Law quiz content.docx

Law quiz content Law and Social Work ------------------- ### Introduction to the Unit - Social workers need to understand relevant legislation governing practice in diverse areas and deal with the impact of the legal system on people. - This unit introduces students to key laws relev...

Law quiz content Law and Social Work ------------------- ### Introduction to the Unit - Social workers need to understand relevant legislation governing practice in diverse areas and deal with the impact of the legal system on people. - This unit introduces students to key laws relevant to social work practice and explores how the legal system influences and interacts with social work. - Students will develop an understanding of the relevant knowledge and skills required for working in a legal context and explore the impact of the legal system on various population groups. History and Development of Australian Law ----------------------------------------- ### Origins of Australian Law - Australian law is heavily influenced by British law, dating back to 1788 with the arrival of the first Governor, Arthur Philip. - The British brought with them a system of customary laws developed from feudal times throughout England. ### Common Law - British law-making was based on the unique customs of each local community. Cases that fell outside these customs were referred to judges, creating a universal system known as \"common law.\" - **Example of Common Law**: The Magna Carta, which introduced concepts such as: - A person cannot be detained without being charged. - No one is above the law. - There must be a transparent process allowing for appeal. Introduction to Legal Sources ----------------------------- ### Legal Sources in Australia - **Customary Law**: Laws based on the cultural values, ethics, and customs of Indigenous peoples, often unwritten and passed down orally. - **Statutory Law (Legislation)**: Written laws passed by a body of legislature. - **Case Law (Common Law)**: Law developed by judges through decisions in individual cases. ### Customary Law - Aboriginal Customary Law involved the application of cultural values to community life, with a focus on collective ownership and traditional forms of punishment. - The British disregarded these systems as \"Terra Nullius,\" leading to loss of land, life, and status for Indigenous peoples. - The recognition of customary law, such as in the Mabo (No 2) case and the Native Title Act 1993, acknowledged the existence and significance of Indigenous legal systems. ### Recognition of Customary Law - In 1986, the Australian Law Reform Commission recommended recognizing customary law where it does not conflict with general law and is in the interest of justice. Statutory Law ------------- ### The Commonwealth Constitution - Establishes the federal system of government, including the Federal government, six States, and two Territories. - Sets out the roles of Parliament and the difficulties in changing the Constitution. - States have the power to develop their own constitutions. ### Constitutional Change - In 1967, a referendum removed discriminatory provisions from the Constitution, recognizing Aboriginal and Indigenous persons as \"persons\" in their own country. ### Federal Constitution: Three Arms of Power - **Legislature**: Elected members of Parliament who make laws. - **Executive**: Prime Minister, Senior Ministers, and government officials who implement laws. - **Judiciary**: Judges and courts interpreting and applying the law. ### Separation of Powers - Ensures the rule of law, with principles such as: - No person is punishable unless they have breached a law. - Equality before the law. - Presumption of innocence. - Entitlement to a \"speedy\" court appearance. Case Law -------- ### Sources of Case Law (Common Law) - Based on rules developed from common law, Case Law involves judges making decisions and interpreting legislation on a case-by-case basis. ### Process of Case Law - Judges interpret legislation based on previous decisions, providing reasons (ratio decidendi) that become binding in lower courts. - The doctrine of precedent (stare decisis) ensures consistency and reliability in the law. **What is the common law and how did it come about?** The British brought with them their system of (customary) laws that had been developed from feudal times throughout England. They brought with them their system of law-making based on the unique customs of each local community. Cases that fell outside local customs were referred to judges who made rules that were then more universally applied across the country developing a system of what became known as "common law" History and Development of Australian Law Example of Common Law One of the first significant examples of the common law being "written down" was the Magna Carta It contained concepts that: - a person cannot be detained without being charged - no-one is above the law and - there must be a transparent process that allows for appeal. This British 'legal system' consisting of enforceable rules, standards of behaviour and dealings, courts and jails, was established across all colonies. 2 History and Development of Australian Law History of introduction of local influence 1823 Assembly were appointed by the Governor, not elected by the people, and they were all men. - 1828 Australian Courts Act 1828 1842 Representative government introduced with members selected from various areas. - 1901 Commonwealth Government of all States and Territories of the colony and the Commonwealth Constitution - 1975 Appeal to Privy Council (in UK) abolished - 1986 UK gave up all power to legislate for Australia -- **CUSTOMARY LAW Aboriginal Customary Law** Laws involved the application of cultural values, ethics and customs to community life, e.g. "proper" or 'Wrong-way" marriages Much of the law was based on the dreaming and spirits of the land, animals, plants and sky, and spiritual bonds with them. There was no individual ownership - the land belonged with everyone in the nation. Different peoples had variations of laws, language and conduct. Laws were passed down by word of mouth and were known only to specific groups. Laws also involved traditional forms of punishment, mainly to resolve disputes between groups, e.g. temporary exile, spearing 1788 the British believed that "the land belonged to no-one", or Terra Nullius. Consequences were loss of land, loss of life and even loss of existence -- non-citizens for nearly 200 years after British settlement. **STATUTORY LAW The Commonwealth Constitution** The Commonwealth Constitution establishes the federal system of government, i.e. the Federal government and the six States and two Territories. It is the supreme legislation in Australia and forms the framework for all legal systems. Role of Parliaments set out in Constitution Difficult to change Constitution. States have power to develop own constitution 10 Constitutional change In 1967 a Referendum removed from the Constitution: that "Aborigines should not to be counted in reckoning