Law, Customs and Rules

Basic Legal Concepts

• Law involves a formal, enforceable system of rules that governs behavior in society
• Breaking laws carries legal consequences
• Laws are designed to ensure fairness and order

Customs

• Customs are traditional and widely accepted ways of behaving or doing things specific to a society, place, or time
• Customs foster identity, encourage unity, and preserve history
• Standing to the left on an escalator is an example of a custom

Rules

• Rules are explicit or understood regulations, processes, and principles, which govern conduct within an institution or organization to maintain order, safety, and functionality
• Rules encourage cooperation, set expectations, and promote efficiency
• Wearing only one earring at school is an example of breaking a rule in netball

Law

• The law involves a system of rules governing society, which are created by the government and enforced by law enforcement and the courts to ensure community safety, fairness, equality, and predictability
• Law protects rights, ensures justice, and promotes safety
• The Crimes Act 1900 (NSW) outlines criminal offenses, penalties, and legal procedures

Values and Ethics

• Values encompass the feelings, principles, and attitudes held by a society or individual as important, and typically align with rules and laws

• Ethics deal with what is morally right and wrong

• Just laws are expected to adhere to and reflect traditional values and ethics within the nation

• Helping an elderly person carry a heavy bag is an example of ethics

Characteristics of Just Laws

• Just laws are unbiased, applying to all members of society and are accessible by all
• They balance the interests of general society, reflecting rights and responsibilities
• Compassion is a characteristic of just laws
• Just laws are officially recognized and enforced by the legal system

Nature of Justice

• Justice involves the fair and impartial treatment of all individuals under the law
• Equality is the enforcement of the law equally, with equal access and treatment
• Fairness means laws don't have negative effects, and everyone has a right to appeal impartially
• Access ensures everyone has access to law and legal information/advice, with opportunities for assistance

Procedural Fairness

• Courts ensure the right thing is done by following fair and proper procedures to reach judicial decisions
• Procedural fairness, also known as natural justice, are principles to ensure fairness and justice in court decision-making
• The right to know the case against you, to present your case, freedom from bias, and decisions based on relevant evidence, are referred to

Lady Justice

• The blindfold represents a lack of prejudice and bias
• The scales represent a weighing up of circumstances and evidence to come to balanced decisions
• The woman represents compassion
• The sword represents enforcement and deterrence

While They Were Sleeping - ABC 4 Corners

• Incident: Rhys Colefax ran over Eliza Wannan and William Dalton Brown after an Australia Day party
• Rhys' father had ties to the police, leading to improper investigations and inequality in legal treatment
• NSW law lacked provision for negligent driving deaths off-road, limiting access to legal remedies
• Investigation failures included minimal forensic work, few statements, and no driver interview

R v. Kemp (2008)

• Illegally obtained evidence violated Kemp's right to a fair trial and was inadmissible
• Undercover officers posed as cellmates and recorded Kemp's statements confirming his involvement in the theft of ATMs without his knowledge

Reprehensible Conduct 2019 - ABC 4 Corners (Lawyer X)

• Nicola Gobbo secretly acted as a police informant, providing Victoria Police with confidential information about her clients
• Defendants were unaware that their lawyer worked with police
• Gobbo's dual role created a conflict of interest, which is a lack of fairness
• Some convictions relied on unethical means

Rule of Law

• Everyone is subject to the law, protecting citizens from abuse of power.
• The government is bound by the same laws as individuals.
• Laws should align with societal values.
• There must be an independent judiciary.
• Laws must conform to procedural fairness.
• Justice and fairness are ensured

The Magna Carta (1215)

• A peace treaty establishes that all people, including those in power, are treated equally under the law
• Fair and prompt trials along with access to independent and impartial justice will be provided
• Prevents bias and ensures enforceability to stop people of status from benefiting from the law

Anarchy

• Anarchy is the absence of law; a society without effective government or law
• When law enforcement no longer exists or is unable to enforce laws, fear is removed and a state of anarchy emerges
• Chaos, confusion, and mass disorder results from the absence of rules and laws
• Anarchy is short-lived as groups regain control

Channel 7 News - Cronulla Riots Segment (2005)

• A clash of cultures and racial tension led to harassment, theft, disturbances, mob crimes, and assaults
• Juveniles with no respect for that law view it in their favor and have a growing perception of the police as soft regarding it
• An amendment to LEPRA slowed the riots by adding Public Disorder Powers
• Enabling police expanded preventing, controlling, and responding to large-scale public disorder incidents

Tyranny

• Tyranny is an arbitrary or unrestrained exercise of power; despotic abuse of authority

• When there is no check on the power of lawmakers and enforcers, and no rule of law.

