Sources of Contemporary Australian Law PDF

SOURCES OF CONTEMPORARY AUSTRALIAN LAW Australian law has evolved from common law, statute law and constitutional law. - Common law refers to laws created in court; that is, decisions made by judges. - Statute law refers to laws made by parliament. - Constitutional law...

SOURCES OF CONTEMPORARY AUSTRALIAN LAW Australian law has evolved from common law, statute law and constitutional law. - Common law refers to laws created in court; that is, decisions made by judges. - Statute law refers to laws made by parliament. - Constitutional law Legal processes and practices used in Australia today are based on the model developed in England. When the British came to Australia in 1788, they brought with them the law that applied in Britain, known as common law. COMMON LAW Common Law is court-made law. It is a collection of legal principles and rules that is derived from the decisions of judges in higher courts. - Judges are required to obey statute law (laws made by parliament) - When no relevant statute law exists a judge will turn to common-law principles to resolve the despite - If both common and statute law exists, then the statute law must always be followed= statute law > common law - Common law as we know it today has evolved from judicial decisions that were based in tradition, custom and precedent. British Origins - The common-law system first developed in England and is therefore often referred to as ‘English common law’. - Upon colonisation by the British, Australia adopted a common-law legal system based on its own statute law and common law. Development of Common Law - England was invaded by William the Conqueror and his “Normans” (the French) in 1066. - When he had control, Willy wanted to go back to France but didn’t want anarchy to break out while he wasn’t there. - He sent Justices (judges) around England to make sure that disputes were settled the same way everywhere in the country. - The Justices made sure there was a common set of laws for everyone to follow which became the basis of the British legal system. Equity Equity is the body of law that supplements the common law and corrects injustices by judging each case on its merits and applying principles of fairness. Reasons for the Development of Equity - Common law, although applied correctly, did not always provide a fair outcome, it had too many strict procedures to follow and remedies were too rigid and inflexible  - Equitable remedies were needed for situations where money was not adequate e.g. specific performance (fulfilling the terms of a contract) and injunctions (judicial order either stopping you from or completing an action) Development of the common law was restricted by procedural limitations: - Petitions for relief from the inadequacies of the common law were considered by the Lord Chancellor. - Cases were initially decided according to the Chancellor’s ideas of ‘equity and good conscience’. - In time, a complex body of law developed, supplementary to the common law, and known as equity. Fusion of Common Law and Equity - At the end of the 19th century, two separate judicial systems and structures existed side by side in England. - The Judicature Acts of 1873 abolished the separate court systems and established a High Court of Justice, which administered both common law and equity. - If there is ever a conflict between the common law and the rules of equity - equity always prevails= equity > common law Precedent A precedent is a judgment that is authority for a legal principle and that serves to provide guidance for deciding cases that have similar facts. The concept that like cases must be treated alike is called the doctrine of precedent or stare decisis (‘the decision stands’; the doctrine that a decision must be followed by all lower courts). Purpose of precedent: ensure that people are treated fairly, the law develops in a consistent and coherent fashion and it works to limit a judge’s ability to be too creative when it comes to making a decision. Making and following precedent: 1 - Precedent is created when a judge arrives at a decision in a case when there is no existing common or statute law. In these cases the judge must rely on common sense and the principles of law for guidance in making the decision. 2 - Precedents can also be created by the way judges interpret legislation. While parliament is responsible for the creation of legislation, courts still need to interpret the law, or to determine the meaning of certain words. Rules of precedent: The previous case though must have been decided in higher court which makes the precedent binding (must be followed) on lower courts. If a precedent is from the same level of court then it is persuasive (should be followed). The higher the court in its jurisdicition’s (powers of a court) hierarchy, the more persuasive the precedent.  - If a judge does not want to follow a precedent he/she must attempt to distinguish the present case from all previous cases and therefore make a new precedent. - A court may refuse to follow a decision of another court that is at a lower or equal level in the hierarchy. This refusal is called overruling the decision of the lower court. Binding precedent: a precedent is binding on a court if the precedent was made by a superior court that is higher in the hierarchy of courts. Persuasive precedent: precedent should be seriously considered, but it not required to be followed When a judge gives a decision in a case, it usually is made up of two parts: - Ratio Decidendi: A statement by the judge about the reason for their decision. It creates a precedent that lower courts must follow. - Obiter Dicta: Other statements made by judges, such as their personal opinions. These create no immediate precedent, but can be used much later to justify a