Legal Notes - Sahizvir Kaur - Google Docs.pdf

Sahizvir Kaur THE LEGAL SYSTEM 1. Basic Legal Concepts Law is a set of rules imposed on all members of a community which are officially recognised, binding and enforcea...

Sahizvir Kaur THE LEGAL SYSTEM 1. Basic Legal Concepts Law is a set of rules imposed on all members of a community which are officially recognised, binding and enforceable by persons or organisations such as the police and /or courts. Binding Enforced Officially recognised Accessible Public Interest Reflect rights and duties Rules are regulations or principles governing or controlling conduct Laws Rules To be obeyed by all citizens of a society To be obeyed by specific individuals or groups Made by law-making body Made by individuals or groups Enforced through the courts Enforced by leaders of a group A breach results in a prescribed sanction Consequences of a breach at the discretion of imposed by the courts the leader of a group Values are principles, standards, or qualities considered worthwhile or desirable within a society Ethics are rules or standards governing the conduct of a person or the members of a profession Are a major branch of philosophy, which investigates the nature of values and of right and wrong conduct Society is a group of human beings who are linked by mutual interests, relationships, shared institutions and a common culture. Customs are collective habits or traditions that have developed in a society over long periods of time Customary Law principles and procedures that have developed according to the customs of a people or nation, or groups of nations, and are treated as obligatory Three types that have influenced the Australian legal system: - Aboriginal and Torres Strait Islander - English - International State is a politically independent country. It must have - A defined territory - A permanent population - An effective government - The capacity to enter into international negotiations Each country has laws for its people known as domestic law. This is because it has sovereignty.  - Sovereignty means that a state has the authority to make and enforce laws upon its population Legal System is the system of courts, prosecutors and police within a country Ensures all citizens have equal access to the law Ensures the law provides equality, fairness and justice Justice is the legal principle of upholding generally accepted rights and enforcing responsibilities, ensuring that equal outcomes are achieved for those involved This concept involves the fair and impartial treatment of all persons under the law Equality is the state or quality of being equal; that is, of having the same right or status Doli Incapax meaning “incapable of wrong” is the presumption that a child under the age of 10 can not be held legally for their actions and can not be guilty of criminal or civil offences Fairness is the freedom from bias, dishonesty, or injustice, a concept commonly related to everyday activities Has various perspectives Fairness applies to everyday life and justice has more legal connotations Access the right or opportunity to make use of something Without access, Equality, Fairness and Justice are empty concepts Financially disadvantaged people, people living with a disability, people from non-english backgrounds, women, Indigenous Australians, and people who are institutionalised experience difficulties regarding access to the legal system Procedural Fairness ensures fairness and justice when resolving disputes and is used interchangeably with the principles of natural justice. Natural Justice has two main principles 1. The right to be heard- fair hearing 2. The right to have a decision made by an unbiased decision maker The Rule of Law requires that no one is above the law, this includes those who make and enforce the law People obey the law because laws and rules create order and a sense of security and protection against wrongful behaviour. Sometimes people disobey the law if they believe the consequences aren’t harsh enough Anarchy is the absence of effective government and law Leads to disorganised and chaotic societies Can break out during revolutions or after natural disasters Some people love the idea of “without a ruler” society because it implies a society with voluntary social harmony Eg. After Hurricane Katrina in the USA in 2005, parts of New Orleans slipped into a brief state of anarchy Tyranny is rule by a single leader holding absolute power in a state Can involve severe punishments for any infringements of the law Eg. Suddam Hussein’s rule in Iraq prior to his arrest in 2003 2. Sources of contemporary Australian law and common law Upon colonisation by the British, Australia adapted a common law system Common law refers to laws created in court; that is, decisions made by judges Used to differentiate between law that is developed by judges and law imposed by parliament If common law and statute exists, the statute law must always be followed. Equity is the body of law supplementing common law Corrects injustice by applying principles of fairness Too many strict procedure to follow and law remedies were too rigid and inflexible Precedent is a judgement which acts as authority for a later legal decision Doctrine of precedent promotes consistency in decision-making by judges The judge must apply the same reasoning and decision of judges in previous similar cases - Must be followed in all courts lower in hierarchy (binding precedent) - Can be used as basis for decision in any court (persuasive precedent) Stare decisis meaning a decision must be followed by all lower courts when faced with similar cases Ratio Decidendi meaning a statement from the judge about their decision Obiter Dicta meaning other statements such as personal opinion The role of magistrates is to The role of judges is to The role of a jury is