~ A set of government-regulated rules and conducts enforced by a political authority that caters to the moral, ethical and religious perceptions of society and instructs them on the appropriate behaviour or actions in a specific circumstance or community. NOTE: - ALAW SHOULD REFLECT SOCIETY’S VALUES - LAWS ARE BASED ON CUSTOMS (VALUES ESSENTIALLY) ‘Customs: - Traditional and widely accepted ways of behaving in a particular or specific society, place or time (norm) - Established patterns of behaviour among people in a society and/or group - No Real Punishment, but communal/societal disapproval Rules: - A set of explicit or understood abidable regulations or principles governing the conduct or stability within a particular organisation or group. Laws: ~ A set of government-regulated rules and conducts enforced by a political authority that caters to the moral, ethical and religious perceptions of society and instructs them on the appropriate behaviour or actions in a specific circumstance or community. - A system of rules created and enforced through social or governmental institutions to regulate behaviour in a society ‘© Obeyed by all citizens of a * To be obeyed by a particular * To be obeyed by a state or country society/group particular society /group © Set of government-regulated | © A set of explicit or * Traditional and widely rules and conducts enforced understood abidable accepted ways of by a political authority regulations or principles behaving in a particular (Judicial System) that enforced by leaders of the or specific society, place instructs a particular organisation/group or time society on the appropriate governing the conduct or * Established patterns of behaviour or actions in a stability within a particular behaviour among people specific circumstance or specific community in a society and/or community. © Punishment = Ban, Fine, group © Punishment = Expulsion, Suspension (At © Punishment = Imprisonment, the discretion of Criticism, Community community service, fine Group/Organisation Pressure Leader)People have lived together in groups for thousands of years; rules were developed to govern their behaviour and ensure the smooth running of activities. These rules were based on traditions, customs, and values of the group, which have evolved over many years. The rules have penalties if members fail to follow them. The group has a small group that enforces the rules (became the government). Over time, rules evolved and became formalised laws, which usually reflect the customs and rules of the group. The Jurisition from “Te Lagal Journal in whieh which the At comes Decroe nas repre trom NSW | ater Anglin en 04178 Anti-Discrimination Act 1977 (NSW) | | | \ a) [eee levuaee Griminaltaw: ened Criminal Cases ee ce Legal Citations Description CwilLaw: SFR Gone ® Rex or Regina(Rex for the King as pianetr defendant the Head of State and Regina for the Queen as the Head of State) 7 _ - Dependant on the Gender of Human Rights: (one). 60's Burger Palad the leader of the British complainant v. respondent Monarchy “DPP’ Director of Public Prosecution - To institute and conduct prosecutions for indictable offences in the Local, District and Supreme Courts w And or Verses E.g: R v. Jones = Rex or Regina and/verses Jones Natural Law: An understanding that Humans will behave in a certain way without being told to or educated about —> Murder is wrong —> Doesn’t need to be told to someone that it is wrong. It shouldoccur naturally that the action is wrong NOTE: We should know what is morally right and wrong naturally no matter where you are, who ‘you are, or what you are —» NATURAL LAW SHOULD COME INTO EFFECT NATURAL LAW - IS SEPARATE FROM RELIGIONS/RELIGIOUS VALUES AND PERCEPTIONS - IT’S EFFECTIVENESS IS DEPENDANT ON SOCIETY’S VALUES AND PERCEPTIONS 3. VALUES AND ETHICS: VALUES: - Important and lasting beliefs and ideals shared by the members of a culture about what is right and wrong and desirable and undesirable. - Society’s ways of prioritising the importance of moral| choices (MORALLY RIGHT/WRONG) Personal - There is NO Moral Punishment for not having or following certain values NOTE: VALUES CHANGE AND SO DO LAWS: ETHICS: - Moral Principles that govern an individual’s behaviour and morals se co aa - Ethics convince and tell people based on agreed “ad values the correct way of behaving in a certain situation, the right way of doing things and living, - Usually applied to Professions - Generally, the punishment for not acting ethically is less serious than ending up in court. UTILITARIANISM ‘You make a decision to provide the greatest amount of utility for the greatest number of people * Governments use this to justify laws/democratic decisions made for the Good of the greater amount of people, leaving a minority out * You make a decision to please the majority but consequently, there is always a minority that misses out rE Incapax is a common law principle, deriving from Latin and highlights the common idea and principle of one being ‘incapable of wrong’. In Australia, it is deemed that children of ages 10 to 14 are held criminally incapable unless proven otherwise, which serves as avoiding ima incarceration from a young age.Blindfold —- Justice is Blind — Everyone should be treated equally, don’t take into consideration or account any bias. Scales — Fairness — Both Sides of a case are taken into account (Balance). Sword — Punishment — If found guilty, the Court has the authority /jurisdiction to punish you Justice may be perceived as not accessible because of the Wealth required to obtain Highly-efficient Solicitors. Note: JUSTICE IS MORE ACCESSIBLE TO THOSE OF WEALTH AND RICHES EEES FOR THE DIFFERENT AREAS OF LAW Solicitor $300/hr and $3000/day (COURT RATE) Junior Barrister(Presenting in Superior Courts) —- $5000/day Senior Barrister — $10,000/day Specialised Barrister — $25,000/day Just Laws: Just laws should be based on the notion of equality, these laws must be enforceable i.e. the police can enforce them, the laws must be acceptable to the majority of citizens, these laws must be discoverable meaning that members of the public need to have access to these laws and they must not be retrospective which means it can not take effect, in point of time, before it was passed by higher authority. ‘The 8 Characteristics of a Just Law or Judicial System include; 1. It must minimise delays 2. It is based on widely held values 3. Its equal 4. It must not be retrospective (Note: The Law should only apply after it was introduced otherwise it would not be Justified if it applies retrospectively, chargers for something you did not know was illegal) 5. It aims to redress inequalities 6. It is utilitarian — Greater Good for the majority of people 7. It must be known 8. Upholds human rights Justice - Forms the basis of our values and approach to the legal system - Impartiality, Rightness - Application of the Law that is reasonable, moral and considers all factors, in a situation‘The Nature of Justice refers to the access, equality and fairness of Justice. ACCES: ‘he means to have the capacity to seek and obtain justice from the legal system - Legal Aid (Means, merit and Jurisdiction) Only for Earners of < $450/week - Affirmative Action - Cost-efficient alternatives to courts ‘The main barrier or obstacle to Access is the cost of legal representation and knowledge of how the legal system operates. Dietrich V The Queen (1992) - GREAT EXAMPLE OF ACCESS — NATURE OF JUSTICE Facts: - Dietrich had been charged with several drug offences. - He applied for legal aid but was denied (Failing Merit Test —> Three times) - He ended up representing himself in court and was convicted - He argued that he did not understand the legal