Prelim Legal Studies Exam Notes 2020
Legal Notes
Topic 1: The Legal System
1. Basic Legal Concepts
Meaning of Law
- Law is a set of officially recognised rules that are;
o Universal (equally and impartially binding on all members of society at all
times)
o Enforceable (enforced by police, courts, government bodies)
o Discoverable (accessible and able to be found by the public)
o Based on widely accepted values, ethics, rights and duties
o Utilitarian (relate to public interest → seek to achieve greatest good for
greatest number of people)
Customs
- Collective habits/traditions that have developed in a society over a period of time
- Passed down by parents, education systems and enforced through social pressure
o e.g. walk on left of path, shake hand when greeting someone
Rules
- Prescribed directions of conduct that apply to specific people
- Only enforceable by those who set the rules
o e.g. don’t run on the concrete, don’t use phones at the dinner table
Law
- Set of officially recognised rules which are equally and impartially binding on all
members of society
- Enforceable by police and/or courts and penalties apply for breaches
- The law provides…
§ Protection from the actions of others by telling society what they cannot do
o e.g. cannot drive under the influence of alcohol
§ Freedom to do many things by telling society what they can do and when they can
do it
o e.g. can drive a car once you are 16 and have obtained a learner’s license
§ A mechanism for resolving Disputes between people and/or organisations which
includes the administration of punishment or compensation
Values
- Things considered important
- What someone believes in
o e.g. being honest, having respect
,Ethics
- What a person considers to be right and wrong
- Derives from standards of behaviour provided externally by a particular group
o e.g. capital punishment
Example: Surrogacy
- The arrangement where one woman carries and a delivers a child (the
surrogate) for another person/s (intended parent/s)
o Altruistic: for the well-being of others – not involving payment (other than
medical expenses)
o Commercial: conducted as a business transaction – involving payment
- In all Australian states and the ACT commercial surrogacy is illegal
o QLD, VIC, NSW, TAS → anyone can be the intended parent (regardless of
gender, sexual orientation or relationship status)
o WA, SA, ACT →only heterosexual couples or a woman are permitted to be
the intended parents
o VIC, TAS, WA →the surrogate has to have previously given birth
o ALL STATES (not ACT) → surrogate must be at least 25 years old
- On birth certificate, surrogate is registered as child’s legal parent
- Surrogate could refuse to hand over the child
- Intended parents could refuse to take on parentage of the child
- Penalties apply for travelling overseas to engage in commercial surrogacy
o QLD, NSW, ACT → maximum penalties of $12, 190
o QLD → 3 years imprisonment
Arguments for Surrogacy
- Surrogates are paid $8000 (1 child), $10000 (twins) and $70 monthly
o Enables them to get out of poverty and provide for themselves and their
family
- Allows intended parents to have a genetically biological child
- Women are well looked after
o Provided meals, shelter, counselling, medical checks
- Several countries allow commercial surrogacy (including the United States)
- Surrogates and intended parents are willing participants
o They are counselled throughout and after process
o They have their contracts explained to them
Arguments against Surrogacy
- Health risks for surrogate
o Uterus removed, c-section, blood loss, death during child birth
- Some surrogates may be seen as shameful
o ‘Using body for money’
o Challenging stereotype of men earning more than women
- Most surrogates live in impoverished conditions and therefore can’t be willing
participants
- Surrogate may face risk or intended parents rejecting child
o e.g. Baby Gammy
,Characteristics of Just Laws
- Just laws have several features, including;
o Equality
• Equally and impartially binding on all members of society
o Fairness
• Recognisable and enforceable by police, courts and government bodies
with penalties/sanctions for breaches
• Reflect widely accepted values, ethics, rights and duties of citizens
• Are not retrospective
o Access
• Are discoverable or accessible → people are able to find out about existing
laws for specific situations
Nature of Justice
- The legal principle of upholding generally accepted rights and enforcing
responsibilities
- Ensures equal outcomes for those involved
- Equality, fairness and access must be evident
o Equality; state of being equal in rights or opportunities
o Fairness; impartial or just treatment or behaviours without favouritism or
discrimination
o Access; means or opportunities to approach or enter a place
Australian System Access
- No absolute right to legal representation in Australia
o Legal Aid -funded representation (14% of population are under poverty
line but only available for 8% of households struggling financially)
- Any person charged with a criminal offence is allowed to have a lawyer
o Individuals have to pay for their own lawyer → the right is only available to
those who can afford their own lawyer
- Everyone is entitled to a fair trial
o No automatic right to a lawyer
Case Study: Dietrich v. The Queen (1992)
- Dietrich appealed conviction on drug charges to High Court.
