The Meaning of Law: Rules and Society

The Meaning of Law

• Law comprises a set of enforceable rules of conduct.
• These rules provide guidelines for relationships between individuals and organizations within a society.
• Law ensures impartial treatment and outlines punishments for those who breach the rules.
• Society refers to a group of individuals connected by shared interests, relationships, institutions, and culture.
• Laws are imposed by administrative institutions, apply to all members of society, and have consequences for breaches.

Customs, Rules, and Laws

• Customs are established patterns of behavior within a society or group.
• Customs vary based on culture, religion, and history.
• Customs can become laws if followed by most of the population over time.
• Customary law includes established patterns of behavior, considered important enough to be enforced in social or commercial settings.
• Principles and procedures develop through general usage and customs, eventually becoming legal requirements.
• Types of customary law influencing the Australian legal system:
  • Aboriginal and Torres Strait Islander customary law
  • English customary law
  • International customary law
• Rules are prescribed directions for conduct in specific situations, generally varying between groups.
• Rules are made by groups and affect only group members, not enforceable by the state.
• Breaking rules results in punishments enforced by those who made the rules.
• Rules can be altered by those involved to deal with changes in situations, whereas laws are more difficult to change.
• Laws are formal rules of society, agreed upon by the majority.
• Failure to follow laws results in penalties.
• Laws are binding on the whole community.
• Laws are enforceable with penalties for breaches.
• Laws are officially recognized, allowing people to determine which law applies to a given situation.
• Laws are accessible, meaning the public can find out which law applies in a particular situation.
• Laws relate to public interest, concerning the whole of society.
• Laws reflect rights and duties, assigning responsibilities and ensuring rights for everyone.
• Australian laws are mainly decided by elected government officials at local, state, and federal levels.
• Judges can also create laws by setting precedents.
• Society expects laws to be fair, just, equitable, and reflect traditional and current ethics and values.

Relationship Between Customs, Rules and Laws

• Rules maintain smooth conduct of behavior in groups
• Rules are based on the traditions, custom and values of each group
• Failure to follow the rules results in penalties
• These rules became formalized as laws by the government over time

Values and Ethics

• Individuals have values that guide their lives.
• Ethics involve doing what is considered morally right.
• Lawmakers incorporate values and ethics into laws.
• Difficult to create laws about everyone’s values due to differing moral standards.
• Laws typically cover ethical values common to the majority or the dominant group.
• Various groups publicly voice values and ethics to influence the law.
• Examples:
  • School Strike 4 Climate (2019): Students protested for political action on climate change.
  • Abortion Law Reform Act 2019 (NSW): Legalized abortion up to 22 weeks.
  • Anti-vaccination and lockdown campaigns (2020-2021): Rallies against COVID-19 restrictions.
  • Indigenous Voice of the Nation (2023): Rallies both for and against constitutional changes.
• Ethics means doing the right thing, judging the best course of action in situations.
• Ethical behavior affects integrity, influencing self-perception and how others see us.

Characteristics of Just Laws

• Justice involves fair and impartial treatment for all persons under the law.
• Justice is the ongoing effort to ensure fairness for everyone.
• Justice in lawmaking requires consulting the people and carrying out the decisions of the majority.
• Minority groups must be able to express their point of view.
• A just law ensures fair treatment and outcomes while respecting human rights.

The Nature of Justice

• The legal system interprets and enforces laws within a country's courts.
• The legal system ensures equal law access, equality, fairness, and justice for all citizens.
• Equality, fairness, and justice distinguish good law from bad law.
• Equality, fairness, and justice are merely hollow principles if not all citizens have access to the legal system.
• A justifiable and appropriate outcome requires combining these principles.
• Equality means treating all people the same way regarding opportunities, political, social, and civil rights.
• No one should have an unfair advantage or suffer unfair disadvantage.
• Society tolerates many levels of equality and inequality.
• The law considers different capacities (e.g., maturity).
• The law recognizes vulnerable individuals and provides special protections (e.g. children)
• Children under 10 years of age cannot be held legally accountable for their actions because of doli incapax.
• Fairness applies to everyday life, while justice has more legal connotations.
• Opinions about what is fair can vary.
• Expectations are that rules will be fair to those covered by them.
• Justice tries to ensure that everyone has the same opportunities under the law.
• Access is the ability to obtain or make use of something within the legal system.
• The concept of justice suggests everyone should have equal access to the legal system.
• This includes awareness and understanding of their rights and responsibilities under these laws.
• Income education and English language skills effect peoples access to the law.

Procedural Fairness and the Principles of Natural Justice

• Procedural fairness ensures fairness in dispute resolution processes.
• It is closely linked to natural justice.
• Natural justice entails fair treatment in legal situations.
• Two main principles of natural justice:
  • The right to be heard, including a fair hearing
  • The right to have a decision made by an unbiased decision-maker
• Even an appearance of bias is enough to constitute a breach of natural justice.
• Justice should not only be done but should be seen to be done.

