Legal Studies Summary

Good Laws
fair and just
clear intention
community understands
flexible to a suitable extent
must be enforceable
stable, shouldnt change often
Social Cohesion
social cohesion- community occupants interact in peace and order
Australian law exists to maintain social cohesion
Types of law
Public law- affects everyone
administrative law- government workings and actions
constitutional law- government powers on making laws
criminal law- behaviour damaging community
industrial law- relationship between employers and employees
Private law- individual disputes
contract law- agreements between parties
torts- behaviour damaging others or their property
family law- family disputes (husband v wife, divorced couples, parents v children
etc)
Characteristics of law
binding on the whole community
can be enforced
officially recognised
is discoverable
relates to public interest
reflects rights and duties
Functions of law
positive aspect of most societies
universal in their application
are enforceable
regulate behaviour
available to whole society
can be modified as society changes
Customary and ATSI law
customary law- based on custom, tradition and long-term practices
Aboriginal customary includes:
punishment by tribal law
killing for tribal reasons (partial defence in murder)

 the are allowances for Aboriginality in other areas of law also

in court cases, government generally allows tribal laws and punishment,
providing it doesnt harm anyone or break government laws
tribal punishment occasionally allowed as part of sentence
terra nullius= no mans land
children needing care must be placed in families of the same background
(Children & Young Persons Act 1998)
Aboriginal marriage is recognised, mostly as de facto marriages
conquered territory- an inhabited country overtaken by another
settled territory- uninhabited country occupied by another
inhabited- cultivated land, permanent inhabitants, recognisable legal system
native title- right to live on land and use it for traditional uses
conciliation/mediation- third party listens to disputes and suggests possible
resolution
conciliation controlled by elders
methods of settling disputes: consensus, talking, argument, ritual/ordeal,
inquest, mediation and conciliation
less serious disputes generally either ignored or discussed, with little or no
punishment
retaliation often occurred and sometimes lasted generations
ridicule and social outcast was an extreme punishment, as family ties are strong
circle sentencing
reduces barriers between courts and ATSI people
penalties same as in courts
community participates in sentencing
less formal, offenders less aggravated
Sources of Contemporary Australian Law
common law- made by judges according to doctrine of precedent
statute law- law made by parliament
law can also be made by delegated legislation
Equity
used in cases with special circumstances to provide fair judgement and decisions
principles of equity:
equity will not suffer a wrong without a remedy
assists the diligent, not the tardy
equity will only depart from common law to right wrongs where such law is
deficient
those seeking must not breach any laws during quest for equity
equity is not written law, so can modify common law at any required time
Adversarial and Inquisitorial law systems
adversarial- opposing parties test each others evidence
inquisitorial law system also called civil law system
inquisitorial- parties present stories to judge who decides verdict
bias of judge has less of a role in adversary system

The Doctrine of Precedent

case at first instance- case from which no precedent has been set
precedent- decisions of previous cases used to decide verdict
obiter dicta- comments or remarks given by the judge, not binding precedent
ratio decidendi- the legal reasoning upon which a judgement is based and is
binding
binding precedent- the legal principle underlying a courts decision is binding on
lower courts, precedent must be followed
persuasive precedent- precedents that arent binding, but are generally followed
for consistency
precedents are only made if the decision given creates law where it previously
did not exist
stare decisis- decisions of higher courts are binding on lower courts (hence
doctrine of precedent)
Sources of Law- Statute law
constitution- supreme law i.e. law for government
decides how country is run and law maintained
divides power amongst government bodies
establishes federal parliament
parliament- legislative arm of government
the Crown- the Queen, can create or destroy laws through the Governor-General
the Government- Prime Minister and his ministers, most seats in Lower House
the Opposition- all other parties holding Lower House seats, largest referred to
as the Opposition
Separation Powers Doctrine
separates the 3 arms of government
the legislature
elected parliament members and the Queen
passes Acts of Parliament, making laws
contains House of Representatives with 150 members and the Senate with 76
members
the executive
puts passed laws into effect
various government departments, Cabinet and Executive Council
Cabinet- some/all government ministers who decide laws to be considered by
parliament
Executive Council- Governor-General and some ministers who allow legislation to
be put into place
the Judiciary
applies laws to disputes in court cases
court system and magistrates
The Bicameral System
two houses/chambers of parliament

 lower house initiates laws

upper house reviews and passes/rejects laws
Criminal Cases
case called prosecution
party who takes case to court called prosecution
prosecution is usually the state
other party = defendant
wrongdoer can be sentenced and punished
prosecution must prove defendant guilty (burden of proof)
Civil Cases
case called suit or litigation
party who takes case to court called plaintiff
other party is defendant
compensation or court order awarded
balance of probabilities- most probable story wins
plaintiff must prove their story (burden of proof)
Civil Law
non-criminal matters
between individuals and organizations
public behaviour regulations
also called civil wrong, tort or tortious liability
can also be criminal case
contract- legally binding agreement
no minimum age
void if found to exploit
protects child rights
gain responsibility when entering
The Constitutional System in Australia
federal government- one central government
state governments deal with their own matters
influences in forming of federal government
independence from Britain
need for State unification
national issues dealt with as a whole
federal system problem- each state may have varying needs
problem resolved by declaring State law invalid in some cases
Constitution provides rules to how country is governed and how laws are
made
Australia- Commonwealth of Australia
we use a Constitutional Monarchy System
Commonwealth of Australia was established in 1901
Federal system- central government and six states