precedent. Dow Jones & Co Inc v Gutnick : An Internet defamation case heard in the High Court of Australia, decided on 10 December 2002. It set a precedent for defamation claims being brought across jurisdictional boundaries, and sparked international interest. The decision shows that internet communication is no different from other forms of communication and is subject to the same laws. Adversarial System of Trial The adversarial (adversary=opponent) system of trial is a system of resolving legal conflicts that relies on the skill of representatives for each side who present their cases to an impartial decision-maker. In a trial, the two sides involved in the case try to prove their version of the facts and disprove the other side’s version. In theory, the defendant in a criminal trial does not have to prove anything, as he or she is assumed innocent until proven guilty. - Prosecution or Plaintiff- win - Defendant -win - Judge- decides on questions of law, doesn't investigate or ask questions, decides your sentence in criminal cases - Jury-decides on questions of fact, doesn't investigate or ask questions, random people The Inquisitorial System The inquisitorial system is a legal system where the court or a part of the court (e.g. the judge) is actively involved in conducting the trial and determining what questions to ask; used in some countries that have civil legal systems rather than common law systems. - Derived from the roman and napoleonic codes - Found in Europe, Japan, Indonesia and other countries - A judge or group of judges has the task of investigating the case before him or her - Judges will conduct an inquiry into the truth of what occurred. Court Hierarchy Australia has two overlapping jurisdictions of law: state and federal. As a result, there are separate state and federal jurisdictions, each of which has its own hierarchy. Appeal: an application to have a higher court reconsider a lower court’s decision, on the basis of an error of law Summary offences: criminal offences that can be dealt with by a single judge without a jury and do not require a preliminary hearing e.g. loitering and obstructing traffic Indictable offences: a serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to greater penalties than non-indictable offences e.g. assault and murder STATE COURTS State Lower Courts Local and Magistrates Court: - Deals with minor criminal matters and minor civil disputes e.g. speeding, vandalism - A magistrate will hear and decide the case and set the punishment for criminal offences - 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 to be able to try the defendant in the District Court or Supreme Court. This preliminary hearing is called a committal hearing. Committal hearing: an inquiry held in the Local Court or Magistrate’s Court to determine whether there is enough evidence against the defendant to warrant a trial in a higher court (this is called establishing a prima facie case) - The local court in NSW has jurisdiction to deal with the following areas: - Minor criminal and summary offences - Civil matters with a monetary value of up to $100 000 - Committal hearings - A limited range of family law matters such as property settlements and residence orders for children Coroner’s Court: - Role is to ensure that unexplained or suspicious deaths (or suspected deaths), fires and explosions are properly investigated. - If necessary, coronial inquiries are carried out and cases are handed to a higher court for trial if the inquest finds evidence of criminal action/s. Coronial Inquest: an investigation into a death that has occurred in unusual circumstances, held in the Coroner’s Court and overseen by a magistrate called the coroner Children’s Court: - Deals with civil matters concerning the protection and care of children and young people. - Deals with criminal cases involving persons under the age of 18 at the time of the offence, or (in New South Wales) under the age of 21 when charged with a crime they committed while under the age of 18. Land and Environment Court: - Specialist court responsible for interpreting and enforcing environmental law in New South Wales. - Wide jurisdiction and deals with matters related to environmental planning (e.g. zoning of park lands), environmental offences (e.g. illegal polluting or dumping) and appeals against local council rulings. State Intermediate Courts District court of New South Wales: - Deals with more serious criminal matters - Range from charges of larceny up to charges such as manslaughter, sexual assault and large scale drug importations - The only charges the District Court cannot deal with are murder, treason and piracy: these need to be dealt with by the Supreme Court. - Deals with criminal offences such as: - Manslaughter, malicious wounding and dangerous driving - Assaults - Sexual assaults - Offences relating to property, including robbery, breaking and entering, larceny and embezzlement - Importing, supplying or possessing prohibited drugs - Offences involving fraud, including forgery, obtaining money by deception and passing valueless cheques. - Handles civil cases where the amount claimed is below $750 000 - Has appellate jurisdiction Appellate jurisdiction: the ability or power of a court to hear appeals of the decisions of lower courts and to reject, affirm or modify those decisions Original jurisdiction: is the ability of a court to hear a case for the first time State Superior Courts Supreme Court of New South Wales: - Highest court in the state of territory hierarchy - deals with the most serious criminal matters and civil cases involving large sums of money (there are no monetary limits on its civil jurisdiction) and most cases where an equitable remedy is sought. - Deals with appeals from the lower courts in that state or territory - Has criminal jurisdiction