Legal Studies Syllabus Notes

a) Basic Legal Concepts

1. Define law
 A law is a special type of rule made by a person or institution that has the power to
make laws. The power to make laws is known as Sovereign Power (in democratic
countries such as Australia, the parliament has Sovereign Power).
 The law is universal, meaning that it applies consistently and constantly, always in
effect.
 The law also applies to everyone, regardless of a person’s position, they must
comply with the law
 Laws are strictly enforced by society (police and courts who act on behalf of society)
and those who breach it often face sanctions, fines, community service orders or
most seriously, imprisonment.

2. Distinguish between customs, rules, laws, values and ethics

Customs:

 Can be defined as the ways of behaving that have been established through
longstanding traditions. When the behavior of people has become so common that
the behavior is expected all the time, a custom has been developed
 Customs are not written down, they are passed down from generation to generation
e.g. through parents, education, media
 Enforced through social pressure rather than through legal process

Rules and Laws:

 Laws are universal where the apply to everyone all the time, and they emanate from
the state and are enforced by the state
 Rules however, apply only to certain people at certain times e.g. when you are at
school, the rules at the school only apply when you are enrolled and when you are
actually present at school. At school you may have to wear black socks, however at
home, you are free to choose the colour you please.
  Rules are recorded either in written form or through the use of symbols e.g. ‘No
Smoking’ symbol. When a rule is recorded there is less opportunity for people to
argue or seek to avoid it.
 This means that rules are more enforceable than customs.
 Penalties such as fines usually apply to ensure rules are followed

Values and Ethics:

 The values that society holds are a reflection of the things society considers
important
 Values are consequently reflected in law
 E.g. our society values the concept of private property and for this reason there are
laws to protect property
 Ethics are defined as those things that a society considers right and wrong.
 When we act ethically, we act the right way e.g. if we find 200 dollars, we take it to
the police station
 However, values and ethics in Australia are not constant, and thus, for the law to be
effective, it must be adaptable e.g. values of women in society have changed greatly,
where we now have laws protecting the rights of women, such as the Anti-
Discrimination Act 1977 (NSW) and the Sex Discrimination Act (Cwlth).
 Not everyone will hold the same values, and thus, as a general rule, values will begin
to influence the legal system once a significant proportion of the society holds a
particular view.

3. Describe the characteristics of just laws and the nature of justice

Just Laws:

In order for a law to be valid, it must be just. A just law has several features:

 It is equal (treats everyone the same)

 It is based on widely held values as discussed previously
 It is utilitarian. Utilitarianism refers to the philosophy of ensuring an action achieves
the greatest good for the greatest number of people
 It aims to reduce inequalities
 It must minimize delay, to resolve disputes as soon as practicable
 It must not be retrospective, the law must be made for the future.
 The law must be known, before they can be enforced.
 The Nature of Justice

Justice is a combination of equality, fairness and access, where in many societies, it is

represented by ‘Lady Justice’. The blindfold suggests that she acts impartially and the
scales represent need to weigh up the evidence whilst the sword is used to enforce her
decisions.

Equality

 Justice requires laws that do not discriminate and that are applied equally to all
people.
 The enforcement of the law must also be equal

Fairness

 Fairness is another feature for justice.

 A factor of fairness includes ensuring the law does not have a particularly harsh
effect on an individual
 Another factor of fairness is the right to appeal a decision.

Access

 Individuals must have the ability to access the law in order for justice to be
achieved
 They should have access to legal information and assistance and be able to
understand the law

4. Define and investigate procedural fairness and the rule of law

Procedural Fairness
 Often referred to as ‘Natural Justice’
 The main principle of procedural fairness is the concept of fair treatment before
the law

The doctrine of procedural fairness includes:

 The right of a person to participate in legal proceedings in which they have an

interest e.g. if a person was charged but denied the right to attend a trial, this
would be unfair
  The right of a person accused of wrongdoing to know the accusation made
against them. This is essential because it allows the defendant to prepare
defense and gather evidence
 The right of the defendant to have a hearing, during which they are able to
present evidence
 The right of to have a matter head before an unbiased court. It is for this reason
that judges and juries must set aside their personal views and only refer to
evidence presented
 The right to test the evidence presented in a case AKA ‘cross-examination’ where
each side is able to question witnesses and their evidence given for the opposing
side
 The right of the accused to not have a previous criminal convictions or
accusations brought up in a trial

Rule of Law
  The rule of law is a key principle in legal systems of democratic societies, and it
means that the use of arbitrary power (unrestrained use of power) is eliminated
 In modern democracies, constitutions outline the powers of government and
they must act within these powers e.g. if the government attempts to create a
law outside of its power as existent in the constitution, the Governor-General
and the High Court of Australia must intervene (this is known as the separation
of powers, and is discussed further on)
 Another crucial element to the rule of law is that laws must be known and must
have a certain application, which basically entails the idea that once laws are
made, people are made aware of it so they can comply with it.

Some features of the legal system that comply with the rule of law are:

 An independent judiciary – the courts cannot be influenced by parliament

 Controls placed on enforcement agencies (police) to ensure there is no abuse of
power
 The accused should not be forced to incriminate themselves
 Legal defence for the accused must be free to operate without interference by
the prosecution
 Accused must be informed of allegations made against them
 Criminal laws must never be retrospective
 Governments are bound by a constitution
 Human rights are protected e.g. freedom of speech

5. Define anarchy and tyranny

Anarchy
 Anarchy occurs when a society is left without an effective legal system
 This is common after times of war or natural disaster when governments, courts and
law enforcement agencies cannot operate effectively.
 E.g. in 2005 Hurricane Katrina devastated New Orleans, and following this disaster,
law and order broke down in the city, leading to widespread looting.