to Adversarial system Case is directed by two parties (represented equally, control what they present to the court). The burden of proof lies with the prosecution/plaintiff, defence must cast elements of doubt Judge acts as an impartial mediator, ensuring proper legal procedure is followed, determining admissibility of evidence and asking questions of law. Inquisitorial system Grants more power to the judge who oversees the trial, and the court is actively involved in determining the way in which claims are presented. All evidence is allowed as the judge makes the decision; most evidence is written. Court hierarchy consists of inferior, intermediate, and superior courts The Constitution establishes the composition of the Australian Parliament, describes how Parliament works and what powers it has It outlines how the federal and state Parliaments share power, and the roles of the executive government and the High Court of Australia Summary offence is a minor criminal offence, e.g. careless driving, minor assaults Indictable offence is a serious criminal offense, e.g. murder, rape Jurisdiction of state and federal courts All courts have original jurisdiction Local and magistrates court - Heard by a magistrate, No jury - Deals with monetary matters up to $100 000 - Deals with summary offences, minor civil disputes, and committal hearing Land and Environment Court - A specialist court for interpreting and enforcing environment law in NSW Coroner’s Court - Ensures that unexplained deaths, fires and explosions are properly investigated  Children’s Court - Deals with civil matters concerning the protection and care of children and young people District Court - Deals with more serious criminal matters, these range from larceny up to manslaughter, sexual assault and large scale drug importation - Handles cases claimed up to $750 000 Supreme Courts - Highest court in state or territory hierarchy - Deals with the most serious criminal matters involving large sums of money (no monetary limits on its jurisdiction) Original jurisdiction refers to the authority to hear a case for first time, held by all courts Appellate jurisdiction refers to the authority to review appeals from lower court decisions An Appeal challenges a legal decision made Committal hearing is an inquiry held in the local magistrates court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court Statute Law is made in parliament (body of elected representatives) State, territory, and federal governments all have the right to make laws Role of Parliament is to debate proposed legislations, pass or reject it and also amend legislation All states except QLD are bicameral, meaning the chambers or houses of parliament: - Federal: House of Representatives (lower) and Senate (upper) - State level: Legislative Assembly (lower) and Legislative Council (upper) Unicameral is legislature consisting of a single house or assembly Governor general is the representative of the King The British monarchy still plays a role in parliament in Australia A governor in each state The legislative process A bill is a proposal for a new law Stage of process for the passing of a law through parliament 1. Need for law identified 2. Drafting bill 3. First reading 4. Second reading 5. Committee stage 6. Third reading 7. Upper house 8. Royal assent Delegated legislation is legislation made by non-parliamentary bodies It involves less important laws that parliament does not have time to draft, consider and pass, and so delegations (passes on) on the responsibility to ‘subordinate’ bodies such as government departments on local council Types of delegated legislation 1. Regulations are laws made by the Governor General, state governors or members of Executive Council 2. Ordinances are laws made for Australian territories 3. Rules are legislations made for government departments, usually by the department involved  4. By-laws are laws made by local councils, which are restricted to the area governed by that council The Constitution is a set or rules or principles Only altered by a referendum (s 128 of the Australian Constitution) Double Majority is a voting system which requires a majority of votes according to two separate criteria (majority population, majority states) Division of powers between the Commonwealth and the States Legislative powers refer to the legal power or capacity to make laws Concurrent powers refer to powers held by state and federal powers at the same time Exclusive powers refer to powers that can be exercised only by the federal parliament Residual powers refer to those remaining matters on which the state can legislate ‘In Court – Commonwealth v Tasmania HCA 21 (‘Tasmania Dam Case’) - A proposed dam on the Gordon River, supported by the Tasmanian Government but opposed by the federal and environmental authorities, would have flooded the Franklin River, a World Heritage site. - The Tasmanian Government passed laws to enable the dam's construction, but the Federal Government responded by enacting the "World Heritage (Property Conservation) Act 1983." - According to Section 109, federal law prevails over state law when they conflict, federal law invalidates the state legislation. Consequently, the dam's construction was stopped and preserved for future generations. Separation of powers lie between the Legislative, the Executive, and the Judicial The Legislative refers to the law-makers → HOR, Senate, Queen, power to make and change law The Executive refers to the power to put the law into action (administer, enforce) The Judiciary refers to the courts which interpret and apply the law, power to make judgement The High Court is the highest court of Australia; its decisions are final and cannot be appealed Role is to interpret and apply the constitution Hears cases involving the interpretation of the Constitution Holds