Process/system ‘Trial was Held in HC (High Court) = Majority (5-2) found for Dietrich but found there was no automatic right to legal representation Authority: - The right to a fair trial does not guarantee a right to representation, - Accused would have to show that a lack of representation denied him a fair trial as was the case for Dietrich (In a serious case where the likely punishment was severe). FAIRNESS: - Refers to the idea of treating all people equally and acting with integrity (Punishment) — People are/should be punished/persecuted the same for similar cases —> This allows for the fairness of a trial or case - Fairness implies that an outcome is just or right EQUALITY - The equal treatment of all - The same outcome regardless of who os convicted /involved - Formal Equality + Occurs when the law provides that, in certain denied circumstances, everyone should be treated equally regardless of background, culture, identity, social and economic status/personal beliefs Barriers to Equality in the Law include - Cost of Justice - Disparity in Legal representation - Differences in sentencing ‘The law has tried to overcome these and make the Law Equal again through the introduction of legal aid and sentencing guidelines (Mandatory and Minimum sentencing).Procedural fairness refers to the fact that the actual procedures which should have been followed, were followed. It is not concerned with the actual outcome or conviction and if that is fair, but only concerned with how that decision came to be and was arrived at. (Care about the Proce! Procedural Fairness concerns how a decision was arrived at and whether all 4 main elements (Right to know why, Fair Hearing Rule, No Bias Rule and Cross-Examination) were followed, not the decision/outcome or conviction itself and if it was fair. — Procedural Fairness can interrelate with Natural Justice » Natural Justice -» Concerned with the Law/Conviction and if it was just/fair — Procedural Fairness > Concerned whether the Process of where the Law/Decision came to be was fair and just + Procedural Fairness can be appealed /revoked 4 Main Elements of Procedural Fairness = No Bias Rule » Fair Hearing Rule — Right to Know Why — Cross-Examination Lord Hoffmann and Augusto Pinochet Case > GREAT EXAMPLE OF BREACHING PROCEDURAL FAIRNESS —- PROCEDURAL FAIRNESS Lord Hoffmann was a Judge along with another 4 Judges who were in charge of convicting and deciding the fate of Augusto Pinochet (a Chilean Dictator who was alleged of killing hundreds and torturing thousands of people dissidents) and whether he should be extradited back to Chile to face charges. — What was unprecedented about this whole case and situation was the fact that Lord Hoffmann was also a Chairman of Amnesty International which had been protesting against the abuse of human rights and for the extradition of the Chilean Dictator Pinochet back to Chile to face charges. This caused serious repercussions because Lord Hoffmann failed to disclose his close links with the case and Amnesty International which breached the act of Procedural Fairness. His decision to remain on the case and continue to decide whether Pinochet was immune to Extradition and Arrest was seen and declared as biased, unjust and unfair for Augusto Pinochet, rendering him an unfair trial. Lord Hoffmann was then dismissed by the Law and the Judges deciding to convict Pinochet. (NO BIAS RULE, FAIR HEARING RULE) Rule of Law —> IMPORTANT PRINCIPLE THAT WAS ESTABLISHED ALMOST 1000 YEARS AGO. + ENGLAND 1215 CE > Magna Carta — First Document that limited Power of the king and set out what rights people have. (Foundation for the ENGLISH COMMON LAW) > “No one is Above the Law” —> People need to be treated the same otherwise it may incite/push for violence/protestsMarcus Einfeld - GREAT EXAMPLE OF RULE OF LAW AND THAT NO ONE IS ABOVE THE LAW — RULE OF LAW Marcus Einfeld was a former Judge who lied and committed perjury under oath to avoid and evade paying a $77 speeding ticket/fine. He initially lied to the court about his speeding but evidence came to light against his defense and he was then prosecuted and convicted of perjury and perverting the course of justice and had to serve up to 2 years in Prison because of it. (This is a Great Example of the Effectiveness of Rule of Law and how even a Former Judge, a former judicial officer could be considered above the law and can’t evade Justice. Zz the absence of Laws/Governments for a short period of time that usually occurs or surfaces after a Natural Disaster, State of National Emergency or Political Upheaval, leading to chaos, panic and disorder. January 6, 2021 - Capitol Hill Riots/Disaster - GREAT EXAMPLE OF ANARCHY — ANARCHY CAUSED BY POLITICAL UPHEAVAL January 6, 2021 in the US is to be remembered as one of the darkest days of US History in a time of celebration and ceremony. The Capitol Hill Disaster, proposed to be encouraged and incited by the President at the time, Donald Trump where an angry mob of Trump supporters rushed towards the Capitol, breaching it, smashing windows, throwing gas bombs, causing riots and an armed standoff, protest against the election of President-elect Joe Biden. This quickly turned into Chaos, disorder and Political Anarchy, where the protestors and mob angrily stormed the Capitol in support for Donald Trump and the ‘unfair’ outcome of the Presidential outcome, claiming it was a ‘stolen’ election. There was an absence of law and government during this disaster. To the rest of the world, America, long the ‘beacon of democracy, stood as a nation besieged, currently on the brink of Anarchy. ‘TYRANNY is when there is one absolute ruler and the people are subject to draconian laws(Harsh and Oppressive Laws) enforced by the dictator/ruler. — Essentially, there are too many laws enforced, interfering with the people's lifestyles and restricting the rights, freedoms and liberties of the people. — Rulers would have Arbitrary Power (Total Power and Control over everything and everyone). North Korea (DPRK) Tyrannical Laws GREAT EXAMPLE OF TYRANNY» TYRANNICAL AND UNJUST LAWS ENFORCED BY A DICTATOR/SUPREME LEADER ON THE PEOPLE North Korea’s (DPRK) Supreme Leader/Dictator, Kim Jong-Un, has enforced on the Citizens and People of North Korea harsh and oppressive draconian laws restricting the rights, freedoms and liberties of the people in the Country. Examples of these such harsh and oppressive laws include; - Disloyalty to their Supreme Leader can mean the Death Penalty - Three Generation Punishment = If anyone commits a crime in North Korea, not only he or she will be punished, but also their grandparents, parents and children (3 Generations). This law was also designed to prevent prisoners from escaping the prison. - Only Government Approved Haircuts > Men and Women of North Korea may only decide on one of 28government-approved/mandated haircuts to have (18 for Women, 10 for Men). - Kim II Sung is their only true leader - Not allowed to leave the Country — Any North Korean Citizen is prohibited from leaving the country, and if they are found to be fleeing, they will be gunned down by guards at first glance. - Insult to Kim and his family is considered blasphemy — All North Koreans who live under Kim Jong-un's rule must swear loyalty and obedience to him, his family and the state. Anything that could be perceived as an insult to Kim's family, the North Korean government is considered blasphemy and severely punished. This applies to both immigrants from North Korea and tourists. GLOSSARY: ‘Common Law — Judge-Made Law (In Courts) - This is based on precedent, the previous decisions of higher courts are binding in lower courts - Helps to ensure consistency, fairness and equality. Statute Law —> Government-made laws, passed in parliament and Government, otherwise, commonly known as Legislations. Eg; Crimes Act 1900 (NSW) Equity fairer”, “The conscience of the law”, A fairer notion of the law. “It evolved from Common Law to be Inquisitorial System —» Based on Questions —> Judges can call for evidence and play an active role in the case Adversarial System (Used by members of the Commonwealth and British Colonised Areas of the World) + USED BY AUSTRALIA — The 2 parties are against each other - Winner/Loser — Judge cannot ask questions or call for the audience — Impartial Umpire/Observer/Bystander + Judge is used to keep the Law and Order of the Court, decide whether evidence admitted to court is admissible or not admissible and also decide whether an ‘Objection’ made by the Prosecution, Defence or Solicitor/Barrister is Overruled or Sustained. » William the Conqueror » England was invaded by William the Conqueror and his Normans (the French) in 1066 during the Battle of Hastings. —+ When he gained/seized control over England, Willy wanted to return back to France but didn’t want Anarchy to break out while he wasn’t there — WILLIAM THE CONQUEROR IS THE SOURCE OF ENGLISH COMMON LAW- He sent justices (judges) all around England to make sure that disputes were settled against people the same way everywhere in the country - The Justices made sure that there was a common set of laws for everyone to follow (COMMON LAW) British Origins of Common Law + Upon Colonisation of the British, Australian adopted the English Common Law Legal System, however, after this, Australia then further developed its own Common Law based upon the cases tried in the country, uninfluenced with the English Common law » Other countries using this system include; Australian, Great Britain, United States, Canada, New Zealand 1788 — Laws from Britain Migrated to Australia as the Englishmen colonized Australia Post 1788 — Common Laws/Laws evolved/developed from the Original English Common Law into the Australian Common Law because of the cases tried and tried in Australia. Australian then became completely uninfluenced with British Common Law. Common Law Facts: — Judges must and are required to obey statute law, that is developed by Parliament/Government over Common Law — However, when no relevant statute law exists for a certain case, a Judge will turn to Common Law principles to resolve the dispute = If both Common Law and Statute Law exist and apply to a certain case, a Judge by law must always consider and always follow Statute Law over Common Law. If there is Statute Law + Must be followed and acted upon by Courts/Judges If there is no Statute, but a Precedent Must Follow Precedent If there is no Statute Law, no precedent —+ Set a new precedent Note: Statute Law always overrides Common Law — Development of the Common Law was restricted by procedural limitations — Rigid and Unchangeable + Similar Case = Same Precedent, Punishment, Conviction, Remedy (Damages = $$) — Petitions for the relief from the inadequates of the Common Law were considered by the Lord Chancellor — First introduced the idea of Equity and the idea of Fairness of each case). — Cases were initially decided according to the Chancellor's ideas of ‘equity and good conscience’. He made equitable decisions specific to each case » Supplementary to the Law — Stands out Next to the law Reasons for the Development of Equity—+ The Development of Equity in the Judicial system essentially derived from the fact that the Common Law did not always provide a fair and accurate outcome or conviction for particular cases — Common Law had too many struct procedures to follow — Common Law remedies were to rigid and inflexible » Equitable Remedies were needed for particular situations in which money was not an adequate punishment/conviction. E.g, Specific Performance (Fulfilling the terms of a contract) and injunctions (Positive and Negative > Judicial Orders either stopping or forcing one to do something) Note: People can ask for either Equitable Remedies or Common Law Procedures to be followed, depending on which one benefits the person the Most. The Judge will then further decide which is to be enforced. Fusion of Common Law and Equity — In 1873, Common Law and Equity were fused together — If there is ever a conflict between Common Law and Rules of Equity + Equity always prevails over Common Law. (Common Law is the weakest) — If there is a situation in which Equity and Common Law both apply to a certain case, Equity always prevails. » Statute Law — the Government always prevails over Common Law/Judges and Equity (Equitable Remedies) — Doctrine of Precedent ‘Types of Precedent — Binding (Precedent that must be followed and is enforced) — Persuasive (Precedent that should be followed but more or less, doesn’t necessarily have to and isn’t enforced) - When making a decision in a Current case, the Judge must always apply and consider the same reasoning/thinking and the decision of Judges in previous cases. - Previous Cases though must have been decided in higher courts which makes the precedent binding (must be followed) in lower courts. If a precedent is considered and was decided in the same court level in which the case is being trialed in, then it is considered as Persuasive Precedent (Should be followed but doesn’t ne be) sssarily have to - Ifa Judge does not want to use/follow a prior precedent, the Judge must be able to explain or reveal how the present cases differ from all previous cases in order to be able to make a new precedent. ‘The Doctrine of Precedent is therefore; 1. Making Sure that the law is known (consistent), predictable and applies the same to everyone (Judges have to follow precedents for similar cases, they can’t just throwanything from anywhere, the precedent has to be known and has to have been applied in a previous case in which the present case does not contradict/Must be same). 2. Making sure that Judges don’t have too much Power and have less decision-making power (Their Job is not to make/enforce new laws/decisions off the top of their heads). Development of Precedent ‘There are two main ways in which precedent is derived from/made; 1. Precedent is made when a Judge arrives at a decision in a case when there is no existing common or statute law. In these cases, the Judges must rely on common sense or the principles of law for guidance in establishing the new precedent/decision (Precedent is set in Courts by Judges regarding cases tried for the first time) 2. Precedent can also be created by the way Judges interpret Legislation for the first time depending on how the Judges actually interpret the legislation, which would have a tremendous impact on the conviction/outcome of the case. — If the law is not clear or does not clearly outline/define a certain situation, it is left to the courts to decide and set a new precedent. IMPORTANT KEY PHRASES & DEFINITIONS Ratio Decidendi — The reasoning behind the Judges decision. A statement by the Judge/Court about the reasoning behind a certain conviction, decision or outcome of a particular case (Factors used to determine the decision) — Legislation/ Statute Law — Common Law — Precedent Obiter Dicta —- The Actual Opinion of the Judge and the Courts, including other statements about whether the law should change or shouldn’t change Note: Obiter Dicta/The Judges and Courts Decision can create no immediate precedent, but can be considered and used in the latter future to justify precedent The Adversary System ‘The adversarial system or adversary system is a legal system used in the common law countries (Britain, Australia, United States) where two advocates (adversaries) represent their parties’ case or position before an impartial person or group of people, usually a judge or jury, who attempt to determine the truth and pass judgment accordingly. 