The Rule of Law

• The rule of law means no one is above the law.
• Groups and individuals involved in the legal system must follow the same laws as every other citizen.
• Breaches of the rule of law occur when officials make favorable decisions for relatives and friends but apply the law fully for everyone else.
• People obey the law because it creates order.
• The law provides a sense of security, clarifying expectations and rights.
• Law reinforce society's values.
• Laws protect all members of society, indicating allowed and disallowed actions.
• Laws apply sanctions to those found guilty of a crime.
• Laws enable dispute resolution, empowering police officers and the courts.
• Lack of agreement with or connection to the law may lead to non-compliance.
• Serious offenses carry stricter penalties.
• Vaping laws:
  • NSW Government banned smoking in public places in 2013.
  • In 2018, the law included electronic cigarettes/vapes.
  • The Smoke Free Environment Act 2000 (NSW) bans vaping in the same spaces as cigarettes with fines up to $550.

Anarchy and Tyranny

• Rules and laws are based on the customs, values, and ethics of societies.
• People want rules for equal and fair treatment.
• Rules ensure behavior meets societal expectations.
• Absence of laws or the inability to enforce laws can result in anarchy or tyranny.
• Anarchy is a state of chaos resulting from the absence of rules and laws.
• Violence and widespread looting indicate a society on the verge of anarchy.
• Some believe anarchy implies a ruler-free society with voluntary social harmony.
• Tyranny is the opposite of anarchy.
• A tyrant is a single leader with unlimited power: severe punishments for infringements of the law.

Australia's Legal Heritage

• Australian legal processes and practices come from the model developed in England.
• British brought common law when they arrived in 1788.
• Contemporary Australian law evolved statute law and common law.
• Common law are laws created in court.
• Statute Laws are laws made by parliament.
• Adversarial System of a Trial
  • Australia inherited the adversarial system as part of both criminal and civil court proceedings.
  • The two sides try to disprove each others facts
  • Theory: the defendant in a criminal trial does not have to prove anything, as they are assumed innocent until proven guilty.
  • Both have the opportunity to present their arguments
  • An impartial judge will listen to the evidence presented by both parties.
  • A jury is made up of a random selection of the public

Common Law

• Court-made law: laws made by judges in courts

• Common law v equity: common law developed by courts of common law

• System of court-based law: a system used in the United Kingdom and former colonies

• The British legal system developed from a number of sources; Anglo-Saxon England decided questions about rights and obligations.

• Local courts resolved disputes with the premise they had a common set of laws to all areas of England.

• Decisions provided the standards, or precedents, for later cases, and the laws they applied became the basis of the British legal system.

• In Anglo-Saxon times, the law was enforced by local administrative bodies.

• Cases were managed via swearing an oath and a witness

• William the Conqueror sent judges around the country with three main tasks: to administer a common set of laws, report any threats to the throne, and assess the wealth of the country so that taxes could be levied

• When Henry II came to the throne in 1154, judges had authority to make decisions when they heard new cases.

• Common law: uniform laws developed throughout England evolved from judicial decisions based in tradition, custom, and precedent.

• Development of Equity

  • The procedure for bringing a case before the court was rigidly formal.
  • By the fifteenth century, people were bringing petitions to the king claiming that the common law courts had made unjust decisions.
  • It became the job of the Chancellor to deal with these petitions.
  • Chancellor’s judgements were not based on precedent and form.
  • Court of equity: looked at the features of each case to decide what was fair or just in the particular circumstances.
  • The systems of common law and equity co-existed.
  • James I, called a conference of judge: in the case of conflict between the common law and equity, equity should prevail.
  • British parliament passed legislation merging the courts of common law and the courts of equity,
  • The Australian colonies followed suit with similar legislation.

• Precedent

  • Previous judgement on similar circumstances is called a precedent
  • The concept that like cases must be treated alike is called te doctrine of precedent or stare decisis.
  • Ensuring people are treated fairly and consistently is the purpose of precedent
  • Judges must use principles of the existing common and statute law to make a new decision
  • Another way in which precedents are created is in the interpretation of legislation

• A judge is a case is usually made up of two parts:

  • Ratio decidendi - the essential legal reason why a judge came to a particular decision; a decidendi in a higher court sets a binding precedent on lower courts.
  • Obiter dicta - Other remarks made by the judge about the conduct of the trial do not set a precedent
  • if the law is significantly different from a previous case, the case may be distinguished from the earlier one.
  • Refusal to follow a prior decision is called overruling the decision of the lower court.
  • RULES OF PRECEDENT
    • Binding precedent: Lower courts bound to follow superior courts
    • Persuasive Precedent: Superior courts do not have to decisions made in lower courts.

Court Hierarchy

• Australia has state and federal jurisdictions.

• State and federal jurisdictions each have their own court structure.

• Some courts hear a case for the first time and also hear appeals from lower courts.

