legal

• Define law

  A system of rules recognised in a particular country or state regulating the actions of its members, enforced by a series of penalties.

  They exist to ensure everyone understands what’s expected of them as a member of society and what they can expect of others; their obligations and rights.
• Distinguish between customs, rules and laws

  Customs: Established patterns of behaviour among people in a society or group.

  Rules: Prescribed directions for conduct in certain situations -- made by groups and only affect people within the group, they are not enforceable by the state.

  Laws: Agreed upon by the majority of those in the group, and govern their behaviour and activities, enforceable by the state

  Rules are developed on customs. When a group develops, it places people in charge to govern and enforce the rules and penalties. Over time, the rules become formalised laws.
• Describe the characteristics of the nature of justice

  Fairness, equality and access

  Fairness: ensures that the law doesn't have a particularly harsh effect on an individual and individuals have the right to appeal a decision

  Equality: ensures the law does not discriminate and it is applied equally to all people

  Access: individuals must be able to access the law, they must have access to legal information, assistance and understanding
• Describe the characteristics just laws

  Just laws must be:

  • equal
  • based on widely held views
  • for the greater good
  • made to redress inequalities
  • made to minimise delay
  • not to be retrospective
  • known
• Procedural fairness/natural justice

  Allows an individual the right to know the case against them, the right to make a case, the right for previous charges to not be brought up in proceedings and the freedom from bias by decision makers with a decision based on relevant evidence.
• The Rule of Law

  The Rule of Law ensures those in power do not overuse their power and create a dictatorship. For example, if the Australian government attempts to pass a law above its power the Governor-General and the High Court of Australia are able to intervene to ensure the law is fair.
• Anarchy

  A state of chaos and disorder, resulting from the absence of laws and government. It breaks out during a revolution or after a natural disaster when law enforcement agencies no longer exist or are unable to enforce the laws of society. Violence and widespread looting are early indications of anarchy.
• Tyranny

  Society with a single leader with unlimited power over the people who generally gives severe punishments for any infringement. Tyrannical power is often seized. Countries where tyranny exists are often referred to as ’police states’ and no rule of law - no ‘no one is above the law’
• Australian Constitution

  the document that sets out the structure and role of the Federal Parliament

  created in 1900 when the British Parliament passed the 'Commonwealth of Australia Constitution Act 1900 (UK)' -- came into action in 1901

  each Australian state has its own constitution -- Coat of Arms reflects the sharing of power -- the shield has the states' flags
• Australian Constitution

  Constitution divides the power to legislate between the Federal and State governments -- some overlap

  Section 51 of the Constitution lists the 40 areas that the Federal Parliament has legislative power over

  Section 52 of the Constitution stops the State from making laws in some areas -- where Federal Parliament has exclusive power
• Australian Constitution - Exclusive Powers

  Held by the Commonwealth Government only

  In areas of trade, defence, foreign affairs and customs

  Listed in different areas of the Constitution
• Australian Constitution - Concurrent Powers

  Exercised by both States and Commonwealth

  Healthcare -- medicare (federal), hospitals (state)

  Education -- universities (federal), schools (state)
• Australian Constitution

  If there's a contradiction (inconsistency) between the State and Federal law, the Federal law prevails -- Section 109

  An inconsistency exists where a State law is in conflict with Federal law, making it impossible to obey both laws
• Australian Constitution - Residual Powers

  Before Federation, each colony has its own set of powers, some of which were handed over to the Commonwealth

  The remaining powers were given to the State and only the state can make laws based on these powers
• Parliament

  Makes and amends the law

  Made up of the king, members of the House of Representatives and the Senate

  Powers outlined in Chapter 1 of the Constitution
• Executive Government

  Puts the law into action

  Formally known as the Federal Executive Council

  Made up of Prime Minister and members of the Cabinet

  Powers outlined in Chapter 2 of the Constitution
• Judiciary

  Makes judgements about the law

  Made up of the High Court and other Federal Courts

  Established under section 71 of the Constitution
• ATSI relationship with the land

  ATSI do not view the land the same as the Europeans. To them, the land is not owned but rather people are custodians of the land and just look after it for future generations.

  Areas of land are still occupied by various groups but with no tangible indicators of ownerships to the British.
• ATSI Customary Law

  No single system of ATSI law as separate communities developed their own laws

  Sanctions for violations differ from place to place

  Each groups had responsibilities to take care of their land and bodies of water

  Most laws related to marriage, child-rearing, religion, family and kinship
• ATSI Customary Law relevance to contemporary Aus law

  Many aspects of customary law are embedded in Aus law

  Practice of sustainable development is the basis for current environmental laws is an example

  Conciliation and mediation are increasingly used to resolve disputes in criminal, consumer, and employment law

  Occasionally taken into account when an ATSI person is charged with a crime
• International law

  Governs relationships between countries

  Sources of international law: declarations and treaties, customs, legal decisions and legal writings
• Sources of International Law - Customary Laws

  Not contained in written document

  Based on long established traditions or common practices followed by many states to the point that it is accepted as fair and right by the international community

  Example: regulating war - rules governing the conduct of states in conflict - the manner by which war prisoners and civilians are treated

  Didn’t become law unless it’s a constant and uniform practice and a country accepts it as binding
• Sources of International Law - Declarations