1. Judge © Decides on Questions of Law > What evidence can be admitted (admissible or inadmissible)* Doesn't do any investigating or questioning in the Court (Only Countries practicing the Inquisitorial System permit their Judge to investigate/ask questions). * In Criminal Cases, the Judge decides on the outcome of one’s conviction and sentence © There are strict rules of evidence (admissible evidence) which the Judge enforces for both sides Rules of Evidence (Adversary System) He Hearsay is the evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated...except as provided by law, hearsay evidence is inadmissible. Witnesses have to have Primary Knowledge/have to have witnessed the crime unfold for it to be deemed admissible evidence. Opinion Evidence: Evidence given to the court by one’s own opinion. Not allowed unless one is considered an expert in the field required by the court (Doctor, Psychologists, Forensics, Autopsy) — Only Expert Opinion ALLOWED Prior Convictions: Judges cannot use previous/prior convictions and Criminal Charges as a case or suspicion. Rules of Evidence (Inquisitorial System) » Very Lenient Rules » Judge can play a part in the case (Ask Questions/Call for Evidence) 2. Prosecution/Plaintiff © Prosecution = Criminal Cases © Plaintiff = Civil Cases 3. Defendant * The Defendant is a person who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Burden of Proof: — The Prosecution/ plaintiff has to prove the case on the standard of proof. » The Burden of Proof is the duty of the prosecution to successfully prove the accused's guilt in order to produce a guilty verdict, while the defendant aims and tries to disprove the notions and prosecutions assertions Standard of Proof: — The Standard of Proof requires the Prosecution to prove the accused’s guilt beyond reasonable doubt — Criminal: Prosecution’s Job to prove the case beyond reasonable doubt» Civil Cases: On the Balance of Probabilities 4. Jury © Doesn't do any questioning or investigating * Decides on QUESTION OF FACT © The Jury is made up of a bunch of Randoms (Laymen/women — ordinary people) NOTE: Prosecution or defendant should/can raise enough doubt so that the evidence/witness is deemed unreliable and inadmissible » Adversarial System * Burden of proof and standard of proof which must be met (no such thing in inquisitorial) * Strict rules of evidence and procedures (hearsay rule, opinion/expert rule, cannot bring up previous convictions) - (no such thing in inquisitorial) © Judge/Magistrate is an impartial observer and cannot ask questions or call for new evidence (unlike inquisitorial * Ability to have a jury of your peers determine your guilt (in rare cases this is not appropriate) > The overall aim of this system, especially in criminal law with the SOP being beyond a reasonable doubt, is not to prove the defendant's innocence, but raise enough doubt so that you cannot be found guilty. Usually the better resourced side can accomplish this, and this is much easier if the defendant remains silent - conviction rate is much lower than the inquisitorial system as a result. In the Adversarial System, usually the better resourced side in terms of Quality of Solicitor/Barrister and Money will always win — Whoever will present the best version of facts and the truth, will usually win (Not Interested in the truth — It depends on who can paint the better picture of the truth — Better Lawyers/Solicitors and Money/$$ Definitions: — Original Jurisdiction: The court in which a case is heard, tried and tried in for the first time has Original Jurisdiction over a case — Appellate Jurisdiction: The Court in which hears the appeals over the decisions of the original court have Appellate Jurisdiction, Court Hierarchy of NSW Local Court — Original Jurisdiction = Coroners Court — No Jurisdiction — Drug Court — No Jurisdiction — Children Court — Original Jurisdiction (Most severe cases will go to higher courts (Murder etc) District Court — Original and Appellate Jurisdiction Supreme Court — Original JurisdictionCourt of Appeal/Court of Criminal Appeal —> Appellate Jurisdiction High Court — Original (Constitutional cases) + Appellate (all areas) Jurisdiction — Highest Court of Appeal Federal/Commonwealth Court System and Hierarchy — High Court — (Enforce Federal Law) » Pull Court of Federal Court (3-5 Judges) > Most serious court of Federal law » Federal Court (1 Judge) (Federal Version of State Supreme Courts) > FOFCA — Federal Circuit and Family Court of Australia COURT HIERARCHY AND JURISDICTION 1. Local Court — Civil Cases: Jurisdiction over Civil matters up to $100,000 in damages, remedy, unpaid bills etc. — Criminal Cases: Jurisdiction over summary offenses — Less serious Cases and some Indictable(serious) cases) ORIGINAL JURISDICTION — THE CASE IS BEING HEARD/TRIALED FOR THE FIRST TIME 2. Coroner’s Court » General Jurisdiction to investigate suspicious, sudden and unnatural deaths. This Court determines the identity, date, place, time, circumstances and medical causes of an uncertain and suspicious death 3. Children’s Court — General Jurisdiction over cases involving juveniles and children younger than the age of 18 — The court has jurisdiction to hear and determine cases related to: the care and protection of children and young people aged under 18 years. Criminal cases in which the defendants were under 18 years of age at the time of the alleged offence. 4. Drug Court — General Jurisdiction to provide alternatives to prison, in a case in which a person is highly dependent on the use of drugs which inflicted /resulted in committing the offense or crime. This court will judge whether one is eligible for Rehabilitation as an alternative to prison. 5. District Court + Civil Cases: Jurisdiction over Civil matters and claims within a range of $100,001 to $1,250,000 and other cases like, motor accidents, breach of Contract, defamation, personal injury etc. — Criminal Cases: Jurisdiction over Indictable offenses and and life-endangering circumstances — This Court hears Appeals from lower level courts like the Local Court (Depending on the circumstance, District Courts may also hear appeals from Magistrate Courts involving civil matters up to $100,001 to $750,000).ORIGINAL AND APPELLATE JURISDICTION > THE COURT CAN HEAR CASES BEING HEARD/TRIALED FOR THE FIRST TIME OR APPEALS FROM LOWER COURTS 6. Supreme Court = Civil Cases: Jurisdiction among/over very serious and complex Civil matters in the State Court — Criminal Cases: Jurisdiction over very serious and indictable cases specifically involving Murder, Treason and Piracy HIGHEST COURT OF STATE ORIGINAL JURISDICTION — THE CASE IS BEING HEARD/TRIALED FOR THE FIRST TIME 7. Criminal Court of Appeal/Court of Appeal » Civil Cases (Court of Appeal —> COA): Separate Court, Highest Court for Civil Cases in NSW (3-5 Judges) » Criminal Cases (Court of Criminal Appeal -» COCA): Separate Court, Highest Court for Criminal matters in NSW (3-5 Judges) APPELLATE JURISDICTION ONLY -> THE COURT ONLY HEARS CASES BY APPEALS FROM LOWER COURTS 8. High Court —> Highest Court of Appeal/Court of Australia — The High Court's Jurisdiction falls into Three Main Areas; (a) interpreting all constitutional matters and hearing various commonwealth legal issues (b) hearing appeals from all Federal courts (c) hearing appeals from all State/Territory courts. ORIGINAL AND APPELLATE JURISDICTION — COURT ONLY HEARS ORIGINAL JURISDICTION REGARDING CONSTITUTIONAL CASES/CONCERNS AND APPELLATE JURISDICTION REGARDING APPEALS FROM LOWER/OTHER FEDERAL COURTS 3. STATUTE LAWS: Structure of the Parliament — NSW and