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KEY QUESTIONS:
What is the law? How is it different from rules and customs?
What are the differences between ethics and values?
What are the characteristics of just laws?
Describe the nature of justice and procedural fairness.
What is the rule of law?
What is the difference between anarchy and tyranny?
Court Hierarchy
Courts are places where legal decisions are made.
Lower Courts
Intermediate Courts
Supreme Courts
The Constitution
constitution: a set of rules governing the running of a nation state
Division of Powers
Legislative
Concurrent
Exclusive
Residual
Areas in which
federal government
can create laws.
Outlined in Section
51.
Areas in which
states may create
laws as well as
federal, also
outlined in Section
51
Powers exclusive to
federal parliament,
outlined in Section
52
Powers maintained
only by the states,
detailed in state
constitutions
original jurisdiction: Any case involving the commonwealth, its officers, any state, its
officers, or any form of constitutional interpretation
appellate jurisdiction: Approval needed in the form of special leave
Customary Laws
International Law
Based on worldwide system of values
and customs
Governs relationships between nation
states
Not legally enforceable in traditional
sense
Formed by common worldwide thinking
state sovereignty: the right of a nation state to create its own laws
State sovereignty undermines Int. law. However, due to the interdependent nature of the
modern world, int. law is still followed by most.
UN Security Council
ICJ
Sign
Ratify
Enforce
Classification of Law
Public Law
Public law is the branch of law governing the relationships between individuals and
the state, and the structure and operation of said government.
Criminal Law
Administrative Law
Constitutional Law
Focuses on rules
governing the separation
of powers
Concerns constitutional
validity of government
actions
Related to the division of
powers
Also deals with
constitutional breaches in
legal system
Private Law
Private (civil) law is the branch of law governing relationships between individuals
and organisations. Aims to protect the private rights outlined in statute and
common law.
Contract Law
Recognition of legally
binding agreements
Aims to compensate the
plaintiff through damages
paid by the defendant
Injunctions may also be
sought
Most complex body of civil
law
Tort Law
Property Law
Civil Procedure
Legislation has passed allowing some indictable offences may be tried summarily in a
lower court, provided they meet a certain criteria and the defense and prosecution agree
(where appropriate) Less than $120 000 and/or 10 years prison
Must undergo a committal hearing first, where a magistrate must be convinced there is a
sufficiently strong case to be heard in a higher court (prima facie)
Criminal trials are heard in intermediate or superior courts
Heard by a jury of 12 people, who must decide unanimously whether their is enough
evidence to warrant conviction beyond reasonable doubt
The judge advises the jury and answers questions of law
The Trial Process
Indictment: Read to the defendant, who pleads guilty/not guilty
Opening Address by Prosecution: Sets out facts and explains prosecutions case to be
presented
Examination in Chief: Witness is examined by the party whom called them, to prove their
case (prosecution) or disprove the other (defence)
Cross Examination: Witness is examined by the opponent, to question credibility or
highlight inconsistencies (These two elements repeat for each witness)
Closing Address: Each side summarises their position
Summation: The judge summarises the case and instructs the jury how to reach a verdict
Deliberation: Jury deliberates to a unanimous decision
Sentencing: If guilty, judge chooses a suitable sentence
Trials are slightly different in different courts:
coronial inquests: Inquisitorial in nature, takes place surrounding suspicious events. Will
recommend the issue of an indictment if necessary and trial will take place as normal.
children's court: Media are banned. Less severe punishments. Proceedings are made
simpler and explained to the accused by a specialist magistrate.
Civil Procedure
Summons: An originating pleading (written document exchanged) detailing the facts
surrounding the case and those involved is sent to defendant
Statement of Defence: Defence responds to allegations
Discovery: Each party may question the other about relevant matters, and both must
answer all relevant questions. Information is collected. Most civil cases are resolved before
trial.
Trial: If necessary, the matter is trialled in the appropriate court similar to a criminal case.
The judge (or sometimes jury of 4) decides on balance of probabilities, it is more probable
than not that the defence is liable. The judge determines adequate compensation
Common and Civil Law Systems
Civil law systems originated in Roman Law.
Uses a code of law which is interpreted and applied by judges
Common law systems developed through customs long before any actual court
proceedings
The main difference between the two is that common law systems partially uses previous
decisions to determine verdicts, civil law systems do not.
Civil law, in this context, refers to a system of law originating in Rome. Usually inquisitorial
in nature, countries include Germany and France.