- He did not meet the criteria for Legal Aid representation → forced to represent
himself
- Therefore, Dietrich did not receive a fair trial
- High Court agrees everyone is entitled to a fair trial but there is no automatic
right to a lawyer
o Inaccessibility for the party → puts them at a disadvantage → unequal
and unfair trial
, Procedural Fairness (principles of natural justice)
- Refers to idea that there must be fairness in the process that resolves disputes
o The right of the accused to know the case against them and present their case
in fair hearing
o The right to have a decision made by an unbiased decision maker who bases
their decision on relevant evidence
Case Study: David Hicks
Treatment of David Hicks (Australian Citizen) in Guantanamo Bay violated; the right to a fair
trial, the right not to be subject to torture, rules of evidence, use of retrospective laws
- 2001; Captured among Taliban forces in Afghanistan
- 2002; Hicks was taken to Guantanamo Bay and detained without charge as an
‘unlawful combatant’
- 2006; US passed new law – Military Commissions Act 2006
o Hicks was charged retrospectively (crime of providing material support
for terrorism and attempted murder in 2007)
- 2007; lawyers negotiated a plea bargain and pleaded guilty for lesser sentence
(to be served in Australia)
o Signed documents denying mistreatment from US officials and
renounced previous claims of torture and ill-treatment
- 2015; US courts eliminated the guilty plea
o Plea was quashed
Case Study: R v LMW (1999) NSWSC
- 10 year old child (LMW) dropped 6 year old (Corey Davis) into river with
knowledge that he couldn’t swim → charged with manslaughter
- Case against LMW was dismissed because a jury could not convict a child so
young but DPP took the case to Supreme Court of NSW to be heard in front of
a jury
o LMW was the youngest person to face the Supreme Court and youngest
Australian to be charged with manslaughter
- After 18 months, LMW was acquitted because of doli incapax
- Prosecution argued that LMW was capable of forming criminal intent and that
he understood the consequences and the difference between right and wrong
- It was determined that there was sufficient evidence for the jury to make a
decision on doli incapax
- The jury acquitted LMW after 3 hours of deliberation
Doli Incapax
"incapable of wrong doing"
§ It is an absolute presumption for person < 10 years of age
§ For persons aged between 10 and 14, there is a rebuttable assumption that
doli incapax applies
§ Over 14, criminally responsible but alternative sentencing still applies
Legal Notes
Topic 1: The Legal System
1. Basic Legal Concepts
Meaning of Law
- Law is a set of officially recognised rules that are;
o Universal (equally and impartially binding on all members of society at all
times)
o Enforceable (enforced by police, courts, government bodies)
o Discoverable (accessible and able to be found by the public)
o Based on widely accepted values, ethics, rights and duties
o Utilitarian (relate to public interest → seek to achieve greatest good for
greatest number of people)
Customs
- Collective habits/traditions that have developed in a society over a period of time
- Passed down by parents, education systems and enforced through social pressure
o e.g. walk on left of path, shake hand when greeting someone
Rules
- Prescribed directions of conduct that apply to specific people
- Only enforceable by those who set the rules
o e.g. don’t run on the concrete, don’t use phones at the dinner table
Law
- Set of officially recognised rules which are equally and impartially binding on all
members of society
- Enforceable by police and/or courts and penalties apply for breaches
- The law provides…
§ Protection from the actions of others by telling society what they cannot do
o e.g. cannot drive under the influence of alcohol
§ Freedom to do many things by telling society what they can do and when they can
do it
o e.g. can drive a car once you are 16 and have obtained a learner’s license
§ A mechanism for resolving Disputes between people and/or organisations which
includes the administration of punishment or compensation
Values
- Things considered important
- What someone believes in
o e.g. being honest, having respect
,Ethics
- What a person considers to be right and wrong
- Derives from standards of behaviour provided externally by a particular group
o e.g. capital punishment
Example: Surrogacy
- The arrangement where one woman carries and a delivers a child (the
surrogate) for another person/s (intended parent/s)
o Altruistic: for the well-being of others – not involving payment (other than
medical expenses)
o Commercial: conducted as a business transaction – involving payment
- In all Australian states and the ACT commercial surrogacy is illegal
o QLD, VIC, NSW, TAS → anyone can be the intended parent (regardless of
gender, sexual orientation or relationship status)
o WA, SA, ACT →only heterosexual couples or a woman are permitted to be
the intended parents
o VIC, TAS, WA →the surrogate has to have previously given birth
o ALL STATES (not ACT) → surrogate must be at least 25 years old
- On birth certificate, surrogate is registered as child’s legal parent
- Surrogate could refuse to hand over the child