Federal Parliaments are Bicameral (made up of Two Houses) — Both these Parliaments have two houses; Upper and Lower House. — Parliament exists at both the State and Federal(Commonwealth) Levels — Both Parliaments have their own Jurisdictions and can only enforce new Legislations and Acts within their Jurisdiction » The Role and Structure of both Parliaments are very similar. HOUSE OF REPRESENTATIVES (HOR) > GREEN > Members of Parliament in this House represent each electorate of a particular state — The House of Representatives (HOR) are also known as the ‘People’s House’ and the Lower House — Made up of election winners in each electorate seat in Australia who represent the interests of people who voted for them (constituents).» Each Electorate has about 90,000 votes so the states with Higher Populations have more electorates (NSW has the most in Australia) — 151 Members of Parliament (MP) in HOR — Government is formed by the party that holds the majority of the 151 seats of Parliament, the largest non-government party in the House of Representatives is referred to as the Opposition THE SENATE — RED — Members of Parliament in this house represent a particular State/Territory — Also known as the ‘States House’, the ‘Upper House’ or the ‘House of Review" — Made up of 76 Senators » Each State is equally represented with 12 Senators/Representatives, regardless of size, population and land area » The Territories of Australian (ACT and Northern Territory) are each represented by 2 Senators Role of the Parliament ROLE OF HOUSE OF REPRESENTATIVES (HOR) — GREEN — Form the Government of Australia — Consider Bills » Scrutinise/Criticize Power of Executive Governments (Government in Charge/Control of Country) » All Laws/Enforced in Australia begin in this Government house as Bills and are passed on ROLE OF THE SENATE -» RED » Consider and vote on Bills passed by HOR and pass them onto Governor-General to be made/enforced as Laws/Acts of Australia — Represent the Interests of People in their States/territories — Propose amendments to Bills (House of Review) ‘THE GOVERNOR GENERAL (GG) — Represents the Queen/King in Australia as Head of State — Represents the King in Australia (Currently — King Charles Ill) — Australia is a constitutional monarchy --> King as the Head of State — The Governor General's Role in Australian can be separated into three parts; Constitutional, Ceremonial and Communal) —+ Has Ceremonial and Social Duties in Australia on behalf of the Head of State (KING) » The Governor General MUST formally give Royal Assent (Agree) to Bills that are made and passed by both Houses of Parliament (HOR and Senate) before the Bill can be enacted and passed as an official Law or Act in Australian— Bicameral Approval Process THE USUAL PATH OF A BILL House committec* A.LAW FOR AUSTRALIA, HOUSE of REPRESENTATIVES € “optional stege Senate referral fovincuiry (he can happen seh he bil sin te Hes). Bills becoming Acts eee eer es ey Becomes an Act of duces Bills of Parliament oa Ce eee, vpoeraiseny eee eae Ee aoteaicas Ce eae certs— Delegated Legislation is a law made by a body other than parliament but under its authority or management. Example — COUNCILS MAKE AND ENFORCE LAWS BUT UNDER THE AUTHORITY OF STATE PARLIAMENT AND OTHER LEVELS OF GOVERNMENT ABOVE. + This authority comes from Acts of Parliament that delegate ‘give’ or ‘pass’) authority and power to sters and/or councils to make and enforce said laws » State Parliament passes down authority and power to councils involving less important matters that Parliament does not have time to consider or draft — State Parliament passes down authority to councils to make and enforce laws ‘Types of Delegated Legislation © Regulation Executive Council/Parliament » Made by the Governor General, State Governors or members of the Ordinance —- Laws made by Territories of Australia (ACT and NORTHERN TERRITORY) By-Laws > Laws made and enforced by local councils under the Local Government Act 1993 (State passed down authority and power to local councils to make/enforce lesser important decisions and laws of specific areas). © Rule — Made for Government Departments, usually by the department ADVANTAGES AND DISADVANTAGES OF DELEGATED LEGISLATION Arguments EOR having delegated legistation Arguments AGAINST having delegated legislation Save: Jot of time for our busy MPs in parliament Some of the rules/laws that come out of it are made by people not elected by the public Saves a lot of taxpayers’ money (because most of the people making delegated legislation get paid less than people in parliament. Because they are made less public, the media is, not always there to ask questions about what these people are doing -» FEWER MEDIA ATTENTION ‘The people making the delegated legislation are usually experts in their area (or at least better ‘than people in Canberra) The Members of Parliament who gave these bodies their power do not always have the expertise to check that they are doing the right thing It takes less time to change/amend delegated legislation because fewer people are involved in the making of decisions1, CONSTITUTION: — A National/The Constitution is a set of rules for governing a country, such rules may be based on Tradition or may be written down in the form of law or a number of laws — The Constitution of Australia has a special status—it cannot be changed in the same way as other laws can be changed and it is a supreme law, that is, it overrides other laws. — The new Australian nation was established on 1 January 1901 following the passing of the Commonwealth of Australia Constitution Act by the United Kingdom Parliament. The purpose of the Act ‘was to constitute and form the Commonwealth of Australia, an independent nation Referendum -> A vote of the Australian people on whether the Constitution is to be changed/altered. > Majority Votes (Yes/No) = A referendum MUST first be proposed/ presented to the Lower House of Parliament, the HOUSE OF REPRESENTATIVES as a Bill, then go through the Legislation Process as normal, passing through all Three Readings of the HOR and THE SENATE, be given ROYAL ASSENT by the GOVERNOR GENERAL and then be given to the public and citizens of Australia as a Vote + Yes or No to the changing of the Constitution. Double Majority —- Majority of Australian Voters and at least 4 states being part of the majority. — The AUSTRALIAN CONSTITUTION can QNLY be altered and changed with the FULL SUPPORT of the MAJORITY OF AUSTRALIAN VOTERS IN AT LEAST 4 STATES OF THE COUNTRY. AUSTRALIAN CONSTITUTION: SECTION 109 — Section 109 of the AUSTRALIAN CONSTITUTION explicitly states that Commonwealth /Federal/ Statute Laws will always prevail and override State Laws; no matter the time, date and circumstances. SECTION 71 — Section 71 of the AUSTRALIAN CONSTITUTION generally sets up the HIGH COURT as it is today. SECTION 51 -- Section 51 of the AUSTRALIAN CONSTITUTION explicitly states that the Federal Government/Parliament is allowed to make, create and enforce laws for the peace, order, good government and greater good of the COMMONWEALTH and PEOPLE. (LEGISLATIVE POWERS OF THE GOVERNMENT) PER SECTION 109, CONSTITUTIONAL LAWS IDENTIFIED IN THE AUSTRALIAN CONSTITUTION ALL OVERRIDE AND PREVAIL OVER FEDERAL LAWS/COMMONWEALTH LAWS/STATUTE LAWS. + THE ONLY WAY TO CHANGE THE CONSTITUTION IS THROUGH REFERENDUMS (MAJORITY VOTE) + DOUBLE MAJORITY > MAJORITY OF YES VOTERS FROM AT LEAST 4 STATES) ‘There are 5 Express Rights and 1 Implied Right outlined/underlined in the Australian Constitution. ‘These include;Express Rights —+ Freedom of Religion, Right to be Compensated for land, Right to Vote, Right to Trial by Jury and Freedom of movement between States (Word for Word stated in the