Legal Studies

• The Wealth of Nations was written

  1776
• Local Court


  Deals with civil claims up to $100,000 and most criminal matters including summary offences such as stealing, assault and possession of drugs
• Coroners Court


  An inquest is a court hearing where the Coroner considers evidence to determine the identity of the deceased and the date, place, manner and cause of death of the deceased
• Children's Court


  Deals with criminal offences committed by children aged over 10 years and under 18 years, as well as with proceedings relating to the care and protection of children
• Federal Circuit Court


  Hears less complex disputes in matters including family law and child support, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices
• Family Court


  Australia's specialist court dealing with family disputes, and hears appeals from decisions in family law matters of the Federal Circuit Court
• Jurisdiction of state and federal courts

  • Original jurisdiction: Ability to hear cases for the first time
  • Appellate jurisdiction: Ability to hear appeals from lower courts
• Statute law


  Created in parliament by a group of elected representatives
• Australian parliament


  Uses a bicameral system, laws must be passed in both the house of representatives and the senate
• Legislative process


  1. Proposed change (bill) introduced in the house of representatives

  2. Bill is read, then discussed and amended if necessary

  3. A vote is taken after the third and final reading, if it passes it moves to the Senate

  4. The process repeats in upper house

  5. If passed, moves to the governor-general for royal assent
• Delegated legislation


  Legislation made not directly by an Act of Parliament but under its authority, concerns less important matters
• Division of powers


  • Legislative: Federal government can create laws
  • Concurrent: State and federal may create laws (Federal always overrides state law)
  • Exclusive: powers exclusive to the federal parliament
  • Residual: powers maintained only by the states
• Separation of powers


  Ensures that no section of the law is corrupt by maintaining independence between legal areas, the three branches are executive, legislative and judiciary
• Case study: NBNB v Minister for Immigration and Border Protection (2014)

  • Asylum seekers denied protection visa by immigration (decision made by the executive branch and supported by legislation made by the legislative branch), overruled by the judicial branch of government since they were denied procedural fairness
• High Court


  Created by Section 71 of the Constitution, has both original and appellate jurisdiction
• Aboriginal and Torres Strait Islander Peoples' Customary Laws


  • Principles and procedures that have developed through general usage according to the customs of a people or nation, or groups of nations, and are treated as obligatory
  • Land, native flora, fauna and water are sacred and cannot be owned, people are 'custodians' of the land and must look after it for future generations
  • Collective guardianship is a key feature
• Relevance of customary law to contemporary Australian law

  • Legislature has been reluctant to formally incorporate customary law into Australian law, although in the past 20 years there has been greater recognition
  • Aboriginal and Torres Strait Islander land rights are now recognised
  • The concept of custodianship and sustainability can be seen (to an extent) in environmental law
  • Conciliation and mediation are used to resolve disputes, e.g. Circle sentencing and Youth Justice Conferences
  • If an offender has committed an act that is an offence under Australian law but required by customary law, it may be used as a mitigating factor
• Sources of domestic law

  • Common law
  • Statute law
  • The Constitution
  • ATSI Customary law
• Sources of international law

  • United Nations
  • Individual treaties between nations
• Domestic laws


  Laws that a country has made for its own people
• International laws


  Aims to foster stability and international cooperation, govern the relationship between states, enable trade and provide mechanisms for security and conflict resolution, cover fundamental human rights
• State sovereignty


  Every nation is equal, in that it has a right to control itself and make its own decisions without outside interference, no nation can be forced to sign a treaty, join the UN, or go to court (the International Court of Justice), international law is (mostly) voluntary
• Requirements to be considered a 'state'

  • A defined territory
  • A permanent population
  • A functioning government
  • The capacity to enter into international negotiations
• International customary law (jus cogen)

  Not contained within a written document, instead it is based on long-established traditions or common practices followed by many states to the point that they are accepted as being fair and right by the international community, any crimes against humanity, it can be difficult to establish the existence of international customary laws, the time delay involved in it being accepted as law has rendered it secondary to treaties and conventions as a source of international obligations
• Instruments (declarations and treaties)

  • Treaties: The most common source of international law, defined by the Vienna Convention of the Law of Treaties (1969) as 'an international agreement between two states in written form and governed by international law', used to make specific laws and control conduct and cooperation between states
  • Bilateral: Between two nations
  • Multilateral: Between many states
  • Declarations do not impose legally binding provisions that must be followed
• Legal decisions


  The International Court of Justice (ICJ) part of the United Nations (UN) is the judicial body that deals with disputes between states, stare decisis (precedent) does not apply to the decisions of the ICJ, e.g. International Criminal Court (ICC), European Court of Human Rights (ECHR)
• United Nations


  Founded in 1945, committed to maintaining international peace and security, developing friendly relations among nations, promoting social progress, better living standards and human rights
• Courts and tribunals


  • ICJ
  • ICC
• Intergovernmental organisations (IGOs)


  Entities created by a treaty, involving two or more nations, to work in good faith, on issues of common interest, in the absence of a treaty, an IGO does not exist in the legal sense
• Intergovernmental organisations


  • The European Union (EU)
  • Arab League
  • Association of Southeast Asian Nations (ASEAN)
  • NATO
• Non-government organisations (NGOs)


  Voluntary groups of individuals or organisations, usually not affiliated with any government, that is formed to provide services or to advocate a public policy, although some NGOs are for-profit corporations, the vast majority are nonprofit organisations
• Relevance of international law to contemporary Australian law

  Australia is committed to enhancing the adherence to international law to prevent conflict and restore peace and security, Australia supports the International Criminal Court and its goal of ending impunity for the perpetrators of the most serious crimes
• Classification of Law


  • Public law
  • Private law
• Criminal law


  A body of rules under which an act, or an omission of an act is punishable by the state, designed to maintain public safety and order for the whole society, each state and territory has its own criminal law, although the actions and punishments are similar, in NSW, the main criminal statute is the Crimes Act 1990 (NSW)
• Administrative law


  Looks at government powers and decisions, exists to ensure accountability of governments and departments, cannot be used to challenge government dealings, for example, policy decisions such as an increase in taxes, three ways that an individual can seek a review of a government decision: internal review, external review, judicial review
• Constitutional law


  Focuses on the rules governing the executive, legislative and judicial functions of government, specifies the powers given to levels of government and stipulates that when there are inconsistencies between state and Commonwealth law, the latter will prevail, if a law violates the rules in the Constitution, the case will be heard in the High Court, proceedings of a High Court hearing are very formal, heard by one or more judges (justices), decisions are not given at the end of the hearing, delivered after much deliberation, majority decision prevails and each justice makes an independent decision, binding on all courts in Australia

  
• Categories of Crime


  • Preliminary offences: attempted attack
  • Offence against the person: assault, murder, battery
  • Offence against the sovereign: treason, overthrowing the government
  • Public order offences: swearing, urinating
  • Economic offences: fraud, white collar, piracy
  • Driving offences: speeding, drunk driving
  • Drug offences: possession of drugs, dealing drugs
• Contract law


  An agreement between two or more parties, recognised by law, concerned with recognising and enforcing these agreements, and dealing with breaches, remedies available include damages, injunction, specific performance
• Tort law


  Tort is a 'civil wrong' (comes from the French word for 'wrong'), occurs when someone breaches or fails to fulfil a duty that they owe to someone, tries to restore the plaintiff to the position they were in before the wrong was committed, commits one of the following actions: negligence, nuisance, trespass to land, false imprisonment, defamation
• Property law


  A wide area of law governing things and interests with commercial values, cover physical possessions and actual property to intangible things or intellectual property