Law, Customs, and Rules

Meaning of Law

• A set of enforceable and officially recognized rules
• These rules are binding on all community members
• Society is a group of people linked by mutual interests, relationships, shared institutions, and culture

Customs

• Collective habits or traditions evolving in society over time
• Can be minor, such as covering one's nose, or significant, such as not stealing crops
• Customary law involves principles and procedures from general usage based on a society’s customs
• Customs can become formalized laws with punishments for breaches over time

Rules

• Direct conduct guidelines for specific situations, like school rules
• Enforced by those administering them
• Easily altered and unilaterally changed by the group imposing them
• Often categorized under contract law (private law)
• Rules and laws can be similar

Laws

• Formal, enforceable rules requiring, allowing, or prohibiting activities within a society
• Compliance is obligatory, not a personal choice
• Penalties for non-compliance can range from fines to imprisonment
• Laws create certainty, communicate values, assumptions, and regulate behavior

Relationship Between Customs, Rules, and Laws

• Communities create rules to govern behavior and maintain order
• Rules are based on traditions, customs, and group values
• Breaching rules leads to penalties
• Appointed groups or individuals create and enforce rules, evolving into government, police, and judiciary
• These rules become formalized law over time

Values and Ethics

• Beliefs guiding how people live, expressed or understood in a community
• Learned from family, school, and religion
• Values and ethics often inform laws, reflecting customs, though not everyone agrees on every law, leading to reform

Characteristics of Just Laws

• Justice involves the fair and impartial treatment of all people under the law
• Achieved through the legal system
• Laws are relevant and binding to the whole community
• Equitable laws treat all people equally, without unfair advantage or disadvantage
• Fair laws ensure the legal system is impartial, free from bias, dishonesty, corruption, or injustice
• Enforceable laws have penalties that are applied fairly and equitably
• Accessible laws are discoverable so people can know what laws apply to them
• Laws should relate to the best interest of the whole society
• Laws should reflect rights, power, responsibilities, ethics, and values

Nature of Justice

• Equality dictates equal treatment before the law; no one is above it
• Paradoxically, the law contains inequalities
• Doli incapax means a child under 10 cannot be held legally responsible for criminal actions
• The law protects vulnerable people, ensuring responsibility reflects their capacity
• Those with more power have higher obligations, and the law protects those who rely on them

Procedural Fairness (Principles of Natural Justice)

• Fairness and justice are similar, but fairness applies to everyday life, while justice has a legal meaning
• Justice upholds rights, enforcing responsibilities, and ensuring equal outcomes
• Essential features of justice: knowing charges, right to silence, timely charges, unbiased decision-makers, and decisions based on evidence
• The Lepra Act allows police detention for up to 6 hours

Onus of Proof

• The prosecution has the burden of proof
• The prosecution must demonstrate guilt beyond a reasonable doubt
• The defense aims to create reasonable doubt
• Defendants often do not testify

The Rule of Law

• The law applies to everyone, including law makers and enforcers
• Sanctions for breaking the law must be commensurate with the offense and effectively enforced

Why Obey the Law

• In order to be safe and secure, people give up some rights
• Laws often reflect society's customs and values
• Penalties act as deterrents

Anarchy and Tyranny

• Anarchy is the absence of laws and government
• It can occur after disasters or wars, often requiring military intervention
• Tyranny is the opposite of anarchy, where one person has absolute power
• Tyrannical laws are based on the tyrant’s whim
• Tyrannical power imposes severe penalties and requires loyalty
• Saddam Hussein in Iraq is considered a tyrant
• To be a government, you must be accepted internally and recognized by other states or territories
• States under anarchy or tyranny are often not recognized

Sources of Contemporary Australian Law

• British Origins, including:
• Common Law
• After the Norman Conquest in 1066, English monarchs sent judges to administer royal justice
• Judges initially applied local customs
• Judges began to follow earlier decisions, known as setting precedent
• Rules became known as Common Law