both original and appellate jurisdiction Customary laws are the laws of indigenous people Customary law is not legally recognised, but is integrated into the Australian legal system (mediation, environmental law etc) Customary law elements may be considered as mitigation during legal processes. Aboriginal and Torres Strait Islander Peoples’ customary laws There is no single system of Aboriginal law in Australia Diverse among tribes but similar; approximately 500 known aboriginal nations, within nations existed clans. Each clan had its own territory, traditions, and rituals All of these laws are based on the dreaming and a spiritual connection with the land Laws are difficult to describe, based on sacred secret knowledge Kinship dictates proper ways to interact Mainly passed down through oral tradition and ritual Mediation is an unbiased 3rd party that helps two people listen to each other during a conflict resolution Conciliation is a 3rd party that proposes ideas to two people to resolve the conflict. Arbitration is a 3rd party who makes a binding decision on the dispute Connection to Contemporary Law When sacred law has been broken, elders are often directly involved in applying sanctions - Sanction is a penalty imposed on those who break the law, e.g. shaming, spearing Mediation was preferred as conflict resolution, overseen by Elders Communal based conflict resolution International Law is the body of law that governs the relationship between states It differs from domestic laws which refer to the laws of a state Reduce probability of conflict between nations Made through negotiations between countries; often complex process International law also covers fundamental human rights, making it illegal to do such things as torture political prisoners or citizens, or to commit genocide. State Sovereignty meaning authority to create rules for its population and enforce these rules A State consists of: A defined territory A permanent population An effective government The capacity to enter into international agreements Sources of international law: International customary law is not contained in a written document; Develops from long standing ethics and customs which become recognised by the international community. Declarations state and clarify the parties’ position on particular issues, but do not impose legally binding provisions - Universal Declaration of Human Rights 1943 Treaties are mutual written agreements between one or may states, governed by international law that are typically followed and can be legally binding if ratified by a state Legal decisions - The International Court of Justice is the judicial arm of the UN that adjudicates disputes between states and its decisions may be basis for future treaties. - Before the International Criminal Court (ICC) was established in 2002, tribunals were used for international justice. - Article 59 of the ICJ Statute → its decisions are binding only on the parties involved in the specific case. Legal writings are writing of international lawyers, judges and academics drawn on by international law (treaty decisions, formations) The United Nations addresses terrorism, drug trafficking, the clearing of landmine and protection of the environment Aims to global peace and security, and to develop friendly relations among states based on respect for equal rights” Courts and tribunals The International Criminal Tribunal for Yugoslavia (ICTY) was the first international court established by the UN and served as the first international war crimes tribunal The International Court of Justice (ICJ), established in 1945, settles disputes between states and provides advisory opinions on legal questions referred by the UN General Assembly, Security Council, or other authorised bodies. Intergovernmental organisations (IGOs) are organised groups of states, established to pursue mutual interests The International Labour Organization → safe and fair treatment of workers globally Regional organisations have a role in decision making, e.g. The European Union → human rights, the environment, trade Non-government organisations (NGOs) are associations with no government affiliation They inform the public and lobby governments to take action on issues of concern E.g. Red Cross, Greenpeace and World Vision A human rights NGO, Amnesty International is a ‘global movement of over 7 million people committed to defending those who are denied justice or freedom’. Independent of any national government, it campaigns on issues such as indigenous injustice Relevance to contemporary law In australia, ratification of a treaty does not make it part of domestic law, instead legislation implements a treaty To implement treaties, the federal government may use the external affairs power International law does not prescribe how Australia must implement treaty obligations. The preferred method is incorporating treaty provisions directly into domestic legislation. Treaties can impact Australian law through the development of common law, judicial review, and interpretation of statutes Toonen v Australia - International Covenant on Civil and Political Rights (ICCPR) - United Nations Human Rights Commision (UNHRC) - Violation of Article 26 of the ICCPR, which means that gay men in Tasmania are unequal before the law - Toonen was a victim of arbitrary interference, and that laws could not be justified on public health or moral grounds - UNHRC found that Tasmania violated sections of the ICCPR - Tasmanian Government refused to repeal the offending sections of the criminal code, so federal government passed the Human Rights (Sexual Conduct) Act 1994  3. Classification of Law Public law deals with the relationship between individuals and the state, along with the structure and organisation of the state itself Criminal law is the body of rules under which certain