• A tyrant is a single leader with unlimited power who eliminates or suppresses political opposition

• Tyrannical power involves severe punishment for any infringement of the law

Enabling Act of 1933 (Germany)

• Adolf Hitler was allowed to make laws without parliament approval and rule by decree
• Hitler was given dictatorial powers bypassing the democratic process
• Nazis strengthened Nazi control in Germany by eliminating democracy

Development of Common Law

• Legal practices in Australia follow the English model
• British brought Common Law to Australia in approximately 1788
• William the Conqueror created traveling judges to apply a common set of laws to all areas of England, dating back to the 11th century

Why Common Law Developed

• Precedents ensured consistency which unified legal traditions and mixed Anglo-Saxon and Norman traditions
• Standardized laws reduced local lords' power, strengthened king's control
• Royal judges would listen to disputes, work out solutions, apply punishments, and ensure consistent rulings

Precedent

• Precedent is a legal principle where judges use previous cases to guide decisions in current cases
• Judges interpret the law to set precedents but cannot create new laws

Types of Precedent

• Binding Precedent must be followed if set by a superior court higher in the hierarchy, where the circumstances of the case are similar
• Persuasive Precedent can influence decisions, but is not mandatory if set by a lower court or a court in another jurisdiction

Key Legal Concepts in Precedent

• Ratio Decidendi is the core legal reasoning behind a judge's decision
• Obiter Dictum are additional comments that help explain the ruling

Donoghue v Stevenson 1932

• The ratio decidendi established binding precedent on duty of care and negligence principles
• Mrs. Donoghue consumed decomposed snail inside ginger beer bought by a friend
• A court relied on precedent to establish manufacturers' duty of care to all consumers
• Negligence was defined by courts, making manufacturers legally responsible for preventing harm to consumers

Obergefell v. Hodges (2015) (US)

• The U.S. Supreme Court interpreted the Fourteenth Amendment setting a precedent
• Same-sex marriage got established as a constitutional right nationwide
• All states got required to permit and recognize same-sex marriages, overriding prior bans as these violate the constitution

Purpose of Precedent

• Precedent helps laws adapt to changing social values and circumstances, ensuring equity
• The legal system remains consistent and predictable due to this
• Maintaining a fair, just, and consistent legal system is likely to increase public trust

Precedents

• Judges interpret laws, but elected officials create legislation, where Parliament can overturn common law
• Precedents are created in two ways; interpretation of legislation and sentencing
• Future cases must consider past rulings, given these precedents

Adversarial System of Trial

• The judge acts as an impartial adjudicator, maintaining order and structure during trials in a legal system
• It is a fundamental principle of the Common Law System

Role of the Judge

• Judges oversee arguments to ensure both sides will present fairly and remain unbiased and fair
• Judges ensure the trial follows legal procedures while keeping order and structure
• Judges do not actively investigate or question witnesses

Criticism in the Adversarial System

• Lawyers hold significant power and control over the hearing, which can depend on their quality

Inquisitorial System

• The judge takes an active role in investigating the case and actively seeks out facts and evidence

Court Hierarchy

• The diagram shows a hierarchy of federal courts and state courts

Original Jurisdiction

• All courts have the jurisdiction for a case to be originally heard
• The court where the case is originally heard is termed original jurisdiction

Appellate Jurisdiction

• Not all courts have appellate jurisdiction
• Appellate jurisdiction is when the court would hear a case would be appealed

Appeal

• An application to a higher court to reconsider a lower court's decision based on an error of law

Summary Offence

• A minor criminal offense dealt with by a single judge without a jury, requires preliminary hearing

Indictable Offence

• A serious criminal offense requiring an indictment and a preliminary hearing, tried before a judge

Courts and Respective Jurisdictions

• Local Court: Summary criminal offences and civil cases up to $100,000
• Coroners Court: Original jurisdiction over unexplained or suspicious deaths
• Childrens Court: Child protection and care, crimes involving persons under 18
• District Court: Indictable offences besides murder/treason, civil cases up to $1,250,000, appellate jurisdiction over Local/Children's/Coroners Courts
• Supreme Court: Indictable criminal matters and civil cases over $1,250,000, appellate jurisdiction over district court
• Supreme Court of Appeal: Appellate jurisdiction over Supreme/District, Land, and Environment Court

Federal

• Federal Circuit and Family Court: Family Law (divorce, custody, property division) and civil cases up to $700,000
• Federal: Indictable federal offences and civil cases over $700,000, appellate jurisdiction over Fair Work Australia and Federal Magistrates

Civil Matters

• Civil Matters LC: $100,000 DC: $1,250,000 FCFC: $700,000 FC: >$700,000

Statute Law

• Statute Law is law created by parliament
• This can also be referred to as legislation or an Act