Constitution) Implied Right — Freedom of Political Movement (Widely Interpreted from Constitution) 2. DIVISION OF POWERS (DOP) ‘The Division of Powers, outlined in Section 51 of the Australian Constitution inform the different levels of Government of their respective powers and jurisdictions over specific matters and concern, specifically the POWERS AND JURISDICTIONS OF THE FEDERAL GOVERNMENT/PARLIAMENT, known as Executive Powers —» Any other Powers or Jurisdictions not mentioned in Section 51 either fall to the State’s Jurisdiction, known as Residual Powers, powers delegated to the state, or is shared between both levels of Government, known as Concurrent Power EXCLUSIVE POWERS — 39 laws that outline the Federal Parliament and Government’s Powers and jurisdictions over certain matters and concerns regarding Australia, located in Section 51 of the ‘Australian Constitution. Eg; Immigration, Quarantine RESIDUAL POWERS — Powers and jurisdictions not mentioned in Section 51 of the Constitution which is passed down to the State Government, becoming their role to enforce and put the powers and laws into action. The Constitution only outlines 39 laws and powers of the Federal Government, the other laws and powers, such as Education and Roads and Services rest on the State Parliament, otherwise known as Residual Powers. CONCURRENT POWERS -> Powers and laws enforced and shared between both Federal and State Parliaments. Eg; Taxation Commonwealth legislates and regulates Income Tax whereas the State regulates and legislates land tax. Note: If an inconsistency was to arise between a State and Federal Enforced Law, Section 109 of the Australian Constitution explicitly outlines that Federal and Commonwealth Laws regardless of the circumstances will always prevail and override State Laws, making the state law invalid. + MAIN SIGNIFICANCE/IMPORTANCE OF SECTION 109 OF THE CONSTITUTION SEPARATION OF POWERS (SOP) ‘The Separation of Powers are the three main functions of Government separated into 3 Different arms, each of which complementing and balancing the other, playing a vital role in preventing tyrannical behaviour and arbitrary power from arising in one arm — They act as a check + balance on one another to ensure tyranny/arbitrary power does not arise. The Three arms are > Judiciary, Legislature and Executive. JUDICIARY — INTERPRET THE CONSTITUTION — Made up of the High Court of Australia (HCA) and other Federal Courts, which interprets the constitution, makes judgements and challenges the validity of laws, in the High Courts of Australia. (UltraVires — Abuse of Power). LEGISLATURE — MAKE/PASS THE LAW > MADE UP OF PARLIAMENT (MP’S OF HOR AND SENATE) » DECIDE WHETHER THE BILLS IS TO BE PASSED AND LEGISLATED AS A LAW OR ACT» The Legislature, made up of the MPs of the Australian Senate and House of Representatives, is deemed responsible for the formation and passing of Bills into Formal Acts and Laws of Australia as well as the amendment of laws. EXECUTIVE — ENFORCE THE LAW — MADE UP OF PRIME MINISTER AND HIS CABINET (ENFORCE LAWS) — The Executive, made up of the Prime Minister and his Cabinet, is responsible for the enforcement of the Law in Australia and ensuring the law is put into effect. NOTE — The Judiciary and the Legislature act as a check and balance on one another generally because both arms can challenge the respective decisions of the opposing arm, essentially overriding their decisions, This ideally ensures the Government remains fair and accountable by creating checks and balances on the use of power as it is essential under the rule of law that the use of power is lawful, and can be challenged. NOTE — There is no true separation of powers due to the fact that the Executive arm is virtually a part of the Legislature arm and Parliament. Without the Separation of Powers and Government, the liberty of the people could be at cost as well as the introduction of tyrannic ruling and the enactment of tyrannical laws. PER SECTION 109, CONSTITUTIONAL LAWS IDENTIFIED IN THE AUSTRALIAN CONSTITUTION ALL OVERRIDE AND PREVAIL OVER FEDERAL LAWS/COMMONWEALTH LAWS/STATUTE LAWS. —+ THE ONLY WAY TO CHANGE THE CONSTITUTION IS THROUGH REFERENDUMS (MAJORITY VOTE) + DOUBLE MAJORITY > MAJORITY OF YES VOTERS FROM AT LEAST 4 STATES) ‘Tasmanian Dams Case ~> Separation of Powers — The Tasmanian Government in 1978, wished to construct a hydro-electric dam in Tasmania’s South West. — The federal govt declared the area in which the Tasmanian Government desired to construct a dam, a world heritage site, by signing a UN/International treaty — Labour promised if elected, they would intervene and prevent the construction of the dam. Labour won the election and enacted Domestic legislation, passing the World Heritage Properties Convention 1983, in conjunction with the National Parks and Wildlife Convention Act 1975, which enabled the Federal Government to prohibit the construction of the dam within the Tasmanian World-Heritage Case » The Tasmanian Government decided to challenge the Commonwealth in the High Court, saying it did not have the constitutional power to pass these laws and claiming that the enacted legislation was ultra-vires and signs of the Federal Government’s abusive powers — The High Court then interpreted the Constitution widely and decided on a 4-3 Majority vote that the Federal Government/Commonwealth legislation was valid{not ultra-vires) and therefore, since Federal overrides State Laws, Per Section 109, the Domestic Legislation was valid. 4. ROLE OF THE HIGH COURT + HCA — High Court of Australia is the only Court of Australia able to interpret and challenge the Australian Constitution and enforce an idea about the change/altercation of the Australian ConstitutionHCA can interpret the constitution in one of two ways 1. Narrowly — Word for Word as written in the Australian Constitution 2. Widely — Inferences/Assumptions from what is written in the Constitution — The High Court's interpretation of particular cases, either narrowly or widely, will more and likely set a new binding precedent on how lower courts also interpret the constitution/legislation. — The High Court is only able to interpret the Constitution in its original Jurisdiction form (Hear cases for the first time) » The High Court is the Highest Court of Appeal for all other areas of law; Tort (Defamation), Contract and Property » One to appeal or hear their case in High Court has to petition or seek special leave to be able to even be considered as a potential case heard in court — If there is inconsistency between Different laws of Different states regarding same/similar cases, the High Court will more or likely approve the petition for appeal in order to set a precedent for all lower courts and states of the specific case = More or likely to occur if the case in question is a ‘gray area’ + Different states have different precedents of the case + High Court approves the appeal in order to establish One Binding precedent for all similar cases in all lower courts. High Court Details — HIGH COURT'S LOCATION IS SIGNIFICANT AS IT IS OPPOSITE OF THE PARLIAMENT HOUSE IN CANBERRA IN ORDER TO SIGNIFY THE SEPARATION OF GOVERNMENT/STATE FROM LAW/JUSTICE/JUDICIAL SYSTEM » High Courts have SEVEN JUSTICES —+ ONE CHIEF JUSTICE + 3 JUDGES = LESS SERIOUS CASES > 5 JUDGES - SERIOUS CASES » 7 JUDGES (6 JUDGES + 1 CHIEF JUSTICE) = CONSTITUTIONAL MATTERS/CONCERNS — High Court hears Federal Court appeals and State/Territorial (Supreme Court) Court Appeals — The High Court each year receives over 100 Petitions for appeals, but only hears/listens to a handful of those appeals, specifically on cases like; States differ on a case, Question of Principle and/or Serious errors made in Lowers