Tyranny

 In some respects, tyranny is the complete opposite to anarchy

 It occurs when there is no check on the powers of lawmakers and enforcers
 Constitutions, if they exist, are disregarded and consequently there is no rule of law
 In countries where there is no democratically elected government, power is taken
rather than given by the people
  E.g. ‘junta’ military leaders hold power in Burma, a group of army generals who
crush any resistance to their rule

b) Sources of contemporary Australian common law

1. Outline the origin of common law

 Upon Colonisation, Australia adopted the common law legal system which
originated in England, where it was known as ‘English common law’.
 Other countries such as new Zealand, US, GBR and Canada use this system
 Common law can be best described as a collection of legal principles and rules
derived from decisions of judges in high courts
 The term ‘common law’ and AKA ‘judge-made law’ is used to differentiate between
law developed by judges and law developed by parliament
 Judges are required to obey statute law (law made by parliament), however, when
no relevant statute law exists, a judge will turn to common-law principles to resolve
a dispute
 If both a common and statute law exists, then the statute law must be followed
FIRST

The System of Precedent

 One of the main features of the common-law system is the doctrine of PRECEDENT
 A precedent can be defined as a ‘judgement made by a court that establishes a point
of law.’
 A judge who follows a precedent is trying to resolve a dispute in a certain way
because an issue of the past with similar characteristics was resolved in this way
previously. The process of following a precedent is known as ‘stare decisis’ or
literally to ‘stand by a decision’.
 The aim of a precedent is to ensure that everyone is treated equally and fairly in
their dealings with the legal system
 There is both persuasive and binding precedent.
 Binding precedent occurs when a court must follow the precedent already set,
regardless of their opinion as to whether it is correct or not.
 In NSW, a precedent is binding when it has been set by a higher court. E.g. the
district court will have to follow a precedent set by the Supreme Court of NSW.
 The judge is only bound by the ratio decidendi – the reason for the decision – of the
higher court. Other statements such as the judge’s opinion – obiter dicta – may be
taken into account but do not create precedent.
 Precedent only applies if the case is sufficiently similar to the one that set the
precedent.

The Adversary System

 As we know, the legal system in Australia is based on the English system of law.
One of the main features of English Law is the use of the Adversary System. This
means that in each case there are two opposing sides who argue a case before a
court, which is presided over by a neutral third party.
 As long as they abide by the rules of evidence, each side controls what evidence
it introduces to the court and the witness it may choose to call to support its
case. The opposing side then tests the evidence by asking questions of witnesses
(cross-examination) in order to counter the other sides evidence.
 At the end of the case, the judge/magistrate or a jury will decide which version
of events they believe; one side will one and the other will lose.
 Neither the judge/magistrate nor the jury have any powers to test evidence; for
example, a judge cannot cross-examine a witness.
 There are many criticisms of the adversary system.
 Some people argue that it creates a legal system where the case is won by the
best and most persuasive argument rather than on evidence
Equity alongside Common Law

 Inflexibility within Common Law introduced by the Provisions of Oxford led many
people to believe that justice could only be achieved through the king, who was
the ‘guardian’ of justice and had power to overrule and decision made by courts.

 This made for an effective way for people to bring cases for which there was no
precedent
 The king decided on cases using the concept of equity (or fairness) and his
conscience.
 Essentially, the King’s decisions were not based on the dictates of precedent, but
rather on achieving the fairest of outcomes
 The Office of the Chancellor had grown in power during the reign of Henry II
(1154-1189).
 The Chancellor played many roles: he was the kings secretary, the royal Chaplain
and most importantly, the ‘keeper of the King’s conscience’.
 The King was thus able to delegate the Chancellor the role of hearing and
deciding on the growing number of disputes that came to the King for resolution
 By 14th century, Courts of Chancery were established to administer the new
laws of equity.
  These courts provided for a broader range of legal remedies compared to the
common law courts e.g. the main remedy in common law is to order monetary
compensation while equity law provides for other remedies that more closely
relate to the concept of fairness such as injunctions (a court order that requires
a person not to do something e.g. not to print a particular story in a newspaper)
and specific performance (a court order that requires a person to fulfill an
obligation they undertook as a part of a contract).
 Consequently, over time, two types of judge-made law developed: common law
and equity
 For several hundred years, England had two parallel legal systems: common law
and equity. It was clear that these two conflicted, sometimes providing alternate
decisions in the same dispute.
 Finally, the two systems were combined under the Judicature Act 1873, which
created the Supreme Court of Judicature. Under this act courts were instructed
to take into account the principles of equity. Therefore, the principles of equity
are now considered a part of the common-law system.

Principles of Equity Law:

 To modify a remedy in common law that is deficient, or to create a new

remedy
 To develop remedies for wrongs that common law does not recognize

In order to obtain an equitable remedy, the person that seeks the remedy must
not breach any law whilst obtaining it. Equity law supports assistance of the
diligent rather than those who act in a lazy or tardy way.

2. Examine the hierarchy and jurisdiction of state and federal courts

Australia is a federation and as a result, there are two levels of law that apply: state and
federal. The Australian Constitution grants certain legal powers to the Commonwealth
govt. and others to state and territory governments. Consequently, there are separate
state and federal jurisdictions, each having its own court structure. All courts have
original jurisdiction (power to hear certain cases for the first time) e.g. High Court has
original jurisdiction to hear matters relating to the constitution. Many courts also have
appellate jurisdiction. This means that the court has the right to hear cases that were
originally dealt with by a lower court which have been subject to an appeal

State Courts Hierarchy

NSW, like all other states, has a hierarchal court structure. This means that they are
‘ranked’. Position of courts in the hierarchy determines the type of cases they will hear.
There are three tiers, inferior, intermediate and superior courts.