over the most serious indictable offences such as manslaughter and murder, attempted murder, kidnapping, major conspiracy and drug-related charges. It also deals with Commonwealth prosecutions for major breaches of the corporation's law. - All cases are heard before a judge and jury The Court of Appeal is the highest court in each state and territory, for both civil and criminal matters; in New South Wales, there is also a Court of Criminal Appeal, which is constituted separately from the Court of Appeal. It also makes decisions about procedural fairness in lower courts. Appeals are usually heard by three judges, but in some cases there are only two and, in special cases, more than three may hear them. If the judges cannot agree, a majority view is taken. It is possible to appeal from the Court of Appeal or Court of Criminal Appeal to the High Court, but only with special permission from the High Court. FEDERAL COURTS Federal Circuit Court of Australia: - The Federal Circuit Court of Australia was established as the Federal Magistrates Court by the Commonwealth Parliament towards the end of 1999 and conducted its first sittings in July 2000 - Established to relieve some of the caseload of the Federal and Family Courts and reduce the cost and time required to deal with more minor federal matters. - Jurisdiction over areas such as family law and child support, human rights, copyright, bankruptcy, migration, consumer protection and trade practices, privacy, administrative law and industrial law. - It does not deal with criminal matters. Federal Court of Australia: - The Federal Court of Australia was established by the Federal Court of Australia Act 1976 (Cth). - It assumed some of the jurisdiction previously managed by the High Court of Australia and the entire jurisdiction of two courts that had dealt with industrial matters and bankruptcy. - It deals with civil disputes governed by federal law (except for family law matters), as well as some summary criminal offences.  - The Federal Court’s position in the federal court hierarchy is equivalent to that of the Supreme Courts in the states and territories. In terms of the federal court hierarchy, it is equal to the Family Court of Australia, and above the Federal Circuit Court. Family Court of Australia: - The Australian Parliament established it in 1975. - Deals with the most complex family law matters - The main function is to rule on cases related to specialised areas in family law such as divorce, parenting orders, the division of property and spousal maintenance. - In its appellate jurisdiction, it can hear appeals from a decision of a federal magistrate or a single Family Court judge. High Court of Australia: - The High Court of Australia was established in 1901 under section 71 of the Australian Constitution. - Highest court in the Australian judicial system, and deals with appeals from the Federal Court of Australia, the Family Court of Australia, and the state and territory Supreme Courts. - Deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws. - Has both original and appellate jurisdiction STATUTE LAW Statute law is the law made by parliament. It is also known as ‘legislation’ or ‘Acts of Parliament’. The Australian Constitution sets out the powers of the state and federal parliaments with respect to making law. Role and Structure of Parliament - A parliament is a body of elected representatives. It debates proposed legislation, passes, or rejects it, and amends legislation. Its main roles are to provide for the formation of a government, to legislate and to scrutinise the actions of governments. - The parliament in New South Wales is bicameral (containing 2 chambers or Houses of Parliament) and it consists of the Queen (represented by the Governor General) and two houses (the Senate-upper house and House of Representatives-lower house). Legislative Processes - One of the most important functions of parliament is the passing of laws. A proposed new law is known as a Bill. Ministers, who are responsible for their preparation, usually introduce Bills. Bill: a drafted law that has not yet been passed by parliament. - Before a Bill passes and becomes federal law, it requires the approval of both Houses of Parliament and the Governor-General. It then becomes an Act of Parliament. Act of Parliament: statute law, resulting from a Bill successfully passing through parliament and gaining royal assent.  1. First Reading: bill is introduced 2. Second reading: members/senators debate and vote on the main idea of the bill 3. House/Senate committee: public inquiry into the bill and reporting back to the House/Senate 4. Consideration in detail or Committee of the whole: members/senators discuss the bill in detail, including any changes to the bill 5. Third Reading: members/senators vote on the bill in its final form 6. Bill is passed: if the bill is passed in the House of Representatives it is sent to the Senate and the process is repeated. If the bill is passed in the Senate, it is presented to the Governor-General for formal approval. The Bill now becomes an Act of Parliament and is law as of the date specified in the Act. Delegated Legislation - Delegated (or subordinate) legislation is legislation made by non-parliamentary bodies. - It is not made directly by an Act of the Parliament, but under the authority of an Act of the Parliament. - It involves ‘less important’ laws that parliament does not have time to draft, consider and pass, and so delegates (passes on) the responsibility to ‘subordinate’ bodies such as government departments or local councils. - The function of delegated legislation is it allows the Government to amend a law without having to wait for a new Act of Parliament to be passed. - The act that authorises a body to make delegated legislation is called an ‘enabling act’. - It