acts or omissions are punished by the state Its function is to maintain public safety and order for the whole of society Maintains public safety because criminal acts violate the moral order of society Crimes Act 1900 (NSW) → constantly reviewed to reflect societal changes As with all Acts, some of the legislation in the Crimes Act lags behind Administrative law looks after government powers and the decisions of government organisations Cannot be used to challenge all government dealings Allows an individual to challenge the ways in which a policy is implemented but not the policy decisions A review of a decision can be made through: - Internal review is when the decision is reviewed by another member of the agency - External review is where the merits of the decision made by an agency are reviewed by a person or body outside the agency (more formal system) - Judicial reviews of administrative decisions can only be provided by courts, and the only areas considered is whether or not the decision made lawfully, fairly, and rationally Constitutional law is the branch of public law that focuses on the rules governing the separation of powers. Concerns constitutional validity of government actions Relates to the division of powers Deals with constitutional breaches in legal system → when a law violates the rules of the constitution Private law regulates relationships between persons, companies and organisations Rights are protected by both statute and common law Civil action refers to a court action for infringing a person’s rights Damages refer to monetary compensation for harm or loss suffered, most common remedy Injunctions refer to a court directing a party to not do something Contract law is concerned with the recognition of legally binding agreements A contract is an agreement between two or more parties that is recognised by law Aims to compensate the plaintiff through damages paid by the defendant It is not to punish the defendant Injunctions may be sought Specific performance is an order in which the court specifies the way in which the breaching party is to perform the contract Tort law deals with situations in which someone has done something to interfere with the rights of another A tort is a ‘civil wrong’ There is no legal relationship prior to the wrong Aims to compensate plaintiff Regulated by statute as well common law, most commonly including: - Negligence  - Defamation - Nuisance Property law governs the legal rights of possession involving any commercially valuable entity Manages how ownership and use are handled Intellectual Property refers to intangible property that has commercial value and can be protected by the law - e.g images, computer programs Legal action can take place in either criminal or civil court, depending on the offending actions Criminal procedure Civil procedure Prosecutor (state) (crown) and defendant Plaintiff and defendant Burden of proof with prosecution Between two individuals/organisations Beyond reasonable doubt Burden of proof with plaintiff Balance of probabilities Standard of proof is the the degree of proof required in order for the plaintiff (civil) or the prosecution (criminal) to prove their cases beyond reasonable doubt The balance of probabilities is the standard of proof required in a civil case The burden of proof is the responsibility of a party to prove their case in court Legal personal Judges - Sit in intermediate and superior courts - Adjudicate cases (decides on points of law and instructs jury) - Issues sentencing and rulings - In some civil cases they may sit without a jury - Decides indictable offences Magistrates - Sits in the inferior courts - Determines some cases and issues some sentences - Decides mostly summary - Hears cases which are time sensitive such as AVO’s and bail applications - Used to be responsible for committal hearings or establishing if there is a prima facie (first encounter) case Solicitors - First person to approach for legal advice - May appear in court however their work is non-litigious - Main duties include: wills, family, law issues and conveyancing - Prepares legal cases for barristers Barristers - Receive their work through a solicitor - Barristers represent a client in court - Most specialise in one particular e.g criminal law - Provides legal advice, known as “opinion”, on the legal facts presented to them  4. Law reform Law reform is amendments made to legislation and laws to reflect modern society Should make laws and outcomes better for society Social values are the set of standards or principles that guide people in their thinking about aspects of their society When the majority of individuals within society hold similar views about an issue or standard of behaviour, it is said to reflect public morality Public morality refers to standards of behaviour generally agreed upon by the community Laws must reflect social values of the community (majority) Shifts in public values lead to a disregard for certain laws that no longer align with current standards Same Sex Marriage - The NSW Government passed the De Facto Relationships Act 1984 (NSW), establishing certain rights. - Calls to recognise same-sex couples in this way led to the amendment of the act to include same sex couples - In 2017, the right to marry in Australia was no longer restricted by sex or gender. - The Marriage Act 1961 (Cth) now defines marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life” Concepts of Justice If the criminal law is failing victims, the community and/or the accused, new concepts of justice may need to be formulated. As views of what justice should achieve are changed, legislation is reformed - E.g. The abolishment of capital punishment in Australia. Australians believed justice constituted rehabilitation rather than pure retribution New Technology Agencies of Law Reform