Court Name Court Tier Description Jurisdiction

The Local Inferior AKA ‘Magistrates Court’, It has two jurisdictions in which
Court lowest court in the it hears matters:
hierarchy. Aim is to settle  Criminal Jurisdiction: there
disputes at a local level, are two areas of criminal law
cheaply and quickly. Less over which local court has
emphasis on formality in jurisdiction –
this court. 1. All summary offences.
These are less serious,
e.g. drink driving and
shoplifting. A magistrate
deals with these,
determining guilt and
issuing punishment.
2. Committal proceedings.
These are preliminary
hearings for more serious
offences known as
indictable offences. The
aim of the committal is
for the police to
demonstrate there is
significant evidence that
a jury would likely
convict this person
(prima facie). If the
magistrate believes this
is so, the case will be
scheduled for a trial in a
higher court.
 Civil Jurisdiction: the Local
Court hears only relatively
minor civil matters such as
debt claim. Matters involving
up to 60000 dollars will be
heard.
Coroner’s Inferior Role is to investigate
Court unexplained deaths and
 fires. Much like the Local
Court, the Coroner’s Court
can commit a defendant
to trial in a higher court if
there is a prima facie
case.
Children’s Inferior Deals with any summary Any summary or indictable
Court or indictable offence offence for children under 18.
involving persons under
18. The only exception is
murder, where this court
conducts a committal
proceeding and the trial is
held in the Supreme
Court.
Land and Inferior Deals with matter
Environment involving environmental
Court planning and land
compensation e.g
individuals and business
offences, such as illegal
pollution
The District Intermediate Deals with more serious  Criminal Jurisdiction – Deals
Court matters and is presided with the majority of
over by a judge, ‘your indictable offences such as
honour’. robbery and assault. Cases
heard before a judge, whose
role is to decide on questions
of law, and a jury which has
the role of determining guilt.
If defendant is found guilty,
judge is responsible for
sentencing
 Civil Jurisdiction – Hears civil
matters involving 60000-
750000 dollars. In most
cases, a judge will determine
the case alone however a
small jury of 4 or 6 people
may be used.
 Appellate Jurisdiction – Can
hear appeals from the
inferior courts. A case may
be appealed because a
 penalty imposed was
inappropriate, an error in
law may have been made by
the magistrate or new
evidence has arisen.
The Supreme Superior NSW Supreme Court is  Criminal Jurisdiction –
Court the highest court in the This court hears the most
state hierarchy. In serious indictable
general, it hears the most offences such as murder,
serious cases and those sexual assault and
that involve difficult kidnapping. All cases
points of law. It is a ‘Court heard before a judge and
of Record’, which means a jury who have the same
that its decision create roles as in the District
precedent, and therefore, Court.
the Supreme Court is  Civil Jurisdiction - There
important in the is no upper limit on civil
establishment of common matters (only minimum
law. 750000 dollars). Like the
District Court, most civil
matters are handled be a
lone judge, although a
smaller jury may be used
 Appellate Jurisdiction –
In NSW, a special division
of the Supreme Court
(Court of Appeal) hears
appeals to the Supreme
Court. The right to
appeal is not automatic,
and applicants must
demonstrate that they
have a good reason. This
is known as ‘seeking
leave to appeal.’

Federal Courts
 In addition to the various courts of each state, the Commonwealth has its own hierarchy
of courts that deal with the matters of federal law.

The Federal Magistrates Service

 Has jurisdiction in areas of family law and also parts of bankruptcy and trade practices
law. The service also hears appeals from Commonwealth tribunals, such as the Human
Rights Commission

The Family Court of Australia

 Est. in 1976 as a part of the sweeping changes to family law that were introduced by the
Family Law Act 1975 (Cwlth).
 A special court that deals with matters of family law, particularly in divorce, custody of
children and the maintenance and division of property.
 Most matters dealt with by a single judge.

The Federal Court of Australia

 Also established in 1976, like the state’s Supreme Court, is a ‘Court of Record’.
 Its jurisdiction is broad and includes matters such as trade practices, industrial relations,
intellectual property (copyright), taxation and immigration.
 Most matters dealt with by a single judge of the Federal Court, however appeals are
heard by the Full Court of the Federal Court, with three judges.
 Appeals can come from the decisions of a single judge from the Federal Court, single
judges from the state’s Supreme Court and appeals from state Supreme Courts that
exercise federal jurisdiction

The High Court of Australia

 Main role is to deal with matters involving the Constitution.

 For the first time dealing with a matter, cases are heard by a single judge, except where
the Constitution is involved, when five judges hear the case.
 Is a ‘Court of Record’ and consists of a Chief Justice and six other justices.

3. Outline the role and structure of parliament and the legislative process
Australia is a parliamentary democracy, meaning that the peoples of Australia elect
representatives who make decisions and pass laws. If those elected no longer operate
satisfactorily, there is an opportunity for the people to vote them out.

Role of Parliament

 Key role is to pass laws

 Any laws passed by parliament are called ‘statutes’.
 As discussed previously, Australia also used ‘judge-made law’ or Common Law.
 Statute law is considered to be superior to common law.
 Legislation has power to alter common law, and in cases where there is both
common and statute law available, statute law has precedence.

Parliamentary Structure

With the exception of Queensland, all state parliaments and the Commonwealth
Parliament in Australia are bicameral (a parliament with two houses), with an upper
house and lower house.

At federal level, the two houses are the Senate (the Upper House) and the House of
Representatives (the Lower House). Above the two houses is the Governor-General,
who is elected for maximum of three years.

House of Representatives (Lower House)

 Despite being known as the Lower House, the HOR is actually the more powerful
house
 It is sometimes known as the House of Government, as the political party that
holds the majority in this house forms the government, and its leader becomes
Prime Minister
 Has 150 members, with each member representing an electorate. Each
electorate has approximately 80000 voters, so some electorates end up being
much larger (e.g. in rural areas) than others in big cities.
 Traditionally, HOR members have been drawn from three major political parties:
Australian Labor Party, Liberal Part of Australia and the National Party of
Australia.
 The Liberal and National Parties have for many years been in coalition, meaning
that they tend to vote as a group on most issues.
 Coalition was also formed so that the two parties could create a majority to form
government
  The key role of the House of Representatives is to make new laws and amend
existing ones. When a new piece of legislation is first introduced into the
House, it is known as a Bill. If it is passed, it is enacted into law – it becomes an
Act of Parliament. Most new legislation is introduced in the HOR.

The Senate (Upper House)

 Is otherwise known as the States House, because its role is to represent each of
the six states and the two territories.
 Each state is represented by 12 senators, each territory by 2.
 Senators represent an entire state, not just an electorate, which means that
minor parties (those with fewer votes) have a greater chance of being elected to
the Senate rather than the HOR.
 Each senator is elected for 6 years, which is double that of HOR members.
 A system of rotation means that half of the senate retires every 3 years; retiring
senators may seek re-election for another 6 years.
 An exception to this occurs with territory senators, who serve 3 year terms.
 The Senate plays a very important role in reviewing legislation proposed by the
HOR. It is common for the political party in government to be a minority in the
Senate. This means that their power in the HOR is balanced by the power of
the opposition in the Senate.
 The Senate has equal law-making powers to the HOR, except that it is not
allowed to introduce or amend ‘Money Bills’ – laws that introduce new taxes
or deal with the normal expenditure of government.

The Governor-General

 Is the representative of the Queen in Australia.