Common Law System

• Adversarial system countries are usually common law countries colonized by Britain
• Features include presumption of innocence and burden of proof on the prosecution or plaintiff
• Judges maintain order, rule on law points, and give jury directions

Adversarial System of Trial

• Both parties present their version of events
• Burden of proof is on the prosecution or plaintiff
• The truth emerges through evidence presentation
• Cross-examination is used
• The judge and jury have passive roles

Precedent

• Courts must follow decisions of higher courts in the same hierarchy of jurisdiction
• Binding Precedent requires following the ratio decidendi (reason for decision) from a court of record in the same hierarchy
• Persuasive precedent involves statements of principle not strictly necessary for a decision (obiter)
• The status of the court influences persuasive value
• Precedent means similar situations should be dealt with similarly
• Only a court of record can create precedent
• Courts are bound by superior court decisions in the same hierarchy
• Superior courts are generally bound by their own prior decisions, except for the High Court
• Judges usually follow their own earlier decisions

Common Terms From the Doctrine of Precedent

• Ratio decidendi is the binding or persuasive part of a decision and its underlying principle
• Obiter dicta are legal arguments and statements not part of the binding ratio decidendi
• Obiter are not binding, but can be persuasive
• They have persuasive value if they form part of the matter at issue

Court Hierarchy

• Provides a system of appeals to higher courts
• Allows different hearing forms for the gravity of the case
• Builds precedent
• A court's jurisdiction comes from its enabling act
• Original jurisdiction is the authority to hear a case first
• Appellate jurisdiction is the authority to hear appeals from lower court decisions
• Decisions from outside the hierarchy can be persuasive
• Courts generally do not depart from previous decisions

State Court System

• Local Courts:
• The lowest level, with original jurisdiction (e.g., Manly)
• Presided over by a magistrate
• Jurisdiction is from its enabling act
• Criminal matters: summary and minor indictable offenses, committal proceedings (mostly fines, jail up to two years)

Local Court Procedures

• Examination in chief: asking questions, not leading questions
• The test is how an ordinary person would react
• AVOs (apprehended violence orders) require stopping certain behavior, and are only problematic if breached

Intermediate Courts (District)

• Exclude life sentences
• Exist in the middle hierarchy (except in Tasmania, Northern Territory, and Australian Capital Territory), with original and appellate jurisdiction
• Presided over by a judge and are courts of record
• Jurisdiction is established by its enabling act
• Maximum damages are up to $1.25 million
• Hear matters up to all but the most serious indictable offences

Supreme Courts

• They carry life sentences
• The highest court in each state and territory and courts of record, presided by a judge
• Jurisdiction established by its enabling act
• Unlimited original jurisdiction in civil and criminal matters, hearing the most serious cases
• Has appellate jurisdiction

Federal Court System

• Family Court:
• It was established by the Family Law Act 1975
• It is presided over by a judge, and is a court of record
• Exercises both original and appellate jurisdiction over all matrimonial matters
• Appeals only lie on questions of law to the Full Court of the Family Court
• High Court:
• Has jurisdiction over cases authorized by the Commonwealth constitution
• Established under s 71 of The Australian Constitution, presided over by a judge, and is a court of record
• Has appellate jurisdiction in civil and criminal matters from state supreme and Federal courts
• Appeals are not a matter of right and needs approval to be heard
• Australia's final court of appeal

Federal Magistrates’ Courts

• Established in 2000
• Help with workload on other Federal Courts
• Presided over by a Magistrate
• Deals with minor family law, bankruptcy, trade practices, applications under the Judicial Review Act, AAT appeals, and HREOC matters

The Constitution

• Before the constitution, Australia consisted of six separate British colonies, each with its own laws
• Started on January 1, 1901
• It created the Commonwealth of Australia
• Outlined the legal framework and rules that apply to the governance of Australia
• It created the states, the commonwealth, and the federal parliament
• It outlined the division of powers between the Commonwealth and the States
• It outlined the separation of powers between the legislative, executive and the judiciary