saves time and money for the parliament and enables flexibility. - Examples of delegated legislation include; regulations, ordinances, rules and by-laws. THE CONSTITUTION A constitution is a set of rules or principles that may apply to a social club, a large scale organisation or even a nation - A constitution provides the framework, or guidelines, which outlines how these institutions function - The constitution is divided into 8 chapters and 128 sections and is a British Act of Parliament - Changing and interpreting the constitution: - It is the role of the high court to interpret and apply the constitution. The actual words of the constitution have changed very little over the past 100 years, but small changes have been made in relation too; the interpretations by the High Court in response to changing circumstances. - The Australian Constitution can only be amended with the approval of Australian voters. Therefore, any proposed alteration must be put to the vote at a referendum. - Referendum: the referral of a particular issue to the electorate (people in a country who are entitled to vote) for a vote Division of Powers Sections 51-60: these sections provided the division of powers between the Commonwealth and the States Legislative Power - Legislative power: the legal power or capacity to make laws - Section 51 of the constitution specifies the legislative powers of the federal parliament - The commonwealth and states have the power to make law Concurrent Power: - Concurrent powers: existing at the same powers; held by both state and federal parliaments - It is important to realise that the states can also make laws in many of the areas listen in Section 51, namely; those areas over which the federal and state governments have concurrent powers - E.g. public education, marriage, health, taxation Exclusive Power: - Exclusive powers: powers that can be exercised only by the federal parliament - Section 52 outlines the exclusive powers of the federal government: - The seat of government of the commonwealth and all places acquired by the commonwealth for public process - Matters relating to any department of the public service - E.g. areas of trade and commerce with other countries, foreign relations (external affairs) and national defence. - It has fallen to the high court to interpret how the constitution applies in a contemporary context - Section 109: ‘when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall to the extent of the inconsistency be invalid’. Commonwealth > state Residual Power: - Residual powers: those matters on which the states can legislate, as they are not referred to in the constitution - E.g. same-sex marraige, crime, hospitals, public transport, environmental protection, schools, Commonwealth v Tasmania (1983) HCA 21 (Tasmanian Dam Case) - Tasmania wanted a hydroelectric Dam to be built on a World Heritage Site - The Tasmanian Government argued that the building of the dam was a residual power and the protesters weren’t going to change the Government's decision.  - The federal government passed the World Heritage Act 1983 (Cth) which specified that such areas of special significance should be protected - There was a state law allowing the construction of the dam and a federal law that demanded it be stopped. The case went to the High Court. - The High Court ruled that the federal government was validly using the external affairs power of the Constitution (s 51), which gives it the authority to legislate on any matter of ‘international concern’. - Under Section 109 of the constitution the federal law overrides the state law. The construction of the dam was stopped. - External affairs power: the power of the commonwealth to legislate on international matters involving Australia. Separation of Powers Three organs of government: - The legislature: the law makers (in Australia this is the parliament: the House of - Representatives and the Senate) - The executive: the ministers and government departments who administer the laws made by parliament (in Australia the Governor General, the prime minister and Cabinet members are members of the executive) - The judiciary: the courts which interpret and apply the law - Having 3 bodies of government where power is distributed prevents an abuse of power - If three arms are independent, each acts as a check on others, ensuring that no branch abuses its power and that civil liberties are protected - ‘Power tends to corrupt, and absolute power corrupts absolutely’ - The key feature of the separation of powers in Australia in regards to the functioning of democracy is that there is a clear distinction between the judiciary and other arms of government. For a true democracy to operate and in the interests of justice, it is imperative that there can be no overlap between the judicial and non judicial arms of government. - Protecting the independence of the judiciary is one of the cornerstones of our democracy - This becomes evident when a court makes a decision that is not in accordance with Government policy. Role of the High Court - Deals with cases concerning the interpretation of the Australian Constitution and the constitutional validity of laws and apply the constitution. - When a case concerning the interpretation of the constitutions comes before the High Court, generally all 7 judges hear and decide the matter - The commonwealth can legislate on what areas belong to the states. In association with such decisions, the High Court makes statements on how each level of government can use its powers and outlines any limits on such powers. For example, in the Tasmanian Dam Case, the High Court said in obiter dicta that the Commonwealth can only use the external affairs power when entering legitimate international treaties or conventions ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES’ CUSTOMARY LAWS There is no single system of Aboriginal and Torres Strait Islander law. It is based on tradition, ritual and socially acceptable conduct. It is known as customary law; principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations, and are treated as obligatory. A main difference between Aboriginal and Torres Strait Islander customary law and the British legal tradition can be seen in the area of land ownership. The right to possess property is a key principle of English and European law; but to many Aboriginal and Torres Strait Islander peoples, land is not ‘owned’ instead, people are custodians of the land, looking after it for future generations. The British incorrectly declared the land terra nullius; ‘land belonging to no-one’; the idea and legal concept that when the first Europeans came to Australia, the land was owned by no-one and thus was open to settlement; this concept has been judged to be legally invalid. Diverse Nature of Customary Laws Different Aboriginal and Torres Strait Islander groups have their own variations of customary law. Australia is a large land mass and, as a result, different languages and modes of conduct developed. The resolution of disputes include, involving negotiation (between the parties themselves), mediation (help of a third party) and conciliation (a neutral third party plays an active role in suggesting a solution, will involve everyone in the community) Spiritual basis, significance of Land and Water Dreaming is the basis of much Aboriginal and TSI law. The dreamb is the history of Aboriginal and TSI peoples. It explains how the land, animals, plants and sky were created and has a very strong religious element. Aboriginals do not own land they are custodians of the land when they lose the land they lose their history and culture. Each group has distinct responsibilities governing the way that they look after their land and bodies of water. Failure to follow these laws can be seen as failure to show respect for their land and traditional values. Family and Kinship Kinship is family relationships, including all extended family relationships; an important part of indigenous cultures and values, which dictate how all people in the group behave toward each other. Ritual and Oral Traditions Customary laws have been passed from generation to generation by word of mouth and through ritual. Stories, songs and dances are used to help people remember the laws of the group. Mediation and Sanctions When customary laws are broken, or disputes arise the family and the community are involved. Discussions or meetings, rather than formal judicial processes, would be held during ceremonial times. A mediation a form of alternative dispute resolution designed to help two (or more) parties, in the presence of a neutral third party, to reach an agreement Elders play an important role in guiding decisions related to enforcing the law, intervening as necessary. Where sacred law has been broken, elders are often directly involved in applying sanctions. A sanction is a penalty imposed on those who break the law, usually in the form of a fine or punishment. Punishments range from ridicule and shaming to exile, spearing or death. Punishment by death is much less frequent today than it was in the past, possibly because of conflict with Australian law. Relevance to contemporary Australian Law Many aspects of customary law are embodied in Australian law today. The practice of sustainable development, for example, is the basis for current environmental laws. Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer and employment law. Customary laws are also sometimes taken into account when an Aboriginal and Torres Strait Islander person is charged with a crime. For example, where an act has been done because Aboriginal customary law requires it, but the act amounts to an offence under Australian law, this may be raised in mitigation of the offence. Mitigation making the severity of an offence or a sentence milder or less severe. INTERNATIONAL LAW Differences between domestic and international law Domestic law: law of a state - A country can make these laws because its an autonomous (independant) state that has sovereignty (meaning the authority to rule itself) - In order to be a state, a place must have: - A defined territory - A defined population - An effective government - The capacity to enter into international negotiations - The term state can refer to a political division within a federation, such as NSW Sovereignty means that the state has the authority to make rules for the population and the power to enforce these rules. International law: governs the relationships between nation states - Enables states to participate in trade and commerce and provides mechanisms for the maintenance of peace and security and the reduction of conflict - One of the main criticisms of international law is that is lacks the power to enforce the constraints contained in this law - Not all countries will agree with all international laws and may ignore a law if they feel that it's not in their national interest to do so Democratic Republic of the Congo v Rwanda (2002): the case revolved around allegations made by the Democratic Republic of the Congo (DRC) that its neighbour Rwanda had been launching armed attacks across the border and that this was in breach of many international laws. This case demonstrates the way that state sovereignty can reduce the effectiveness of international laws. The court found that it was unable to make a ruling in this case because it did not have the power to enforce international laws against Rwanda. International Law Australian Domestic Law Application Applies only to those nations Is universal, meaning it that agree to be bound by the applies to all law Enforcement Complex legal