  International instrument that states and clarifies the party’s position on issues - do not impose legally binding provisions

  Example: UDHR of 1948 - clearly state what basic human rights are and establish peace
• Sources of International Law - Treaties

  Most common source of international law

  An international agreement concluding between state in a written form governed by international law

  An agreement between legal equals and may cover any sphere of international relations between the parties

  Either bilateral or multilateral

  Bilateral: between 2 nations

  Multilateral: between multiple nations

  Only binding when the nation ratifies it - confirms it intends to be bound by the conditions
• Sources of International Law - Legal Decisions

  Decisions: Mainly relating to International Court of Justice - part of UN and deals with disputes between states
• International Law relevance to Australian Law

  Ratifications don’t automatically make the international law domestic law in Australia

  To pass new legislation implementing a treaty, government relies on external powers of constitution

  Preferred method of putting treaties into effect is by incorporating the text into domestic law

  Australia implements dualism to maintain separation of international events and domestic laws
• United Nations

  Chief organisation involved in international law

  Established in 1945, starting with 50 members and now has 193

  Main objectives are to maintain global peace and security, to develop good relations between nations and to promote cooperation in solving international problems

  Relies too much on political goodwill of states - can’t intervene with domestic laws
• United Nations - General Assembly (GA)

  Main forum for multilateral discussions on all internal matters

  Discusses and makes recommendations on operation of the UN, on conflicts between states and on international law and human rights
• United Nations - Security Council

  Most powerful part of UN - final say about security and peacekeeping

  5 permanent members - China, USA, France, UK, Russia

  10 non-permanent members that cycle every 2 years

  Can issue economic sanctions against nation states to persuade them to change policies or prevent aggression

  For any resolution all 5 permanent members need to agree - hard because of Russia and China

  Veto Power: power to stop or prevent a substantial resolution
• United Nations - Intergovernment Organisations (IGO)

  Organised groups of states, established to pursue mutual interests

  International Labour Organisation (ILO) is a UN agency whose aim is to ensure safe and fair treatment of workers
• United Nations - Non-Government Organisations (NGO)

  Associations based on common interests and aims with no connection to government

  Make contributions in a wide range of areas - world peace, disaster relief, environmental protection, promoting education, alleviating poverty

  Examples: Red Cross, Greenpeace, World Vision, Amnesty International
• Impact of International Law on Australian Law

  Dualist framework when implementing international law into domestic law — international law doesn’t automatically become domestic law unless it’s enacted through valid local legislation

  International law is not enforceable within the country until it is translated into domestic law — ensures consistency within the domestic legal system and preserves the separation of powers between international and domestic spheres within Australia

  Eg. Sex Discrimination Act 1984 from the Elimination of All Forms of Discrimination against Women 1983
• Public vs Private Law

  Public: the body of law governing relationships between individuals and the state — criminal, administrative, constitutional

  Private: the body of law governing relationships between individuals or between individuals and companies — contract, tort, family, property
• Public Law - Criminal Law

  body of rules under which certain acts or omissions are punished by the state

  functions to maintain public safety and order for the whole of society

  held responsible by the state

  criminal offences are considered to damage the moral order and safety of society

  criminal justice system is consistent between each state and territory

  The Crimes Act of each state and territory have been amended to reflect changes in society
• Public Law - Administrative Law

  Covers governmental powers and the decisions of governmental organisations

  Exists to ensure accountability of administrative decisions and actions made by the government and its departments

  When raising a review an individual needs to be aware of the different levels of government

  Three ways to seek a review — internal review, external review, judicial review
• Public Law - Administrative Law (types of reviews)

  Internal reviews: member/officer of an agency has made a decision and the decision is reviewed by someone else in the agency

  External reviews: person/body outside the agency reviews the merits of a decision made by an agency

  Judicial review: consider whether a decision is lawfully, fairly and rationally made — only the court judicial reviews

  Type of review depends on the nature of the complaint and if it was made against a federal or state decision
• Public Law - Constitutional Law

  Branch of public law that focuses on the rules governing the executive, legislative and judicial functions of the government

  If a law violates the rules in the Australian Constitution, the case goes to the High Court of Australia and they have the role of deciding cases of special federal significance
• Private Law - Contract Law pt. 1

  Concerned with the recognition of agreements and the actions taken to enforce it

  One of the parties in a contract believes all or part of a contract has been breached

  Damages are most often remedy for breach of contract — damages are designed to put the plaintiff in the position they would have been in if the contract had been properly performed - compensates them — not intended to damage defendant
• Public Law - Contact Law pt. 2

  Plaintiff can also seek either an injunction or a specific performance

  Injunction: order usually directing a party to not do something, eg. ordering defendant to cease the conduct breaching the contract

  Specific performance: order in which the court specifies the way in which the breaching party is to perform the contract — only ordered if the amount of damages provides insufficient compensation
• Private Law - Torts

  ‘Civil wrongs’

  Deals with situations in which an individual or organisation has done something to interfere with the rights of someone else, or they breach or fail to fulfil a duty they owe

  No legal relationship between the parties prior to the wrong

  Tries to restore the plaintiff to the position they were in before the wrong

  Types: negligence, nuisances, trespass, false imprisonment and defamation