 The role of the Governor-General was created by the Constitution of the
Commonwealth of Australia.
 The Governor-General is appointed by the Queen on the advice of the Prime
Minister
 Although the Governor-General acts as the Queen’s representative, the role
of the Monarch in legislative and parliamentary processes has diminished
greatly since the passing of the law in the Australia Acts 1986 (Cwlth and UK).
 In practice, the sole remaining function of the Queen is just to appoint the
Governor-General
 The Governor-General is a member of the Federal Executive Council which
also includes the Prime Minister and the Cabinet Ministers; these are the
senior ministers of government.
 Most often, the Governor-General follows advice given by these ministers,
however, there are four key areas where the Governor-General may exercise
power contrary to this advice. These are known as Reserve Powers and
include:
1. The power to appoint the Prime Minister where an election has
resulted in a hung parliament (when no political powers have clear
majority)
2. Power to dismiss a Prime Minister who has lost the confidence of the
parliament. This has happened only once, in 1975 with the dismissal of
Prime Minister Whitlam
3. Power to dismiss a Prime Minister who has acted unlawfully
4. Power to dissolve HOR at the request of the PM; results in an election
being called

 One of the most important roles of the G-G is to ensure lawful acting within
the Federal Executive Council; within the powers set out by the Constitution.
 In this sense, the G-G is the protector of the Constitution
 All legislation that is passed by the HOR and the Senate must go to the G-G
for approval (‘Royal Assent’).
 Once ‘Royal Assent’ has been given and the Bill is published in the
Government Gazette (similar to a newsletter of laws), it becomes law.
 It is very rare for a G-G to refuse assent. One reason for refusing may be
because a Bill is unconstitutional

The Legislative Process

Any parliament has the power to make statute law, whether it be state, territory
or federal governments. The Constitution determines areas in which each level
of government has the power to make laws.

When a statute law is made, the parliament that makes it and the year that it
was made is will become part of the Act name e.g. law relating to the use of
ethanol in petrol in NSW is contained in the Biofuel (Ethanol Content) Act 2007
(NSW). Similarly, the Corporations Act 2001 (Cwlth) is a federal statute governing
the conduct of companies that are incorporated.

The mechanism for passing laws in NSW and federal parliaments (and other
states with bicameral parliaments) is the same and is summarized in the chart
below:

The Formation of the Bill

Any MP has the right to introduce a bill (referred to as a Private Member’s Bill).
However, it is most common for the government to sponsor a bill. In this case, a
Minister is appointed to develop the Bill e.g. Health Minister for a Bill about
hospitals. The actual writing of the Bill (legislative drafting) is carried out by
trained advisors.
The First Reading

 Minister or the private member of responsible for the Bill will introduce it
to parliament in the House in which they sit.
 At the first reading, the Minister or private member reads the title and
distributes copies of the Bill for members to read

The Second Reading

 The parliament debates the bill, where members express their opinions
about it

Committee Stage

 Each individual clause of the Bill is debated, although mostly the

members only wish to speak about certain controversial clauses. It is at
this stage members can propose amendments to the Bill.

The Third Reading

 House is asked to vote on the Bill. If it is successful, it will be passed onto

the Upper House for approval.

The Upper House

 The entire process is repeated, with one exception. If the Bill was first
introduced into the Senate, then the first reading is not repeated. If it is
not passed in the Upper House, it is returned to the Lower House for
amendment, or may be rejected completely.

Assent

 If the Upper House passes the bill, it is sent to the Governor-General (in
the case of Commonwealth Parliament) or the Governor (in the case of
state parliaments) for ‘Royal Assent’.
 Once this has been given, the Bill becomes law and is referred to as an
Act of Parliament.
 The act is effective from the date specified within it
4. Describe the function of delegated legislation

 Delegated legislation is legislation that is made by the bodies subordinate to

parliament. These bodies include government departments and local councils. They
are authorized to make laws by an Act of Parliament
 This authorization by an Act is known as an ‘enabling act’.
 These Acts define what the bodies can make laws about and how far their authority
extends.
 E.g. The Parliamentary Committees Enabling Act 1996 No 143 (NSW) lists powers
and rights of various committees of the Parliament of NSW.
 Once delegated legislation has been developed, either house has power to disallow
the legislation.
 If no action is taken within 15 days of it being presented to parliament, then the
legislation becomes law.
 The principles of the Constitution apply to all matters of delegated legislation e.g. if
NSW parliament has no constitutional power to make laws on a particular matter, it
cannot delegate to another body to make the law

The four main types of delegated legislation include

1. Regulations: delegated legislation made by the Governor-General, state Governors

or members of the Executive Council
2. Ordinances: laws made for territories of Australia, such as the Australian Antarctic
Territory, usually by the body governing the territory
3. Rules: delegated legislation made for government departments, usually by the
departments
4. By-laws: laws made in accordance with the Local Government Act 1993 (NSW). This
Act allows local councils to make laws that apply within the boundaries of the local
government area
5. Explain the difference between the division and separation of powers

A constitution can be defined as a document that outlines the rules for the governing
body of a nation. It is the rules that control the power, authority and operation of a
parliament. In Australia, the Australian Constitution governs the Parliament of the
Federation of Australia, while each of the six states also has its own Constitution.

The two constitutions that affect citizens of NSW include:

1. The Australian Constitution: created by the Commonwealth of Australia Constitution
Act 1900 (UK). British Parliament passed this act when Australia federated. It came
into effect on 1st January 1901, the official date of federation.
2. The Constitution of NSW: this was created by the Constitution Act 1902 (NSW).

The main role of the Constitution is to determine the exercise of powers by the
Commonwealth Government and which powers remain with state governments. This is
known as the division of powers.

The Division of Powers

 One of the most important aspects of the Constitution is its role in dividing
power between the states and the Commonwealth parliaments.
 The constitutions of each state provide state parliaments with the powers to
make laws on any matter that affects the state.
 The Australian Constitution doesn’t really restrict these rights.
 In fact, state parliaments have law making powers that can concern a much
broader range of issues in comparison to federal parliament.

Exclusive Powers

 Powers that are only granted to the Commonwealth Government such as in

trade, foreign relations and defence. Section 90 of the Constitution grants
exclusive powers to the Cwlth in the area of customs.
 Section 51 also makes reference to the power of the Cwlth to make laws in
relation to trade.
 This section was used in 1976 to block sand mining on Fraser Island in the
famous case : Murphyores Inc. Pty Ltd and Others v. The Commonwealth of
Australia and Others (1976) 136 CLR 1 where Murphyores was blocked from
 mining, by the Commonwealth Government, which used its exclusive
constitutional powers relating to trade
 Section 51 makes reference also to the defence of Australia. Under this section,
the Cwlth has responsibility for ‘naval and military defence of the
Commonwealth’, which is reinforced in Section 114 : ‘A state shall not, without
the consent of the Parliament of the Commonwealth, raise or maintain any naval
or military force…’. This forbids the state from making their own defence force.