 Australian Constitution defines government structure, powers, procedures,

rights and obligations
Constitution written by the six colonies in 1890
Can only be amended by a referendum
Referendum may need double or even triple majority
Division of Powers- so States get power over their state specific areas and
Federal government has power over larger, more diverse areas e.g.
immigration
Exclusive Powers (Federal)- Areas where only the Federal Government
has power over
Specific Powers (Federal)- Areas mentioned in the Constitution to be
specifically under Federal control
Residual Powers (State)- Powers kept by states after federation, not
mentioned in Constitution
Concurrent Powers (Both)- Areas both State and Federal Governments
have power in, including specific areas like banking and taxation
Documents Helping the Development of Australias Legislative Independence
The Australian Courts Act 1828 (UK)- no new laws passed by English
parliament would apply to Australia unless specifically stated to do so
Colonial Laws Validity 1865 (UK)- colonial governments could amend, repeal
or make laws that were repugnant to English laws except for those that
specifically stated they extended to the colony
The Statute of Westminster 1931 (UK)- implemented by Federal government
in 1942, allowed Federal government to amend or repeal ANY English statute,
meaning Federal parliament became totally independent of English
parliament
The Australia Acts 1986 (UK and Cth)- gave state parliaments the same
legislative power as Federal parliament, meaning the States became totally
independent and also abolished appeals to the Privy Council, giving Australia
judicial independence as well as legislative independence
The Adversary System
both criminal and civil
same as England
opposite of Inquisitorial
each side presents their facts to disprove the version of the other side
provided early jury system
forerunner to trial by battle
rules of evidence are
hearsay evidence- what a person heard another say, not accepted as
proof of action
opinion evidence- only given by expert of field
relevance- only evidence related to the case is accepted
decision of judge is final
huge cost
difficult to balance rights
contest between two adversaries, hence the name

independent judge and jury

presumption all are equal before court
cases often postponed
may have discrimination

Types of Court Hearings

Criminal hearings
summary offence- decided by judge without jury, minor offences
indictable offences- serious offences, judge and jury
Trial by jury
Process:
examination in chief- prosecution and defence examine
witnesses
cross examination- each side examines others witnesses to test
accuracy
re-examination- each side re-examines own witnesses to clarify
problems arisen in cross examination
trial by jury is used in less than 1% of cases
all jury members must agree, if one doubts then verdict isnt reached
Summary hearings
magistrate alone, no jury
if magistrate has no verdict, trial by jury follows
Committal hearings
prelim for trial by jury
prosecutor must convince judge case is strong enough for jury
Childrens hearings
similar to summary hearing
under 18s
closed court (public not allowed)
media may attend but cant reveal childs identity
generally a specialist judge to ensure child understands
conviction not recorded if under 16 years old
Coronial inquiries
unnatural death or unexplained fire
rules of evidence and procedure differ from normal
if evidence shows a person committing an offence trial by jury ensues
Civil hearings
still has examination, cross examination and re-examination
negotiation before and throughout hearing
dispute often settled before judgement, called out of court settlement
usually judge alone, occasionally six person jury
damages go to winning party
occasionally costs also awarded, where one party pays legal expenses
of the other
Terms to know

 Judicial independence- judges must have no influence or bias

Open justice- courts are generally open to the public
Right to legal representation- if too poor to afford lawyer, trial only goes
ahead in extreme cases
Natural justice- all people have a right to fair hearing, unbiased decision and
decision based on evidence
Legal Profession
Jury- group of ordinary citizens who decide guilt or innocence
Judge- conducts cases, decides verdict if no jury present, imposes
punishment for guilty verdict
Lawyers- barristers or solicitors, represent a party in court to help them win a
case
Barristers- specialise in representing clients in court
Solicitor- gives general assistance, prepares documents, represents in
minor matters
Clerk of the Court- responsible for administrative (local court)
Registrar- responsible for administrative (higher courts)
Tipstaff- say oath, maintain order
Juries
Pros

Cons

wide diversity of life experiences

represent community values
democracy
collective perceptions and analysis
evidence is becoming harder to understand, more complex, technical
and scientific
unqualified, inexperienced
increases trial length
may not be exposed to some evidence as they dont ask questions etc
strong prejudice
in many cases a jury will acquit when guilt is overwhelming