- Intended parents could refuse to take on parentage of the child
- Penalties apply for travelling overseas to engage in commercial surrogacy
o QLD, NSW, ACT → maximum penalties of $12, 190
o QLD → 3 years imprisonment
Arguments for Surrogacy
- Surrogates are paid $8000 (1 child), $10000 (twins) and $70 monthly
o Enables them to get out of poverty and provide for themselves and their
family
- Allows intended parents to have a genetically biological child
- Women are well looked after
o Provided meals, shelter, counselling, medical checks
- Several countries allow commercial surrogacy (including the United States)
- Surrogates and intended parents are willing participants
o They are counselled throughout and after process
o They have their contracts explained to them
Arguments against Surrogacy
- Health risks for surrogate
o Uterus removed, c-section, blood loss, death during child birth
- Some surrogates may be seen as shameful
o ‘Using body for money’
o Challenging stereotype of men earning more than women
- Most surrogates live in impoverished conditions and therefore can’t be willing
participants
- Surrogate may face risk or intended parents rejecting child
o e.g. Baby Gammy
,Characteristics of Just Laws
- Just laws have several features, including;
o Equality
• Equally and impartially binding on all members of society
o Fairness
• Recognisable and enforceable by police, courts and government bodies
with penalties/sanctions for breaches
• Reflect widely accepted values, ethics, rights and duties of citizens
• Are not retrospective
o Access
• Are discoverable or accessible → people are able to find out about existing
laws for specific situations
Nature of Justice
- The legal principle of upholding generally accepted rights and enforcing
responsibilities
- Ensures equal outcomes for those involved
- Equality, fairness and access must be evident
o Equality; state of being equal in rights or opportunities
o Fairness; impartial or just treatment or behaviours without favouritism or
discrimination
o Access; means or opportunities to approach or enter a place
Australian System Access
- No absolute right to legal representation in Australia
o Legal Aid -funded representation (14% of population are under poverty
line but only available for 8% of households struggling financially)
- Any person charged with a criminal offence is allowed to have a lawyer
o Individuals have to pay for their own lawyer → the right is only available to
those who can afford their own lawyer
- Everyone is entitled to a fair trial
o No automatic right to a lawyer
Case Study: Dietrich v. The Queen (1992)
- Dietrich appealed conviction on drug charges to High Court.
- He did not meet the criteria for Legal Aid representation → forced to represent
himself
- Therefore, Dietrich did not receive a fair trial
- High Court agrees everyone is entitled to a fair trial but there is no automatic
right to a lawyer
o Inaccessibility for the party → puts them at a disadvantage → unequal
and unfair trial
, Procedural Fairness (principles of natural justice)
- Refers to idea that there must be fairness in the process that resolves disputes
o The right of the accused to know the case against them and present their case
in fair hearing
o The right to have a decision made by an unbiased decision maker who bases
their decision on relevant evidence
Case Study: David Hicks
Treatment of David Hicks (Australian Citizen) in Guantanamo Bay violated; the right to a fair
trial, the right not to be subject to torture, rules of evidence, use of retrospective laws
- 2001; Captured among Taliban forces in Afghanistan
- 2002; Hicks was taken to Guantanamo Bay and detained without charge as an
‘unlawful combatant’
- 2006; US passed new law – Military Commissions Act 2006
o Hicks was charged retrospectively (crime of providing material support
for terrorism and attempted murder in 2007)
- 2007; lawyers negotiated a plea bargain and pleaded guilty for lesser sentence
(to be served in Australia)
o Signed documents denying mistreatment from US officials and
renounced previous claims of torture and ill-treatment
- 2015; US courts eliminated the guilty plea
o Plea was quashed
Case Study: R v LMW (1999) NSWSC
- 10 year old child (LMW) dropped 6 year old (Corey Davis) into river with
knowledge that he couldn’t swim → charged with manslaughter
- Case against LMW was dismissed because a jury could not convict a child so
young but DPP took the case to Supreme Court of NSW to be heard in front of
a jury
o LMW was the youngest person to face the Supreme Court and youngest
Australian to be charged with manslaughter
- After 18 months, LMW was acquitted because of doli incapax
- Prosecution argued that LMW was capable of forming criminal intent and that
he understood the consequences and the difference between right and wrong
- It was determined that there was sufficient evidence for the jury to make a
decision on doli incapax
- The jury acquitted LMW after 3 hours of deliberation
Doli Incapax
"incapable of wrong doing"
§ It is an absolute presumption for person < 10 years of age
§ For persons aged between 10 and 14, there is a rebuttable assumption that
doli incapax applies
§ Over 14, criminally responsible but alternative sentencing still applies