Residual Powers

 Powers that the states retained after federation.

 These are outlined in the constitutions of the various states, which confer
authority in areas of health, transport, education and importantly, law and
order.
 It is for this reason that there is much difference between states regarding issues
such as criminal law, traffic regulations and educational policy.

Concurrent Powers

 Powers that are shared between the Commonwealth and state governments.
There are many areas of government where both have authority. For example, in
relation to health care, state has responsibility for running hospitals, ambulance
services etc. whereas the Commonwealth is responsible for raising health care
funding through the Medicare system.
 Where state and federal laws conflict, the Constitution is clear that the laws
made within the limits of the constitution by the Commonwealth have
precedence: '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.’ – Section 109 of the Australian Constitution.
Separation of Powers

In addition to dividing power between the Commonwealth and the states, the
Constitution also ensures that no one group within the government can dominate. The
Commonwealth divides Commonwealth powers between three separate bodies:

1. The parliament, whose powers are outlined in Chapter 1 of the Constitution, in

particular section 51.
2. Federal Executive Council, where its members include the Prime Minister, cabinet
Ministers and the Governor-General. Their powers are contained in Chapter 2 of the
Constitution.
3. The Judicature or courts. The constitution established a federal Supreme Court
(known as the High Court of Australia)(section 71) and also granted federal
parliament the right to create other federal courts (section 71). Under the
constitution, High Court judges cannot be removed from their position without
approval from both houses and the Governor-General.
 The aim of the separation of powers is to ensure that authority is evenly distributed
between these groups. By doing this, each checks on each other, ensuring no abuse of
power. The following demonstrates the separation of powers:

6. Examine the role of the high court in the interpretation of the Constitution

The High Court is the highest court in Australia, and has 3 main aims:
1. To protect the Constitution, by ensuring that governments act within their powers
as set out by the Constitution.
2. To exercise its original jurisdiction (as previously discussed, refers to cases that are
first heard in the High Court). These include ‘constitutional challenges’, where the
 actions of the Commonwealth are seen as unconstitutional, such as the Tasmanian
Dam case (mentioned earlier).
3. To act as the final Court of Appeal within the Australian legal system. The High
Court can hear an appeal from any of the state Supreme Courts or from the Federal
Court.
 One important role is the interpreting of the Constitution. Like all other Acts of
Parliament, the Constitution is not always clear, and courts must interpret and define
certain words and phrases. The Court ensures that parliament, the courts and
government departments do not exceed their constitutional authority e.g. in the
Murphyores case as previously mentioned, where the High Court was required to
decide whether the Commonwealth had powers in this matter.

7. Examine the characteristics of ATSI people’s customary law

Aboriginal people are thought to have arrived in Australia somewhere between 60000
and 80000 years ago. Over these years, a complex customary legal system had been
developed.
 This system was based on oral traditions and was strongly linked to the notion of
kinship
 It is important to note that there is no single Aboriginal nation, there were
approximately 500 of them.
 Each of these clans had their own territories, traditions and rituals and importantly,
developed their own laws. Consequently, there are now thousands of variations of ATSI
customary law.
 Therefore, it is impossible to talk of ATSI law as a single entitiy. Instead, we can only
observe the aspects of their law that are common to all groups of ATSI nations e.g. the
importance of the Dreamtime to the establishment of the law and role of the land and
spirituality in ATSI law.
Spiritual Basis of ATSI Customary Law
 ATSI peoples did not develop the type of industrial society that existed in Europe
 The ATSI tradition views the land and nature as having great spiritual significance, and
this is reflected in their customary law.
 The key features are summarized below

 Significance of land and water – One of the key differences between ATSI and European
legal tradition lies in the area of land ownership. E.g. one of the main principles of
European law is the right to possess and own property. In ATSI law, land is sacred and
collectively owned. The land is central to their cultures and forms the basis for religious
beliefs and their law.
 The two following contemporary cases demonstrate the growing recognition of the
importance of land and water to Indigenous Australians. In both cases, traditional
landowners were able to show that they had maintained important spiritual and cultural
links to traditional land and waters :

Family and Kinship

 Kinship is a reference to family relationships and extended relationship ties
 It is an essential feature of IA communities
 Traditions have been characterized by family networks living in local communities
 This feature of such societies is significant when making and enforcing laws.

Ritual and Oral Traditions of ATSI peoples

 Rituals practiced came from interpretations of the Dreamtime

 Rituals were found in all areas of life, including religion and customary law
 In a similar way to European Law, ATSI customary law has a strong ritual element e.g. it
was common for tribal elders to paint their faces in red ochre before passing judgement.
 One of the main features of the ATSI customary law is that it is oral law, meaning that it
is not written down.
 It is instead transmitted via word of mouth.
 Each generation must remember these oral laws and pass them on to following
generations
 One of the main issues with oral law is that it can be forgotten or misinterpreted.
 To overcome this, Aboriginals ignored laws that were misinterpreted to become unjust.
 This is one of its advantages as oral law, its flexibility.
 In European law, changing the law involves a long, time consuming process.
Consequently, the law legal system can become out of step with the expectations of
society.

Mediation and Sanctions with ATSI Customary Law

We have already discussed strong kinship links. Unlike many European families, ATSI
families tend to encompass aunts, uncles, cousins etc. The kinship ties that each person has
to all these relatives override almost all other duties and responsibilities.