tribunals exist Law enforcement agencies but countries are permitted to exist such as the police, to exempt themselves from enforce the law cases Creation Made through negotiations Made by parliament or the between nations rulings of judges State Sovereignty State sovereignty means that nations have the right to participate in international laws. - The United Nations is not a world government, merely an organisation made up of independent sovereign states, and has no authority of its own - Nations who wish to disregard the interests of the global community and follow their own agenda can do so without fear of consequences, knowing that they will not be held accountable Nicaragua v USA (1986): the case involved military and paramilitary activities carried out by the US against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these activities violated international law. The court held that the US violated its customary international law obligation not to use force against another state when its activities resulted in the threat or use of force. Sources of International Law According to the statute of the International Court of Justice, there are four sources of international law that in can apply when deciding on international dispute between states: 1. International customary law 2. Instruments (declarations and treaties) 3. Legal decisions and legal writings 1.International Customary Law - Not contained within a written document - It is based on long-established traditions or common practices followed by many states to the point that they are accepted as being fair and right by the international community  - The Geneva Conventions (1864,1906,1929,1949) explicitly outlined rules governing the conduct of states in conflict - Most of the laws prohibiting crimes against humanity originated as customary international law e.g. the condemnation of slavery and genocide 2 & 3.Instruments (declarations and treaties) - Treaties: a treaty is an international agreement concluded between states in written form and governed by international law - They can either be; bilateral (between two nations) or multilateral (between many states) - There is no set way of making a treaty, but most treaties are made through direct negotiations between states. If all parties involved agree, the treaty will be signed. - The treaty only becomes binding on a state when that state ratifies it; that is, confirms that it intends to be bound by the conditions placed on it by the treaty - If there is no relevant legislation, a treaty cannot create rights in domestic law Ratify: to formally confirm that the country intends to be bound by the treaty - Declarations: are international instruments that state and clarify the parties position on particular issues, but do not impose legally binding provisions that must be followed. A famous example is the Universal Declaration of Human Rights (1948) - The declaration is the basis for two binding UN human rights covenants: the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) 3.Legal decisions and Legal Writings - Legal Decisions: - The International Court of Justice (ICJ) which is part of the United Nations is the judicial body that deals with disputes between states - Many treaties designate the ICJ as the means of resolving disputes that arise under the treaty - There are many other international courts and tribunals whose judgements contribute to establishing international law e.g. The International Criminal Court (ICC) - The ICC was set up to prosecute the most serious crimes concerning the worldwide community - Specialised courts have also been set up for particular purposes and timeframes such as to deal with war crimes committed during a specific conflict. Examples of this type of court are the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. - Legal Writings: - Due to the changing international political landscape and the developing nature of International law, the writings of respected international lawyers, judges and academics have an important part to play in guiding decision making and treaty information  - Scholarly legal writings may be drawn upon for the purpose of interpreting treaties or determining their application in international disputes - Governments may also seek the advice of experts on matters of international law - For example in 2007 the Sydney Panel of Independent International Experts provided advice to the Australian Government on whether the legality of Japan’s ‘scientific’ whaling program could be challenged under the Antarctic Treaty System and two other treaties. Hard international law: binding e.g. customary international law and treaties Soft international law: law that is not binding e.g legal decisions and writings, declarations United Nations - The United Nations (UN) is the chief organisation involved in international law - Established in 1945,by the Charter of the United Nations - There are 193 members - Main objectives are to maintain global peace and security, to develop good relations between states based on recognition of equal rights and each state’s right to govern its own economic and social development and to promote cooperation in solving international problems - Central to the protection of human rights and to developing a legal framework to address terrorism, drug trafficking, clearing of landmines, protection of the environment, fight disease, reduce poverty, provide emergency relief in natural disasters and many other humanitatian environment - As the UN has no powers to make states enact its resolutions into domestic law or to follow a particular course of action, its effectiveness is very much dependent on the political will of states - A United Nations General Assembly Resolution is a decision or declaration voted on by all member states of the United Nations in the General