Legal Personnel
Judge/Magistrate
Judges Associate
Tipstaff
Barristers/Solicitors
Witness
Court Officer
Reporter
Corrective Services
Officer
Jury
KEY QUESTIONS:
Compare the three branches of public law.
Compare the three branches of private law.
Distinguish between criminal and civil proceedings.
Explain the concepts of standard and burden of proof and apply them to both civil and
criminal cases.
Outline the basic criminal trial process.
What are the main roles of a judge, jury and legal representatives in a court room?
Explain the jury selection process.
What is the main difference between common and civil law systems?
Law Reform
What is law reform?
Law reform is adaptations/modifications made to legislation and laws to reflect modern
society. The modern, globalised and technologically advanced world evolves extremely
quickly, and the law occasionally lags behind. Law reform should encourage improvements
within society, for the majority of society.
Conditions which Give Rise to Law Reform
1. Changing Social Values
Social Values: Ethical standards which guide an individuals view of their society, and
found beliefs of right and wrong. These change as society evolves over time.
Heavily influenced by individual values, which may be different to those of greater
society
Public Morality: Standards of behaviour generally agreed upon by the community
Judicial decisions are used as indicators of shifting social values
2. New Concepts of Justice
As society evolves, its views of justice may change
A prime example is the abolishment of capital punishment in Australia. Australians
believed justice constituted rehabilitation rather than pure retribution
As views of what justice should achieve are changed, legislation is reformed
3. New Technology
Technological innovations bring with them the requirement for law reforms to how the
technology is used
Reform can be obvious and blatant, such as road laws corresponding with the
development of the motor vehicle
Reform can also be subtle (EG- the invention of life support technology required the
reform of the definition of legally dead).
A prime example is new birthing technologies, which brought new laws distinguishing
biological versus family obligations and responsibilities associated with the donation of
genetic material
KEY QUESTIONS:
What is law reform?
Describe the three conditions which give rise to law reform.
Evaluate how each agency of law reform influences mechanisms of law reform.
What are the primary mechanisms of law reform?
Define terra nullius. Why was it an obstacle to recognizing Native Title?
Describe the details of the Mabo II Case.
Evaluate the effectiveness of the High Court and federal parliament in bringing about
effective law reforms in response to the Mabo II case.
Constitution
Governs the running of a nation state
Implied Rights: Constitution can be
interpreted to reveal legal rights
More complex and less explicit, but
more adaptable to different situations
Resolving Disputes
Law Enforcement Agencies
The Police
Federal and state police enforce statutory law relevant to their jurisdiction
NSW State Police enforce Crimes Act 1900 (NSW)
Federal police governed by Crimes Act 1914 (Cth.) and the Criminal Code 1995 and
LEPRA Acts
Police has powers which assist in their investigative and preventative processes
This is in turn governed by a strict code of conduct
Power subject to debate, particularly in regard to the factor of police discrepancy
Also an avenue for dispute resolution
Australian Customs and Border Protection
Works with federal police to discourage unlawful movement through Australias borders
Areas such as immigration, quarantine, family law and contraband (drugs/weapons)
Australian Crime Commission
Counters serious organised crime
Australian Crime Commission Act 2002 (Cth.)
Forms strike forces to counter criminal activity
Australian High Tech Crime Centre
Technology related crime prevention
EG- Fraud, prohibited online material
Covered by Criminal Code 1995 (Cth.)
More important as technology evolves
Australian Security Intelligence Organisation
ASIO Act 1979 (Cth.)
National security service
Gathers information to guard against national security threats
Government Departments
Can enforce laws relevant to their jurisdiction
The police and other law enforcement agencies utilise their special powers to investigate
crimes, and prevent law-breaking behaviour, to maintain law and order in society.
KEY QUESTIONS:
Describe the role of the federal and state police.
Outline the roles of three other law enforcement agencies.
Identify the advantages of dispute resolution outside of courts.
Describe the various types of Alternative Dispute Resolution and evaluate the
effectiveness of ADR as a whole.
Evaluate the effectiveness of the non-legal methods of challenging state power.
Describe the legal methods available to challenge state power.
Cyberspace
Nature of Cyberspace
Facilitates anonymity, allowing individuals to hide their identity
Encourages creativity, makes sharing information easier
A global, multilateral forum of ideas
Examples of Cyber Crimes