LEGAL STUDIES
PRELIMINARY
Sienna Hamilton
CORE 1: THE LEGAL SYSTEM
1. Basic legal concepts
Meaning of law
The system of rules which a particular country or community recognizes as regulating the actions of its
members and which it may enforce by the imposition of penalties.
Customs rules and laws
Customs Rules Law
Are patterns of Are enforceable guidelines Legally enforceable guidelines
behaviour that that apply to a particular reflective of society's morals and
develop overtime group in society apply to everyone
Values and ethics
● Values: are personal and social attitudes regarding a variety of issues
● Ethics: are accepted behaviour within an organisation
Characteristics of just laws
⇒ Protect human rights
⇒ Promote equality
⇒ Reflect social values
The nature of justice
Justice is a subjective concept that changes bases upon changing social values
Fairness Equality Access
What society deems as an Everyone is treated equally The ability to access and
appropriate response before the law use the legal system and
● freedom of speech ● equal pay for equal helpful measures
● life imprisonment for work
murder (max 20-25) ● anti-discrimination
● mandatory ● children deserve
minimums differentiated
treatment
Procedural fairness
The idea that there must be fairness in the process that resolves disputes.
Natural justice: everyone should be treated fairly in legal situations. Principles are:
⇒ the right to be heard and to know the case against you
⇒ the right to a hearing free from bias
⇒ the right to a trial based on sound and legally obtained evidence
⇒ the right to appeal the decision up to a certain point
The rule of law
Is a fundamental legal principle with two main aspects:
⇒ no one is above the law
⇒ the law is effectively enforced
Anarchy
,A state of lawlessness.
Tyranny
A state where all power is controlled for the benefit of a small group of people.
2. Sources of contemporary Australian common law
British origins
⇒ The development of common law:
Common law: judge-made law which establishes precedent bound on all lower courts.
Common law will be made:
● If the law is silent – Doli incapax, cyber warfare, BWS
● If social values change – gay marriage, gay panic
● If legislation needs to be interpreted
In a common-law judgment, there are 2 components:
● ratio decidendi - the precedent and the reasoning
● Obiter dicta – remarks / impressions made related to the case
Persuasive precedent: influenced by other decisions- i.e., Higher court considers lower court’s decision,
the decision in the overseas case is used
⇒ Equity and precedent:
Equity: moral principles on which equitable decisions were based were called the rules (or maxims)
The 1970’s merger of courts now allows judges to apply the rules of common law or equity (or both) in a
particular case.
⇒ Systems:
Adversarial: used in common law countries, two advocates represent their parties' case before an
impartial person or group (usually a judge or jury) who attempt to determine the truth and pass judgment
accordingly.
Inquisitorial: the court, or a part of the court, is actively involved in investigating the facts of the case.
Court hierarchy
, Statute law
⇒ Role and structure of parliament:
Refers to laws made by parliament
In both NSW & the commonwealth, the parliament is bicameral, thus allowing a check on power and to
ensure just bills are passed
Commonwealth (federal) NSW parliament
parliament
Head of state (Queen's Governor-General State governor
representative)
Upper house Senate Legislative
council
Lower House House of representatives Legislative
assembly
⇒ Legislative process:
Once a bill is given royal assent it becomes binding law.
Statute law will be made:
- To update existing law
- When the law is silent
- To accept and codify the common law
- Changing social values and ethics
- To protect society
⇒ Delegated legislation
When the government appoints a body to make laws in the body's field of expertise. This includes:
● Regulations
● ordinances
● rules
● by-laws
The Constitution
The Australian Constitution came into effect in 1901, providing the legal and structural framework of
Australia. Includes:
● Establishing the high court
● Division of powers
● Sep of powers
● A number of human rights:
- Sec 41. Right to vote
PRELIMINARY
Sienna Hamilton
CORE 1: THE LEGAL SYSTEM
1. Basic legal concepts
Meaning of law
The system of rules which a particular country or community recognizes as regulating the actions of its
members and which it may enforce by the imposition of penalties.
Customs rules and laws
Customs Rules Law
Are patterns of Are enforceable guidelines Legally enforceable guidelines
behaviour that that apply to a particular reflective of society's morals and
develop overtime group in society apply to everyone
Values and ethics
● Values: are personal and social attitudes regarding a variety of issues
● Ethics: are accepted behaviour within an organisation
Characteristics of just laws
⇒ Protect human rights
⇒ Promote equality
⇒ Reflect social values
The nature of justice
Justice is a subjective concept that changes bases upon changing social values
Fairness Equality Access
What society deems as an Everyone is treated equally The ability to access and
appropriate response before the law use the legal system and
● freedom of speech ● equal pay for equal helpful measures
● life imprisonment for work
murder (max 20-25) ● anti-discrimination
● mandatory ● children deserve
minimums differentiated
treatment
Procedural fairness
The idea that there must be fairness in the process that resolves disputes.
Natural justice: everyone should be treated fairly in legal situations. Principles are:
⇒ the right to be heard and to know the case against you
⇒ the right to a hearing free from bias
⇒ the right to a trial based on sound and legally obtained evidence
⇒ the right to appeal the decision up to a certain point
The rule of law
Is a fundamental legal principle with two main aspects:
⇒ no one is above the law
⇒ the law is effectively enforced
Anarchy
,A state of lawlessness.
Tyranny
A state where all power is controlled for the benefit of a small group of people.
2. Sources of contemporary Australian common law
British origins
⇒ The development of common law:
Common law: judge-made law which establishes precedent bound on all lower courts.
Common law will be made:
● If the law is silent – Doli incapax, cyber warfare, BWS
● If social values change – gay marriage, gay panic
● If legislation needs to be interpreted
In a common-law judgment, there are 2 components:
● ratio decidendi - the precedent and the reasoning
● Obiter dicta – remarks / impressions made related to the case
Persuasive precedent: influenced by other decisions- i.e., Higher court considers lower court’s decision,
the decision in the overseas case is used
⇒ Equity and precedent:
Equity: moral principles on which equitable decisions were based were called the rules (or maxims)
The 1970’s merger of courts now allows judges to apply the rules of common law or equity (or both) in a
particular case.
⇒ Systems:
Adversarial: used in common law countries, two advocates represent their parties' case before an
impartial person or group (usually a judge or jury) who attempt to determine the truth and pass judgment
accordingly.
Inquisitorial: the court, or a part of the court, is actively involved in investigating the facts of the case.
Court hierarchy
, Statute law
⇒ Role and structure of parliament:
Refers to laws made by parliament
In both NSW & the commonwealth, the parliament is bicameral, thus allowing a check on power and to
ensure just bills are passed
Commonwealth (federal) NSW parliament
parliament
Head of state (Queen's Governor-General State governor
representative)
Upper house Senate Legislative
council
Lower House House of representatives Legislative
assembly
⇒ Legislative process:
Once a bill is given royal assent it becomes binding law.
Statute law will be made:
- To update existing law
- When the law is silent
- To accept and codify the common law
- Changing social values and ethics
- To protect society
⇒ Delegated legislation
When the government appoints a body to make laws in the body's field of expertise. This includes:
● Regulations
● ordinances
● rules
● by-laws
The Constitution
The Australian Constitution came into effect in 1901, providing the legal and structural framework of
Australia. Includes:
● Establishing the high court
● Division of powers
● Sep of powers
● A number of human rights:
- Sec 41. Right to vote