 Since these bonds are so strong, mediation is the favored method of resolution.
 Mediation involves all parties in a dispute talking and negotiating, rather than
handing out punishment to a person that has breached tribal laws or customs
 When something cannot be solved through mediation, conciliation (where elders of
the tribe meet with the ‘criminals’) is used.
 However, when a crime is too serious for mediation or conciliation, punishments
were applied. For example, a member of the clan who breached religious law such
as disobeying rules for sacred sites, could be punished by death.
 The figure below summarises the sanctions found in ATSI law:
 Revenge was often used when a person had committed murder, where the family of
the victim was given the right to revenge on the perpetrator of the crime.
 This often resulting in issues of larger proportion, due to it being retribution-based
rather than resolution-based.
 Trial by Ordeal – involved the accused and their relatives running past victim and
their relatives, who would throw spears. The spears had blades removed to avoid
serious injury.
 If the accused was speared in the thigh, then the matter was at end. Accused was
forgiven, and everyone would dance.
 If he/she was not speared, then further ordeal was necessary.
 Inquest – was common for ATSI societies to hold an inquest after a murder. One
common procedure required a relative of the victim to sleep with the head resting
on the stomach of the corpse. During the sleep, they would dream of the murderer
 Fighting, insulting, social ridicule and isolation – fighting was another common way
to punish suspected murderers. One of the problems with this was when the
accused was a good fighter, which would lead to the injury of others and little injury
to the accused. Insults and social ridicule were also common, where social
interaction within the communities was important. Therefore, having a whole clan
ignore a person was very effective punishment.

Relevance between modern Australian law and ATSI Customary Law

 There are great differences between the two, however, features of customary
law are taking on a greater role in modern Australian law
 Mediation as a concept, which is key for ATSI law, is now used in a number of
Australian law areas including family law, industrial relations, and increasing in
criminal law, where young offenders are involved.
  In 2000, the NSW Law Reform Commission produced a report for sentencing of
ATSI offenders.
 Since they already faced Indigenous punishment with their laws, it stated that
judges should take this into consideration when sentencing
 The recognition of customary law in Australia has been debated highly, and in
1986 the report from the Australia Law Reform Commission, ‘The Recognition of
Aboriginal Customary Law’, stated that customary law should be recognized
where appropriate but that a separate legal system for ATSI law should NOT be
established, as this would undermine the entire legal system.

8. Distinguish between domestic and international law and examine the impact of state
sovereignty

International law is the body of law that governs the relationship between nations. Without
this law, nations would be unable to participate in trade and commerce and there would be
a greater likelihood of conflict between nations. International law is very different to
domestic law. In the case of Australia, these are summarised below:

As demonstrated in the table above, the key differences between the two are in the
application of the laws.
  In Australia the domestic laws are made for all, and therefore must be followed by
all people
 This is one of the cornerstones of our legal system, where no one is above the law.
 However, in international law, the legal principle of ‘state sovereignty’ applies. This
principle, which is discussed further on, allows nations to decide the laws which they
agree to be bound by.
 International law is made very differently compared to domestic law. They are
made through negotiations between countries. When a new international law is
proposed, each nation must decide whether they wish to participate.
 The process of ratification requires the domestic government to enact a domestic
law accepting the terms of the international law. Only then is the nation obliged to
follow.
 Once this has occurred, the country is said to be a party to the international law.

State Sovereignty

The notion of state sovereignty is at the centre of all international law. It emerged at the
same time as that of the ‘nation state’ - that all nations are fundamentally equal that each
nation’s rulers have the right to make decisions on the behalf of the nation. Thus, state
sovereignty presents a dilemma for international law.

 By definition, a law requires that it be enforced by some overriding authority,

however, there is no world government to enforce international law.
 The UN is not a world government, but merely an organization of independent
sovereign states, and has no authority of its own.
 State sovereignty means that nations have the right to refuse participation in
international laws.
 Nations can even refuse to participate in hearings of international courts and
tribunals, and this is the fundamental weakness of all international law.
 Nations who wish to disregard the interests of the global community and follow
their own agenda can do so without fear of consequence.
9. Examine the sources of international law

International law is created in several ways and is summarised below:

Treaties (aka conventions, protocols, covenants or declarations) and other

International Agreements

 A treaty is best described as an agreement between nations that is entered into

voluntarily.
 A treaty is different to a declaration since it is binding and a declaration is non-
binding.
 Nations who enter into these have become ‘parties to the agreement’ and are
bound by the conditions established within it.
  There are two main types of treaties:
 Bilateral treaties: treaties between two nations e.g. UK/Ireland Continental Shelf
Boundary Agreement 1988. This agreement defines the sea boundary between
these two nations.
 Multilateral treaties: treaties between more than two nations e.g. the Antarctic
Treaty (1959). This is between several nations that have an interest in Antarctica.
 There is no prescribed way to make a treaty, although most treaties are made
through:
 Negotiation: the various nations that have an interest in the treaty discuss the
clauses and conditions that the treaty will contain
 Consent to be bound: the participating nations agree that they will be bound by
the conditions of the treaty. This commitment is demonstrated by signing the
agreement.
 Ratification: considered the most IMPORTANT step. Involves the signatory
nation passing domestic law to accept the treaty. In a parliamentary democracy
(like Australia), there would be a Bill passed that accepts the treaty.
 Reservation: allows nations to withdraw from a treaty or a part of it.

Customs

 An international custom is a rule that has been established because it has a long
tradition and has been widely followed.
 Until late 19th century, all international law was customary law.
 Customary law is considered too slow to be effective in creating international
laws in a rapidly changing world.
 Treaty law consequently became a far more common means for establishing
international law.
 International customs still remain however, for example when a sea captain is
expected to stop and give assistance to another vessel in distress

Legal Decisions

 The International Court of Justice (ICJ) deals with most disputes concerning
international law.
 The court, a part of the structure of the UN, has power to make rulings in
relation to treaties that nominate the court as the dispute resolution mechanism
 Under the Statute of the International Court of Justice, the international
agreement under which the ICJ was formed, legal decisions are considered a
subsidiary means of international law making.
  However, the rulings of the court, while not necessarily setting precedent, are
becoming an important source of international law. This is because the ICJ has a
tendency to examine past cases before making rulings and there have been
several cases where treaty law has been amended or developed as a result of
ICJ’s rulings.
 Apart from the ICJ, there are other international courts and tribunals.
Sometimes these can too establish aspects of international law.
 Cases involving war crimes for example, are heard in ad hoc (‘on an as needed
basis’) war crimes tribunals.

