment and defamation;

Examples of Tort

• Coles case- In 2013, Margaret Hill, a 48-year-old mother of two, slipped on water near a refrigerated display at a Coles supermarket in Kings Langley and awarded her $292,335 in damages
• Donoghue V Stevenson - In 1928, May Donoghue's friend bought her a bottle of ginger beer at Wellmeadow Café in Paisley

Property Law

• Property law is a wide area of law that governs relations involving things and interests that can be owned and that have a commercial value, making sure that Property is NOT disturbed.
• Real property examples: Ownership of land, Rental agreements and Damage to house
• Intellectual property: intangible property that has commercial value and can be protected by law; for example, text, images, designs, inventions and computer programs.
• Peel paragraph study can be categorised as using -LCMIS
• LCMIS stands for Legislation, Common law, court cases, precedents, Media articles, International instruments and Statistics.