Establishing a Jury
Jury Act 1977
Selected randomly from jury pool to select panel members
May be excused for reasons like certain disabilities, location, planned event,
with kids and no care options etc
If a situation on the day occurs where the juror may know someone in case
etc then they may approach the judge to be excused, who may or may not
agree for them to be excused
pre-emptory challenge- defence and prosecution have 3 each, where they
can deny a juror their place with no reason needed
General Court Facts

 Counsels are barristers who specialise in both appearing in court for clients
and giving legal advice
in criminal cases, person is prosecuted by either the police, the Director of
Public Prosecutions and occasionally the Attorney General, prosecuted for
offence against law on behalf of the State
summary offences- fines and up to two years imprisonment
serious offences- more than two years imprisonment
law sets maximum penalty for offence, judge selects penalty from within this
range
general jurisdiction- a court has jurisdiction over a wide variety of matters
Supreme Court of a state/territory always has general jurisdiction
Enforcement Agencies
groups that ensure people follow the law
Police
state and federal police
ensure criminal law is enforced
investigate crimes and arrest those who have committed offences
Police Service Act 1990 (NSW)
Government Departments and Agencies- mainly laws involving money like
taxation, fraud
Other government bodies
National Crime Authority, Independent Commission Against Corruption
etc
enforce specialised areas like organised crime and corruption
Local governments- enforce laws like building standards and restrictions
Federal Police
matters under Federal law like social security fraud
police ACT and external territories like Norfolk Island
investigate breaches of Commonwealth Law
co-operate with international and overseas law enforcement agencies
i.e. extradition
National Crime Authority
established 1984
investigates organised criminal activity and works towards reducing its
impact
power to operate in all states and territories
Australian Securities Investments Commission
corporate legislation and enforcement of corporate law
Director of Public Prosecutions
prosecutes on behalf of the Crown
responsible to attorney general, independent of government
Court System in Australia
Local Court
deals with summary offences like traffic offences
civil disputes under $60 000

hears committal hearings for serious offences

magistrate only without jury
NO APPELLATE jurisdiction
Coroners Court
inquest to suspicious death
may commit person to trial if death is caused by them
Childrens Court
aged between 10 and 18
criminal cases but for murder
also abused or neglected children and child welfare
less formal, closed to public
District Court
all but the most serious offences
judge and jury
civil matters under $1 000 000
appellate jurisdiction to hear matter from local and childrens courts
more formal i.e. gowns and wigs
Supreme Court
highest court in NSW
original jurisdiction for most serious indictable cases
judge and jury of 12
civil- equity and probate, unlimited monetary amount
appellate for all lower courts, using 3 judges
NSW Criminal Court of Appeal
most serious criminal matters, after Supreme Court
Federal Court
civil cases between individual and Commonwealth e.g. copyright,
native title etc
full court hears appeals for
Supreme Courts of territories
Supreme Courts of states on matters of taxation, copyright,
patents and trademarks etc
single judges of Federal Court
only higher body is the High Court
equivalent in position to Supreme Courts and Family Court
Family Court
specialised (Family Law Act 1975 (Cth))
original jurisdiction in family matters e.g. divorce, child custody etc
Full Court of 3 judges may hear appeals form Family Court single judge
less formal, no public
aims to reduce family difficulties
Full Court appeals to High Court
High Court
appellate jurisdiction over all courts
appeals rarely granted

Land

Drug

original jurisdiction for matters involving Constitution

final court of appeal for all state courts
& Environmental Court
land compensation, environmental planning, local government appeals
focuses mainly on matters concerned with planning issues
same status as Supreme Court
Court
specialist court for drug offences (duh)
focus on young people
sentences often include programs for reducing dependency

Committal Hearing
preliminary hearing
checks for sufficient evidence
allows defence to check what the prosecution will present
defence can ask to examine witnesses for reliability
accused not required to speak
two types- hand-up and cross examination committal hearings
at the discretion of the judges
explores possible weaknesses in case, witnesses and evidence
mostly the accused is committed to trial
sufficiency of Crown (prosecutors) case, not the case of the defendant
Limitations of Legal Aid
does not reach all needy people due to funding cuts and failing to fulfil all
means test criteria
some who do meet the means test may still not be applicable due to fund
restrictions
if legal aid fails to be assigned, unrepresented parties still go to court
unrepresented parties take up more time in court and are less likely to
succeed
less funding means matters like immigration, victims compensation and
committal hearings etc are not covered in the legal aid policies
lack of experienced and competent legal representation, as payments to
lawyers are often too low, compromising competency of representation
many people are now turning to Alternate Dispute Resolution mechanisms,
which are cheap and appropriate to some cases, but some are quite
disadvantaged like with cultural and language barriers