Legal Writings

 Throughout history, the writings of legal academics have been very important in
influencing the direction of law making.
 During the 16th to 18th century period, concepts of natural law – which held
that law came from god and was above authority of the state – were dominant.
 Therefore, theologians and philosophers played a very important part in the
development of law, including international law.
 While the role of legal writings in the formulation of international law has
decreased throughout the 20th century, this is not to say that they have no role.
 Legal writings still stimulate discussion and debate about the nature of
international law, and interestingly, when lawyers offer advice to their
governments or present to international courts and tribunals, they often refer to
legal writings.
 Positive Laws – laws that are generated by parliaments, monarchs and courts.
 Natural Laws – laws said to have been derived from god. They were considered
more important than the laws made by monarchs or courts.
10. Describe the role of various organizations involved in international law

The United Nations

 At the conclusion of WWII, the UN was formed, with the main aim of establishing
and maintaining world order and peace.
 The Charter of the UN, completed in 1945, outlines the principles, rules and
ideals to which member nations of the UN commit themselves.
 The UN has 192 members and a HQ in NY.
 When it was first established, it saw itself as providing a forum for nations in
dispute, but would not intervene in any matter that was domestic. This has
attracted much criticism, due to the severity of most civil wars.
  More recently, the UN has deployed a number of peacekeeping forces to various
places where internal conflicts have developed.
 Whilst these deployments have demonstrated commitment by the UN to the
promotion of peace, they have been criticized as ineffective. E.g. peacekeepers
in Bosnia were not permitted to use force to promote peace, though were only
allowed in self-defence.
 Whilst the UN receives a great deal of criticism, it remains a powerful force in the
promotion of world peace and international law.

The ICJ (Court)

 The ICJ is the main judicial organization of the UN. It consists of 15 judges, each
representing a geographic region. ICJ has two main functions :
1. To decide on disputes brought before it by member nations
2. To offer legal advice on matter of international law when requested by a
member nation
 The ICJ is a court for nations only, not individuals, corporations or organisations.
Although, nations can bring a case before the court on behalf of a citizen.
 Jurisdiction of the ICJ – all member nations are entitled to take matters before
the ICJ. However, before the ICJ will hear a case, the nations involved must
recognize the right of the court to settle the dispute. This will occur in one of
three ways:
1. A special agreement: when agreement is given in relation to a specific
dispute
2. A clause in a treaty: there are more than 300 international treaties that
nominate the ICJ to resolve disputes between the signatories of the treaty. In
this circumstance, nations that sign agree to accept jurisdiction of the ICJ.
3. A unilateral declaration: some nations have agreed to accept the jurisdiction
of the ICJ in all matters.

International Criminal Court

 The ICC was created by a special treaty called the Rome Statute, which became
effective in 2002. At present there are 108 countries that are parties to the
statute and are therefore bound by the rulings of the court.
 ICC is a permanent court, dealing with cases against individuals who have been
accused of the most serious of international crimes e.g. genocide, serious war
crimes and crimes against humanity
 Role of Intergovernmental Organisations

 IGOs are orgs that represent the governments of member nations. The UN is the
most significant IGO.
 There are many others, regionally based, such as the European Union (EU).
 These orgs have their own international laws and regulations.
 Some organizations have their own tribunals and sanctions against members
who fail to abide by these laws.

Role of NGO’s

 They represent a variety of special-interest groups

 These organisations are not recognized under international law and therefore
have no direct legal role
 For example, they can’t bring a case before the ICJ.
 However, NGO’s play an important role in applying political pressure to nations
to abide by international laws. E.g. Environmental groups worldwide have used
media to apply public pressure to governments
 Encouraging participation in international law

11. Examine how international law impacts on and is incorporated into Australian law

Australia plays an active role in international law. It was a founding member of the UN and
has ever since been involved.
  Australia has also been active in UN peacekeeping activities e.g. in Timor,
Bougainville, Cambodia and Somalia.
 International law plays an important part in Austrlian domestic law also.
 The Tasmanian Dam case, as mentioned early in this paper, is an example of
the way international law affects the legal decisions made in Australia. In this
case, the fact that the rivers were World Heritage Sites and thus protected by
international law meant that the TAS government was restricted from
constructing dams there.

c) Classification of Law

1. Outline different types of law

Public Law

Laws in Australia can be classified into either public or private laws. Public laws are
referred to as social norms, and are those that set general standards of behavior
expected by society. Public laws include: Criminal law, Administrative Law,
Constitutional Law.

Criminal Law

 Usually established by statute, although sometimes through common

 For e.g. rape crime was originally created through the decision of judges, though
eventually, statute laws were made for criminal assault to replace the other rape
crime.
 Criminal law is public law because when a person breaks a criminal law, the
effects are said to harm all members of society
 Consequently, the victim of these cases is also society
 This can be seen in the way criminal law cases are written – R v. Peterson [1984]
WAR 329. The accused is Peterson, but instead the victim’s name is R for Regina
(the Queen). Remember, she represents all people!
 There are seven classifications of criminal law:
 Crimes against persons
 Crimes against property
  Crimes against the state or sovereign (damage the country and the people)
 Public order offences
 Traffic offences
 White-collar crimes
 Drug offences

Administrative Law

 Those that relate to the operation of government and its various departments
 Whenever a government agency or department forms, it is through the passing
of a law establishing it. E.g. the powers of the NSW Board of Studies are outlined
in the Education Act 1990 (NSW).
 In addition to creating the government bodies, the act also outlines the powers
the body may exercise. This is known as ‘administrative powers’.

Constitutional Law

 A constitution is a legal document outlining powers and operation of

government
 In Australia, it is democratic and the government must abide by the rules
established in it.
 The Australian Constitution mostly deals with the division of power between the
federal, state and territory governments and the separation of power between
the parliament, the High Court and the Commonwealth Executive Power
 As discussed earlier, the High Court deals with matters relating to constitutional
law. The Court hears cases where it is thought that the government has
exceeded its powers as outlined in the Constitution. (a case is mentioned earlier
for this)

Private/Civil Law

Private law is often referred to as civil law and deals with the legal relations between
individuals and organisations. The key difference between criminal and civil law is the
role of the individual. In a criminal matter, society is said to have been wronged and
hence society brings the case. Under civil law however, it is a matter between
individuals. The person who brings the actions is the plaintiff and the person the action
is against is the defendant. This is also evident in the writing of cases, it always goes
plaintiff v. defendant.
Contract Law

 A contract is a legally binding agreement between two parties. Many civil law
matters deal with contracts where one party believes the other party has failed
to fulfil the requirements of the contract.
 Contract law stipulates that in order for a contract to be valid and enforceable,
then there must be :
 An ‘invitation to treat’ – for instance, a shop that advertises a shirt for $45 is
inviting interested people to come and buy it
 An offer – In this example, an offer takes place when a person takes the shirt to
the counter to buy it
 Consideration - Under contract law, both parties must benefit from it.
 Acceptance – when the shop assistant accepts the money, a contract comes into
existence. When the shirt is handed over, a contract is complete
Property Law

 Anything bought or sold is property.