Role of Parliament

• Parliament creates laws to govern and order society to improve the safety, lifestyle, and health of the community
• Politicians sit in parliament and are elected representatives
• Through this they are the passing laws to represent the community view

Federal Parliament

• The Federal Houses include the House of Representatives and the Senate
• The Houses are bicameral

House of Representatives

• 151 seats, split by population, decide matters of national interest, and form government
• The Prime Minister is the leader of the winning party
• It proposes, debates, and votes on bills and amendments, also examining issues in committees

Senate

• Members of this house are elected by states and territories
• 76 seats, where 12 are for senators per state and two senators per territory
• Decides matters of national interest, examines issues, and scrutinizes government

State Parliament

• The Legislative assembly is the lower house
• 93 seats, spilt by population
• The party that wins the majority (47) in the Legislative Assembly forms the NSW government

Legislative Council

• 42 seats from geographical regions of NSW
• Ensures equal representation of all Australian states regardless of population

Laws

• Majority government holds more seats in the legislature and can pass legislation independently

Legislative Process

• A new law need need to be identified
• Community influence governments to make these laws
• Governments can use varied sources.

Stages of a New law

• A bill is drafted while the Cabinet approves the drafting
• A first reading takes place, where the clerk of the Parliament reads out the title of the bill
• The minister then speaks about the proposed Act, elaborating on the general aim
• The committee stage consists of examining and debating the bill in detail

Approval Stage

• If the vote passes, the act moves the upper house to be either rejected, returned to lower house, or passed
• The bill is presented to the Governor for formal approval if approved
• Once approved, it becomes an Act of Parliament

R v. Loveridge (2013)

• The crimes Amendment act (2014) amended Loveridge's 7-year sentence due to public violence
• This lead to the immediate implementation of Lockeout Laws

Delegated Legislation

• Refers to laws made by authorities other than parliament, which are delegated the power to make the laws by an Act of Parliament

Example Delegated to

• Examples include the Road/Transport , Parking Fines ,and Waste Collection
• These powers are delegated to Local government and the NSW RMS
• Legislations are experts and the delegation of minor legislation frees parliamentary time for serious issues
• It is easier to amend delegated legislation, and, thus, more flexible

Power Disadvantages

• Members of parliament do not have expertise to fully check the legislation and too little publicity surrounds the delegated legislation

The Constitution

• The Australian Constitution establishes the composition of the Australian parliament describing its works and powers
• It outlines how the federal and state parliaments share power and the roles of the executive government and the High Court of Australia

Separation of Powers

• Factors includes the legislature/parliament, executive/government, and judicature/courts
• Cabinet is within parliament and is accountable to parliament for their decisions
• To ensure there is no abuse of constitutional power. Each body keeps a check on the power of the others

Judiciary power

• An example breach includes the Marriage amendment and the Commonwealth plaintiff
• It applies at a federal and state level intending to protect the SOP
• Apportioning the rule of law ensures that power will not accumulate to a singular body

Division of Powers

• Section 51 divides powers among state, federal
• A Constitution exclusive outlines powers only for the federal parliament
• These powers will remain, and ensure the rule of law is maintained → one entity holds power
• The Commonwealth and The Australian Capital Territory illustrate the concurrent aspect. The Marriage Act cannot be invalid, under ACT guidelines.
• The High Court must look for a state or federal overlap to check for concurrent

State vs Federal Courts

• Tasmania against dam creates a state power argument
• Case went to High Court as breach constitiution

Australian Law Today

• Aboriginal and Torres Strait Islander Peoples' Customary Laws (ATSIP)is based on the tradition, ritual, and socially acceptable conduct such as signing songs
• It is of Aboriginal law for treatment

Spiritually of ATSIP

• Land and water are custodianships for future generations
• Responsibilities are tied to the respect for the law

Traditional culture

• Structure and functions are built around with affected Kinship, who you can marry, who cares for the elderly, who can become a leader, where you can live etc.

Oral Traditions

• This refers the passing down customs beliefs to the various generations
• Stories, songs, and dances were used to reinforce laws

Rituals

• Series of actions are performed in prescribed order and help explain concepts such as the tribal boundaries

Mediation and Sanctions

Traditional mediation and Sanctions

• Meditations help the parties reach mutual resolutions
• Sanctions are applied to the sacred law include ridicule shaming exile, etc.

ATSIP today

• Contemporary Australian Law Native Title that is incorporated into Australian Law Also Sentencing to circle that replicates
• Magistrate and the court are responsible for the the offender

Role of

Aims of this sentencing allows Acknowledgment of the crime and improves community views