The Legal System and Australian Law

The Legal System

• Students develop an understanding of the nature and functions of the law
• Students study the law-making process and its institutions

Key Themes and Challenges

• Need for law in society's operation
• The importance of the rule of law
• Relationship between legal institutions and jurisdictions
• Law as a reflection of society
• Influences on the Australian legal system

Defining Law

• Law consists of impartial rules the government decides society can or cannot do

Distinguishing Legal Concepts

• Customs: Traditions developed in a community over a long time
• Laws: Binding and enforceable rules imposed on all of society
• Rules: Formal regulations of individual behavior, subject to enforcement if broken.
• Values: Principles society holds as important
• Ethics: Principles society views as right or wrong

Characteristics of a Just Law and the Nature of Justice

• Equality: Everyone should have equal access to the law and be treated equally by it
• Fairness: Law is applied impartially without bias, prejudice, or discrimination
• Access: Law should be physically, financially, and psychologically accessible to all

Principles of Procedural Fairness

• Everyone has the right to be heard.
• Courts must treat everyone equally.
• Evidence must be used to support decisions.
• Courts must make an effort to look into the case

Principles of "Rule of Law" (Nobody is above the law)

• The government must follow the same laws as society does.
• The law must be general, certain, and equal.
• Courts must be separate from the government.
• The law must follow procedural fairness.
• The public must support the enforcement of the rule of law.
• The law must be in line with societal values

Anarchy vs. Tyranny

• Anarchy: Absence of effective government or law, leading to mass disorder
• Tyranny: One person or group has absolute control of a state
• Often involves oppressive treatment of citizens and suppression of opposing parties

Sources of Law

• Common law
• Statute law
• Constitutional law
• ATSI Law
• International law

Common Law History (British Origins)

• When the British arrived in 1788, they declared the land Terra Nullius (No Man's Land)
• Travelling judges decided cases at random
• William the Conqueror decided similar crimes should be punished similarly
• Precedent Introduction

Principles of Common Law

• Common law is court-made law
• Binding Precedent: Lower courts must follow decisions of higher courts
• Persuasive Precedent: Higher courts may decide to follow decisions of lower courts
• Ratio Decidendi: Legal reasons why a decision was made
• Obiter Dicta: Other comments made in court

State Court Hierarchy and Jurisdiction

• Local Court: No appellate jurisdiction, lowest court
• Handles summary offenses and civil cases up to $100,000
• Coroner's/Children's Court: No appellate jurisdiction.
• District Court: Appellate jurisdiction to Local, Children's, and Coroner's courts
• Handles all indictable offenses except murder and treason
• Civil cases up to $750,000
• Supreme Court: Appellate jurisdiction to District Court only
• Handles murder, treason, and civil cases over $750,000
• Court of Appeal: Appellate jurisdiction over Supreme, District, Land and Environment Courts

Federal Court Hierarchy and Jurisdiction

• Federal Magistrate: No appellate jurisdiction
• Handles similar cases to local court, low severity federal crimes
• Federal Court: Original jurisdiction includes bankruptcy, intellectual property, and trade
• Appellate jurisdiction includes Federal Magistrate's Court and Fair Work Australia
• Family Court: No appellate jurisdiction
• Handles divorce, separation, property disputes, custody of children, etc.
• High Court: Original jurisdiction includes constitutional interpretation.
• Appellate jurisdiction includes final appellate jurisdiction.