 There are numerous laws governing the way property transactions are to take
place.
 E.g. Fair Trading Act 1987 (NSW) is an example of a statute that ensures
businesses act properly when selling property
 Insurance is a key aspect of property law

Tort Law

The law of torts is very complex area of law that involves civil wrongs. Torts are not
criminal matters but involve the actions of one inconveniencing another, or breaching
their rights. These torts are divided into four areas:

 Negligence – is a very common tort, and revolves around the concept of ‘duty of
care’. This states that every person and organisation has the responsibility of
ensuring that their actions do not cause harm to others or their property. The
‘duty of care’ concept was established in this case:

 Nuisance – Involves one person interfering with another person’s rights. For
example, a neighbor playing very loud music at night may cause a nuisance to
another person. Many cases heard in the community justice centres involve this
idea:
  Defamation – damaging another person’s reputation. When misleading info
regarding a person is published and it damages their rep, defamation has
occurred. It is important to note that if the information is accurate/true, then
defamation has not occurred. This is the most common defence to this tort.
 Trespass – typically takes place when a person interferes with the property of
another person.

2. Compare the purposes of different types of law

As mentioned in the 1st point of this area of the syllabus.

3. Distinguish between civil and criminal court procedures

Criminal Law Procedures

 Two parties in a criminal matter are referred to as the prosecution and the
defendant.
 The prosecution represents the community and is referred to as ‘the Crown’.
 In most criminal trials, the Officer of the Director of Public Prosecutions (ODPP)
conducts the prosecution
 In a local court, for criminal matters, the prosecution is done by a specially
trained police officer known as a Police Prosecutor.
 The defendant is the accused person, and is represented by their barrister most
of the time (they can represent themselves)
 Criminal trials are heard before a jury of 12 people.
 The role of the jury is to determine the case; that is to consider whether there is
sufficient evidence to convict the accused.
 The role of the judge is to advise the jury and deal with questions of law.
 There is a standard of ‘beyond reasonable doubt’ to which the jury must be
convinced that the accused is guilty to find them guilty
 This burden of proof always lies with ‘the Crown’, and therefore, the defence
could in theory say nothing and still be found not guilty if the prosecution’s
evidence isn’t sufficient
 Civil Law Procedures
 Civil law proceedings involve disputes between two parties that do not involve
criminal matters
 Common civil matters involve breach of contract and property disputes
 The proceeding begins when the plaintiff issues a Statement of Claim (legal doc
that identifies the parties to the dispute and outlines the circumstances of it)
 Once it has been issued, the other party (defendant), issues a Statement of
Defence.
 This process involving the two statements allows for information to be shared
between the two parties, and many disputes are resolved through this
 If the dispute remains unresolved, a trial is ordered
 Each side in the trial has rights to introduce evidence and call witnesses in
accordance with the rules of evidence.
 This allows for ‘cross-examination’ by the opposing sides.
 At the conclusion of the presentation of evidence, the judge is required to make
a ruling based on the evidence given by both sides.
 If the ruling is in favour of the plaintiff, the judge will indicate what
compensation is required to give to the plaintiff.
 The standard of proof in civil cases is determined on the balance of probability.
 This standard is based on the evidence presented, who is more likely telling the
truth?
 The burden of proof with any civil matter lies with the plaintiff.

4. Identify the role of legal personnel involved in the court process

Judges and Magistrates

 They preside over the courts

 They are legally qualified professionals with considerable experience in the law
 Most judges and magistrates once served as barristers
 Judges sit in intermediate and superior courts, and their role is to adjudicate cases
(‘Adjudicate’ means to decide on points of law and issue instructions to the jury.)
 The Judge is also required to issue sentences and rulings
 In some civil cases, they may sit without the jury, and therefore will also have to
determine the case.
 A magistrate sits in the inferior courts and their role is to determine cases; that is to
reach a verdict. Additionally, they must also issue sentences and rulings.
Barristers

 Almost always receive their work through a solicitor

 Solicitor approaches a barrister on behalf of a client, and barrister represents their
client in court.
 Most barristers specialize in a particular area of law e.g. criminal law, family law –
which allows them to develop considerable expertise
 The barrister has two main functions:
1. To provide legal advice, known as an ‘opinion’, on the legal facts presented to
them. This usually includes some indication of the likely outcome, which allows
the client to decide a best course of action
2. To present their client’s case in court (if the barrister has been briefed by a
solicitor)

Solicitors

 Usually the person that someone who is seeking legal advice will approach first.
 They may appear in court, however, in most cases the majority of their work is non-
litigious (involving no court appearances).
 Their main duties are: preparation of wills, family law issues, conveyancing, and
drawing up of contracts.
 The main role of a solicitor in a legal case is to prepare the case (known as ‘brief’)
for a barrister.
5. Compare and contrast common and civil law systems

Common Law Systems:

 As discussed earlier, Australia’s first legal system is often referred to as a common-

law system.
 This system which was first developed in England, is still used in British colonies and
in Britain
 The key feature of the common-law system is the ability if judges to make laws. This
right is limited to where a gap is found in statute law.
 It is important to remember that where statute and common law both exist in the
same area, statute law prevails. (this is all detailed earlier)
Civil Law Systems

 As discussed earlier, civil law refers to legal matters between two or more
parties.
 However ‘civil law’ as a term has another meaning. It also describes the system
of law that developed Ancient Rome.
 To avoid confusion, it is referred to as ‘the civil law system’.
 Laws in this legal system are almost entirely derived from statute law.
 Much of Europe uses this system, as Rome conquered Europe.
 Countries such as France, Germany, most of Africa and Japan use this system
 The main difference between the two systems is the role of the courts.
 Under a civil law system there is no room for development of judge-made law.
Judges are also required to carry out investigations – that is, to gather evidence.
This is known as an ‘inquisitorial system’.
 Under a common law system (as used in Australia), judges CAN make laws; they
do not seek evidence, but rather make their decisions based on the evidence
presented to them on both sides. This is known as an ‘adversarial system’