Court; State Courts and Federal Courts. — Before 1986, the Privy Council was the Highest Court of Australia, if one wanted to appeal the decisions of the High Court and had reasonable grounds to do so, they would travel to the United Kingdom and appeal their case at the Privy Council Court in the UK. 1. Diverse Nature of Customary LawsCustomary Laws —» A customary Law is a custom that over time has uniform(Followed/accepted by everyone) and constant(Has been followed and accepted by people over a long period of time) + Eg; Acts of Piracy were punished by hanging (Jack Sparrow) = Customary law is uniform and has been in constant practice of a particular custom over many years and the people who carry it out accept it as legally binding. — ATSI law is customary law as they do not have a written language. No law was ever written down because they were passed down orally through dances, stories and paintings over tens of thousands of years. — An absence of any written laws is one of the reasons which led the English to declare AUS as terra nuullius (land belonging to no one} as that was a sign of civilisation for them (same as land ownership, permanent buildings, fences and agriculture) » There were over 500 distinct Aboriginal nations before colonisation each with their own unique language, stories, laws, customs and traditions, some of which are older than 60,000 years. — ATSI + ORAL TRADITION — Knowledge passed down via the stories (The Dreaming) tices became customary law over 60,000+ years ago and there are punishments for — There are over 500+ Different ATSI Nations and countries each with their own customary laws 2. Spiritual Basis, Significance of Land and Water » Significance of Land/Water to ATSI community » ATSI people believe that the Land, water and Country/environment are all key fundamental values and factors of one’s Identity — ATSI believe and feel that they have rightfully occupied the land of Australia for over thousands of years and since the beginning — ATSi believe that their ancestral spirits emerged from slumber, created the land, nature and country, forming its structure and the way it looks today and after this, returning to slumber in the earth, the sky, sacred sites, animals, rivers and the land. These spirits continue today to be within the Indigenous people, their totemic symbols and the land, — A strong connection and link with the land, bodies of water, the environment and country were of great significance to the ATSI people. — To lose or be deprived of this inextricable connection to the land would mean for ATSI that their identity, heritage, history, spirituality and connection to country, Mother and the Ancestral Spirits was to be lost and forever re-unattainable. 3. Family and Kinship — Kinship — An organized and elaborate system of Blood Relationships defined the roles, responsibilities and obligations of members of a clan — Family Relationships and Kinship are crucial and fundamental for the inextricable connection the Indigenous Australians have to Country, the land, Mother and their Identity. — The Kinship system allows each person in the Aboriginal Society to be named in relation to one another in terms of relationships.> The titles of ‘mother/father’, ‘aunty/uncle’ etc will clearly define each relationship as well as the Kinship system would automatically define the obligations, responsibilities and behaviours of people within the group towards each other. — This works hand in hand to define such matter as who will look after one’s children if their parents were to do, who can marry whom, who can one talk and communicate to, what punishments and sanctions will apply for transgressions and who will take care of the sick and old — In this system, relatives at the same family level with have the same responsibilities and obligations to either an uncle/aunt or mother/father and cousins to brother and sister — These obligations have the force of law within Aboriginal Society 4, Rituals and Oral Traditions — The most important ways are associated with the initiation of boys and girls and they become adults These rituals would be conducted over several weeks with singing and dancing, storytelling and the display of body decoration and ceremonial objects. — It is extremely important as it was the way that customary law was passed on from one generation to another generation through stories, songs and dance. ‘The elders were the ones who told the stories — Share stories about dreaming, language and lore. They pass on their skills, knowledge and personal experiences. » Secrecy was also a part of the storytelling as some elders knew only some of the stories and there were some stories that were only known by women, Some of these sacred stories could only be passed on when people passed through certain initiation ceremonies. No ‘outsiders’ were allowed to know their sacred stories or secrets, 5. Mediation and Sanctions — The elders are important in regard to disputes as they are seen as possessing leadership skills and an overall guide/ leader to an Aboriginal ‘family’, For disputes, elders provide reasonable and appropriate punishment for their members. » A tribal custom or law the elder usually decides how to deal with the situation. This included imposing sanctions on the offender in hopes it would ‘rehabilitate’ them or make them learn what they did was wrong in hopes to help them come back to the clan in a normal state. » Mediation: Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. — Conciliation: is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties both separately and together in an attempt to resolve their differences, — Death: The death penalty is illegal in Australia — Spearing: This is different from societal punishments as courts can’t implement physical punishments. — Duelling: This is different from the norm as they don't implement dueling or battling 6. Relevance to Australian Contemporary Law > Recidivism —> Repeat Offendera) Circle Sentencing — Circle Sentencing is an alternative way of sentencing Aboriginal offenders that does not use a formal courtroom setting. It is still, however, a formal court process. — Its purpose is to reduce recidivism in the ATSI Community — Circle sentencing is promoted as a way of reducing recidivism (re-offending) and incarceration (imprisonment). b) Statistics — Aboriginal and Torres Strait Islander Australians make up 2% of the total Australian population, but 28% of the adult prison population — Indigenous Children make up 7% of the general youth population but 54% of those in youth detention across Australia. This ranges, on average, from 15% in Victoria to 97% in the Northern Territory. — It costs almost $300 per day to keep an adult in prison. The average cost of locking up a young person is almost 5 times that amount — ATSI people are the most incarcerated rate by the percentage of their population (2,346 per 100,000). ‘The ATSI people are heavily overrepresented in prison and are the most incarcerated people in the world, this is why Circle Sentencing was addressed and used to prevent ATSI people from going to prison and risking the chance of recidivism as ATSI people returning back to prison in Jail is highly common between the first 12 months after being released. Circle sentencing aims to prevent a person from becoming a recidivist. c) Features of Circle Sentencing —+ A less daunting experience than a formal courtroom where offenders are encouraged to acknowledge their behavior and make reparation(repaix) in a setting that is a lot more connected to Aboriginal community and elders. — The offender must plead guilty (murder and sexual assault are not eligible) + Cirele Sentencing only works if the individual pleads