Division of Powers

• The constitution defines how power is divided between the commonwealth and the states
• Section 51 lists powers the Commonwealth shares with the states
• Section 52 lists exclusive commonwealth powers
• Section 109 says that commonwealth laws will override any state laws if they are inconsistent
• Section 128 states how the Constitution may be amended, needing a referendum

Separation of Powers

• Developed in 18th century France
• Government powers are not concentrated in one place
• Each arm of power should be answerable to the others
• The separation of powers splits state power into three separate areas: the Legislature, the Executive, and the Judiciary
• The Legislature includes the law-makers (this is parliament)
• The Executive includes the ministers and government departments who administer the law
• The Judiciary includes the judges and courts who interpret and apply the law, including the imposition of custodial (jail) sentences
• In Australia, the legislature and executive are not completely separated, but the constitution ensures the judiciary is strictly separated from the legislative and executive arms of government

Role of The High Court

• The highest court in Australia
• Higher than all other federal and state courts
• Has original jurisdiction to hear new matters
• Has appellate jurisdiction to hear appeals from other courts
• Decisions are final and cannot be appealed
• Hears cases involving the constitution

Classification of Law: Public and Private Law

• Public Law: body of law dealing with relationships between individuals and the state and with the structure and operation of the government
• Private Law: governing relationships between individuals, organizations, and companies
• Also known as civil law

Criminal and Civil Law

• Civil Law:
• Only requires money; no jail time
• Has come from common law
• Involves disputes between individuals/business firms taken to court to resolve
• Aims to settle disputes, not to punish
• Damages in the form of financial payment can be awarded
• Civil matters include divorce, debt claims, and contract disputes
• In a civil matter, the onus of proof lies with the plaintiff
• The standard of proof is on the balance of probabilities (likelihood > 50%)

Criminal Law

• Cases involve someone being tried for breaking a law
• May end in punishment, a fine, imprisonment, or both
• Criminal law is public law, because breaking a criminal law harms all members of society

Legal Personnel

• Solicitors:
• Perform non-litigious work like conveyancing, preparation of wills, and commercial and family law matters
• Barristers:
• Stand up in court
• Are more expensive
• Generally, do not directly deal with the public
• Main roles are preparation of legal opinions and court appearances

Parties in the Legal System

• Plaintiff: the person starting a civil action
• Defendant: defending a civil action
• Appellant: appealing a decision
• Respondent: party successful in the first action
• Crown: represents the state in a criminal action through a prosecutor against an accused person
• Accused: person whom a criminal action is brought against

Judges

• Appointed to all courts above the inferior courts (bottom level of hierarchy)
• Usually appointed from the Bar, although solicitors can be appointed to the Bench
• The duties include:
• Deciding questions of fact and law if sitting alone
• Instructing the jury on questions of law, deciding questions of law and summing up arguments impartially
• Ensuring rules of evidence are followed
• Passing sentence in criminal cases or determining appropriate compensation in civil cases
• They will also hear appeals

Justices of the Peace and Stipendiary Magistrates

• Magistrates:
• Trained, full-time salaried public servants selected from the clerks and the legal profession
• Preside over inferior courts and are the determiner of facts and law

Justices of the Peace

• Honorary positions
• Involved in witnessing documents
• Can still preside in magistrate courts

Jury in Criminal Trials

• A jury of 12 is used in cases in intermediate and superior courts where the accused pleads ‘not guilty’ to a indictable offence
• There is no appeal from a finding of 'not guilty', on the basis that the jury was wrong
• An appeal can be made on a point of law, new evidence or that the prosecution witnesses were untruthful
• The jurors are the sole determiner of fact

Civil Law System

• It is an inquisitorial legal system which seeks to discover the truth
• The accused does not have the presumption of innocence
• The burden of proof lies with the accused
• The judge takes an active role