Assembly. The General Assembly - Made up of representatives from all member states and is the main forum for multilateral discussion on all international matters covered by the UN Charter - It discusses and makes recommendations on the operation of the UN, on conflicts between states, and on practical questions regarding political cooperation, human rights and international law - Meets every year and can meet more often if required The Security Council - Most powerful part of the UN. It is the executive of the UN and has the final say about the security and peacekeeping activities of the General Assembly. - Consists of 5 permanent members: the UK, US, Russia, China and France (countries that were victorious in World War II - There are also 10 non-permanent members who serve for 2 years each - Primary responsibility for maintaining international peace and security - Able to investigate disputes that could lead to conflict  - It can issue economic sanctions against nation-states to persuade them to change their policies, or to prevent or stop aggression. It can also send ‘peacekeeping’ troops from member states into areas where there is conflict, to separate opposing forces and to reduce tension. - Security Council resolutions require a unanimous vote of all five permanent members of the Security Council. If one of the permanent members votes against the resolution then it is not carried. This is called the ‘veto power’ and is considered one of the fundamental weaknesses of the current structure of the Security Council. - A criticism of the Security Council is that, having been set up over 60 years ago, it does not reflect a broad spectrum of cultural values evident in the world today. Trusteeship Council: - Designed to supervise the government of trust territories and lead them to self-government or independence - Overtime, as trust territories attained independence, the size and workload of the trusteeship council was reduced - The president and vice-president hold their offices until their respective successors are elected, for a maximum duration of 5 years Secretariat: - Carries out the substantive and administrative work of the United Nations as directed by the General Assembly, the Security Council and the other organs. - At its head is the Secretary-General, who provides overall administrative guidance. Economic and Social Council - Responsible for the direction and coordination of the economic, social, humanitarian, and cultural activities carried out by the UN. It is the UN’s largest and most complex subsidiary body. - Responsible for promoting higher standards of living, full employment and economic and social progress Courts and Tribunals Courts decide most disputes and criminal cases. Tribunals deal with more specialised matters and are less formal than courts. Tribunals are not restricted by the rules of evidence. International Court of Justice: - Established in 1945 it is the primary judicial body of the United Nations - Principal activities are to settle disputes to it by states - Australia has initiated action against Japan and whaling in the ICJ. The court ruled that Japan had to cease whaling in Southern Ocean Water - Advisory opinions often concerned particular controversies between states, although they do not have to do so Tribunals: - The International Criminal Tribunal for Yugoslavia (ICTY) is the first international court established by the UN and the first international war crimes tribunal since Nuremberg - The following year it created a similar tribunal to prosecute individuals in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) - The establishment of these two ad-hoc tribunals renewed calls for a permanent International Criminal Court Intergovernmental Organisations They are organised groups of states, established to pursue mutual interests in a wide variety of areas. - Many IGOs are subsidiary agencies of the UN - The International Labour Organization is a UN agency whose aim is to ensure the safe and fair treatment of workers. - Regional organisations also play an important role in international decision-making. Non-governmental Organisations They are associations based on common interests and aims, and which have no connection with any government. - They contribute to a wide range of areas, from world peace, disaster relief and environmental protection to promoting education and alleviating poverty. - They do this by informing the public and lobbying governments to take action on issues of concern. - Examples of international NGOs include the Red Cross, Greenpeace and World Vision. Relevance to contemporary Australian Law As discussed earlier, in some countries ratification of a treaty automatically makes it part of that country’s domestic law. This is not the case in Australia. - For some treaties, new legislation may be required to implement it in Australian law. For others, existing federal or state/territory legislation is sufficient (in other words, domestic law is already satisfying the terms of the convention). - To pass new legislation implementing a treaty, the federal government may rely on the external affairs power in section 51(xxix) of the Constitution. It may also rely on other powers such as the trade and commerce power in section 51(i) if the subject matter involves shipping. - International law does not dictate the way in which Australia implements the obligations it has under treaties. - The preferred method of giving effect to most treaty obligations is by incorporating the actual text of the treaty provisions into domestic legislation. - Treaties also influence Australian law in the development of the common law, in judicial review of decisions, and in the judicial interpretation of statutes. An example of a human rights treaty is United Nations Convention on the Rights of the Child (1989)