guilty to crime first — Community elders, the magistrate, the victim (sometimes) and other officials including the prosecutor will sit with the offender to discuss the offence and try to address the causes of it (Care about the case and causes) » The focus is consistent with traditional Aboriginal dispute resolution under customary law: to adequately punish the offence and set things right for the others involved (victim, family, community, etc.) (Circle Sentencing cares about setting things right about people involved in a case, whereas normal court systems care about the outcome}. — Penalties are not light - they result in convictions but aim to avoid imprisonment (incarceration). They must include some form of community service. — The Elders are imposing but, rather than being adversarial, they help get to the cause of the criminal behaviour; to help prevent recidivism4) DIFFERENCES BETWEEN FORMAL AND CIRCLE COURTS Ditferences between formal and cre courts TWtdoetheroom —_coldand ‘eatgalonrkaed woot 9. Magistrate provides summary of circle discussion/decisions reached 10, Sentencing: Magistrate determines sentence :L Support discussion: Support for defendant established, formal support group that will suppoct fenders establish 12. Support forvictim established, support group for victim is established 13. Date for review set 14. Clasing magistrate formally closes the cicle ‘Terra Nullius How a circle sentencing process works The proposed process during acl courts as follows 1. Welcome: Aboriginal elders wacom al participants. vill weleome al patpants tothe dle and formally {inteoductlon: 21 er telationship wit he plans the role ofthe cele thats court and functions apleine methods of proceed onc thin the cil 5 Magia hectic, the guidelines 6. Defendant statement: he de’ fendant will make comment 7. Thewein sentative of tim may make a regarding the impact ofthe afence 8 Ciel discussion: The ds redone torghtthe nd victin — ‘Land belonging to No one’ — Australia was declared this when settled and founded by the British — LEGAL CONSEQUENCE: THIS CONCEPT OF TERRA NULLIUS DOES NOT RECOGNISE ANY OTHER LAW/ OWNERSHIP OF COUNTRY + THEREFORE, BRITISH LAW APPLIES ‘Terra Nullius of Australia — British Declared that ATSI had no written language or written form of laws, no government, no permanent structures/fences identifying or outlining permanent residence, no agriculture + The ATSI were Less Civilised and Nomads, ultimately persuading the British declaring ‘Terra Nullius on Australian because of said declarations. — ATSI HAD NO WRITTEN LAWS (CUSTOMARY LAWS/NO FORM OF GOVERNMENT) + NO PERMANENT STRUCTURES (FENCES)International Law is the body of principles and laws that govern the legal relations between or among sovereign states. International law is limited by the concept of state sovereignty and is different from domestic law in terms of how it is enforced(No international police force, no compulsory international court and S.S) and created. . Differences between Domestic and International Law ‘The 3 Main Differences between International and Domestic Law include; 1. Lack of Enforcement — International Law governs relationships between states; but there is a lack of enforcement and therefore, mutual cooperation is essential (Due to State Sovereignty). 2. Creation — The way International Laws are created is very different to Domestic Laws. There is no Parliament and Legislature — INTERNATIONAL LAWS ARE CREATED ON A NEEDS TO KNOW BASIS (Countries come together and discuss the issues and concerns of the world today and form treaties), usually by treaties and THERE IS NO PRECEDENT. International Courts also do not have to follow previous decisions. This is because International law is constantly changing + Unlike Domestic Law which has many procedures, processes and institutions that must be followed. 3. Application » International Law only applies to States (Countries considered as Sovereign States) Montevideo Convention — A treaty or law signed on December 26 1933 in Montevideo, Uruguay that codified and established the definition of a state(country) under international Law and International customary law. » Through this treaty, outlined are 4 characteristics that a country must possess in order to be considered and defined as a Sovereign State at International Law, therefore being eligible for SS. 1. Permanent Population » The State has a set number of people who live and reside in a country Permanently (Non-Nomadic) 2. A Defined Territory + No Border Issues. A Country that has claimed, owns or posses its own territory 3. Functioning Government = Working and Functioning Government — Doesn't have to be Democratic, Tyrannic: (Doesn't depend on the type of Government) 4. Capacity and Influence to enter into Relations with other States — Holds the ability and influence to sign treaties and contracts with other states (Other countries will sign a treaty with them). ete Note: International Law only applies to States{Countries) — All Countries have to follow and meet all the 4 Characteristics of the Montevideo Convention in order to be classified and deemed a State, to be eligible for State Sovereignty 2. State Sovereignty (SS)State Sovereignty is the ability of states to govern themselves and pass laws domestically free from any external control or influence (One country cannot tell another what to do) + Unless war is declared (Short of War) Example: The UNITED NATIONS (UN) have sanctioned North Korea’s Trade, Exports, Imports and Currency value, in hopes to prevent and convince North Korea from testing Nuclear Weapons — (This However does not influence anything and North Korea are continuing with their actions). South China Sea ~ GREAT EXAMPLE OF SS AND THE INABILITY OF OTHER STATES/UN BEING ABLE TO STOP CHINA 1, South China Sea — Importance — Responsible for 113 of Global Trade that passes through the sea » Responsible for Billions of Dollars of untapped oil and natural gas 2. South China Sea — Facts » South China Sea, once considered as International Waters, has been claimed by China and is declaring sovereignty over it = China has built and developed thousands of militarised artificial islands across the waters, which now allows them to declare and claim sovereignty over its surrounding waters — Permanent Court of Arbitration ruled that China had no legal basis for the development and construction of the Island —> China ignored their allegations and kept building the islands — GREAT EXAMPLE OF SS AS OTHER STATES AND COUNTRIES COULD NOT PHYSICALLY STOP CHINA FROM CONTINUING TO DEVELOP ARTIFICIAL ISLANDS AND CLAIM SOVEREIGNTY OVER ITS SURROUNDING WATERS Sanctions » Sanctions are penalties imposed by one country or organisation on another, in order to stop them acting aggressively or breaching international law(North Korea) » Sanctions are among the best available actions a country can impose on another, short of going to » Sanctions are the best available methods for the international community, to influence a state’s sovereignty EXAMPLES OF SANCTIONS — Sanctions imposed on Russia/Individuals for UKRAINE WAR Financial: — US has barred Russia from making debt payments using foreign currency held in US banks — UK has excluded key Russian banks from UK financial system, freezing their assets — UK has imposed a 35% tax on some imports from Russia, including Vodka(Major Russian Export) Individuals - ROMAN ABRAMOVICH — FORMER OWNER OF CHELSEA FC: » Roman Abramovich had close links with Russian President, Putin. He was eventually forced out of power by the UK Government, imposing Financial sanctions on him and Chelsea FC, ultimately affecting the revenue, sales and value of the club, leading to the forceful sale of Chelsea FC.