• Courts can reconsider the decision of a lower court, where the losing party believes there has been an error in the lower court’s legal reasoning

• State and Territory Courts operate under the hierarchy: Lower Courts, Intermediate Courts, Superior Courts

• Each court has its own jurisdiction: area over which it has authority.

• Minor matters are dealt with lower in the court hierarchy.

• Higher courts deal more serious matters and appeals from the lower courts

• Summary offences such as loitering are criminal cases

• Indictable offences such as murder of serious crimes are referred to the District Court

• Lower Courts - Local Court and Magistrates Court deal with minor criminal matters and also minor civil disputes.

• Cases: Magistrates or Judges decide the punishment.

• Most criminal matters are heard in the Local or Magistrates Court, as only serious crimes are referred to the District or Supreme Courts.

• In the case of indictable offences, the magistrate will listen to an outline of the evidence to determine whether the prosecution has a strong enough case.

• The Magistrates Court deals with Committal hearings

• Coroner’s Court role is to ensure that unexplained or suspicious deaths are properly investigated and can make recommendations to government for changes to the law and professional training requirements

• Children's Court - deals with civil matters concerning the protection and care of children and young people

• Intermediate Court

  • Deals with more serious criminal matters such as manslaughter, sexual assault and drug importation but cannot deal with murder, treason and piracy
  • Claims for damages for personal injuries also are heard
  • Superior Courts
    • Land and Environment Court - specialist court responsible for interpreting and enforcing environmental law
    • Supreme Court - highest court in the state or territory hierarchy
    • Supreme Court deals with appeals and equitable remedies
    • Federal Courts - similar hierarchy as the State system

• Federal Circuit and Family Court of Australia

  • Created September 1 2021 merging the Federal Circuit Court with the Family Court
  • Provides a single entry point to the Family law system for the first time for all parties.
  • Federal Court of Australia
  • Established by the Federal Court of Australia Act 1976 (Cth)
  • Deals with civil disputes governed by federal law, as well as some summary criminal offences.

Statute Law

• Statute law is the law made by parliament: also known as legislation or Acts of Parliament.
• State, territory and federal governments all have the right to make laws.
• Role and Structure of Parliament:
  • A parliament is a body of elected representatives.
  • It debates proposed legislation, passes or rejects it, and amends legislation.
  • State parliaments, federal parliament and lower houses are bicameral (except for those in QLD and the territories
• Federal parliament
  • Upper House: Senate
  • Lower House: House of Representatives
  • The political party that wins the majority of seats in the lower house forms the government. Legislative Process
• Minister introduces a bill in parliament for laws to be passed
• Bills may be amended or redrafted many times
• Bill requires approval, and then becomes an Act of Parliament if passed
• In ACT, bills do not get royal assent by the Governor-General

Delegated Legislation

• Delegated legislation is legislation made by non-parliamentary bodies.
• Includes "less important" laws that parliament does not make.
• Responsibility is delegated (passed on) to "subordinate" bodies.
• Includes Regulations, Ordinances, Rules and By-Laws

The Australian Constitution

• A constitution is a set of rules or principles
• On January 1 1901, Australia gained a Commonwealth Constitution.
• Framework outlines how institutes function
• Australia consisted of six colonies prior to the Australian Constitution.
• Colonies were independent with the right to govern
• These colonies were not answerable to any authority in Australia, but rather to the British Government.
• Smaller colonies saw fear of being consumed by neighbouring colonies
• Australia came into existence as a nation
• Key features
  • Australia was a federated nation consisting of six states
  • There was a bicameral federal parliament (House of Representatives and Senate)
• Division of Power
  • Reflects concerns of the Federation process
  • Sections 51 to 60 gave split between Commonwealth and States.
• Legislative powers - Section 51 gives power to the federal parliament
• Federal and State governments have concurrent powers
• Trade, taxation, postal services and marriage are concurrent powers
• Section 52 outlines the exclusive powers of the federal government: only the Commonwealth (federal) Parliament can legislate on: trade, national defense and immigration
• Residual Powers: Those powers that solely belong to the states: health, hospitals, public transport and the law.
• There is a provision in section 51 (xxxvii) of the Australian Constitution that allows for a ‘referral of powers’
• Under referral of powers, states are able to give power to the Commonwealth to make laws with regard to a specific matter
• Seperation of Powers
  • Legislative: The law makers (Parliament - Senate and House of Reps)
  • Executive: Administers the law (Governor-General, Prime Minister and Cabinet)
  • Judiciary: The courts - enforces the law
• Role of the High Court - Seperation of judiciary and non-judicial arms if government, meaning High Court decisions are independent
• Role of the High Court - outlines original jurisdiction
• Power to interpret how constitution is implemented
• Amending the Australian Constitution by Referendum - strict process as indicated in Section 128 of the Australian Constitution
• 45 Amendments have been proposed, only 8 have been approved.
• Majority of Austrlia Wide votes yes must occur

Aboriginal and Torres Strait Islander Peoples’ Customary Laws

• First Nations peoples lived on the continent now known as Australia for at least 60,000 years as many different societies