Statute Law

• Role of Parliament: To make laws for the peace, order, and good governance of the Commonwealth
• Structure: State and National Government structures
• Bicameral systems with upper (Legislative Council) and lower (Legislative Assembly) houses
• Senate: 12 Senators from each state, 2 from each territory
• House of Reps: 150 elected members

Legislative Process

• Bill is introduced to Parliament.
• First Reading
• Second Reading
• Committee Stage
• Third Reading + Vote
• Governor-General assent

Function of Delegated Legislation

• Empowers non-Parliamentary bodies to make less important laws

Constitutional Law

• Division of Powers: Split of powers between State and Federal parliaments
• Exclusive Powers: Federal Government
• Residual Powers: State/Territory (powers not explicitly stated)
• Concurrent Powers: Both Federal and State Governments

Separation of Powers

• Law-making powers are distributed among three pillars of government:
• Judiciary: Interprets Laws (Courts + Judges)
• Legislative: Makes and Amends Laws (Parliament)
• Executive: Enforces Laws (PM and the Cabinet)

Differentiating Division and Separation of Powers

• Division of Powers: Different levels of government share power
• Separation of Powers: Different branches of one government maintain separate powers

Role of the High Court

• Interprets the Constitution's wording to determine its meaning

ATSI (Aboriginal and Torres Strait Islander) Law Characteristics.

• Custom laws are different in each ATSI group, but they all help guide life in the community
• Land and water are very important and hold deep meaning for ATSI people
• Family decides who you can marry, where you live and who takes care of you
• Stories and ceremonies passed down to keep traditions alive
• Traditionally, elders played a large role in determining punishments through mediation

Integration of ATSI Law into Australian Law

• Some laws recognize Indigenous land ownership
• Courts sometimes consider Indigenous culture
• Customary Laws aren't a defense for crimes

International Law

• Domestic authorities enforce domestic laws; international laws are not enforced by international authority.
• States have the authority to control their own laws, policies, and interference from outside powers

Sources of International Law

• Declaration: International Instruments that state and clarify the party's position on particular issues
• treaties): International agreement between states in written form and governed by international law
• Legal Decisions: The outcome of a judgement made by legal decision-makers
• Legal Writings: Scholarly writings, used as a means of determining the rules of international law

Organizations Involved in International Law

• UN (United Nations): Maintains world peace and security
• ICC (International Criminal Court): Investigates and prosecutes individuals for serious international crimes of international concern (genocide)
• Amnesty: Protects and promotes human rights of people all around the world

Impact on Australian Law

• Influences how Australian implements its obligations, but doesn't dictate the process

Classification of Law

• Criminal Law: Governs the relationship between individuals and state, protecting society from harm
• Administrative Law: Governs government bodies, includes relationship between those bodies and individuals
• Constitutional Law: Laws that focus on the ConstitutionLaw
• Tort Law: Deals with civil wrongs that cause harm to individuals
• Contracts Law: Ensure agreements are enforceable and provide remedies for breaches
• Property Law: Governs ownership and use of property. Both physical property and personal assets

Different Purposes of Law

• Protect society from harm
• Prevent harm from administrative bodies acting beyond authority
• Separate powers between groups to prevent abuses of power
• Provide compensation for victims and deter harmful behaviour
• Hold terms of contract to the two parties
• Protect property rights and ensure fair transactions

Civil vs. Criminal Court Procedures

• Civil Court: Deals with private individuals without government involvement
• Includes negotiation resolution and a trial where both parties present their case
• Criminal Court: Handles those who harm society, brought by the government
• Includes summons, committal hearing, trial, and verdict

Role of Legal Personnel

• Magistrates and Judges: Handle trials and impartially hear arguments; ensure cases are handled lawfully
• Jury: Decide verdict based on facts beyond a reasonable doubt
• Prosecution: Bring accused to trial
• Defence: Defend against accusation

Common vs. Civil Law Systems

• Criminal
• Prosecution, Defendant, Jury, Witnesses and Judge
• Prosecution
• The Prosecution
• Beyond a reasonable doubt
• Magistrate in Local Court, Judge and Jury in District or Supreme Court
• Verdict of Guilty leading to imprisionment

Common vs. Civil Law Systems

• Civil
• Plaintiff and Defendant
• Plaintiff (Person who initiates the case)
• Plaintiff
• Balance of Probabilities
• Decided by judge and jury
• Compensation for Damages