the population" So for the first time Aboriginal and all Indigenous persons actually became "persons" in their own country Options for constitutional reforms for Aboriginal peoples? The Uluru Constitutional Recognition Summit -- May 2017 we- must-focus-on-a-treaty (What about Treaty?) judiciary (judges and courts). The Legislature - the members of the Parliaments democratically elected by all the people. It is their role to make the Laws The Executive - Prime Minister and Senior Ministers of the Parliament plus senior Government officials. It is the role of the Executive arm to implement the Laws **STATUTORY LAW How Legislation is developed** Policy initiatives come from a wide variety of sources There is often a period of consultation, either as the policy is being developed or once it is in "draft" form The Cabinet, Ministers of the government, confidentially discuss the Cabinet Submission, and if it gets support, it returns for a final re-write. The Bill, is then listed for Tabling in the Parliament. Relevant Minister presents the Bill in the first reading speech making a Statement about why this policy is being introduced by government and the response in the consultation phase. It then lays on the Table for 10 days 17 STATUTORY LAW How Legislation is developed The Minister introduces the debate with the Second Reading Speech, and members from both sides debate the merits of the legislation in the House and in Committee **STATUTORY LAW How Acts are implemented** The administration of the Act is the responsibility of the relevant government department. Delegated legislation refers to Regulations and other instruments of implementation that may be added on at a later date. The new Act initiates changes to the relevant law which are then interpreted by the Courts. The Constitution gives specific powers to the Federal Government for policies that affect all of the country States are given other powers to make laws **CASE LAW (sometimes called judge-made laws) The process is:** Judges interpret the legislation (or law) in a certain manner based on previous decisions of higher courts. In reporting the judgement or outcome of the case, they give their "reason for making this decision" or ratio decidendi. This "ratio" becomes binding in lower courts who have to abide by that decision. This is known as the doctrine of precedent -- stare decisis. Sometimes a judge will say other things about the case that are not binding (obiter dicta), but can be quoted by judges in subsequent cases. The facts of each case must be identical for the previous decision to be binding in a subsequent case. **Law and Social Work Overview Week 2** **Courts Hierarchy and Structure** - **High Court of Australia** - Final court of appeal - Comprises a Chief Justice and six other judges - Has original jurisdiction for international and Commonwealth-related law - Decisions set precedent for lower courts - **Federal Courts** - **Federal Court of Australia** - Handles Commonwealth law matters - Sits in each state and territories as needed - Can hear appeals from State and Territory Supreme Courts - **Family Court of Australia** - Specializes in family and child support disputes - **Federal Circuit Court** - Deals with less complex disputes under Commonwealth laws - Jurisdiction includes areas like administrative law, family law, migration, human rights, etc. - Bound by precedents set by higher courts - **State/Territory Courts** - **Supreme Courts** - Highest courts in states and territories - Hear serious criminal and important civil cases - Decisions set precedent for lower courts - **Intermediate Courts (District Courts)** - Handle less serious indictable offenses and civil litigation up to a monetary limit - No equivalent in the ACT, Tasmania, or NT - **Magistrates Courts** - Handle summary offenses like traffic infringements and minor criminal offenses - Conduct committal hearings to determine if a case should go to a higher court - **Tribunals** - Hear specific matters like residential tenancies, guardianship, and land planning - Operate less formally than courts - Rules and procedures vary by state and territory - Examples include QCAT, NCAT, and ACAT **Criminal Law and Law Enforcement Processes** - **What is a Crime?** - An act or omission prohibited by law that harms society - Defined by the state to regulate conduct deemed antisocial and deter behavior - **Principles of Criminal Law** - Innocent until proven guilty - Guilt must be proved beyond a reasonable doubt - Silence cannot infer guilt - Cannot be tried again for the same offense - Actus reus (physical act) and mens rea (guilty mind) are required for a guilty verdict - Prosecution bears the burden of proof - **Legal Processes** - Offense reported to police and investigated - If proceeding, police may arrest or issue a summons/court notice - Offenses classified as summary (handled by Magistrates) or indictable (handled by higher courts) - Committal hearings for serious cases - Bail considerations based on offense seriousness, appearance probability, and community protection - **Court Procedures** - Prosecution presents the case against the defendant - Defense presents its case - Judge or magistrate delivers a verdict and sentence **Children and Young People and the Law** - **Age and Responsibility** - Children under 10 are not deemed criminally responsible - Children aged 10-14 (doli incapax) can be proven to know their actions were wrong - After 14, they can be charged with crimes and are considered for dwindling parental authority - **Youth Justice System** - Treated similarly to adults for bail - Criminal proceedings begin with a court attendance notice - Children's Court handles most youth cases - Serious indictable offenses are treated in higher courts - Alternative approaches like restorative justice are preferred to formal proceedings **Role of Social Workers** - **In Criminal Law and Law Enforcement** - Advocate for clients - Accompany clients to court and ensure proper court attendance - Provide support and resources - **In the Courts** - Assist clients in understanding the legal process - Provide emotional and psychological support - Facilitate communication between clients and legal representatives **Reflective Questions** 1. What is the role of the social worker in criminal law and law enforcement processes? 2. How can social workers assist clients in the court system? 3. What special considerations are there for working with children and young people in the legal system? **Resources** - **Court Lists** - New South Wales Court Lists - [[Queensland Daily Law Lists]](https://www.courts.qld.gov.au/daily-law-lists/daily-law-lists) - [[Australian Capital Territory Magistrates Court Lists]](https://www.courts.act.gov.au/magistrates/lists) **Conclusion** Understanding the legal framework and the role of social workers within it is crucial for effective advocacy and support of clients. Social workers must navigate various court hierarchies, legal processes, and the unique needs of children and young people in the justice system.